Royal Commission into the Management of Police Informants: Annual Progress Report 2020-21

Twelve months on from when the Royal Commission into the Management of Police Informants delivered its final report to the Government, I am very pleased to provide my first progress report to Parliament.

The Police Informants Royal Commission Implementation Monitor Act requires me to report to Parliament by 30 November each year on implementation progress. Under the legislation, my first progress report must cover the period from 30 November 2020, when the Commission delivered its final report, to 30 June 2021. Recommendations which were given indicative implementation timeframes by the Commission of three or six months fall within this reporting period. I am pleased to report that all recommendations with such implementation timeframes directed to the Government have been delivered. For those recommendations with longer delivery timeframes, I have provided as up-to-date information about implementation progress as possible, looking beyond 30 June 2021 and reporting on work that has been undertaken through to October 2021.

As soon as the Commission delivered its final report, all agencies to which the Commission directed its recommendations began the important work of implementing the Commission’s recommendations and restoring the community’s trust in our legal system. I commend the collaborative approach agencies have taken to this work and the dedication and commitment shown.

In May 2021, the Government released a detailed response to the Commission’s final report, outlining its approach to the implementation task, the governance structure established to coordinate and oversee implementation efforts, and the key deliverables for government. $87.92 million has been allocated to support this work, ensuring agencies are appropriately funded and resourced to implement the Commission’s recommendations.

Since the Commission’s final report, two significant appointments arising from the Commission’s recommendations have been made. Sir David Carruthers has been appointed as the independent Implementation Monitor and I thank Sir David for providing me with his first Implementation Report and assessment of the adequacy of implementation to date. Sir David’s key findings are outlined in my report. In addition, former High Court Judge, the Honourable Geoffrey Nettle AC QC has been appointed as the Special Investigator. Justice Nettle commenced in the role on 19 July 2021 to begin crucial preparatory work before formally commencing investigations into whether criminal or disciplinary charges are warranted in response to the matters uncovered by the Commission.

Three key pieces of legislation have also been developed and introduced into Parliament in the 12 months since the Commission’s final report. The Police Informants Royal Commission Implementation Monitor Act commenced on 15 September and provides Sir David with all the necessary legislative powers required to fulfil his role. The Special Investigator Bill delivers 11 of the Commission’s recommendations and will ensure possible criminal conduct and breaches of discipline related to the use of Nicola Gobbo as a human source are thoroughly investigated. Finally, the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill will strengthen and clarify disclosure obligations in criminal proceedings.

Much work has been done in the past 12 months and more work is underway to deliver all the Commission’s recommendations. I thank all those involved in this important work.

Jaclyn Symes MP
Attorney-General

The Commission emphasised the need for independent monitoring and reporting to support the effective and transparent implementation of its recommendations.

To achieve this, the Commission made several recommendations in relation to oversight and reporting on progress and outcomes of implementation. The appointment of an Implementation Monitor to assess the adequacy of implementation of the Commission’s recommendations and report to the Attorney-General on further action required for full delivery is the cornerstone of this oversight and reporting framework.

Sir David Carruthers was appointed to the role of Implementation Monitor in February 2021, and since that time has engaged closely with government and agencies responsible for delivering the Commission’s recommendations.

The Police Informants Royal Commission Implementation Monitor Act came into force on 15 September 2021, and Sir David was subsequently formally appointed to the statutory role of Implementation Monitor.

Under the Police Informants Royal Commission Implementation Monitor Act, the Implementation Monitor is required to report annually to the Attorney-General on the progress of responsible agencies in implementing the Commission’s recommendations, including the Implementation Monitor’s assessment of the adequacy of action taken, and provide advice to the Attorney-General on further measures that may be required to ensure that recommendations are fully implemented.

The Attorney-General is, in turn, required to prepare an annual progress report on the implementation of recommendations, to be tabled in Parliament by 30 November each year. This report is tabled pursuant to that requirement. .

The Implementation Monitor provided his first Implementation Report to the Attorney-General in September 2021. The Implementation Monitor’s Implementation Report covered the period from 1 December 2020 to 31 August 2021 and focused on the Implementation Monitor’s assessment of progress towards implementing recommendations that were given indicative implementation timeframes by the Commission of three or six months from the delivery of the Commission’s final report (i.e. by either 28 February 2021 or 31 May 2021).

The Implementation Monitor advised the Attorney-General that, on his assessment, almost all recommendations with a three- or six-month implementation timeframe had been fully acquitted. Only four such recommendations had not, in the Implementation Monitor’s view, been acquitted to their full intention.

Of these four recommendations, the Implementation Monitor noted the following:

• That, in the Implementation Monitor’s assessment, recommendation 4 requires human source management legislation to be developed to fully acquit this recommendation. The Implementation Monitor noted that the Commission’s indicative timeframes for the implementation of the recommended human source management legislation was two years from the delivery of the Commission’s final report to government (i.e. by 30 November 2022). The Implementation Monitor stated that he is satisfied that everything possible is being done to finalise acquittal of recommendation 4.
• That the communications plan and the associated funding required to implement recommendation 76 had been approved. Again, the Implementation Monitor stated that he is satisfied that everything possible is being done to finalise acquittal of this recommendation. The Implementation Monitor also advised the Attorney-General that to review the long-term implementation of this recommendation, he will seek to continually review the implementation of the communications plan and the awareness of legal obligations.
• That, in order to implement recommendation 105, 114 of the 124 persons identified by the Commission who should be given access to Counsel Assisting’s closing submissions had been provided with the submissions by Victoria Police and the Office of Public Prosecutions, with the remaining ten people either deceased, offshore, or unable to be located. The Implementation Monitor noted that he is satisfied that where submissions have not been delivered, attempts to serve these people will continue to be made where possible.
• That there has been significant work completed to date to implement recommendation 106, including a total of 806 letters being sent to the 887 potentially affected persons identified by the Commission. The Implementation Monitor noted that the remaining potentially affected persons were deceased or were unable to be located. However, the Implementation Monitor advised the Attorney-General that while disclosure of relevant information to potentially affected persons remains underway, he considers this recommendation not to be fully acquitted.

The Implementation Monitor also noted that a number of the Commission’s recommendations were not given implementation timeframes, and therefore the Implementation Monitor considers these to be ongoing. However, the Implementation Monitor stated that he considered recommendation 109 to be acquitted with the establishment of his secretariat and by the passage of the Police Informants Royal Commission Implementation Monitor Act.

The Implementation Monitor concluded his report by advising the Attorney-General that, through the governance structure established to coordinate and oversee implementation of recommendations, agencies have provided the required information and evidence to acquit the intention of most of the recommendations within the Commission’s allocated timeframes.

The Implementation Monitor noted that the foundations for change and goodwill amongst agencies is strong, and that agencies should be commended for their open and collaborative approach.

Recommendations with a 3-month implementation timeframe

Recommendations with a 6-month implementation timeframe

Recommendations with no implementation timeframe specified

Work undertaken to deliver recommendations highlighted in the Implementation Monitor’s report, as of October 2021

As noted by the Implementation Monitor, significant work has been undertaken to implement the Commission’s recommendations with three- or six-month implementation timeframes. As of 31 August 2021, the Implementation Monitor assessed only four recommendations as not having been implemented in full.

The following details the steps taken to implement these recommendations and an update as to the status of implementation.

Recommendation 4 required Victoria Police to take steps to ensure that its organisational and executive structure enables the role of Executive Director, Legal Services, to provide independent legal advice to Executive Command and to consider whether a maximum time limit should be placed on how long a person may spend in this role.

