Journal of the Australasian Institute of Policing Inc. Volume 11 Number 1 • 2019

BLIND JUSTICE Organised Crime, Police & Solicitor X

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Editorial 3

Vol. 11, No. 1 Gangsters, cops and Lawyer X: the police March 2019 informant scandal that has shocked Australia 5 Published by the Australasian Institute of Policing Inc. A0050444D ABN: 78 937 405 524 ISSN: 1837-7009 High Court of Australia 11

Royal Commission into Management of Informants 17

Melbourne gangland lawyer explains why she became a police informant 19

Aspects of Evidentiary Privileges in Australia 25

The Lawyer-turned-Informant: Where Does One Draw the Line On Legal Professional Privilege? 41 Visit www.aipol.org to view previous editions and to subscribe to receive future editions. Uniform Evidence Law (ALRC Report 102, Section 15) 42 Contributions Articles on issues of professional interest are sought from Australasian police officers and police academics. Articles are to be electronically provided to the Editor, [email protected]. Articles are to conform Lawyer X and police informants: what is a to normal academic conventions. Where an article has previously been prepared during the course of employment, whether with a lawyer’s duty to their client and are there police service or otherwise, the contributor will be responsible for exceptions? 54 obtaining permission from that employer to submit the article for publication to Australasian Policing. Contributors are expected to adhere to the Journal’s publishing guidelines. These guidelines are available in this Journal. All papers Privilege, policing and the pub test: Questions are peer-reviewed. to be answered from the Lawyer X scandal 57 Disclaimer While every effort is made to check for accuracy, the Publishers or Editors cannot be held responsible for the content, errors or omissions Background & Outcome of Australasian Institute inadvertently published in articles and advertisements in Australasian Policing. Views expressed by contributors are not necessarily those of Policing General Meeting 60 of AiPol, the Editors or the Publisher. No responsibility for loss occasioned to any person acting, or refraining from acting, as a result of material in this publication can be accepted.

Copyright All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, electronic , mechanical, photocopying, recording, or be stored in any retrieval system of any nature, without written permission of the copyright holder and the Publisher, application for which in the first instance should be made to the Publisher for AiPol.

A Journal of Professional Practice and Research | AiPol Page 1 A 5 Cottam Avenue Bankstown NSW 2200 T 02 9790 3445 F 02 9796 1944 W www.rjsaluminium.com.au E [email protected] Editorial

DR AMANDA DAVIES Editor, Assistant Professor Policing and Security at the Rabdan Academy, Abu Dhabi

This edition is dedicated to placing the emerging mass of literature associated with what can reasonably be labelled a conundrum for both police and the legal fraternity... into a helpful order to enable a level of clarity...

Lawyer X debate is provided by Calla comprehensive reference. Similarly, the Wahlquist and is helpful in offering a extract from the Australian Law Reform starting point from which to graduate Commission informs on Privilege with to the more legally based following a focus on professional confidential articles. An extract from the High Court privilege. of Australia document gives insight At this preliminary stage, information Welcome to the first edition for 2019. Early into the decision which has fueled the available in the public domain in Indications suggest this is going to be a ensuing debate associated with client/ consideration of this conundrum falls in very interesting year ahead. Specifically lawyer privilege specifically in the context two categories; (1) current legislation and on the legal landscape as the judiciary, of such privilege being potentially legal argument; (2) public commentary law enforcement, civil liberty advocacies connected to policing informant positive and negative towards all parties and interested parties navigate the ever practices. involved. increasing commentary associated with The media release by the Victoria Appreciatively, in time as the Royal both client/lawyer confidentiality, use of State Government on Monday 3 Commission moves forward, there will police informants and indications of the December 2018 informing of a Royal be those who are and will be impacted nexus between these areas in the Lawyer Commission into Management of by the process and outcomes. There will X revelations. Informants demonstrates the political will be those in the legal fraternity and police This edition is dedicated to placing to investigate, understand, review and agencies who will discuss, debate the the emerging mass of literature recommend in this highly litigious area. multitude of scenarios associated which associated with what can reasonably be Whilst it may appear lengthy I could be considered in determining labelled a conundrum for both police and commend the conference paper recommendations. the legal fraternity into a helpful order to presented in 2017 by Robert McDougall Whilst we follow this evolving situation, enable a level of clarity around what is to readers as an excellent (for its breadth it is hoped all involved do not lose sight known about the issue to date. of understanding of the topic, clarification of the continual commitment by our A brief summary of the general of the various complementary and police officers to place themselves on the circumstances which have led to the competing legal insights into the issue) line for the protection of the community.

A Journal of Professional Practice and Research | AiPol Page 3 19 1,700 YEARS OF APARTMENTS UNDER CONTINUED SUCCESS CONSTRUCTION Founded in 1999, Deicorp has established itself as one 35 6,000+ of Sydney’s leading property developers. With their SUBURBS ACROSS APARTMENTS AND unmatched understanding of THE SYDNEY REGION STILL COUNTING the Sydney region and market trends, you can be sure that a Deicorp property is always 200 clever, connected, accessible, DEICORP EMPLOYEES affordable, and liveable.

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19 1,700 YEARS OF APARTMENTS UNDER CONTINUED SUCCESS CONSTRUCTION Founded in 1999, Deicorp has established itself as one 35 6,000+ of Sydney’s leading property developers. With their SUBURBS ACROSS APARTMENTS AND unmatched understanding of THE SYDNEY REGION STILL COUNTING Athens police escort Australian gangland figure outside court in 2007. Mokbel used Lawyer X until he skipped trial in 2006 and fled to Greece. the Sydney region and market Photograph: AFP/Getty Images. trends, you can be sure that a Deicorp property is always In 2005, eight years after the murder most infamous figures, including Carl the murder trial of a disgraced ex-police 200 clever, connected, accessible, of the underworld figure Alphonse Williams and Tony Mokbel. officer that she says she no longer DEICORP EMPLOYEES affordable, and liveable. Gangitano kicked off a long and Thirteen years later, a royal believes the force could keep her and her bloody gangland war on the streets of commission has been announced into children safe. , a prominent criminal barrister what has become one of the biggest At 9am on Monday, suppression agreed to become a registered police legal scandals and most appalling cases orders concealing the extent of her informant in exchange for a promise that of police misconduct in Australian history. involvement in the prosecutions that her identity would be kept secret. Lawyer X is still alive but has refused ended the gangland war were lifted. The woman – known variously as to go into witness protection, her trust in Within hours state and commonwealth DEICORP.COM.AU Lawyer X, EF, and – had police so shaken by leaks to the media 02 8665 4100 represented some of the gangland war’s and the attempt to use her as a witness in continued on page 6

