The Victorian Government is committed to supporting the effective and transparent implementation of the Commission’s recommendations through independent monitoring and reporting on progress and outcomes of implementation.
A cornerstone of this oversight and reporting framework is the appointment of Sir David Carruthers to the statutory role of 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.
In his role as Implementation Monitor, Sir David has continued to work closely with government and other responsible agencies across the reporting period to provide ongoing advice on the implementation of recommendations, ensuring the Commission’s intended outcomes are achieved.
The Implementation Monitor Act came into force on 15 September 2021. Under the 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. The Implementation Monitor’s report includes the Implementation Monitor’s assessment of the adequacy of action taken and provides 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 provided to Parliament by 30 November each year. The first progress report was tabled on 30 November 2021 covering the period from 30 November 2020, when the Commission delivered its final report, to 30 June 2021.
This second annual progress report is provided to Parliament pursuant to that requirement.
The progress reports build on the Victorian Government’s detailed response to the Commission’s final report, released in May 2021, which outlined the government’s approach to implementation.
Implementation Monitor’s 2021-22 report
The Implementation Monitor provided his second Implementation Report to the Attorney-General in September 2022.
The Implementation Monitor’s second Implementation Report covers the period from 1 July 2021 to 30 June 2022, focusing on the Implementation Monitor’s assessment of progress towards implementing recommendations that were given indicative implementation timeframes by the Commission of 12- or 18- months from the delivery of the Commission’s final report (i.e. 30 November 2021 or 31 May 2022).
The Implementation Monitor advised the Attorney-General that, on his assessment, almost all of the 48 recommendations with 12- or 18- month timeframes had been fully delivered. Only seven such recommendations had not, in the Implementation Monitor’s view, been delivered to their full intention.
Overall, the Implementation Monitor indicated that this reporting period had seen the delivery of significant reform, including:
- the establishment of the Office of the Special Investigator
- commencement of disclosure legislation and implementation work to prepare for commencement of the disclosure certificate, and
- improvements to Victoria Police’s human source management policy, risk assessment processes and associated training.
The Implementation Monitor acknowledged with gratitude the work of responsible agencies and their willingness to engage with him constructively.
Of the seven recommendations the Implementation Monitor considered had not been delivered to their full intention, the Implementation Monitor noted the following:
- That following delay on progressing work to harmonise the national rules and commentary for barristers and solicitors on the duty of confidentiality (recommendations 78 and 79), the Implementation Monitor is working with local bodies to deliver the intent of the recommendation for Victorian legal practitioners. This includes work with the VLSB+C on developing supportive resources.
- That the LCA is updating the commentary to the Solicitors’ Conduct Rules with guidance on maintaining appropriate professional boundaries, however implementation of recommendation 82 has been delayed. In the meantime, the Implementation Monitor will work with VLSB+C to develop guidance for Victorian legal practitioners.
- That as recommendation 85 was not delivered within 12 months of the Commission’s final report, implementation responsibility has moved to the Victorian Government, with an additional 12-months to deliver the recommendation. The Implementation Monitor noted the government is now working with other Uniform Law jurisdictions on options for uniform implementation.
- That work is ongoing to gain national consensus, through the Uniform Law amendment process, on the introduction of a mandatory reporting regime for lawyers and accompanying guidance (recommendations 86 and 87).
- That work has been undertaken to progress amendments to the Inquiries Act to ensure documents subject to PII claims can be produced to royal commissions (while retaining PII of the documents for all other purposes), and that government is continuing its consideration of amendments to the Inquiries Act to ensure the Commission’s intent is achieved (recommendation 91).
The Implementation Monitor also provided advice to the Attorney-General regarding his views on ways in which the important work of the Office of the Special Investigator could be further facilitated to ensure the Commission’s intended outcomes are achieved in full.