To address the requirements of this recommendation, Victoria Police commissioned independent advice from the Victorian Government Solicitor’s Office which was received in mid-February 2021. An options paper was then prepared for consideration by the Police Chief Commissioner resulting in organisational changes within Victoria Police’s executive structure to ensure the independence of the advice provided by the Executive Director, Legal Services.

Recommendation 76 requires the VLSBC, the Law Institute of Victoria and the Victorian Bar to work with stakeholders to prepare and distribute communications aimed at restoring and promoting confidence in the legal profession.

As part of the 2021/22 State Budget, funding was provided to the VLSBC to support implementation of this recommendation, and work is well progressed. A comprehensive and detailed communications strategy and project plan have been developed and governance structures established to oversee the work on the communications campaign.

Recommendation 105 required Victoria Police and the Victorian Director of Public Prosecutions (DPP) to ensure that 124 people identified by the Commission as potentially directly affected by the use of Ms Gobbo as a human source were provided with revised versions of Counsel Assisting’s submissions.

In line with the Commission’s recommendation, significant attempts to facilitate disclosure of Counsel Assisting’s submissions commenced in February 2021, and 114 out of 124 people have been provided with Counsel Assisting’s submissions, with the remaining ten people either deceased, offshore, or unable to be located. Victoria Police will continue to monitor the situation, and should the location become known of any individual who has not to date been able to be located, Victoria Police and the DPP will work together to provide that person with the submissions.

Recommendation 106 required Victoria Police and prosecuting agencies to make all reasonable attempts to advise 887 people that their cases may have been affected by Ms Gobbo’s conduct as a human source, and facilitate ongoing disclosure of relevant information to those persons.

Victoria Police, the DPP and the Commonwealth Director of Public Prosecutions worked closely together to ensure that all first attempts to notify the 887 people identified by the Commission were made within the Commission’s indicative timeframe, with active ongoing monitoring of mail received and mail returned. In total, over 800 letters have been sent, while almost 80 people were found to be deceased, with the remaining offshore or unable to be located.

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.

Terms

Commission

The Royal Commission into the Management of Police Informants.

Counsel Assisting’s submissions

Written submissions by Counsel Assisting the Commission relevant to terms of reference 1 and 2, including details of 124 specific cases that may have been affected by Victoria Police’s use of Ms Gobbo as a human source.

Disclosure

A process in court proceedings where each party is required to give any information that is, or may be considered, relevant to the case. In criminal proceedings the prosecution (including the police) has a duty to disclose all evidence that is relevant to the case against an accused person, even if that evidence might undermine the prosecution’s case or help the accused person’s case. This duty is subject to some exceptions, including information protected by public interest immunity

Human source

A person who covertly gives information to police about a crime or people involved in criminal activity, usually with an expectation that their identity will be kept confidential. A human source is also referred to as a police ‘informer’ or ‘informant’.

Human Source File Auditor

An independent barrister appointed in accordance with recommendation 6 of the Commission’s final report, to review and report to the Attorney-General, Minister for Police and Chief Commissioner of Victoria Police on 11 Victoria Police human source files that are extremely sensitive and were not provided to the Commission.

Implementation Monitor

The Implementation Monitor monitors progress and adequacy of implementation of the Commission’s recommendations by responsible agencies. The Implementation Monitor reports annually to the Attorney-General on progress and adequacy of implementation and provides advice to the Attorney-General regarding what further measures may be taken to ensure that recommendations are implemented in full.

Implementation Taskforce

The administrative taskforce chaired by the Secretary of the Department of Justice and Community Safety and constituted by senior representatives of each Victorian agency responsible for implementation of the Commission’s recommendations.

Inquiries Act

The Inquiries Act 2014 (Vic). The legislation that governs the establishment and conduct of inquiries, including royal commissions, in Victoria.

Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill

The Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021 amends the Criminal Procedure Act 2009 to deliver recommendations 62, 63 and 66 of the Commission’s final report and the outcomes of the review undertaken to deliver recommendation 67.

Legal Profession Uniform Law

Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic). The legislation that governs the practice of law and the regulation of the legal profession in Victoria and New South Wales.

Police Informants Royal Commission Implementation Monitor Act

The Police Informants Royal Commission Implementation Monitor Act 2021 (Vic) establishes the Police Informants Royal Commission Implementation Monitor and provides the functions, powers and duties of the Implementation Monitor.

Potentially affected person

A person, convicted of a criminal offence, whose case the Commission assessed and determined may have been affected by Victoria Police’s use of Ms Gobbo as a human source.

Public interest immunity

A rule of evidence in court proceedings and inquiries. The rule states relevant evidence is not to be disclosed where disclosure would damage the public interest and the need to avoid damage outweighs a person’s right to have all the relevant evidence made available to them.

Responsible or lead agency

An entity responsible for implementing the Commission’s recommendation.

Special Investigator Bill

The Special Investigator Bill 2021 will establish the Office of the Special Investigator to investigate potential criminal conduct and breaches of discipline arising from the use by Victoria Police of Ms Nicola Gobbo as a human source.

Suppression order

An order made by the court to prohibit the publication of particular evidence or information where it is in the interests of justice to do so.

The Commission’s final report included 111 recommendations. The following sets out the Commission’s implementation timeframes against each of the 54 recommendations that the Victorian Government is responsible for implementing.

Unless otherwise indicated, the implementation of each recommendation is on track at the time of writing.

Recommendation 1

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, immediately after it has established the Special Investigator proposed in recommendation 92, refers the conduct of Ms Nicola Gobbo to the Special Investigator to investigate whether there is sufficient evidence to establish the commission of a criminal offence or offences connected with her conduct as a human source for Victoria Police.

If the Special Investigator considers that there is sufficient evidence to establish the commission of a criminal offence or offences, they should prepare a brief of evidence for the Victorian Director of Public Prosecutions to determine whether to prosecute.

Recommendation 3

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, immediately after it has established the Special Investigator proposed in recommendation 92, refers the conduct of current and former Victoria Police officers named in this report or the complete and unredacted submissions of Counsel Assisting to the Special Investigator to investigate whether there is sufficient evidence to establish the commission of a criminal and/or disciplinary offence or offences connected with Victoria Police’s use of Ms Nicola Gobbo as a human source.

If the Special Investigator considers that there is sufficient evidence to establish the commission of a criminal offence or offences, they should prepare a brief of evidence for the Victorian Director of Public Prosecutions to determine whether to prosecute.

If the Special Investigator considers that there is sufficient evidence to establish the commission of a disciplinary offence or offences, they should deal with those matters in accordance with recommendation 99.

Recommendation 6

• Theme: Oversight
• Timeframe: 28 February 2021 (Delivered)

That the Victorian Government, within three months, appoints a suitably qualified and independent person to review the 11 Victoria Police human source files subject to a claim of public interest immunity. The appointed person should have full and unfettered access to the human source files and report to the Attorney-General, the Minister for Police and the Chief Commissioner of Victoria Police on whether:

1. any of the human sources provided information to Victoria Police in possible breach of their legal obligations of confidentiality or privilege
2. any confidential or privileged information provided by the human sources was used or disseminated by Victoria Police
3. a referral should be made to the Victorian Director of Public Prosecutions and/or Commonwealth Director of Public Prosecutions for further consideration, if there is evidence to suggest a prosecution or conviction was based on information improperly obtained by Victoria Police or may have been affected by the non-disclosure of relevant evidence.