A Journal of Professional Practice and Research | AiPol Page 5 ’ widow Roberta follows his coffin at his funeral in Melbourne in 2010. Photograph: William West/AFP/Getty Images. continued from page 5 who believed would be was the face of the so-called Carlton murdered if this information was released.” Crew, an offshoot of the Calabrian mafia, prosecutors had written to 22 people, The high court decision, delivered who murdered a petty criminal, Greg including a number of her former clients, last month but published when the Workman, in the bayside suburb of St informing them that they may have suppression order lifted, said the Kilda in 1995 and was murdered in turn grounds to challenge their convictions. very real risk to Lawyer X’s life could in his underwear in the laundry of his The Victorian premier, Daniel be managed in witness protection Templestowe home three years later. Andrews, called a royal commission (notwithstanding her refusal to enter it) , whose underworld to calculate the number of criminal and that the concerns raised by both heritage ran back to the waterfront convictions affected and urgently review Lawyer X and police did not supersede disputes of the Painters and Dockers the management of police informants. the overriding public interest in restoring union in the 1960s, was implicated in the And the state’s police minister, Lisa the integrity of a justice system that killing but never charged. Neville, has already been forced to encouraged a lawyer to inform on clients. Moran and his brother, Mark, were defend the chief commissioner of police, Lawyer X’s conduct, the high court also implicated in the 1999 non-fatal Graham Ashton, against allegations that ruled, was a “fundamental and appalling” shooting of Carl Williams, who later rose he knew or ought to have known about breach of her obligation to her clients to head his own crime family. the use of Lawyer X as an informant. and her duty to the court. The conduct of Williams killed outside his Ashton has confined his own police, it said, was “reprehensible” and luxury Aberfeldie home in 2000. In 2003 comments to a written statement saying an “atrocious” breach of duty. Jason Moran and Pasquale Barbaro were police “acted in good faith” and urging “If EF chooses to expose herself to shot dead in a car as they watched a the public to remember what Melbourne consequent risk by declining to enter into junior football clinic in Essendon, with five was like more than a decade ago, when the witness protection program, she will children as witnesses. the gangland war was at its height. be bound by the consequences,” the In total, more than 40 deaths are It was, he said, “a desperate and court said. “If she chooses to expose connected to the so-called gangland dangerous time”. her children to similar risks, the state is killings. Many of the hits took place in public. He defended the actions of police in empowered to take action to protect them The events were the basis for a taking their objections against the release from harm.” popular Australian television series, of the information to Lawyer X’s past clients , which spawned several all the way to the high court, saying: “At A brief history of the gangland killings prequels and spin-offs. In the true crime all times when handling these matters Melbourne’s gangland war is usually history of Australia, nothing has gripped our absolute concern has been for the said to have begun with the murder of public imagination like Melbourne’s protection of the lawyer and their family, in 1998. Gangitano gangland war.

Page 6 AiPol | A Journal of Professional Practice and Research Tony Mokbel arrives at the supreme court in Athens, while fighting extradition to Australia. Photograph: Miloš Bicanski/Getty Images.

Producers are already reportedly interested in adapting the story of Lawyer X If EF exposes herself to risk by not into what would be the show’s eighth season. Her role was, by her own account, entering the witness protection program, instrumental. In a 2015 letter to the she will be bound by the consequences assistant police commissioner Stephen Fontana, published in full in a 2017 -High court ruling supreme court judgment released this week, Lawyer X said the evidence she had provided had led to the arrest of at least 386 people and named a “top 10” that included the arrests of Rob Karam At another point in the supreme court published a series of stories coining the and 35 others over the import of 4.4 judgment, Lawyer X’s decision to become moniker in 2014. tonnes of ecstasy in 2007. an informant was attributed to her desire At that point, the Victorian In the letter, Lawyer X said she had to get free of Mokbel. Independent Broad-Based Anti- been motivated to become an informant out Corruption Commission had already of frustration with the way some criminals, Avenues of appeal begun investigating the management of specifically Williams, were “seeking to Karam has already begun legal action Informer 3838. Notifying Mokbel and six control what suspects and witnesses could challenging his conviction because of of his associates that their cases could and could not do or say to police”. Lawyer X’s role as an informant, and be affected by Lawyer X’s actions was She described herself as having Mokbel, who had previously exhausted one of the key recommendations of the “played a pivotal role in convincing all avenues of appeal, is expected to commission’s report, suppressed until Thomas Hentschel”, convicted, with Victor follow suit. Faruk Orman, now serving a this week, which began three years of Brincat, of a killing hot dog salesman 14-year sentence for acting as getaway legal actions. and street-level ecstasy seller, Michael driver in the murder of the suspected Ashton, who became police Marshall, on Williams’ orders in 2003, to police killer Victor Peirce – a crime he commissioner in 2015, said police had “roll over” on Williams and Brincat. has long denied – is also reported to be changed their management of informants Hentschel’s decision to turn state challenging his conviction. on the basis of that report and that a witness, she wrote, has since been Both Mokbel and Karam had case such as the mishandling of Lawyer recognised as having “laid the foundation suspected the woman was the informant X could never happen again. for the prosecution of numerous murderers, identified as “Lawyer X” since the News and others followed his example”. Corp-owned newspaper the Herald Sun continued on page 9

A Journal of Professional Practice and Research | AiPol Page 7 PO Box 3231, Dural NSW 2158 T 02 9571 9999 F 02 9571 9900 W www.ceerose.com.au E [email protected] Kevin Harrington as and Vince Colosimo as Alphonse Gangitano in the hit Underbelly television series about Melbourne’s gangland war. Photograph: Greg Noakes. continued from page 7 evidence implicating his police handler, suffered a miscarriage of justice by being David Miechel, and Dale in a burglary denied independent legal advice. It was also the end of Lawyer X’s trust that covered up connections to the Lawyer X sued the then police in police. drug trade. commissioner, Simon Overland, and his Four successive court decisions The couple were murdered, predecessor, Christine Nixon, as well as which found in favour of notifying a group execution-style, in their home in Kew. the state of Victoria in 2010. of Lawyer X’s former clients that she Dale was alleged to have paid the The case settled, and Lawyer X said was working as a police informant while underworld hitman Rodney Charles she had deliberately maintained close purporting to represent them also found Collins $150,000 to kill Hodson, and relationships with a number of underworld that confirming the rumours about her was charged with one count of murder figures as part of a “strategy of plausible involvement would substantially increase in 2009 (Collins was charged with denial” about the level of her cooperation the risk to her safety. two counts) after Lawyer X recorded with police. Threats have already been made conversations with Dale for the police. The revelations this week mean that against her oldest child. The case against Dale was dropped strategy can no longer protect her family. when Carl Williams, a key witness and Advice provided to the supreme court The unravelling former client of Lawyer X, was murdered by police said attempts to protect Lawyer Lawyer X met with a detective on the in prison in 2010. X and her children if they did not enter into Purana taskforce, which was investigating Williams is reported to have been witness protection would be “unsustainable”. the gangland war, six times and provided suspicious of Lawyer X and warned At a media conference announcing the information in “the strictest confidence”. Mokbel to drop her as a lawyer. royal commission this week, Daniel Andrews, She was registered as a police informer Mokbel continued to use Lawyer X who was briefed on the high court case on 16 September 2005 and remained on until he skipped trial in 2006 and fled to the morning after winning a second term the books until 12 January 2009, when Greece. He was extradited to Australia in of government, said the conduct of Victoria she fell out with the force over a decision 2008 and sentenced in 2012 to 30 years police in encouraging and managing Lawyer to list her, under another pseudonym, as a in jail, with a minimum of 22 years, for X as an informant had made a number of witness in the murder trial of the disgraced running a drug syndicate. high-profile convictions “unsafe”. police officer Paul Dale for the 2004 double It is a decision that, ironically, could “As I get more and more information killing of Terrence and Christine Hodson. provide his only avenue of release. on this I am left in no doubt that a royal Terrence Hodson was himself a Mokbel was convicted on a guilty plea commission is the thing we need to do,” police informant and had agreed to give but could, potentially, argue that he had he said.

