The Victorian Government remains committed to supporting the effective and transparent implementation of the Commission’s remaining recommendations through independent monitoring and reporting on progress and delivery of recommendations.
The Implementation Monitor, Sir David Carruthers, has continued to play a critical role in this oversight and reporting framework, providing independent advice to responsible agencies and government on implementation issues. The Victorian Government continues to demonstrate its commitment to independent oversight provided by the Implementation Monitor, with additional funding provided to support the role of the Implementation Monitor as part of the 2023-24 State Budget.
Throughout this reporting period, the Implementation Monitor has continued to work closely with government and other responsible agencies to oversee the implementation of recommendations and ensure the Commission’s intended outcomes are achieved.
According to the 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. 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 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 of the recommendations.
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. The second progress report was tabled on 20 December 2022, covering the period from 1 July 2021 to 30 June 2022.
This report marks the third annual progress report provided to Parliament.
Implementation Monitor’s 2022-23 report
The Implementation Monitor provided his third Implementation Report to the Attorney-General in September 2023.
The Implementation Monitor’s third Implementation Report covers the period from 1 July 2022 to 30 June 2023, focusing on the Implementation Monitor’s assessment of progress towards implementing recommendations that were given a two-year indicative implementation timeframe by the Commission from the delivery of the Commission’s final report (i.e by 30 November 2022).
The Implementation Monitor advised the Attorney-General that, on his assessment, the majority of the 35 recommendations with a two-year timeframe had been fully delivered. Only nine 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:
- Passage of the Human Source Management Act, which provides a legislative framework for Victoria Police’s registration, use and management of human sources and delivers twenty-five recommendations (recommendation 8-18, 44-56, 58)
- Government continued work to consider reform options following the systemic review of police oversight in 2022 (recommendation 61)
- Two independent reviews by Victoria Police to deliver the first limb of recommendation 72 (training and support for police officers regarding their disclosure obligations) and recommendation 73 (dedicated disclosure officer initiative). Full delivery of these recommendations will be dependent on further reviews, which are required within five years of the initial reviews.
Of the nine recommendations the Implementation Monitor considered had not been delivered to their full intention, the Implementation Monitor noted the following:
- Operational and resourcing constraints experienced by Victoria Police have meant delivery of the centralised organisational model for the registration, use and management of human sources has been delayed (recommendation 26-29). The Implementation Monitor will continue to work closely with Victoria Police to help deliver these recommendations.
- Work on ensuring the Public Interest Monitor (PIM) and Independent Broad-Based Anti-Corruption Commission (IBAC) can securely share information relevant to their respective legislative functions regarding Victoria Police’s use and management of human sources (recommendation 59), is contingent on the making of regulations and other legislative amendments ahead of commencement of the Human Source Management Act.
- Work by Government to ensure PIM, IBAC and Victoria Police are appropriately funded and resourced to undertake legislative functions under the Human Source Management Act (recommendation 60), is contingent on additional work on regulations and commencement of the Human Source Management Act in September 2024. The Implementation Monitor will keep the progress of recommendations 59 and 60 under close review.
- Introducing mandatory reporting and regulation of CPD requirements (recommendation 85-87), has faced complexities due to legal profession regulation being governed by a uniform scheme which operates in multiple jurisdictions.
In relation to recommendation 86, the Implementation Monitor noted that in consultation with stakeholders, the government developed a model for mandatory reporting of suspected misconduct. The Implementation Monitor also noted delivery of recommendation 87 is contingent on recommendation 86, as it requires the preparation of harmonised guidance following the introduction of the mandatory reporting.
Further commentary on the status of these recommendations is at section 2.2 below.
The Implementation Monitor’s report also revisited six 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 six recommendations had now been delivered (recommendation 4 and 76):
- 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 my previous reports, Victoria Police made organisational changes within Victoria Police’s executive structure in 2021, to ensure the independence of the advice provided by the Executive Director, Legal Services.
The Implementation Monitor considered full implementation of this recommendation was contingent on additional safeguards requiring legal advice to be sought prior to the registration of certain high risk human sources, which have been included in the Human Source Management Act.
- Recommendation 76 required the preparation and distribution of communications to restore and promote public and client confidence in the legal profession. VLSB+C led the launch of the ‘Your Right to Ask’ campaign, which was officially launched on 18 April 2023 and ran until the end of June 2023.