Recommendation 8

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, within two years, implements legislation for Victoria Police’s registration, use and management of human sources, to provide a clear framework for police to obtain and use information from human sources and to ensure they are used in an ethical and justifiable manner.

Recommendation 9

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, makes it an offence to disclose information relating to a human source without authorisation (including information that a human source provided or was tasked to provide, and information about the identity of a human source and their registration and management).

Recommendation 10

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, defines ‘reportable human sources’ as a class of people who are prospective or registered human sources and who are reasonably expected to have access to confidential or privileged information.

Recommendation 11

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, establishes clear decision-making arrangements that demonstrate alignment between the seniority of the decision maker and the level of risk posed by the registration of human sources.

The legislation should:

1. empower the Chief Commissioner of Victoria Police to register human sources to assist in gathering criminal intelligence and/or investigating criminal activity
2. permit the Chief Commissioner to delegate the power to register reportable human sources to an officer of or above the rank of Assistant Commissioner and non-reportable human sources to an officer of or above the rank of Superintendent
3. require that an application for the registration of a prospective human source must be authorised by the Chief Commissioner or their delegate before the person can be used as a human source.

Recommendation 12

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires the Chief Commissioner of Victoria Police or their delegate to be satisfied that in registering any human source, the registration is appropriate and justified, including that:

1. the use of the person as a human source is necessary to achieve a legitimate law enforcement objective and is proportionate to that objective
2. the risks associated with the person’s registration have been identified and can be adequately managed.

Recommendation 13

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources:

1. empowers the Chief Commissioner of Victoria Police or their delegate to impose conditions in respect of the registration of any human source
2. requires the Chief Commissioner or their delegate to determine the period that a human source may be registered
3. requires the Chief Commissioner or their delegate to determine the frequency with which the registration of a human source should be reviewed.

Recommendation 14

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that a prospective human source who is reasonably expected to have access to information that would be confidential or privileged but for an exception to the duty of confidentiality or privilege, should for the purpose of the human source registration process be treated as though they are a reportable human source.

Recommendation 15

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that:

1. the Chief Commissioner of Victoria Police or their delegate must consider formal legal advice before deciding to register a reportable human source
2. the Chief Commissioner or their delegate must have regard to any recommendations or submissions on the proposed registration that the Public Interest Monitor has made before deciding to register a reportable human source.

Recommendation 16

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources:

1. requires that the Chief Commissioner of Victoria Police or their delegate must be satisfied that there are exceptional and compelling circumstances to justify the registration of a human source where Victoria Police intends to obtain or disseminate confidential or privileged information from that person
2. provides that ‘exceptional and compelling circumstances’ be defined as circumstances where there is a serious threat to national security, the community or the life and welfare of a person; and where the information cannot be obtained through any other reasonable means
3. requires that the Chief Commissioner or their delegate must consider formal legal advice before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person
4. requires that the Chief Commissioner or their delegate must have regard to any recommendations or submissions on the proposed registration that the Public Interest Monitor has made before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person.

Recommendation 17

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that where a reportable or non-reportable human source provides confidential or privileged information to police that was not expected or authorised at the time of their registration as a human source:

1. Victoria Police must quarantine the confidential or privileged information
2. Victoria Police must cancel the registration and commence a new application (if Victoria Police considers it necessary to continue using the person as a human source), in line with recommendations 11, 15 and 16.

Recommendation 18

• Theme: Human source management
• Timeframe: 30 November 2022

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, allows the Chief Commissioner of Victoria Police or their delegate to make an emergency authorisation of a reportable human source.

This power should only be used in circumstances where: there is a serious threat to national security, the community, or the life and welfare of a person; the threat is imminent; and the information is not able to be obtained through any other reasonable means.

Recommendation 43

• Theme: Funding
• Timeframe: No specified timeframe
  $87.92 million was allocated to support agencies, including Victoria Police, to implement the Commission's recommendations as part of the 2021/22 Budget.

That the Victorian Government ensures Victoria Police is appropriately funded and resourced to implement the Commission’s recommendations.

Recommendation 44

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, within two years, implements legislation for external oversight of Victoria Police’s registration, use and management of all human sources.

Recommendation 45

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, adopts a model comprised of the following three tiers:

1. The Public Interest Monitor should be involved in Victoria Police’s decision-making process for registering reportable human sources.
2. The Independent Broad-based Anti-corruption Commission should retrospectively monitor Victoria Police’s compliance with the human source management framework recommended by the Commission, including the proposed legislation, any regulations, Victoria Police’s Human Source Policy and related procedures.
3. The Independent Broad-based Anti-corruption Commission should continue to receive, handle and investigate complaints about Victoria Police, including any complaints about Victoria Police’s use of human sources.

Recommendation 46

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides the Public Interest Monitor with the following legislative functions in relation to Victoria Police applications to register reportable human sources:

1. test the sufficiency and adequacy of information relied on by Victoria Police in its application to register a reportable human source
2. ask questions of any person giving information about the application
3. assess the appropriateness of, and make recommendations or submissions on, the application to the Chief Commissioner of Victoria Police or their delegate
4. such other functions as considered necessary or appropriate.

Recommendation 47

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides the Public Interest Monitor with all necessary and reasonable powers required to fulfil its functions under the new legislation, including the power to:

1. request, access and receive relevant documents, information or other material from Victoria Police
2. require the Chief Commissioner of Victoria Police or other relevant Victoria Police personnel to answer questions relevant to an application to register a reportable human source
3. make recommendations to the Chief Commissioner or their delegate regarding Victoria Police’s decisions relating to human sources
4. refer to the Chief Commissioner for reconsideration a delegate’s decision not to accept a recommendation of the Public Interest Monitor relating to an application to register a reportable human source.

Recommendation 48

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, empowers the Public Interest Monitor to make retrospective submissions or recommendations to the Chief Commissioner of Victoria Police or their delegate about the adequacy of any decisions made or actions taken by Victoria Police in relation to an emergency authorisation (made in line with the process proposed in recommendation 18).

Recommendation 49

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Public Interest Monitor to:

1. report to the Attorney-General annually on, among other things, the performance of its legislative functions, Victoria Police’s acceptance or rejection of its recommendations and its views about the adequacy of actions taken by Victoria Police
2. provide special reports to the Attorney-General on other occasions if it deems necessary, or on the Attorney-General’s request
3. provide copies of these annual and special reports to the Minister for Police and the Chief Commissioner of Victoria Police.

Recommendation 50

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Attorney-General to:

1. table in the Victorian Parliament annual and special reports prepared by the Public Interest Monitor
2. cause the reports to be published on a Victorian Government website, subject to any redactions that the Public Interest Monitor considers necessary on safety and security grounds.

Recommendation 51

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides that the Chief Commissioner of Victoria Police has obligations to:

1. notify the Public Interest Monitor of any application to register a reportable human source
2. provide all information relevant to the application, whether supportive or adverse, to the Public Interest Monitor
3. ensure that any relevant Victoria Police personnel provide information and answer questions relevant to an application when requested by the Public Interest Monitor
4. provide the Public Interest Monitor with all information relevant to an emergency authorisation of a reportable human source and a report explaining why the circumstances were exceptional and compelling and why the threat was imminent
5. respond to the Public Interest Monitor within a reasonable time after a recommendation has been made as to whether the recommended action has been or will be taken, or provide reasons as to why the recommendation is not accepted
6. ensure that Victoria Police personnel provide all reasonable assistance to support the Public Interest Monitor in the performance of its functions.