A Journal of Professional Practice and Research | AiPol Page 9 www.vannellacheese.com.au Enquiries: Ph: 02 8216 1828

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Proudly Supporting The Police Locally & Throughout Australia High Court of Australia

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No M73/2018 proceeding No. M183 of 2017 and (e) the Secretary to the Department of AB (A PSEUDONYM) No. M185 of2017); Justice & Regulation;and APPELLANT (d) any transcript of any hearing in (f) the Secretary to the Department of AND these proceedings (except the Premier and Cabinet. CD (A PSEUDONYM) & ORS directions hearing on 21 December 4.2. AB, CD or the Commonwealth RESPONDENTS 2017 and the granting of special Director of Public Prosecutions may Matter No M74/2018 leave to appeal on 9 May 2018 in provide a copy of these orders, EF (A PSEUDONYM) proceeding No. M183 of 2017 and the transcript of the hearing on 5 APPELLANT No. M185 of2017); November 2018 and this Court’s AND (e) any information derived from the reasons for decision relating to the CD (A PSEUDONYM) & ORS hearing on 5 November 2018, or revocation of special leave to the RESPONDENTS from the transcript of that hearing;or President of the Court of Appeal AB (a pseudonym) v CD (a pseudonym) (f) the real name or image of EF in of the Supreme Court of Victoria, EF (a pseudonym) v CD (a pseudonym) connection with these proceedings the Honourable Christopher [2018] HCA 58 and with proceeding No. M183 of Maxwell AC, or in his absence the 5 November 2018 2017 and No. M185 of 2017, until 5 Acting President of the Court of M73/2018 & M74/2018 February 2019. Appeal, who may provide copies ORDER 3.2. Pursuant to s 77RE(1) of the of the same to or inform any of the The orders of the Court, as varied on Judiciary Act, by reason of the Judges of the Supreme Court as he 23 November 2018 and as further varied necessity to prevent prejudice to considers necessary. on 3 December 2018, are as follows: the proper administration of justice 4.3. AB and CD may provide the 1. Special leave to appeal granted on within the meaning of s 77RF(1) Honourable Robert Redlich QC, May 2018 is revoked in each matter. (a) of the Judiciary Act, there be Commissioner of the Independent 2. The following orders made by the no disclosure other than disclosure Broad-based Anti-corruption Honourable Justice Nettle are in accordance with Orders 4.1- Commission, any information about revoked: 4.9 herein, whether by publication these proceedings that AB or (a) Orders 1 and 2 made on 21 or otherwise, of any information CD considers necessary for the December 2017, as varied on 25 tending to reveal the identity of the purpose of keeping Mr Redlich QC May 2018;and other parties to these proceedings informed about these proceedings, (b) Order 2 (including proceeding No. M183 of including copies of any applications (c) made on 17 October2018. 2017 and No. M185 of 2017), until and orders made in these 3.1. Pursuant to s 77RE(1) of the 9am on 3 December2018. proceedings, from time to time as Judiciary Act 1903 (Cth), by reason 4.1. AB may provide the Legislation the occasion requires. of the necessity to prevent prejudice Committee of the Victorian Cabinet, 4.4. The Commonwealth Director to the proper administration of being the Cabinet Committee that of Public Prosecutions may justice within the meaning of s has oversight of significant litigation, provide the Attorney-General 77RF(1)(a) of the Judiciary Act, any information about these for the Commonwealth and there be no disclosure other than proceedings that AB considers the Attorney-General’s Chief disclosure in accordance with necessary for the purpose of of Staff, any information about Orders 4.1-4.9 herein, whether by briefing that Committee about these these proceedings that the publication or otherwise,of: proceedings from time to time as Commonwealth Director of Public (a) any document filed in these the occasion requires. Prosecutions considers necessary proceedings (including in 4.1 A. Neither Order 3.1 nor Order 3.2 for the purpose of briefing the proceeding No. M183 of 2017 and prohibits disclosure for the purpose Attorney-General about these No. M185 of2017); of briefing the following persons proceedings from time to time as (b) any information derived from holding office in the State of Victoria the occasion requires. any document filed in these about these proceedings from time 4.5. The Commonwealth Director of proceedings (including in to time as the occasion requires: Public Prosecutions may provide proceeding No. M183 of 2017 and (a) the Premier; the Commissioner of the Australian No. M185 of 2017); (b) the Attorney-General; Federal Police any information (c) any order made in these (c) the Minister for Police; proceedings (including in (d) the Special Minister of State; continued on page 12

A Journal of Professional Practice and Research | AiPol Page 11 continued from page 11 and No. S APCI 2017 0087 which formal revision prior to publication in the are the subject of orders made by Commonwealth Law Reports. about these proceedings that the the Court of Appeal under the Open Commonwealth Director of Public Courts Act 2013 (Vic);and CATCHWORDS Prosecutions considers necessary (e) this Court’s reasons for decision AB (a pseudonym) v CD (a pseudonym) for the purpose of briefing the relating to the revocation of special EF (a pseudonym) v CD (a pseudonym) Commissioner about these leave to appeal. Criminal law – Prosecution’s duty of proceedings from time to time as 4.9. Order 3.1 does not prohibit disclosure – Public interest immunity – the occasion requires. disclosure, by AB, CD or the Where legal counsel for several accused 4.6. Order 3.1 does not prohibit disclosure Commonwealth Director of Public (“EF”) was enlisted as police informer – from 3 December 2018 of: Prosecutions to any person to Where EF provided information to police (a) any document filed in proceeding whom they owe obligations of that had potential to undermine each No. S CI 2016 03143 or No. S CI disclosure, from 3 December 2018 accused’s defences to criminal charges 2016 04688 in the Supreme Court of of any information tending to reveal – Where each accused convicted of Victoria, and any judgment given or the identity of any of the parties criminal offences – Where first respondent order made in those proceedings; to these proceedings (including proposed to disclose to each convicted (b) any document filed in proceeding proceeding No. M183 of 2017 and person information about EF’s conduct No. S APCI 2017 0082, No. S APCI No. M185 of 2017), provided they – Whether information subject to public 2017 0083 or No. S APCI 2017 do not use EF’s real name or image. interest immunity – Whether first respondent 0087 in the Court of Appeal of the 5. The whole of the Court’s file shall permitted to make proposed disclosures. Supreme Court of Victoria, and any remain closed until 5 February 2019. Practice and procedure – High Court – judgment given or order made in 6. Any party which seeks limited Special leave to appeal – Whether special those proceedings. redactions from materials on the leave to appeal ought to be revoked. For the avoidance of doubt, Order Court file shall make application to Words and phrases – “adequately 4.6 does not otherwise affect the High Court no later than 2.30pm protect”, “disclosure”, “police informer”, the operation or the effect of any on 21 December 2018 identifying “integrity of the criminal justice system”, suppression order in respect of in the application the specific “public interest immunity”, “witness such documents made by the information to be redacted by protection”. Supreme Court of Victoria (including reference to the specific documents Witness Protection Act 1991 (Vic), s the Court of Appeal). on the Court file. 3B(2)(b). 4.7. Order 3.1 does not prohibit CD from On appeal from the Supreme Court 1. KIEFEL CJ, BELL, GAGELER, 3 December 2018 from sending, of Victoria KEANE, NETTLE, GORDON AND to each of the persons named EDELMAN JJ. Early in February in paragraph 2(b) of the orders Representation 2015, the Victorian Independent sought in the Notice of Appeal in N C Hutley SC with E M Nekvapil and Broad-based Anti-corruption proceeding No. M73 of 2018 dated D P McCredden for AB in both matters Commission provided to the Chief 23 May 2018, letters substantively in (instructed by Victorian Government Commissioner of Victoria Police the terms identified in exhibits JRC- Solicitor) (“AB”), and AB in turn provided 11 and JRC-17 to the confidential S B McNicol QC with C T Carr and to the Victorian Director of Public affidavit of John Ross Champion K A O’Gorman for CD in both matters Prosecutions (“CD”), a copy of SC sworn 2 August 2016 and filed (instructed by Solicitor for Public a report (“the IBAC Report”) in the Supreme Court of Victoria in Prosecutions (Vic)) concerning the way in which proceeding No. S CI 201603143. P W Collinson QC and C M Harris Victoria Police had deployed EF, a 4.8. Order 3.1 does not prohibit disclosure QC for EF in both matters (instructed by police informer, in obtaining criminal from 3 December 2018 of: Minter Ellison) convictions against Antonios (a) the terms of these orders; W J Abraham QC with R J Sharp (“Tony”) Mokbel and six of his (b) the fact that there was a hearing on and M R Wilson for the Commonwealth criminal associates (“the Convicted 5 November 2018, in proceeding Director of Public Prosecutions in both Persons”). The Report concluded No. M73 of 2018 and No. M74 of matters (instructed by Director of Public among other things that EF, while 2018 in the High Court of Australia, Prosecutions (Cth)) purporting to act as counsel for to determine whether special leave C J Horan QC with K M Evans for the the Convicted Persons, provided to appeal, which was granted on 9 Victorian Equal Opportunity and Human information to Victoria Police that May 2018, should be revoked; Rights Commission in both matters had the potential to undermine (c) the fact that special leave to appeal (instructed by Victorian Equal Opportunity the Convicted Persons’ defences was revoked, and the date on which and Human Rights Commission) to criminal charges of which they special leave was revoked; W B Zichy-Woinarski QC with J M were later convicted and that EF (d) the fact that the appeals were Davidson appearing as amici curiae also provided information to Victoria appeals from a decision of the Court in both matters (instructed by Russell Police about other persons for of Appeal of the Supreme Court of Kennedy Lawyers) whom EF had acted as counsel Victoria in proceeding No. S APCI Notice: This copy of the Court’s and who later made statements 2017 0082, No. S APCI 2017 0083 Reasons for Judgment is subject to against Mokbel and various of the

