Since the release of the Commission’s final report on 30 November 2020, significant progress has been made to deliver the Commission’s recommendations.
As noted in the Government’s response to the Commission’s final report released in May 2021, all recommendations directed to the Government with an indicative delivery timeframe of three months were delivered by 28 February 2021. The two recommendations directed to the Government with a six-month indicative delivery timeframe have also now been delivered, both before 31 May 2021. Further detail on the approach to implementing these recommendations and ongoing activity is included below.
Government has focused substantial effort on the development and delivery of key legislative reforms to implement the Commission’s recommendations. The Police Informants Royal Commission Implementation Monitor Act passed Parliament on 9 September 2021 and is now in force, and the Government has introduced both the Special Investigator Bill and the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill into Parliament. Consultation on the development of a legislative framework for the management of human sources and associated oversight arrangements has also commenced ahead of the introduction of that legislation in 2022, in line with the Commission’s timeframes.
Implementation of other longer-term recommendations directed to the Government with 18-month and two-year delivery timeframes is also in progress, with consultations taking place on both the systemic review of police oversight, and implementation of the Commission’s recommendation for a mandatory reporting scheme for suspected misconduct by lawyers. In addition, consultation on changes to the Inquiries Act is underway.
Government also continues to support delivery of recommendations directed to other responsible agencies, including through the Implementation Taskforce and associated working groups established to coordinate and support delivery. Established in December 2020, the Implementation Taskforce has continued to meet bi-monthly to hear updates from responsible agencies on the approach to implementation and delivery of recommendations, and to discuss emerging risks and issues. The attendance of the Implementation Monitor at Implementation Taskforce meetings has also helped to inform agencies of any concerns in relation to their approach to implementation or action required to fully deliver the Commission’s recommendations.
The Implementation Monitor has assessed all but four recommendations with a three- or six-month implementation timeframe as having been acquitted in full. Of the four outstanding recommendations, the Implementation Monitor has noted that all had been acquitted in part and considerable work has been undertaken to implement those recommendations. Agencies responsible for the delivery of those recommendations continue to work closely with the Implementation Monitor regarding further work underway.
Government Response and Implementation Plan
The Government remains committed to fully and meaningfully implementing each of the Commission’s recommendations, in line with its May 2021 Response to the Commission’s Final Report and Implementation Plan.
As set out in the Government’s response, the approach to implementation is focused on implementation that is:
- purposeful to avoid purely compliance focused acquittal
- targeted and aimed at delivering the Commission’s objectives of:
- restoring faith in the criminal justice system
- redressing past injustice
- preventing recurrence of events giving rise to the Commission
- transparent and accountable with all those involved in the implementation of the Commission’s recommendations to take responsibility in achieving the above objectives
- timely and focused on addressing issues once and for all
- designed to avoid delay or inaction in undertaking meaningful and long-lasting reforms
- inclusive and collaborative, with reforms based on cross-agency consultation and guided by a shared commitment to the principles that underpin the criminal justice system
- flexible and adaptable, aimed at minimising administrative and reporting burden for implementation agencies (Royal Commission into the Management of Police Informants - Government Response and Implementation Plan)
The cross-agency Implementation Taskforce has continued to provide a forum for government and other responsible agencies to discuss the approach to implementation of recommendations and establish arrangements for ongoing reporting on longer-term outcomes. Government and agencies are also regularly engaging with the independent Implementation Monitor on matters relating to the progress and adequacy of implementation and any further action deemed necessary.
Government has also taken the opportunity to consult with the community on its approach to delivery of key recommendations, including the development of mandatory reporting requirements for lawyers and will soon commence public consultation on a systemic review of police oversight.
The requirement in the Police Informants Royal Commission Implementation Monitor Act for the Attorney-General to provide annual reports to Parliament also ensures that ongoing implementation is transparent and accountable.
3-month recommendations directed to the Government
Of the 54 recommendations directed to the Government, three had an indicative implementation timeframe of three months following delivery of the Commission’s final report on 30 November 2020 (i.e. by 28 February 2021). All three recommendations were delivered within this timeframe.