Recommendation 52

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides the Independent Broad-based Anti-corruption Commission with legislative functions to:

1. monitor Victoria Police’s compliance with the human source management framework recommended by the Commission
2. conduct inspections of Victoria Police human source records at least once every six months
3. receive and consider reports from Victoria Police regarding material breaches of compliance with, or material deviations from, the human source management framework
4. receive and consider reports from Victoria Police regarding its management of confidential or privileged information obtained from a human source
5. make findings and recommendations to the Chief Commissioner of Victoria Police.

Recommendation 53

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides the Independent Broad-based Anti-corruption Commission with all necessary and reasonable powers required to fulfil its legislative functions, including the power to:

1. enter any Victoria Police premises, after notifying the Chief Commissioner of Victoria Police
2. have full and free access to Victoria Police human source records and systems
3. make copies of records, in accordance with appropriate security measures
4. request Victoria Police personnel to answer questions and provide documents
5. request further inspection outside the legislative inspection period to monitor and assess Victoria Police’s implementation of any of its recommendations
6. do any other thing reasonably necessary to discharge its legislative functions effectively.

Recommendation 54

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides that the Chief Commissioner of Victoria Police has obligations to:

1. report regularly (every three or six months) to the Independent Broad-based Anti-corruption Commission on any material breach of, or material deviation from, the human source management framework recommended by the Commission, and explain the circumstances of that breach and steps taken or planned to rectify the breach and prevent it recurring
2. report regularly (every three or six months) to the Independent Broad-based Anti-corruption Commission on confidential or privileged information that Victoria Police has obtained from any human source and how that information has been or will be dealt with
3. respond in writing within a reasonable time of receiving a recommendation of the Independent Broad-based Anti-corruption Commission, either to accept the recommendation or explain why it has not been accepted
4. implement a recommendation of the Independent Broad-based Anti-corruption Commission within a reasonable time of receiving and accepting it
5. ensure that Victoria Police personnel provide all reasonable assistance to the Independent Broad-based Anti-corruption Commission in the performance of its functions.

Recommendation 55

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Independent Broad-based Anti-corruption Commission to:

1. report to the Attorney-General annually on, among other things, the performance of its legislative functions and Victoria Police’s compliance with the human source management framework recommended by the Commission
2. provide special reports to the Attorney-General on other occasions if the Independent Broad-based Anti-corruption Commission deems necessary, or on the Attorney-General’s request
3. provide copies of these annual and special reports to the Minister for Police and the Chief Commissioner of Victoria Police.

Recommendation 56

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Attorney-General to:

1. table in the Victorian Parliament annual and special reports prepared by the Independent Broad-based Anti-corruption Commission
2. cause the reports to be published on a Victorian Government website, subject to any redactions that the Independent Broad-based Anti-corruption Commission considers necessary on safety and security grounds.

Recommendation 58

• Theme: Human source management/Oversight
• Timeframe: 30 November 2022

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, allows the Public Interest Monitor and Independent Broad-based Anti-corruption Commission to securely share information relevant to their respective legislative functions regarding Victoria Police’s use and management of human sources.

Recommendation 60

• Theme: Funding
• Timeframe: 30 November 2022
  $87.92 million was allocated to support agencies to implement the Commission’s recommendations as part of the 2021/22 Budget. Further funding requirements as a result implementation of the Commission’s recommendations will be considered as necessary.

That the Victorian Government, within two years, ensures that the Public Interest Monitor, Independent Broad-based Anti-corruption Commission and Victoria Police are appropriately funded and resourced to undertake the additional legislative functions and fulfil associated obligations that the Commission has recommended for the external oversight of the use of human sources.

Recommendation 61

• Theme: Oversight
• Timeframe: 30 November 2022

That the Victorian Government, within two years, undertakes a review of institutional and legislative structures for the oversight of Victoria Police’s exercise of powers, to ensure that Victoria’s police oversight system is consistent and coherent and contributes to improved police accountability, including through outcome-focused monitoring of police decisions and actions.

Recommendation 62

• Theme: Disclosure
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, within 12 months, introduces a legislative requirement for the responsible Victoria Police officer to:

1. provide the Victorian Director of Public Prosecutions with all material obtained during an investigation that may be relevant to either the prosecution or the accused person’s case, except for material that is subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
2. notify the Director of the existence and nature of any material subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
3. where requested, provide the Director with any material subject to a claim of privilege, public interest immunity, legislative immunity or publication restriction.

Recommendation 63

• Theme: Disclosure
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, within 12 months, introduces a legislative requirement for Victoria Police to complete a disclosure certificate in summary proceedings when a full brief is served and in indictable proceedings when a hand-up brief is served, which describes:

1. relevant material not contained in the brief of evidence that is subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
2. the nature of the privilege or immunity claim or publication restriction in relation to each item.
3. a copy of the disclosure certificate should be provided to the Victorian Director of Public Prosecutions and served on accused persons.

Recommendation 66

• Theme: Disclosure
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, within 12 months, amends sections 41(e) and 110(e) of the Criminal Procedure Act 2009 (Vic) to clarify that any information, document or thing that is relevant to an alleged offence includes any material relevant to the credibility of a prosecution witness.

Recommendation 67

• Theme: Disclosure
• Timeframe: 31 May 2021 (Delivered)

That the Victorian Government, within six months, in consultation with the Victorian Director of Public Prosecutions, Victoria Police, the Victorian courts, Victoria Legal Aid and other relevant stakeholders:

1. reviews the adequacy of existing court powers to make non-disclosure orders
2. considers whether a legislative power should be introduced to empower Victoria Police and/or the Director to initiate applications for a court to determine public interest immunity claims without giving notice to an accused person.

Recommendation 77

• Theme: Legal profession regulation
• Timeframe: 31 May 2021 (Delivered)

That the Victorian Government, within six months, considers whether the Victorian Legal Admissions Board requires any additional powers to request and consider documentation from other agencies for the purpose of assessing applications for admission to the legal profession.

If such powers are conferred in Victoria, a Council of Attorneys-General working group should consider whether a harmonised approach could be adopted in all Australian jurisdictions.

Recommendation 86

• Theme: Legal profession regulation
• Timeframe: 30 November 2021 or, if the amendment has not been agreed within 12 months, by 30 November 2022. (On track with issues)
  Public consultation has been undertaken and feedback is being analysed.

That the Victorian Government, within 12 months, pursues through the Council of Attorneys-General and the Legal Services Council, an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. The Victorian Government should ensure the Victorian Legal Services Board and Commissioner is appropriately resourced to implement this recommendation.

If the amendment incorporating a mandatory reporting obligation has not been agreed within 12 months, the Victorian Government should, within a further 12 months, introduce a mandatory reporting requirement for Victorian lawyers to report the suspected misconduct of other lawyers.

Recommendation 91

• Theme: Royal Commissions
• Timeframe: 31 May 2022

That the Victorian Government, within 18 months, amends the Inquiries Act 2014 (Vic) to:

1. remove the ability for a person to refuse to comply with a notice to give information to a royal commission on the basis that the information is the subject of public interest immunity
2. insert a provision to make clear that it is not a reasonable excuse for a person to refuse or fail to comply with a requirement to give information (including answering a question) or produce a document or other thing to a royal commission on the basis that the information, document or other thing is the subject of public interest immunity
3. specify that any such information or document or other thing does not cease to be the subject of public interest immunity only because it is given or produced to a royal commission in accordance with a requirement under the Act.