The Implementation Monitor’s report also revisited four recommendations that fell within the previous reporting period that had previously been assessed as not fully implemented. The Implementation Monitor advised the Attorney-General that, on his assessment, two of those four recommendations had now been delivered (recommendations 105 and 106). Only two such recommendations had not, in the Implementation Monitor’s view, been delivered to their full intention (recommendations 4 and 76).
However, the Implementation Monitor noted that his assessment of what steps are required to fully implement recommendation 4 will likely be given effect through the Human Source Management Bill, and that there have been unavoidable delays in the implementation of recommendation 76, but significant work has been undertaken.
The report also included commentary on the progress of recommendations with an indicative two-year delivery timeline, with the Implementation Monitor noting that these recommendations constitute some of the most important recommendations made by the Commission, including the nation-leading human source management legislation. The Implementation Monitor acknowledged the considerable work being undertaken to deliver these recommendations.
Recommendations with a 3-month timeframe
| Recommendation/s | Implementation Monitor's assessment of delivery as of 30 June 2022 | Commentary from the Implementation Monitor |
|---|---|---|
| 4 | Not yet delivered | Victoria Police conducted a review of its organisational and executive structure, however consistent with commentary from the first report, full implementation is contingent on development of human source management legislation. |
| 105 | Delivered | Substantial progress and efforts have been made to ensure disclosure was made. Additionally, there are now processes in place to effect disclosure if potentially affected persons come to the attention of Victoria Police. |
Recommendations with a 6-month timeframe
| Recommendation/s | Implementation Monitor's assessment of delivery as of 30 June 2022 | Commentary from the Implementation Monitor |
|---|---|---|
| 76 | Not yet delivered | Work continues with development of a communications campaign, noting further unavoidable delays to delivery. |
| 106 | Delivered | All reasonable attempts at notification to the potentially affected persons had been completed. |
Recommendations with a 12-month timeframe
| Recommendation/s | Implementation Monitor's assessment of delivery as of 30 June 2022 | Commentary from the Implementation Monitor |
|---|---|---|
| 1, 3, 92-99 and 103 | Delivered | The Special Investigator Act received Royal Assent in December 2021 and the Special Investigator was formally appointed to the statutory office. |
| 19-25, 32, 37, 40 and 41 | Delivered | Victoria Police updated its internal Human Source Management policy. |
| 30, 33-36 | Delivered | Victoria Police developed further guidance and training requirements relevant to human source management risk assessments. |
| 38 and 39 | Delivered | Victoria Police undertook a review of the broader functionality of Interpose. Additional data capture fields were included, including enhancing Interpose to record the origin of information provided by human sources. |
| 62, 63 and 66 | Delivered | Amendments to the Criminal Procedure Act 2009 commenced on 16 February 2022. The Disclosure Certificates Regulations were made on 26 July 2022 and commenced on 1 October 2022. |
| 64 and 70 | Delivered | Victoria Police delivered the Chief Commissioner’s Instruction (CCI), a summary disclosure practice guide and an indictable disclosure practice guide. |
| 65 | Delivered | The Office of Public Prosecutions (OPP) did an extensive review of the existing policy of the Director of Public Prosecutions (DPP) for Victoria and noted that it aligned with the proposed legislative reforms and that no amendment of the policy was required. |
| 68 and 69 | Delivered | On 24 January 2022 the OPP, Victoria Police and the VGSO, published a protocol to facilitate effective engagement with, and resolution of, complex issues arising from disclosure obligations and PII claims. |
| 78, 79 and 82 | Not yet delivered | Progress is delayed; however work is underway to deliver guidance to Victorian legal practitioners through local Victorian bodies. |
| 80 and 83 | Delivered | The Victorian Bar developed advice and delivered online sessions to members, which were posted on the Bar’s CPD catalogue on its website. |
| 85 | Additional 12-month timeframe triggered | As agreement at the national level was not able to be reached within 12 months, the second limb of the recommendation with an additional 12-month timeframe was triggered. The government’s consultation with the other Uniform Law jurisdictions on the implementation of the reform is ongoing. |
| 86-87 | Additional 12-month timeframe triggered | Consultation with the other Uniform Law jurisdictions to consider options for uniform implementation is ongoing. Delivery of recommendation 87 is dependent on the delivery of recommendation 86. |