Page 12 AiPol | A Journal of Professional Practice and Research other Convicted Persons. Following children safe from the harm likely possible adequately to protect the a review of the prosecutions of the to result from disclosure of the safety of EF and her children in the Convicted Persons, CD concluded information, there was a competing event of disclosure. Accordingly, that he was under a duty as Director and more powerful public in order to clarify the relevant facts of Public Prosecutions to disclose interest in favour of disclosure that had been the foundation of the some of the information from the because of the assistance that grant of special leave, the Court IBAC Report (“the information”) to the information might afford the sought from AB, and was provided the Convicted Persons. Convicted Persons in having their with, further detailed evidence as 2. In the months which followed, Victoria convictions overturned and, more to what can be done to secure the Police undertook an assessment of fundamentally, in order to maintain safety of EF and her children in the the risk to EF if CD were to disclose public confidence in the integrity of event of disclosure. The effect of the information to the Convicted the criminal justice system. that evidence is that the safety of EF Persons. The conclusion reached 5. On 21 November 2017, the Court and her children may adequately be was that, if the information were of Appeal of the Supreme Court of protected if EF agrees to enter into disclosed, the risk of death to EF Victoria (Ferguson CJ, Osborn and the witness protection program1. would become “almost certain”. McLeish JJA) dismissed AB’s and 8. Given that conclusion, the parties On 10 June 2016, AB instituted EF’s appeals from the orders of were invited to present oral argument proceedings in the Supreme Court Ginnane J. Like Ginnane J, the Court as to why special leave to appeal of Victoria seeking declarations that of Appeal held that, despite the should not now be revoked, and, the information that CD proposed risk to EF and her children, the very today, their oral arguments were heard to disclose and other information great importance of ensuring that in camera. Having now considered in the IBAC Report was subject to the court’s processes are used fairly those arguments, the Court is public interest immunity and thus and of preserving public confidence unanimously of the view that special that CD is not permitted by law to in the court meant that the public leave to appeal should be revoked. make the proposed disclosures. On interest in disclosure outweighed the 9. As Ginnane J and the Court of 11 November 2016, EF was added public interest in immunity. Appeal held, there is a clear public as a plaintiff to the proceeding. On 6. On 9 May 2018, AB was granted interest in maintaining the anonymity 15 November 2016, EF instituted a special leave to appeal to this of a police informer, and so, where separate proceeding in the Supreme Court on grounds to the effect a question of disclosure of a police Court of Victoria seeking similar that the Court of Appeal erred in informer’s identity arises before the relief on the basis of an equitable failing to appreciate that there is trial of an accused, and the Crown is obligation of confidence. a discrete public interest in the not prepared to disclose the identity 3. Both proceedings were heard State of Victoria adhering to the of the informer, as is sometimes the together in camera without notice responsibility which it assumed by case, the Crown may choose not to to the Convicted Persons and with reason of the assurances given by proceed with the prosecution or the publication of the proceedings Victoria Police to EF that her identity trial may be stayed. being suppressed. The Convicted as a police informer would not be 10. Here the situation is very different, Persons’ interests were, however, disclosed. At the same time, EF if not unique, and it is greatly to be amply represented throughout the was granted special leave to appeal hoped that it will never be repeated. proceedings and subsequently on grounds to the effect that the EF’s actions in purporting to act as on appeal to the Court of Appeal Court of Appeal erred by assuming, counsel for the Convicted Persons of the Supreme Court of Victoria, contrary to the evidence, that EF while covertly informing against them and before this Court, by amici might choose to enter into the were fundamental and appalling curiae. The Victorian Equal witness protection program once it breaches of EF’s obligations as Opportunity and Human Rights was determined that the information counsel to her clients and of EF’s Commission intervened in the would be disclosed, by finding and duties to the court. Likewise, Victoria proceeding instituted by AB and the taking into account that EF’s refusal Police were guilty of reprehensible Commonwealth Director of Public to enter witness protection may conduct in knowingly encouraging EF Prosecutions was granted leave in become unreasonable, and by not to do as she did and were involved in the Court of Appeal to intervene in concluding that the public interest sanctioning atrocious breaches of the support of disclosure. favoured non-disclosure given the sworn duty of every police officer to 4. On 19 June 2017, Ginnane J gave gravity of the consequences of discharge all duties imposed on them judgment in each proceeding disclosure to EF and her children. faithfully and according to law without dismissing AB’s and EF’s claims 7. The full written arguments thereafter favour or affection, malice or ill-will2. for relief. Relevantly, his Honour presented by all parties and As a result, the prosecution of each dismissed the claim for public interveners made it apparent, as Convicted Person was corrupted in a interest immunity on the basis that, it was not apparent at the time of manner which debased fundamental although there was a clear public granting special leave to appeal, premises of the criminal justice system. interest in preserving the anonymity that the only arguable issue It follows, as Ginnane J and the Court of EF as a police informer, and underpinning the various grounds of thus in keeping her and her appeal was whether it was no longer continued on page 15