Recommendation 92

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, within 12 months, develops legislation to establish a Special Investigator with the necessary powers and resources to investigate whether there is sufficient evidence to establish the commission of a criminal offence or offences (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by Ms Gobbo or the current and former police officers named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

Recommendation 93

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires that the person appointed as the Special Investigator be an Australian lawyer with at least 10 years’ experience in criminal law or a related field.

Recommendation 94

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That, where the Special Investigator compiles a brief of evidence containing sufficient evidence to establish the commission of a criminal offence or offences by Ms Nicola Gobbo or current or former Victoria Police officers, the Victorian Director of Public Prosecutions should be responsible for determining whether to prosecute and, if so, for the prosecution of the matter under the Public Prosecutions Act 1994 (Vic).

Recommendation 95

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires the Special Investigator to report regularly to the Implementation Monitor proposed in recommendation 108 on their progress to establish their operations, and on the outcomes of their investigations.

Recommendation 96

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires the Special Investigator to investigate whether there is sufficient evidence to establish the commission of misconduct or a breach of discipline under the Victoria Police Act 2013 (Vic) (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by current Victoria Police officers named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

Recommendation 97

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, in developing the legislation to establish the Special Investigator, empowers the Special Investigator to investigate:

1. whether there is sufficient evidence to establish the commission of a criminal offence or offences (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by any current or former Victoria Police officers other than those named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting
2. whether there is sufficient evidence to establish the commission of misconduct or a breach of discipline under the Victoria Police Act 2013 (Vic) (connected with Victoria Police’s use of Ms Gobbo as a human source) by any current Victoria Police officers other than those named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

Recommendation 98

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, in developing the legislation to establish the Special Investigator, provides the Special Investigator with all necessary and reasonable powers required to fulfil their role in investigating misconduct or breaches of discipline, including but not limited to the power to direct any police officer to give any relevant information, produce any relevant document or answer any relevant question during a disciplinary investigation.

Any information, document or answer given in response to such a direction should not be admissible in evidence before any court or person acting judicially, other than in proceedings for perjury or for a breach of discipline.

To support the Special Investigator’s powers, the failure of an officer to comply with a direction from the Special Investigator should itself constitute a breach of discipline.

Recommendation 99

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, in developing the legislation to establish the Special Investigator, empowers the Special Investigator to lay disciplinary charges against relevant police officers if satisfied there is sufficient evidence to do so.

Recommendation 102

• Theme: Records management
• Timeframe: No specified timeframe

That the Victorian Government ensures that under the Public Records Act 1973 (Vic), the Commission’s records be unavailable for public inspection for 75 years, subject to: any order of the Supreme Court of Victoria; the legislation providing the Special Investigator and the Independent Broad-based Anti-corruption Commission with access to the records; or any decision of the responsible Minister under section 9(2)(b) of the Act to permit all or any of the records to be open for inspection by any specified person or class of persons.

Recommendation 103

• Theme: Special investigator
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Government, in developing the legislation to establish the Special Investigator, ensures that the legislation:

1. gives the Special Investigator full and free access to the Commission’s records
2. requires the Special Investigator to establish appropriate security arrangements for access to and the management of such records.
3. The Victorian Government should also ensure that the Independent Broad-based Anti-corruption Commission has a legislative entitlement to obtain full and free access to the Commission’s records.

Recommendation 104

• Theme: Records management
• Timeframe: Ongoing

That the Department of Premier and Cabinet notifies Victoria Police of any court order or request to access the closed records of the Commission, except in relation to requests made by the Special Investigator or Independent Broad‑based Anti‑corruption Commission.

Recommendation 107

• Theme: Governance
• Timeframe: 28 February 2021 (Delivered)

That the Victorian Government, within three months, establishes an Implementation Taskforce, chaired by a senior executive of the Department of Justice and Community Safety, with responsibility for coordinating and completing implementation of the Commission’s recommendations. The Taskforce should:

1. consist of members from the Department of Justice and Community Safety, Department of Premier and Cabinet, Victoria Police, the Victorian Office of Public Prosecutions, the Special Investigator and other relevant stakeholders
2. engage regularly with, and report formally and informally to, the Implementation Monitor proposed in recommendation 108 throughout the implementation process.

Recommendation 108

• Theme: Governance
• Timeframe: 28 February 2021 (Delivered)

That the Victorian Government, within three months, appoints an independent Implementation Monitor to monitor the implementation of the Commission’s recommendations until implementation is completed.

Recommendation 109

• Theme: Governance
• Timeframe: No specified timeframe (Delivered)

That the Victorian Government, in establishing the role of the Implementation Monitor, provides the Implementation Monitor with the support of a small secretariat located within the Department of Justice and Community Safety, and all necessary and reasonable legislative powers required to fulfil their role, including the power to:

1. assess the implementation of the Commission’s recommendations throughout the implementation process, not only once responsible agencies have reported on the completion of implementation
2. access Implementation Taskforce documents and attend meetings of the Implementation Taskforce
3. indicate to responsible agencies the extent to which their implementation of the Commission’s recommendations is considered adequate
4. request regular reports from Victoria Police on its progress in fulfilling its ongoing disclosure obligations to potentially affected persons identified by the Commission
5. request reports from the Special Investigator on progress to establish their operations and the outcomes of their investigations
6. request reports from the Chief Commissioner of Victoria Police on the progress and outcomes of any disciplinary proceedings arising from the Special Investigator’s disciplinary investigations.

Recommendation 110

• Theme: Reporting
• Timeframe: No specified timeframe (Delivered)
  The Police Informants Royal Commission Implementation Monitor Act requires the Implementation Monitor to report to the Attorney-General annually.

That the Victorian Government, in establishing the role of the Implementation Monitor, requires it to report to the Attorney-General annually, or more frequently as it deems necessary, on the progress of the implementation of the Commission’s recommendations, the adequacy of implementation and what further measures may be required to ensure the Commission’s recommendations are implemented fully within the specified timeframes.

Recommendation 111

• Theme: Reporting
• Timeframe: Ongoing until implementation complete

That the Attorney-General reports annually to the Victorian Parliament on the progress of the implementation of the Commission’s recommendations, until implementation is complete.

The Commission’s final report included 111 recommendations. The following sets out the Commission’s implementation timeframes against each recommendation that agencies other than government are responsible for implementing. Unless otherwise indicated, the implementation of each recommendation is on track at the time of writing.

Recommendation 2

• Responsible agency: Victorian Bar
• Theme: Legal Profession Regulation
• Timeframe: 28 February 2021 (Delivered)

That the Victorian Bar Council, within three months, considers removing Ms Nicola Gobbo from the Victorian Bar Roll, including by any necessary amendment to the Victorian Bar Constitution.

Recommendation 4

• Responsible agency: Victoria Police
• Theme: Governance
• Timeframe: 28 February 2021
  The Implementation Monitor noted that Victoria Police has undertaken the required review and considerable progress made. In the Implementation Monitor’s view, full implementation is subject to development of human source management legislation.

That the Chief Commissioner of Victoria Police, within three months:

1. takes steps to ensure that Victoria Police’s organisational and executive structure enables the role of Executive Director, Legal Services to provide independent legal advice to Victoria Police Executive Command (or creates an alternative senior legal advisory role for this purpose)
2. considers whether limits should be placed on the maximum time a person may spend in the position of Executive Director, Legal Services (or any alternative senior role created within Victoria Police for the purpose of providing independent legal advice to Executive Command).