| 88 | Delivered | On 30 June 2021, VLSB+C revoked the Instrument of Delegation conferred on the Victorian Bar for receiving and handling complaints regarding barristers and resumes that function. |
| 90 | Delivered | Victoria Police undertook consultation with stakeholders to enhance policy and training material to comprehensively set out the process for facilitating a person exercising their right to obtain legal advice while in police custody. |
Recommendations with an 18-month timeframe
| Recommendation/s | Implementation Monitor's assessment of delivery as of 30 June 2022 | Commentary from the Implementation Monitor |
|---|---|---|
| 91 | Not yet delivered | Work has been undertaken to progress implementation of this recommendation, and the government is continuing to pursue amendments to the Inquiries Act to ensure the Commission’s intent is achieved. |
Work undertaken to deliver recommendations highlighted in the Implementation Monitor’s report
As noted by the Implementation Monitor, significant work has been undertaken to implement the Commission’s recommendations with 12-month or 18-month implementation timeframes. As of 30 June 2022, the Implementation Monitor assessed only seven recommendations as not having been implemented in full during this reporting period, along with two recommendations from the previous reporting period.
The following details the steps taken to implement these recommendations and an update as to the status of implementation, as of September 2022.
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.
As outlined in last year’s progress report, Victoria Police commissioned independent advice from the VGSO 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.
As acknowledged in the Implementation Monitor’s report, the Human Source Management Bill introduced in August 2022 contains additional safeguards requiring legal advice to be sought prior to the registration of certain high risk human sources.
Recommendation 76 requires the VLSB+C, the LIV and the Victorian Bar to work with stakeholders to prepare and distribute communications aimed at restoring and promoting confidence in the legal profession.
While delivery of the communications campaign has been delayed, campaign materials have been developed and significant consultation has been undertaken to increase engagement and impact once the campaign is launched.
Recommendations 78, 79 and 82 are directed to the LSC, LCA and Australian Bar Association and relate to updates to the Solicitors’ Conduct Rules and commentary. The Victorian Government is continuing to work with these bodies to encourage implementation of these recommendations.
Recommendation 85 required LCA, LSC, and Australian Bar Association to work together to harmonise the powers held by local regulatory authorities through the Solicitors’ CPD Rules. The recommendation provides that if harmonisation is not achieved within 12 months, the Victorian Government has a further 12-months to provide the Victorian regulatory authority with increased powers.
As agreement at the national level was not able to be reached within the stipulated timeframe, the second part of this recommendation has been triggered, and the government is now working with Uniform Law bodies on options for implementation.
Recommendation 86 requires the Victorian Government to pursue an amendment to the Uniform Law to introduce a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. If the amendment is not introduced into the Uniform Law within 12 months, the Commission recommended the Victorian Government introduce the requirement in Victoria, within a further 12-months.
Although uniform implementation was not achieved in the initial 12 months, the government is continuing to work with the LSC and Uniform Law jurisdictions to consider options for uniform implementation before taking action to implement the mandatory reporting requirement in Victoria alone.
Recommendation 87 requires VLSB+C, the Victorian Bar and the LIV, to prepare harmonised guidance and CPD activities for the legal profession to accompany and support the introduction of a mandatory reporting requirement. Planning in relation to this guidance has commenced, and further consultation will occur once recommendation 86 has been finalised.
Recommendation 91 requires the Victorian Government to amend the Inquiries Act to remove the ability of a person to refuse or fail to comply with a notice or requirement from a Royal Commission on the grounds of Public Interest Immunity, within 18 months.
The government has consulted broadly on its proposed approach to implementing this recommendation to ensure that Royal Commissions are able to access relevant information while also placing adequate safeguards on sensitive information. Government will continue to pursue amendments to the Inquiries Act to ensure the Commission’s intent is achieved.
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