Only four recommendations due to be delivered in previous reporting periods had not, in the Implementation Monitor’s view, been delivered to their full intention (recommendations 78, 79, 82 and 91). The Implementation Monitor noted:
- Progress continues in relation to changes to the Australian Solicitors’ Conduct Rules and commentary in relation to the duty of confidentiality and maintaining appropriate professional boundaries (recommendation 78, 79 and 82). The Implementation Monitor commended VLSB+C who worked on supportive resources and published guidance on professional boundaries on its website in June 2023 and will continue to work with the VLSB+C to ensure the benefit of these recommendations is realised.
- That following consultation with stakeholders, work is underway to develop whole-of-government administrative guidance on PII claims for inquiries and litigation more generally, rather than introducing reforms to address the application of PII under the Inquiries Act in isolation. This approach seeks to address the intent of the recommendation, to provide consistency and transparency in the management of PII claims across government. The Implementation Monitor welcomed further detail and consultation on the proposed guidance in due course. (recommendation 91).
The report also included commentary on the decommissioning of the Office of the Special Investigator, including the appointment of a new Special Investigator to oversee the decommissioning of the Office of the Special Investigator. The report notes that eleven recommendations relating to the establishment of the Office of the Special Investigator were considered delivered when the Special Investigator Act commenced on 1 December 2021 (recommendation 1, 3, 92-99 and 103). The report emphasises that the Implementation Monitor considers that due process has been carried out with respect to the Commission’s recommendations about investigation of criminal offences. In addition, that the Implementation Monitor accepted the advice of the former Special Investigator in relation to the rationale for not proceeding with disciplinary investigations and noted that sufficient investigation was undertaken to acquit the recommendation (recommendation 101).
Recommendations with a 3 month timeframe
| Recommendation/s | Implementation Monitor’s assessment of delivery as of 30 June 2023 | Commentary from the Implementation Monitor |
|---|---|---|
| 4 | Delivered | Victoria Police conducted a review of its organisational and executive structure in 2021. Following the passage of the Human Source Management Act, which had additional safeguards requiring legal advice to be sought prior to the registration of certain high risk human sources, the Implementation Monitor is satisfied this recommendation has been delivered in full. |
Recommendations with a 6 month timeframe
| Recommendation/s | Implementation Monitor’s assessment of delivery as of 30 June 2023 | Commentary from the Implementation Monitor |
|---|---|---|
| 76 | Delivered | Whilst there were unavoidable delays which resulted in it not being delivered within the six-month timeframe, the ‘Your Right to Ask’ public campaign was officially launched in April 2023 and ran until the end of June 2023 on radio, press and digital. |
Recommendations with a 12 month timeframe
| Recommendation/s | Implementation Monitor’s assessment of delivery as of 30 June 2023 | Commentary from the Implementation Monitor |
|---|---|---|
| 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. In June 2023, the VLSB+C published guidance on professional boundaries. |
Recommendations with an 18 month timeframe
| Recommendation/s | Implementation Monitor’s assessment of delivery as of 30 June 2023 | Commentary from the Implementation Monitor |
|---|---|---|
| 91 | Not yet delivered | Rather than introducing amendments to the Inquiries Act in isolation, work is underway to develop whole-of-government administrative guidance on public interest immunity claims for inquiries and litigation more broadly. Consultation will continue with relevant stakeholders. |
Recommendations with a 2 year timeframe
| Recommendation/s | Implementation Monitor’s assessment of delivery as of 30 June 2023 | Commentary from the Implementation Monitor |
|---|---|---|
| 8-18, 44-56 and 58 | Delivered | The Human Source Management Act received Royal Assent on 16 May 2023 and will commence on 30 September 2024. |
| 26-29 | Not yet delivered | Despite considerable work by Victoria Police to support development of a centralised organisational model, operational and resourcing constraints have led to delay in implementation. |
| 59 | Not yet delivered | Delivery of this recommendation is contingent on regulations following the introduction of the Human Source Management Act and other legislative amendments related to record keeping. |
| 60 | Not yet delivered | Delivery of this recommendation is contingent on regulations following the introduction of the Human Source Management Act, and the PIM and IBAC being supported to undertake their essential functions. |
| 61 | Delivered | The systemic review of police oversight was completed in 2022 and Government is considering reform options. This includes consideration of recommendation 27 of the Yoorrook Justice Commission’s recently published Yoorrook For Justice report, which examines Victoria’s police oversight system. |
| 85 | Not yet delivered | As the Legal Services Council, Law Council of Australia and Australia Bar Association did not implement the recommendation within 12 months, the second limb of the recommendation with an additional 12-month timeframe was triggered. This recommendation has been delayed due to the complexities of implementing reforms in the Legal Profession Uniform Law scheme. |