Recommendation 5

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: Ongoing
  Victoria Police tables monthly disclosure reports at each meeting of the Implementation Taskforce. The Implementation Monitor is a member of the Implementation Taskforce.

That Victoria Police provides monthly progress reports to the Implementation Taskforce proposed in recommendation 107, regarding its progress in fulfilling its ongoing disclosure obligations to potentially affected persons identified by the Commission.

These reports should also be made available to the Implementation Monitor proposed in recommendation 108.

Recommendation 7

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 28 February 2021 (Delivered)

That Victoria Police, within three months and consistent with its Capability Plan 2016–2025, establishes clear processes for the review and amendment of human source management policies and procedures, including processes for:

1. seeking and incorporating operational input from police officers involved in human source management
2. disseminating and communicating policy and procedural changes so that all relevant officers receive timely and accurate advice about impending change
3. reviewing and evaluating policies and procedures on an annual basis to ensure its human source management practices are responsive to emerging risks, changes to the operating environment and changes to any relevant legislation; and are consistent with Victoria Police’s human rights obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Recommendation 19

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its decision-making model and associated requirements in the Human Source Policy, on an interim basis until the legislation proposed in recommendation 8 comes into force. The Human Source Policy should:

1. provide that the Assistant Commissioner, Intelligence and Covert Support Command, is responsible for decisions to register Category 1–3 human sources and to disseminate confidential or privileged information obtained from any human source
2. provide that the Central Source Registrar is responsible for the registration of human sources other than Category 1–3 human sources
3. require the Assistant Commissioner to consider formal legal advice in deciding whether to authorise the registration of a Category 1 human source or to disseminate confidential or privileged information, and to consider other specialist advice as required in deciding whether to register a Category 2 or 3 human source
4. replace the requirement for officers to seek approval from the Human Source Ethics Committee to ‘approach’ a prospective Category 1–3 human source with a requirement for the handling team to consult with the Human Source Management Unit before approaching such a prospective source
5. remove Category 4 human sources as a separate category under the Human Source Policy.

Recommendation 20

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months:

1. implements changes to its Human Source Policy to include a statement of the organisation’s objectives and guiding principles for the registration, use and management of human sources, including but not limited to principles of integrity, necessity and proportionality, accountability, effectiveness, consistency, and safety and sensitivity
2. obtains operational input to inform the development of these objectives, principles and associated guidance.

Recommendation 21

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide practical examples of the ways in which human source management can engage and limit the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic), and guidance for police officers in considering whether the use of a human source is necessary and proportionate.

Recommendation 22

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide practical guidance to assist police officers to identify potentially confidential or privileged information. This guidance should include advice and examples relating to:

1. the types of occupations and professional relationships that attract legal obligations of confidentiality or privilege
2. the exceptions to legal obligations of confidentiality or privilege and when these may apply
3. the implications of using confidential or privileged information, including the potentially adverse consequences for any resulting investigations, prosecutions or convictions
4. when and how to seek further advice, including from the Human Source Management Unit.

Victoria Police should seek legal advice from its Legal Services Department or the Victorian Government Solicitor’s Office in developing this guidance.

Recommendation 23

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear requirements and instructions to police officers on the use and handling of confidential and privileged information, including in relation to the quarantine, retention, dissemination and destruction of such information.

Recommendation 24

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy to require that:

1. when dealing with human sources involving legal obligations of confidentiality or privilege, the Acknowledgement of Responsibilities must clearly set out any limitations on the information a human source can provide
2. police officers must not actively, without appropriate authority, seek information from a human source that would cause the human source to breach a legal obligation of confidentiality or privilege.

Recommendation 25

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear instructions and practical guidance on the circumstances in which it may be appropriate to dispense with the requirement for a sterile corridor and the measures that officers should adopt to manage the associated risks.

Recommendation 26

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2022 (On track with issues)
  Initial project concept planning has commenced. Funding implications being worked through.

That Victoria Police, within two years, establishes an organisational model for the registration, use and management of human sources that provides for:

1. the management of all human sources by dedicated source teams
2. centralised internal oversight of the management of human sources by the Human Source Management Unit, the Central Source Registrar and the Assistant Commissioner, Intelligence and Covert Support Command.

Recommendation 27

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2022 (On track with issues)
  Initial project concept planning has commenced. Interdependencies with recommendation 26.

That Victoria Police, within two years, removes the roles of Officer in Charge and Local Source Registrar from its decision-making process and organisational model for the registration, use and management of human sources.

Recommendation 28

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2022 (On track with issues)
  Initial project concept planning has commenced. Interdependencies with recommendation 26.

That Victoria Police, within two years, introduces requirements limiting the maximum time that police officers can hold positions within dedicated source teams and the Human Source Management Unit to five years.

Recommendation 29

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2022 (On track with issues)
  Initial project concept planning has commenced. Interdependencies with recommendation 26.

That Victoria Police, within two years:

1. develops a prevention and detection strategy to mitigate the risk of misconduct and corruption that may arise from the implementation of a centralised and dedicated human source management model, taking into account the Commission’s findings and those of previous inquiries
2. ensures that this strategy is regularly reviewed and refined as part of Victoria Police’s strategic management of this high-risk area of policing.

Recommendation 30

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months and as part of its current work to improve its human source risk assessments, develops guidance on how to assess:

1. the source and nature of information reasonably expected to be provided by a human source, to identify whether that information could be confidential or privileged
2. the risks that the use of a human source could pose to the proper administration of justice
3. the engagement of any human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic), including how any limitation is reasonable, necessary and proportionate in the circumstances.

Recommendation 31

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within three years, engages an independent expert to evaluate and report on the effectiveness of its new human source management risk assessment tools, to determine whether they support effective identification and management of risks.

Recommendation 32

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear instructions and practical guidance about who is responsible for supervision of the handling team, why effective supervision is necessary and how it should be applied in practice.

Recommendation 33

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, develops guidance in its human source management training to assist police officers to identify confidential and privileged information, focusing on the origin of information and circumstances in which such information could be provided to police, including:

1. how to identify potential legal obligations of confidentiality or privilege through the risk assessment process
2. how to manage any professional conflicts of interest that may arise for a human source with legal obligations of confidentiality or privilege.

Victoria Police should seek legal advice from its Legal Services Department or the Victorian Government Solicitor’s Office in developing this training material.

Recommendation 34

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, develops guidance in its human source management training on:

1. the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) that are generally engaged by the management of human sources, including the right to life, the right to privacy and the right to a fair hearing
2. how to assess whether the use of a human source unreasonably limits the human rights of the source or other people.

Victoria Police should seek input from the Victorian Equal Opportunity and Human Rights Commission in developing and delivering this training.

Recommendation 35

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, develops and implements training for controllers, the Human Source Management Unit, the Central Source Registrar and the Assistant Commissioner, Intelligence and Covert Support Command, focused on effective risk management, supervision, oversight and decision making in respect of the use of human sources.

This training should include guidance on identifying confidential and privileged information, and the circumstances in which such information could be provided to police.

Recommendation 36

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, requires all handlers and controllers to successfully complete intermediate human source management training at a minimum.

Recommendation 37

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, introduces requirements for mandatory annual human source management training for all police officers with human source management responsibilities and timely training associated with any significant policy or legislative changes.

Recommendation 38

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, enhances Interpose or develops some other system for recording details of the origin of information provided by human sources and how it was obtained.