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Proudly supporting the police in the local area continued from page 13 maintain confidentiality and apparently which may assist in the prosecution of that she would prefer to wear the risk offenders. That is why police informer of Appeal held, that the public interest than subject herself and her children anonymity is ordinarily protected by favouring disclosure is compelling: to the limitations and burdens that public interest immunity. But where, the maintenance of the integrity of witness protection would surely entail. as here, the agency of police informer the criminal justice system demands It is further not without significance has been so abused as to corrupt the that the information be disclosed and that Victoria Police may bear a large criminal justice system, there arises a that the propriety of each Convicted measure of responsibility for putting EF greater public interest in disclosure to Person’s conviction be re-examined in the position in which she now finds which the public interest in informer in light of the information. The public herself by encouraging her to inform anonymity must yield. If EF chooses interest in preserving EF’s anonymity against her clients as she did. But large to expose herself to consequent risk must be subordinated to the integrity of though those considerations may be, by declining to enter into the witness the criminal justice system. they do not detract from the conclusion protection program, she will be bound 11. To say so is not to overlook that, on that it is essential in the public interest by the consequences. If she chooses the evidence before the courts below for the information to be disclosed. to expose her children to similar risks, and now before this Court, EF and 12. Generally speaking, it is of the utmost the State is empowered to take action her children will be at grave risk of importance that assurances of to protect them from harm3. harm unless EF agrees to enter into anonymity of the kind that were given 13. Either way, however, it is appropriate the witness protection program. Nor to EF are honoured. If they were not, that special leave to appeal be is it to ignore that, thus far, EF has informers could not be protected revoked in these two proceedings declined to do so, taking the view that and persons would be unwilling to and the decision of the Court of Victoria Police cannot be trusted to provide information to the police Appeal be allowed to take effect.

References 1. See Witness Protection Act 1991 (Vic), s3B(2)(b). Police Regulation Act 1958 (Vic), SecondSchedule. 2. See Victoria Police Act 2013 (Vic), Sch 2, and formerly 3. See Children, Youth and Families Act 2005 (Vic), s240.

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Proudly Servicing the Police in All Areas of Queensland Royal Commission into Management of Informants Media Release Monday, 3 December 2018 THE HON DANIEL ANDREWS MP Premier THE HON JILL HENNESSY MP Attorney General THE HON LISA NEVILLE MP Minister for Police and Emergency Services

The Andrews Labor Government has instance. The Royal Commission will handling and management of today announced that it will establish provide that assurance. human sources who are subject to a Royal Commission to independently The terms of reference will be finalised legal obligations of confidentiality inquire into Victoria Police’s recruitment once Commissioners are appointed, but or privilege, and in the use of such and management of one of its informants. the inquiry will consider matters including: human source information in the The informant was a criminal defence §§ The number of, and extent to which, broader criminal justice system, barrister for several people who were cases were affected by the conduct including how those failures may be convicted of criminal offences over the of informant 3838 as a human source, avoided infuture. past two decades. At the same time, this and the recruitment, handling and The inquiry will provide an interim barrister acted as an informant to Victoria management of 3838 as a human report by 1 July 2019 and provide a final Police about some of these people. source by Victoria Police report by 1 December 2019. The decision of the High Court §§ The adequacy of current released today calls into question management processes for human Quote attributable to Premier whether some convictions have occurred sources with legal obligations of Daniel Andrews fairly and in accordance with law. confidentiality or privilege, including “While these events took place many The integrity of the criminal justice continued compliance with the years ago, the Victorian public has a system is paramount and all people recommendations of the 2015 IBAC right to know that every part of the justice charged with crimes are entitled to a fair report system acts fairly and lawfully at all times.” trial, no matter who they are. §§ The use in the criminal justice system The Victorian Government has of information from human sources Quote attributable to Attorney- received assurances from Victoria who are subject to legal obligations General Jill Hennessy Police that its practices have changed of confidentiality or privilege. “Only a Royal Commission will get the since the barrister’s recruitment as an including whether there are adequate answers needed so that something like informant, and an IBAC report in 2015, safeguards in the way in which cases this can never happen again.” which inquired into Victoria Police’s are assessed and recommended management of informants, did not find for prosecution, and prosecuted by Quote attributable to Police that any unlawful conduct had occurred. Victoria Police and the Office of Public Minister Lisa Neville The Victorian community, however, Prosecutions “Victoria Police has changed the way has a right to further independent §§ Recommended measures that may it handles informants, but a Royal assurance that these past practices be taken to address any systemic Commission will provide greater public have been stamped out, as well as an or other failures in Victoria Police’s certainty that these changes are here understanding of what happened in this processes for the recruitment, to stay.”

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Proud to support the Police in a job well done Melbourne gangland lawyer explains why she became a police informant

The informer was given the number 3838. She was a defence barrister-turned- police informer who claimed to have helped Victoria Police in at least 386 cases involving notorious figures from Melbourne's underworld. A number of criminals, including murderers and drug kingpins, could launch legal bids for freedom as a result of the arrangement. Victorian Premier Daniel Andrews has announced a royal commission into the matter, and former homicide squad detective Ron Iddles says up to 15 senior police officers turned a "blind eye" to the consequences of the arrangement. The barrister involved cannot be named. On June 30, 2015, she wrote a letter to Victoria Police Assistant Commissioner The police informer addressed her letter to former assistant commissioner Steve Fontana, pictured Steve Fontana which can now be published here in 2013. (ABC News). after the lifting of suppression orders on the case in the High Court on Monday. For the writer to reply by inferring intricate personal information about me The court found covertly informing on that anyone other than police members and when I contemplate where such clients was a "fundamental and appalling were responsible for the leaking of highly information may now be, I am disgusted breach" of the barrister's obligations. But sensitive confidential information detailing all over again. in the letter, she described how she was my role was and is simply absurd. As an aside, I consider myself very motivated by altruism rather than any Of course that was prior to the IBAC fortunate that the media appears to have personal gain. report being handed down in which His forgotten that when the IBAC inquiry was The letter sets out in detail her story Honour Justice Kellam made a number first announced, their (the Government's) of why she became an informer and the of findings, specifically that the manner own media release made it clear that consequences she faced as a result. in which Victoria Police handled me, the inquiry was not a general one about The letter is published in full as it as an informer/human source, was informers but rather a specific enquiry appears in court documents, with minor grossly negligent. into the "Lawyer X scandal". edits for clarity. Given that I was not invited to give Whilst I am grateful that Victoria Re: Assistance to Victoria Police evidence at the IBAC hearing and nor Police applied for and obtained an I refer to our meetings in 2014 and has any investigator ever spoken to me or injunction preventing publication of the to the letter I wrote to the then chief offered any kind of explanation as to how IBAC findings, it is clear that some of the commissioner Ken Lay (in October 2014) not just the fact of my assistance, but the content of His Honour's report has been in which I articulated some of my concerns intricate details as well, have become leaked to the media. and fears as well as the impact that the a matter of public knowledge, I remain I have accepted that I will have to revelation of my informer/human source in a situation in which I accept that this continue to live with the prospect that more role in the media has had on my life. nightmare is not simply going to go away. details may emerge publicly and, with the I refer to and repeat the content of Nor am I able to take comfort in assistance of a clinical psychologist and a that letter which I will attach to this one in knowing that those police members doctor, I will need to continue to manage the event that you have not read it. who betrayed me have been identified, the literally paralysing fears and uncertainty For the sake of completeness, the disciplined or prosecuted. as well as heightened danger that impacts response I received from Victoria Police As I think I mentioned to you (or upon my existence. in late 2014 to my letter was nothing but at least to Detective Inspector Ian disingenuous and offensive. Campbell), my handlers were aware of continued on page 20

