Since the Commission handed down its final report on 30 November 2020, the Victorian Government has been working hard to achieve its commitment to deliver each of the recommendations directed to it, and to support the delivery of all the Commission’s 111 recommendations.
All recommendations directed to government with indicative implementation timeframes of three-, six- and 12-months have been delivered, with significant progress made towards delivering all remaining recommendations.
Delivery of recommendations has involved significant and complex law reform. Three major pieces of legislation were introduced within 12 months of the Commission delivering its final report which deliver important reforms to:
- provide oversight of implementation
- investigate potential criminal and disciplinary offences, and
- clarify disclosure practices.
The Implementation Monitor Act, the Special Investigator Act, and the Criminal Procedure Disclosure Act have now all commenced.
Following the government’s review of the adequacy of existing court powers to make non-disclosure orders and the commencement of the Criminal Procedure Disclosure Act in February 2022, government also consulted widely on the development of the Disclosure Certificates Regulations (which have now commenced).
Government has also developed and introduced landmark reforms in August 2022 to provide a framework for the registration, use, management and external oversight of Victoria Police’s human sources. This legislation is one of the most significant reforms arising from the Commission’s inquiries, and will help to prevent the events that led to the Commission from occurring again. Passage of the Human Source Management Bill was not able to be achieved prior to Parliament adjourning ahead of the election.
Overall, of the 111 recommendations made by the Commission, 63 have been delivered. The government has continued to work closely with agencies responsible for delivery of recommendations through the Implementation Taskforce to coordinate and monitor the effective and enduring delivery of all recommendations.
12- and 18-month recommendations directed to the Victorian Government
All 14 recommendations directed to the Victorian Government with an indicative 12-month timeframe have been delivered.
As foreshadowed in last year’s report, the Special Investigator Act commenced operation on 1 December 2021, establishing the Office of the Special Investigator, and the Honourable Geoffrey Nettle AC QC was formally appointed to the role of Special Investigator (recommendations 1, 3, 92, 93, 94, 95, 96, 97, 98, 99 and 103).
Investigations into possible criminal conduct and misconduct relating to the use of Nicola Gobbo as a human source are underway.
In addition, the Criminal Procedure Disclosure Act commenced on 15 February 2022, strengthening and clarifying disclosure obligations in criminal proceedings (recommendations 62, 63 and 66).
This Act amended the Criminal Procedure Act 2009 and delivered on key recommendations by:
- Introducing a statutory obligation of disclosure from an informant to DPP in criminal proceedings.
- Requiring the informant to complete a disclosure certificate.
- Clarifying that information related to the credibility of a prosecution witness must be disclosed to an accused, subject to certain exceptions.
Following extensive consultation with Victorian and national stakeholders, the Disclosure Certificates Regulations were made on 26 July 2022 and commenced on 1 October 2022. The regulations provide the form of the disclosure certificate police are required to give the accused and DPP when identifying relevant information not included in a brief of evidence.
One recommendation directed to government was given an indicative 18-month implementation timeframe (recommendation 91). As outlined above, government is continuing to pursue its approach to implementing reforms to the Inquiries Act to achieve the Commission’s intent, recognising the broad range of potential matters that may be the subject of royal commissions and the evolving nature of PII in the common law.
Longer-term recommendations directed to the Victorian Government
Of the 55 recommendations led by the Victorian Government, 29 recommendations have longer-term indicative timeframes beyond the current reporting period, and six have ongoing or no indicative timeframes.
Substantial progress has been made on delivering all remaining recommendations.
On 16 August 2022, the government introduced the Human Source Management Bill to Parliament (recommendations 8-18, 44-56 and 58). This legislation is the first of its kind in Australia, providing a clear framework for police to obtain and use information from human sources, with appropriate protections to manage risks, including by:
- setting out the process for the registration, use and management of Victoria Police’s human sources, and
- establishing an external oversight model to ensure that human sources are used in an ethical and justifiable manner.
The Commission emphasised that the use of human sources plays an important role for policing and community safety and should continue, but that considerable risks exist due to the covert nature of human sources.
The legislation ensures significant protections are put in place where the risks are greatest – where a person has access to privileged information, is under the age of 18, or has a serious physical or mental health condition.
Recommendations 43 and 60 require the Victorian Government to ensure that Victoria Police is appropriately funded to implement the Commission’s recommendations and that the Public Interest Monitor (PIM), the Independent Broad-based Anti-corruption Commission (IBAC) and Victoria Police are adequately resourced to undertake new legislative functions under the Human Source Management Bill.
Government has built on its 2021-22 Budget investment of $87.92m to support implementation with an additional $8.9 million provided to Victoria Police in the 2022-23 Budget for implementation of the Commission’s recommendations relating to disclosure and human source management.
The government has conducted a systemic review of police oversight in Victoria, in line with recommendation 61. The review, which involved intensive community and public consultation, considered the institutional and legislative structures that make up the Victorian police oversight system, including:
- the external oversight of police’s use of significant powers by independent integrity agencies
- complaints and disclosures about police misconduct and corruption, and
- how these complaints may be responded to (either through informal resolution, formal complaints resolution processes or investigation and/or disciplinary processes).
Government is continuing to consider options for reform following the completion of the review.
As outlined in 2.2 above, government has also undertaken a significant body of work to implement recommendations 85 and 86, working with the LSC and participating Uniform Law jurisdictions on implementation of these reforms.
Recommendation 102 requires the Victorian Government to restrict public access to the Commission’s records for 75 years. Acknowledging the sensitive nature of the records gathered during the life of the Commission, the Minister for Government Services declared on 20 December 2021 specified records of a personal or private nature to be ‘closed’, delivering this recommendation.
Recommendation 104 requires the Department of Premier and Cabinet (DPC) to notify Victoria Police of any court order or request to access the Commission’s records, to allow Victoria Police to assert any claims for public interest immunity prior to records being made available for inspection. On 12 November 2021, DPC established a process for notifying Victoria Police of any court order or request to access closed records from the Commission.
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