Recommendation 39

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, reviews the broader functionality of Interpose to ensure that it will support the effective implementation of the Commission’s recommendations.

Recommendation 40

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy and associated processes to:

1. provide for six-monthly compliance audits of human source files at all risk levels by the Compliance and Risk Management Unit within the Intelligence and Covert Support Command
2. clearly set out the compliance monitoring functions of both the Compliance and Risk Management Unit and the Human Source Management Unit.

Recommendation 41

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, implements changes to its Human Source Policy and associated processes to require that:

1. the results of human source management audits be reported to the Assistant Commissioner, Intelligence and Covert Support Command
2. any system-wide risks or major failings that are identified through human source management audits be reported to the Victoria Police Audit and Risk Committee.

Recommendation 42

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 28 February 2021 (Delivered)

That Victoria Police, within three months, establishes a strategic governance committee to:

1. contribute to the development, and oversee Victoria Police’s implementation of, the human source management reforms recommended by the Commission
2. identify, address and monitor emerging risks, issues and opportunities in Victoria Police’s human source management program and provide strategic advice to the Assistant Commissioner, Intelligence and Covert Support Command and Deputy Commissioner, Specialist Operations
3. be responsible for strategic planning for Victoria Police’s human source management program.

Recommendation 57

• Responsible agency: Victoria Police
• Theme: Human source management
• Timeframe: 28 February 2021 (Delivered)

That Victoria Police, within three months, implements changes to its Human Source Policy to require that all human sources are informed upon registration that they are able to make complaints to the Independent Broad-based
Anti-corruption Commission, which may be confidential if they wish.

Recommendation 59

• Responsible agency: Public Interest Monitor/Independent Broad-based Anti-corruption Commission
• Theme: Oversight
• Timeframe: 30 November 2022

That PIM and IBAC, within two years and prior to the commencement of the proposed new legislation for external oversight of Victoria Police’s registration, use and management of human sources, implement appropriate security protocols and infrastructure to securely receive, share, store and dispose of sensitive human source information.

Recommendation 64

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, amends its internal policies and procedures to align with the legislative changes proposed in recommendations 62 and 63. These amendments should include guidance for the responsible Victoria Police officer on disclosure obligations and how to describe withheld materials in the proposed disclosure certificate.

Victoria Police should consult with the Victorian Director of Public Prosecutions in developing these amendments.

Recommendation 65

• Responsible agency: Victorian Director of Public Prosecutions
• Theme: Disclosure
• Timeframe: 30 November 2021

That the Victorian DPP, within 12 months, amends the Policy of the Director of Public Prosecutions for Victoria to align it with the legislative changes proposed in recommendations 62 and 63.

Recommendation 68

• Responsible agency: Victorian Director of Public Prosecutions/Victoria Police/Victorian Government Solicitor’s Office
• Theme: Disclosure
• Timeframe: 30 November 2021

That the Victorian DPP, Victoria Police, the VGSO and any other relevant stakeholders work together to establish clear protocols and procedures, within 12 months, to facilitate effective engagement with, and resolution of, complex issues arising from disclosure obligations and public interest immunity claims.

These protocols and procedures should:

1. ensure Victoria Police has adequate and early support, including legal advice, when making complex decisions about relevant and disclosable information that may be subject to public interest immunity
2. tailor the level of support provided to Victoria Police, to enable greater support in cases involving complex public interest immunity and disclosure issues
3. ensure the Director’s independence is maintained and potential conflicts of interest are avoided.

Recommendation 69

• Responsible agency: Victorian Director of Public Prosecutions
• Theme: Disclosure
• Timeframe: 30 November 2021

That the Victorian DPP, within 12 months, amends the Policy of the Director of Public Prosecutions for Victoria to provide appropriate guidance on when and how the Director can be consulted by Victoria Police in relation to complex issues arising from disclosure obligations and public interest immunity claims. These amendments should reflect the protocols and procedures proposed in recommendation 68.

Recommendation 70

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, amends its internal policies and procedures to provide appropriate guidance on when and how Victoria Police can consult the Victorian Director of Public Prosecutions in relation to complex issues arising from disclosure obligations and public interest immunity claims. These amendments should reflect the protocols and procedures proposed in recommendation 68 and the need for police officers to obtain early legal advice when potentially complex disclosure and public interest immunity issues arise; and provide a clear framework for seeking that advice.

Recommendation 71

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: 31 May 2021 (Delivered)

That Victoria Police, within six months, implements the measures it has proposed to improve training and support for police officers regarding their disclosure obligations, across all levels of the organisation.

Recommendation 72

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: First review within two years of implementation of recommendation 71 and additional review within five years of first review

That Victoria Police commissions two independent reviews of the measures implemented in recommendation 71, to ensure that they adequately reflect any applicable changes to law and policy and are effective in improving police officers’ understanding of their disclosure obligations. The reviews should be undertaken as follows:

1. an initial independent external review within two years of implementation
2. an additional independent external review within five years of the initial review.

Recommendation 73

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: First review within two years of implementation of recommendation 71 and additional review within five years of first review (On track with issues)
  Initial project scoping has commenced. Funding implications being worked through.

That Victoria Police commissions two independent reviews of the implementation of its dedicated disclosure officer initiative, to ensure that it is effective in improving disclosure processes and practices. The reviews should be undertaken as follows:

1. an initial independent external review within two years of implementation
2. an additional independent external review within five years of the initial review.

Recommendation 74

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: 31 May 2021 (Delivered)

That Victoria Police, within six months, reviews the information management systems it relies on to fulfill its disclosure obligations, to assess with specificity:

1. the extent to which the implementation of recent system reforms will enable Victoria Police to fulfil its disclosure obligations adequately
2. remaining system gaps and issues
3. system functionality needed to address any identified gaps and issues
4. investment requirements to develop and implement any additional system functionality needed.

Recommendation 75

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: 28 February 2021 (Delivered)

That Victoria Police, within three months, establishes a disclosure governance committee that has responsibility for identifying and monitoring systemic disclosure issues and overseeing the development and implementation of reforms to improve disclosure processes and practices.

The committee’s membership should consist of stakeholders with expertise in policing, disclosure, public interest immunity and the conduct of criminal prosecutions, including the Victorian Office of Public Prosecutions, the Victorian Government Solicitor’s Office, the Department of Justice and Community Safety, Victoria Legal Aid and any other relevant legal profession representatives.

Recommendation 76

• Responsible agency: Victorian Legal Services Board and CommissionerVLSBC/Law Institute of Victoria/Victorian Bar
• Theme: Legal Profession Regulation
• Timeframe: 31 May 2021 (Delayed)
  The Implementation Monitor noted in his report to the Attorney-General that planning and preparation of a communications plan for delivery of the communications campaign has commenced.

That the VLSBC, the LIV and the Victorian Bar work with community legal services and Victoria Legal Aid to, within six months, prepare and distribute communications aimed at restoring and promoting public and client confidence in the legal profession.

These communications should:

1. educate clients and the public on lawyers’ ethical duties and obligations, particularly in relation to confidentiality, conflicts of interest and legal professional privilege
2. inform clients and the public about where they can seek help or advice regarding concerns they may have about their lawyer.

Recommendation 78

• Responsible agency: Legal Services Council/Law Council of Australia/Australian Bar Association
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021 (Delayed)
  The Law Council of Australia and Australian Bar Association have indicated more time is required due to the administrative process required to amend rules.

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, clarify and harmonise the duty of confidentiality and its exceptions, as contained in the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules.