| 86-87 | Not yet delivered | As agreement at the national level was not able to be reached within 12 months, the second limb of recommendation 86 with an additional 12-month timeframe was triggered. Delivery of recommendation 87 is dependent on the delivery of recommendation 86. These recommendations have been delayed due to the complexities of implementing reforms in the Legal Profession Uniform Law scheme. |
Recommendations with a 2 and 7 year timeframe
| Recommendation/s | Implementation Monitor’s assessment of delivery as of 30 June 2023 | Commentary from the Implementation Monitor |
|---|---|---|
| 72 | Partially delivered | Victoria Police commissioned a review into the effectiveness of the training and support for police officers regarding their disclosure obligations. Full delivery of this recommendation is contingent on a five year review, due in 2028. |
| 73 | Partially delivered | Victoria Police commissioned a review into the effectiveness of its dedicated disclosure officer initiative. Full delivery of this recommendation is contingent on a five-year review, due in 2027. |
Work undertaken to deliver recommendations highlighted in the Implementation Monitor’s report
The Implementation Monitor has noted significant work undertaken this reporting period to implement the Commission’s recommendations with a two-year implementation timeframe. As of 30 June 2023, the Implementation Monitor assessed only nine recommendations as not having been implemented in full during this reporting period, along with four recommendations from the previous reporting period. The Implementation Monitor also noted the decision by government to wind down the Office of the Special Investigator, and implications for recommendations 100 and 101, which have no set timeframe.
The following details the steps taken to implement these recommendations and an update as to the status of implementation, as of September 2023.
Recommendation 26-29 require Victoria Police to establish a centralised organisational model for the registration, use and management of human sources. Operational and resourcing constraints experienced by Victoria Police have led to delay in implementation of this recommendation. Victoria Police continues to plan for a phased implementation of a centralised model for human source management.
Recommendation 59 requires the PIM and IBAC to implement appropriate security protocols and infrastructure to securely receive, share, store and dispose of sensitive human source information. Delivery of this recommendation will be supported by the introduction of regulations under the Human Source Management Act, which the Victorian Government is currently consulting on.
Recommendation 60 requires the PIM and IBAC to be appropriately funded and resourced to undertake their additional legislative functions related to oversight of the use of human sources. These requirements will be determined during development of regulations under Human Source Management Act.
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 the 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 the LSC, LCA and ABA did not implement the recommendation within the stipulated timeframe, the second part of this recommendation has been triggered. The government has engaged with participant jurisdictions on a proposed model.
Recommendation 86 requires the Victorian Government to pursue an amendment to the Legal Profession 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 Legal Profession 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, in consultation with stakeholders has developed a model for the reforms and engaged with the LSC and other participating jurisdictions seeking uniform implementation of the mandatory reporting requirement. Government continues to consider the best way of progressing this recommendation.
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 PII, within 18 months.
The government has consulted broadly on its proposed approach to implementing this recommendation and following feedback is developing whole-of-government administrative guidance on PII claims for inquiries and litigation more generally, rather than introducing reforms to address the application of PII under the Inquiries Act in isolation. Further consultation with relevant stakeholders is ongoing.
As outlined above, government is continuing to pursue its approach to implementing reforms to achieve the Commission’s intent, recognising the broad range of potential matters that may be the subject of royal commissions, other forms of inquiry, litigation and the evolving nature of PII in the common law.
Recommendations 100 and 101 require the Chief Commissioner of Victoria Police to ensure that a suitably qualified, independent authorised person, who is not a police officer, determines any disciplinary charges laid by the Special Investigator. Also, that the Chief Commissioner of Victoria Police reports to the Special Investigator and Implementation Monitor on the outcome of any disciplinary proceedings arising from the Special Investigator’s investigation of current Victoria Police officers.
The Special Investigator Repeal Bill, which will decommission the Office of the Special Investigator, passed both Houses of Parliament and received Royal Assent on 8 November 2023. Recommendations 100 and 101 will be closed at the time the Special Investigator Repeal Act 2023 commences.
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