A Journal of Professional Practice and Research | AiPol Page 19 continued from page 19

To enable you to try to comprehend the level of actual stress and anxiety I have to manage, I learned only this week that the Calabrian crime family (Pat Barbaro, Sam Zirilli and co) have been informed that police were provided with a copy of the Bill of Lading pertaining to the importation of what remains the world's largest ever single seizure of MDMA in 2007; they have been told by a journalist that their Bill of Lading was given to police by an informer and that IBAC was provided with the same document which was the subject of specific comment by His Honour Justice Kellam in his final report. It is an understatement to say that over 12 months after the public revelation of me being an informer/human source Convicted drug trafficker Tony Mokbel in disguise in Greece in 2007. (ABC News) for Victoria Police, the confirmation that an extremely dangerous Italian organised been leaked because it is plainly obvious assistance I provided over a number of crime family has learned this type of that the very offenders convicted as a years, I am also including some detail detail is nothing short of horrifying. consequence of my assistance are well as to how and why I began to provide To make any kind of long-term aware of some of IBAC's findings. intelligence to Victoria Police and what decisions about my future is very difficult In any event, the whole issue of how my assistance included. because of the continuing problems and by whom any information about my As I hope you are aware, I helped arising from the original leak to the media assistance was leaked to the media and because I was motivated by altruism, of the "Lawyer X scandal". became a matter of public knowledge, rather than for any personal gain. My treating psychologist has said on let alone the leaking of IBAC's findings, My actual assistance to Victoria Police occasion that were it not for my children, remains a matter for your organisation to began informally via Purana not long after she does not think I would still be alive; investigate or resolve. the taskforce was initially formed in 2004. such is the level of my depression, Obviously if I am forced into I met as he then was, Detective anxiety and PTSD. litigation with respect to Victoria Police's Sergeant Stuart Bateson, on a number of I have struggled to cope with the fact negligence in failing to keep confidential occasions starting in early 2004, which of that my reputation has been completely my assistance and failing in its duty to course was at the height of Melbourne's destroyed and my ability to obtain me as an informer, then the question of gangland war, and at a time when employment within the legal profession which members were involved and who the refusal to assist police by anyone or even utilising my four degrees and is responsible would be a matter for a involved or with any knowledge was experience is hopeless. Supreme Court judge to consider. frustrating investigators. A Google search of my name is I sincerely hope that I do not have to What led me to do that was my own quite literally sickening (to me), let alone pursue any of this by way of Supreme frustration with the way in which certain googling "Lawyer X scandal". Court proceedings; the further damage criminals (Carl Williams) were seeking I also struggle to deal with the fact and stress it would cause me aside, to control what suspects and witnesses that any of this has happened given all the embarrassment and problems it could and could not do or say to police the assurances I was given (by police) would create for Victoria Police would be via solicitors, who were not in my view, that my assistance would never be a significant. acting in the best interests of their clients matter of public knowledge. It has been conveyed to me that because of the undue influence and I have been forced to live day to day it would assist you if I was able to control of "heavies" such as Williams. with a degree of hyper-vigilance and fear provide details of a "Top 10" kind of list I provided Bateson with information as to what will come out next and what of operations/investigations in which I that was of value to investigators in the impact it will have on my life. played a role. months prior to suffering a stroke in late My anxiety and fears are It would be unfair and a failure to July 2004 and again afterwards. compounded by the fact that but for appreciate the level of my diligence and In the lead-up to my illness, I played some contact I maintain with a handful of commitment if that was the only measure a pivotal role in convincing Thomas former clients (now convicted offenders), by which you assessed my assistance. Hentschel to "roll over" on Williams, Victor neither I nor, more importantly, Victoria For that reason, knowing that there Brincat and others and withstanding undue Police, would be aware of just how are literally thousands of hours of pressure from the Williams crew (and Tony dangerous the leaking remains. recorded conversations and debriefings Mokbel) to try to get him to stay silent. I have lost faith in assurances I have as well as many thousands of documents I kept Bateson informed of all of this, been given that the IBAC report has not proving without doubt, the immense including solicitors perverting the course

Page 20 AiPol | A Journal of Professional Practice and Research of justice and conspiring with criminals to try to ensure a number of gangland murders would remain unsolved or uncharged. As has been documented in the years that followed Hentschel deciding to help police, his actions (in becoming a witness for police) created a precedent for others to follow and was the crack in the dam wall of silence that led to a flood. He laid the foundation for the prosecution of numerous murderers and others followed his example. During 2005 I became aware of high- level drug trafficking, money laundering, witness tampering, firearm offences and a variety of other serious criminal activity by virtue of the contact I had with certain clients and their "crews" and "supporters". I also watched as police either totally Former Victoria Police chief commissioner Simon Overland, pictured in 2011. (Peter Giafis: ABC News). failed to investigate much of this offending, or failed in being able to obtain evidence information reports generated from I have previously been compensated in to be able to arrest and charge offenders. information I provided to police. any way for my assistance to police.) By September 2005 certain events There was no topic, criminal, organised I subsequently spent a fortune getting and circumstances led to me formally crime group or underworld crime that my life and health back together and by starting work as registered informer was "off limits" during the many debriefing 2014 when the nightmare of my informer 3838 (again as an aside, journalists have sessions that occurred or during the years status being made public started, I had used that detail as well as the names of that followed until Overland decided to managed to regain my health to the level my handlers when informing me of the utilise me as a witness in 2009 when of being able to conceive a daughter information police sources have provided everything fell apart. after 15 months of IVF treatment and to them). I didn't appreciate that at the time I I had also overcome great difficulties My breaking point came when I was made the decision to become a witness within the legal profession and been threatened by Tony Mokbel to ensure that for Victoria Police, I had been put in a able to do some casual work as an a first-time offender who was operating situation in which every assurance given employee solicitor. pill presses and manufacturing tens of to me was a lie and more importantly, that Since the "Lawyer X" publicity started, thousands of MDMA pills for him, kept his the investigators who took my statement it would be fair to say that my mental, mouth shut and pleaded guilty after he were not made aware of the very real emotional and physical health are in was arrested by the then MDID. problems with respect to my safety decline and I feel the impact of this Although Mokbel did not actually say and status. nightmare almost every single day. that his underling was being financed As you are no doubt aware, that In addition to my anxiety, fear, severe and supplied by him, it became obvious led to me issuing civil proceedings depression, PTSD and paranoia, my to me when I was provided with a remand against Overland after enduring 18 reputation is gone and I will ever be able summary and later a brief of evidence months of severe stress and uncertainty to work as a lawyer again. by police. when no-one seemed to be capable of The legal community in Victoria, This kind of scenario had happened making any decision about what to do including its judiciary, have formed numerous times in circumstances in with regard to the issue of dealing with a view that means I have now lost which I was dealing with high-level my informer role when I was called to many friendships and relationships drug syndicates, all of whom had give evidence. (professional and personal). individuals who were the targets of police Those proceedings resolved at a Ironically, but for some limited investigations and many of which were mediation in late 2010 (again as an aside, communication with a few of the involved, directly or indirectly, with the the evening before that mediation my criminals that I helped to convict (and gangland murders. gynaecological oncologist had diagnosed that communication comes with its own To try to encompass my actual value, me with the return of cancerous tissue stress), I would be unaware of some of reliability and work for Victoria Police that required surgery and foremost in my the dangerous and life-endangering in any summary is immensely difficult mind then and in the time that followed detail that the media continues to reveal because from September 16, 2005, I was my health). (from what I understand to be their police spoke to my handlers on a daily basis, For completeness, as I am sure you sources as well as leaks from the IBAC often seven days a week for a couple are aware, those proceedings were findings) and more importantly, so would of years. public and the writ did not include any Victoria Police. Again, the media has informed me reference to my role as an informer. (I do that there are approximately 5,500 not want there to be any suggestion that continued on page 23