Recommendation 79

• Responsible agency: Law Council of Australia
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021 (Delayed)
  The Law Council of Australia is in the process of updating the commentary to be released with new rules.

That the Law Council of Australia, within 12 months, updates the commentary to the Solicitors’ Conduct Rules in relation to the duty of confidentiality and its exceptions, to include guidance on:

1. the factors to be considered when assessing whether a disclosure of confidential information is justified
2. where and how a solicitor can obtain advice on ethics when considering making a disclosure
3. steps to be taken to document the actions taken by a solicitor regarding the information received and the disclosure made
4. any further actions that a solicitor should take when considering making a disclosure.

Recommendation 80

• Responsible agency: Victorian Bar
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Bar, within 12 months, prepares guidance in relation to the duty of confidentiality and its exceptions, including:

1. the factors to be considered when assessing whether a disclosure of confidential information is justified
2. where and how a barrister can obtain advice on ethics when considering making a disclosure
3. steps to be taken to document the actions taken by a barrister regarding the information received and the disclosure made
4. any further actions that a barrister should take when considering making a disclosure.

Recommendation 81

• Responsible agency: Victorian Bar
• Theme: Legal Profession Regulation
• Timeframe: 31 May 2021 (Delivered)

That the Victorian Bar, within six months, develops ethics guidance on specific conflict of interest issues and scenarios that can arise for criminal defence barristers.

The Victorian Bar should prepare this guidance in consultation with the Criminal Bar Association, Victoria Legal Aid and other relevant stakeholders.

Recommendation 82

• Responsible agency: Law Council of Australia
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021 (Delayed)

That the Law Council of Australia, within 12 months, includes specific guidance on maintaining appropriate professional boundaries in the commentary to the Solicitors’ Conduct Rules.

Recommendation 83

• Responsible agency: Victorian Bar
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021 (Delivered)

That the Victorian Bar, within 12 months, develops specific guidance for barristers on maintaining appropriate professional boundaries.

Recommendation 84

• Responsible agency: Victorian Legal Services Board and Commissioner
• Theme: Legal Profession Regulation
• Timeframe: 30 May 2021 (Delivered)

That the VLSBC, within six months, issues clear guidance about how legal ethics education should be embedded in the four compulsory fields of continuing professional development, including through the use of practical, scenario-based learning.

Recommendation 85

• Responsible agency: Legal Services Council/Law Council of Australia/Australian Bar Association
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021 (On track with issues)
  Some stakeholders have indicated they do not support this recommendation and therefore the second aspect of this recommendation directed to the Government is likely to be triggered.

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, harmonise the powers held by local regulatory authorities through the Solicitors’ Continuing Professional Development Rules, so that policies and requirements for continuing professional development can be made for solicitors as they can already for barristers.

If this change has not been made within 12 months, the Victorian Government should, within a further 12 months, provide the Victorian Legal Services Board and Commissioner with the power to regulate solicitors’ continuing professional development, as it is currently able to do in respect of barristers.

Recommendation 87

• Responsible agency: Victorian Legal Services Board and Commissioner/Victorian Bar/Law Institute of Victoria
• Theme: Legal Profession Regulation
• Timeframe: Prior to implementation of recommendation 86 (On track with issues)
  Implementation of this recommendation is contingent on development of the reporting requirement scheme (recommendation 86).

That the VLSBC, the Victorian Bar and the LIV, in consultation with other relevant stakeholders and prior to the commencement of the mandatory reporting obligation proposed in recommendation 86, prepare harmonised guidance and continuing professional development activities for the legal profession to accompany and support the introduction of a mandatory reporting requirement.

Recommendation 88

• Responsible agency: Victorian Legal Services Commissioner
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021 (Delivered)
  On 30 June 2021, the Victorian Legal Services Commissioner signed an Instrument of Revocation revoking her delegation to the Victorian Bar to conduct investigations of barrister complaints.

That the VLSBC, within 12 months, revokes the Instrument of Delegation conferred on the Victorian Bar for receiving and handling complaints regarding barristers and resumes that function.

Recommendation 89

• Responsible agency: Victorian Bar/Law Institute of Victoria
• Theme: Legal Profession Regulation
• Timeframe: 31 May 2021 (Delivered)

That the Victorian Bar and the LIV, within six months, assess the awareness level, use and views of the ethical, health and wellbeing support services and resources offered to their members.

If the awareness levels and usage are found to be low, the Victorian Bar and the Law Institute of Victoria should review the quality of the services and resources and improve marketing and communications to ensure members are aware of the useful supports available.

The Victorian Bar and the Law Institute of Victoria should regularly review the effectiveness of these services and resources (at least every two years) and update them as required to meet the needs of members.

Recommendation 90

• Responsible agency: Victoria Police
• Theme: Legal Profession Regulation
• Timeframe: 30 November 2021

That Victoria Police, within 12 months, amends the Victoria Police Manual and relevant training materials to comprehensively set out obligations under section 464C of the Crimes Act 1958 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) related to the right of a person in police custody to communicate with a lawyer.

Victoria Police should undertake this work in consultation with relevant stakeholders including Victoria Legal Aid, the Department of Justice and Community Safety, Law Institute of Victoria, Victorian Bar, Federation of Community Legal Centres and Victorian Aboriginal Legal Service.

Recommendation 100

• Responsible agency: Victoria Police
• Theme: Special Investigator
• Timeframe: Following completion of investigations by the Special Investigator

That the Chief Commissioner of Victoria Police ensures that a suitably qualified, independent authorised person, who is not a police officer, determines any disciplinary charges laid by the Special Investigator.

Recommendation 101

• Responsible agency: Victoria Police
• Theme: Special Investigator
• Timeframe: Following completion of investigations by the Special Investigator
  The Special Investigator Bill provides the legislative basis for this recommendation by requiring the Chief Commissioner to report on the outcome of proceedings.

That the Chief Commissioner of Victoria Police reports to the Special Investigator and Implementation Monitor proposed in recommendation 108 on the outcome of any disciplinary proceedings arising from the Special Investigator’s investigation of current Victoria Police officers.

Recommendation 105

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: 28 February 2021
  The Implementation Monitor noted in his report to the Attorney-General that at the time of the report 114 out of 124 people had been provided with Counsel Assisting’s submissions, with 10 either deceased, offshore, or unable to be located. Where the submissions have not been delivered, the Implementation Monitor is satisfied that attempts to serve these persons will continue to be made.

That Victoria Police and the Victorian Director of Public Prosecutions, within three months, in accordance with their ongoing disclosure obligations, apply the Commissioner’s determinations in relation to the public interest immunity claims (or as otherwise determined by a court) over the complete and unredacted submissions of Counsel Assisting, and, where relevant, facilitate disclosure of these revised versions of the submissions to potentially affected persons.

Recommendation 106

• Responsible agency: Victoria Police
• Theme: Disclosure
• Timeframe: 31 May 2021
  The Implementation Monitor noted in his report to the Attorney-General that at the time of the report, 806 letters had been sent to the 887 people the Commission identified as potentially affected by the use of Nicola Gobbo as a human source, with the remaining either deceased or offshore. Facilitation of ongoing disclosure is subject to consideration of complex issues, including in relation to suppression orders in place.

That Victoria Police and prosecuting agencies, within six months, make all reasonable attempts to advise the 887 people whose cases may have been affected in the manner identified in R v Szabo that their cases may have been affected by Ms Nicola Gobbo’s conduct as a human source, and facilitate ongoing disclosure of relevant information to those persons.