Recommendation 6 required the Government to appoint a suitably qualified and independent person to review the 11 Victoria Police human source files subject to a claim of public interest immunity and not reviewed by the Commission.
To deliver this recommendation, the Government appointed an eminent NSW Senior Counsel to conduct the review and worked closely with Victoria Police to ensure that Senior Counsel was provided with full and unfettered access to the files. Due to the highly sensitive nature of the material the subject of the review, a confidential report has been provided to the Attorney-General, Minister for Police and Chief Commissioner of Police.
Recommendation 107 required the Government to establish an Implementation Taskforce with responsibility for coordinating and completing implementation of the Commission’s recommendations.
The Implementation Taskforce was established in December 2020 and is chaired by the Secretary of the Department of Justice and Community Safety. Senior representatives of each Victorian agency responsible for implementation of the Commission’s recommendations are members of the Implementation Taskforce, as are the Implementation Monitor and the Special Investigator. The Implementation Taskforce meets every second month.
The final recommendation with a three-month implementation timeframe directed to the Government, recommendation 108, required the Government to appoint an independent Implementation Monitor to monitor the implementation of the Commission’s recommendations until implementation is complete. Sir David Carruthers was appointed as Implementation Monitor in February 2021.
In addition to the above, recommendations 109 and 110, which required the Government to provide the Implementation Monitor with the support of a small secretariat and all necessary and reasonable legislative powers required to fulfil their role, along with requiring the Implementation Monitor to report annually to the Attorney-General, have been delivered with the commencement of the Police Informants Royal Commission Implementation Monitor Act. The Commission did not set an indicative implementation timeframe for these recommendations.
6-month recommendations directed to the Government
Two recommendations directed to the Government had an indicative implementation timeframe of six months (i.e. by 31 May 2021). Both have been delivered.
Recommendation 67 required the Government to conduct a review into the adequacy of existing court powers to make non-disclosure orders and to consider whether a legislative power should be introduced to empower Victoria Police and/or the DPP to initiate applications for a court to determine public interest immunity claims without giving notice to an accused person.
Informed by consultation with stakeholders including the Office of Public Prosecutions, Victoria Police, the Victorian courts, Victoria Legal Aid, the Victorian Government Solicitor’s Office and various Commonwealth agencies, the review found that the courts’ existing powers to make non-disclosure orders were broad and flexible and did not require amendment. However, the review also found that the existing non-disclosure application processes in Victoria could be clarified to improve disclosure practices.
The review’s findings were provided to the Attorney-General in May 2021. In light of these findings, the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill introduces a statutory mechanism to apply to a court for determination of a non-disclosure application.
Recommendation 77 required the Government to consider whether the VLAB requires additional powers to request and consider documentation from other agencies for the purpose of assessing applications for admission to the legal profession.
Following consultation with the VLAB, Victoria Police, the Supreme Court of Victoria and legal profession regulation stakeholders both in Victoria and in other states and territories, it was recommended that, while additional powers were not required, policy and process changes could be implemented to enable the VLAB to extend its use of existing powers to request documents and enhance the assessment of applications for admission to the legal profession. The Government is committed to continuing to work with the VLAB to assist them as necessary to consider these changes.
12-month recommendations directed to the Government
Fifteen of the Commission’s recommendations directed to the Government were given an indicative 12-month implementation timeframe (i.e. by 30 November 2021). Recommendations to establish a Special Investigator make up the majority of these 12-month recommendations (recommendations 1, 3, 92-99, 103). The Special Investigator Bill was introduced into Parliament in October and passed in November 2021.
In line with the Commission’s recommendations, the Special Investigator Bill delivers on the Government’s commitment to establish a Special Investigator with all the necessary powers and resources to investigate whether there is sufficient evidence to establish the commission of criminal offences, or breaches of discipline, connected with Victoria Police’s use of Nicola Gobbo as a human source. The Bill also ensures that Ms Gobbo and all current and former police officers named in the Commission’s final report or Counsel Assisting’s unredacted closing submissions are investigated by the Special Investigator.