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Ph 07 5476 2643 107 Howard St, Nambour QLD 4560 continued from page 21 Your organisation will have records that anything told to me or said in my of the actual expenditure on my part presence about crimes being planned I make these comments because I where [*Redacted] is concerned because or committed cannot ever fall under the would like you to try to put yourself in my eventually Purana took over those protection of legal professional privilege shoes for a moment to try to comprehend payments (without [*Redacted] knowing by a client. my almost complete disillusionment with obviously). Most significantly, I did not approach the very organisation which assured me My point is essentially that I was not the police because I had committed as an informer, that what I did for police given any money at all as it seemed (nor have I since) any crime for which I and the detailed information I provided, to be taken for granted that whatever I required some kind of "get out of jail free would remain a highly protected secret had to outlay to spend time with those, card", as is most often the reason people and would never see the light of day. whom I informed on, would be borne choose to assist police. Now, but for my children and a by me because I was working and had The most significant crimes and/ handful of loyal supportive friends and an income. or arrests: family, each day is a nightmare as to I took no issue with this at the time 1. Karam, Higgs, Barbaro and 33 what might come out next or indeed, because Detective Inspector [*Redacted] co-accused for the largest ever the consequences for my safety assured me that this would all be taken seizure of ecstasy in the world and wellbeing. into account whenever I finished and 2. Horty Mokbel, Milad Mokbel and For the avoidance of any doubt, made application for a reward. their co-accused and associates during the time I was working as an On that note, you should be aware such as Stephen Gavanas informer for Victoria Police, with the that I was advised by [*Redacted] himself 3. [*Redacted] exception of a couple of token thank when I spoke to him for the last time in 4. David Ilic yous (including a pen), I, unlike any other early 2009, that his crew had finished 5. Joe Mannella (and Karam) for the informer, did not receive any financial what he referred to as an "A to Z" of the multiple seizures of hundreds of assistance or support to enable me to extent of my assistance to police and that kilos of cocaine and other drugs work as an informer. when any reward application was made that were not the subject of charges, In fact the contrary is true. that report was finalised and ready to but were intercepted and seized by I paid for all kinds of things that be produced. Australian Customs police usually provide finance for such Fortunately for me all those meetings 6. [*Redacted] as incessant phone calls to criminals, were recorded by Victoria Police, lest you 7. [*Redacted] (as a result of entertaining (coffees not alcohol), be in any doubt as to the veracity of what information provided by me, Purana countless trips to prison etc. I am saying I was told. were able to get him to a position In addition, the greatest impact was There were a total of 386 people where he was confronted with a upon my practice because I had to invent arrested and charged that I am mountain of evidence which led to reasons to excuse myself from accepting specifically aware of based upon him becoming a witness for police) a multitude of briefs to appear for various information I provided to Victoria Police, 8. Faruk Orman (for the murder of accused, because I had a conflict of but there are probably more because Victor Pierce) interest in so far as I had contributed as you would know, I did not always 9. and the Carlton crew directly or indirectly to those persons know the value or use of some of the (regrettably this was a work in being arrested and charged in the intelligence that I was providing. progress when I was handed over to first place. There was over $60 million in property Petra as a witness) One of the more insane costs borne and assets seized/restrained based 10. Kamel Khoder [*Redacted], money by me was having to pay for the monthly upon my assistance and intelligence (a laundering for various criminals, spend of $190.00 for [*Redacted] after fact reported in The Age in an article principally the Mokbel family and his arrest and remand. about the results obtained by Purana associates. As a finance broker Those payments went on for months in decimating the gangland criminals he obtained fraudulent loans for and months, as well as $1,100 for in 2009). anyone referred to him; despite his his computer. My motivation in assisting police was conviction and the confiscation of all The fact was that in order to not for self-gain, but was rather borne his properties, he is still committing obtain the detail of his manufacturing, from the frustration of being aware of frauds via false loan applications including the location of labs, I had prolific large commercial drug trafficking, and deceptions. to spend considerable time with him importations of massive quantities of Once again, I am, if necessary, so he perceived there to be more of a drugs, murders, bashings, perverting the prepared to meet with you to try to reach friendship than there was in reality. course of justice, huge money laundering a mutually acceptable agreement. Once he was arrested and with my and other serious offences all being Again, I would ask you to consider support and intervention, decided to committed without any serious inroads this option seriously, because it is in assist police and make [*Redacted] being made by police. no-one's best interests for my role and statements and become a star I maintain (despite what I understand involvement as an informer/human source prosecution witness, he was isolated from the media to be an incorrect ill- to be detailed in a writ or explored in civil and had almost no friends to rely upon informed view taken by IBAC based proceedings. for support. upon who knows what version of events), I look forward to your earliest reply.

A Journal of Professional Practice and Research | AiPol Page 23 Unarmed Guarding and Crowd Control

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LAW ASIA CONFERENCE PUBLIC INTEREST / CORPORATE LAW PRESENTATION Wednesday 20 September 2017 Tokyo, Japan Robert McDougall