The Government allocated $13.47 million to establish the Office of the Special Investigator as part of the 2021/22 Budget. On 30 June 2021, the Attorney-General announced that former High Court Justice, the Honourable Geoffrey Nettle AC QC, had been appointed as the Special Investigator. Justice Nettle started in the role on 19 July to begin crucial preparatory work to ensure investigations begin in full as soon as possible following commencement of the Special Investigator Bill.
The Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill, which was also introduced into Parliament in October, delivers a further three recommendations directed to the Government with a 12-month implementation timeframe.
Recommendations 62, 63 and 66 require the Government to introduce legislative requirements to strengthen and clarify disclosure obligations in criminal proceedings. The Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill delivers these recommendations by: clarifying the information which police are required to provide to the DPP; requiring police to give the accused and the DPP a disclosure certificate identifying relevant withheld information not included in the brief of evidence; and clarifying that information related to the credibility of a prosecution witness is relevant to the criminal proceeding and must be disclosed.
Recommendation 86 requires the Government to pursue an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. Extensive consultation is underway to deliver this recommendation, including through the release of a public consultation paper to seek the views of the legal profession and broader community on the construction of the mandatory reporting requirement. This consultation process, together with meetings with stakeholders, is informing the development of the mandatory reporting requirement. If mandatory reporting is not included in the Legal Profession Uniform Law, the Commission recommended it be introduced in Victoria alone. The Commission allowed for a further 12-months to implement this recommendation if Victoria needs to pursue its own amendment (i.e. by 30 November 2022).
Longer-term recommendations directed to the Government
Almost half of the 54 recommendations directed to the Government relate to the development and introduction of legislation to strengthen Victoria’s human source management framework (recommendations 8-18, 44-56, 58).
The Commission noted that there are currently no legislated, enforceable rules for when, why and how Victoria Police can use human sources (Royal Commission into the Management of Police Informants, November 2020, Final Report, Volume III, page 135). The Commission’s recommendations for human source management legislation aim to provide a clear regulatory and oversight framework, supporting greater accountability and transparency in human source management. The Commission recommended that legislation should be introduced within two years (i.e. by 30 November 2022).
In its final report, the Commission encouraged the Government to consider some key policy issues during the development of the human source management legislative framework. These included whether legislation should apply broadly to all Victorian agencies that use human sources, not just Victoria Police, and whether particular cohorts, such as people under the age of 18 and those with a serious mental health or other medical condition, should be subject to enhanced protections should they become human sources.
Victoria’s human source management legislation will be the first of its kind in Australia. Since the Commission delivered its final report, consultation has taken place with key stakeholders such as Victoria Police, the Independent Broad-based Anti-corruption Commission, the Public Interest Monitor and the Commission for Children and Young People, to seek their views on some of the core policy and operational issues that are fundamental to the development of this legislation. Government will continue to work with stakeholders over the coming 12-months and is on track to deliver this important legislative reform within the Commission’s indicative timeframes.
Two further recommendations were directed to the Government with indicative implementation timeframes of more than 12 months.
Recommendation 61 requires the Government to undertake a review of institutional and legislative structures for the oversight of Victoria Police’s exercise of powers. In response to this recommendation, the Government has already begun conducting targeted consultations with key stakeholders, and will shortly begin a public consultation process as part of a comprehensive principles-based review of the police oversight system in Victoria.
Recommendation 91 requires the Government to amend the Inquiries Act to enhance the effectiveness and efficiency of future royal commissions and public inquiries.
This recommendation will be implemented in a way that ensures the Inquiries Act continues to interact effectively with other legislation and court processes, while placing appropriate safeguards on sensitive information ordinarily protected by public interest immunity. Consultation across government is underway and work is on track to introduce into Parliament amendments to the Inquiries Act by 31 May 2022, meeting the Commission’s recommended timeframe.
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