INTRODUCTION that encroachment can operate the privilege can only be waived 1. An evidentiary privilege is an in practice. This case study will by the client. For convenience,I immunity exempting a party or consider the tension between the will continue to use “LPP”to refer witness from disclosing information rights enshrined in the LPP and the specifically to the common law form that the law would otherwise require PSI on one hand and the coercive of the privilege. This is because the be disclosed.1There are many such information-gathering powers that common law privilege is this paper’s privileges, but in this paper I shall may be conferred on regulatory point of departure. Maintaining the deal only with two. The Australian bodies –powers that, in some cases, different titles will also be useful Law Reform Commission (“ALRC”) abrogate common law privileges –in when distinguishing between the has recently issued a report titled the name of the public interest in privilege at common law and statute. ‘Traditional Rights and Freedoms – effective regulation on the other. The At times, at the risk of confusion,I will Encroachments by Commonwealth ALRC touched on this in its report, refer to the privilege generally. Laws’. 2That report considers commenting that the abrogation of History and evolution of the privilege whether the current operation of the PSI in the Australian Securities 6. The LPP has existed for over 400 the common law privilege against and Investments Commission years,11and has been strictly applied self-incrimination (“PSI”) and legal Act 2001 (Cth) (“the ASIC Act”) by the High Court of Australia since professional privilege (“LPP”),their warranted further review.4 1908.12Like the PSI, its history is expression in the so-called contested. However, unlike the PSI, Uniform Evidence Legislation,3and PART ONE: LEGAL there is less preoccupation on the their abrogation by certain PROFESSIONAL PRIVILEGE part of judges and academics with Commonwealth legislation strike a Introduction the LPP’s origins. I suggest this is fair balance between the competing 4. The LPP originated as a fundamental because the LPP has a rationale interests at stake, and whether common law principle that entitles that is defensible and relevant to the that balance helps or hinders the a person to “resist the giving of modern Australian legal system, and administration of justice in Australian information or the production of accordingly, recourse to its historical courts. That is the topic I propose to documents which would reveal foundations is not necessary to examine. communications between a client justify its existence. 2. In this paper, I will first consider the and his or her lawyer made for 7. The LPP has evolved overtime. history and rationale behind each the dominant purpose of giving Significant developments include: privilege. A return to the privileges’ or obtaining legal advice or the §§ extension to non-judicial contexts in respective foundations will inform the provision of legal services.”5It the 20th century, in response to the analysis of their current operation is a substantive common law creation of government agencies and relevance. An exploration of the right, as opposed to a mere rule with broad coercive information- history and rationale demonstrates of evidence.6Accordingly, it is gathering powers;13 that the privileges themselves are applicable to all forms of compulsory §§ adoption of the “sole purpose test”in the product of a balancing exercise disclosure, including pre-trial place of the prevailing “dominant of various public and private procedures,7and non-judicial or purpose test”in 1976. The result was interests, and have evolved and quasi-judicial proceedings.8 to limit the protection to documents transformed over time. Next, I will 5. The Uniform Evidence Legislation brought into existence for the sole consider the privileges’ operation at contains a statutory equivalent of purpose of obtaining legal advice or common law and under the Uniform the LPP, named the “client legal use in legal proceedings;14and Evidence Legislation. privilege”.9This title was chosen §§ rejection of the “sole purpose test” 3. Neither the PSI nor the LPP is because the traditional description and return to the “dominant purpose immutable and both may be subject was thought to suggest “that the test” in 1999, which again extended to statutory encroachment. A case privilege is that of the members the LPP to documents brought into study of the information-gathering of the legal profession, which it is existence for the dominant purpose powers conferred on the Australian not. It is the client’s privilege”.10This of seeking legal advice or use in Securities and Investments is substantiated by the fact that Commission (“ASIC”)will show how at common law and under statute continued on page 26

A Journal of Professional Practice and Research | AiPol Page 25 continued from page 25 iterations of the Uniform Evidence interests are both public interests, Legislation, there are limited relevant and in fact, both said to be in pursuit legal proceedings,15and brought the differences for our purposes. Those of the same end. LPP into line with the statutory client differences that do exist tend to arise An instrumentalist rationale: the legal privilege. out of rules of the Court. administration of justice 8. This brief list gives weight to the The rationale behind the privilege 10. The LPP is said to have a truth- observation that “a glance at the 9. Generally, the effect of a successful promoting effect –clients will numerous cases in Australia and privilege claim is that information be more inclined to disclose all the United Kingdom which have which may be important for the relevant information to their legal concerned [the LPP]in the last proper administration of justice is adviser if they are assured that 20 years or so indicates twists suppressed. In that circumstance,Dr those communications will remain and turns in the application of McNicol has recognised that “it is confidential.21Facilitating and the general principles within important to ascertain whether there promoting “full and frank”disclosure single jurisdictions.”16The LPP’s are worthwhile rationales behind between clients and their legal development was also complicated each head of privilege such that advisers is said in turn to facilitate or “bedevilled” by majority decisions each privilege can be defended the provision of proper advice and of the High Court.17Sackville J, against the valid competing claims representation.22There is a concern speaking extracurially,aptly referred of the proper administration of that “if the privilege did not exist ‘a to the transitional periods between justice.”19There is a clear and man would not venture to consult these developments as“a paradigm ongoing conflict between what can any skilful person, or would only example of law reform generating be referred to as utilitarian public dare to tell his counsellor half his an urgent need for further law interest arguments in favour of case.’”23For the proper conduct reform.”18That further law reform disclosure and libertarian private of litigation, “litigants should be occurred through the introduction interest arguments in defence of represented by qualified and of the Uniform Evidence Legislation privilege.20The difficulty that arises experienced lawyers rather than and the further development of the in relation to the LPP is that the ... appear for themselves.”24Proper common law by the High Court to principal rationale behind it is the representation contributes to render it consistent with the statutory public interest in the administration the efficient functioning of the privilege. While there are some of justice. Accordingly, a unique adversarial system and thus,the divergences in the various State situation arises where the competing administration of justice.

Page 26 AiPol | A Journal of Professional Practice and Research 11. Another benefit that flows from full and frank disclosure is that legal LPP is also not available if a client seeks advisers are better placed to, where appropriate, discourage litigation in advice in order to facilitate the commission favour of settling or other alternative of a crime, fraud or civil offence, or where dispute resolution.25This reduces the burden on the adversarial system, the communication is made to further an which is again in the public interest. 12. The LPP also applies to the provision illegal purpose. of legal advice generally, not related to existing or contemplated litigation. There is an unresolved, but for the purposes of this paper irrelevant, controversy regarding whether the the administration of justice. Dr to further an illegal purpose.41The LPP is a single privilege with two Desiatnik acknowledges this: “[t] LPP may be lost through implied applications –legal advice and antalisingly, the greater [the LPP’s] or explicit waiver. The privilege is litigation –or two privileges with successful application, the greater waived where “the actions of a party different functions. In any event, its failure”.31This conundrum also are plainly inconsistent with the the application of the LPP to legal explains the aforementioned “twists maintenance of the confidentiality advice also encourages compliance and turns” in the development of this which the privilege is intended to with the law.26In situations where a doctrine,32and the courts’ difficulty in protect”.42 client approaches a legal adviser to striking the right balance. Dominant purpose determine the legality of a course 15. The High Court has clarified that: 18. There has been extensive debate of action that they wish to take, ... legal professional privilege is itself over the element of purpose, and “full and frank disclosure”27enables the product of a balancing exercise specifically, the requisite degree or the adviser to “chart a course of between competing public interests extent of the connection between the conduct [for the client] in conformity and that, given the application of purpose of the document’s creation with the law.”28Compliance with the the privilege, no further balancing and the provision of legal advice or law again reduces the burden on exercise is required.33 preparation for litigation. Over time it the Court’s resources, facilitating the 16. Thus, the High Court considers has been argued that it must be the administration of justice. the public interest served by sole purpose, the dominant purpose, A rights-based rationale the LPP to outweigh the public a substantial purpose or merely a 13. The LPP has also been recognised interest in disclosure. The former is purpose of the communications’ as protecting private interests. It paramount.34However, in the event creation. This question was settled has been said to protect the right of statutory abrogation, there is in by the High Court in Esso. That to privacy and the right to consult fact a second balancing exercise, decision overturned the former a lawyer, as well as the client’s this time undertaken by Parliament. “sole purpose” test and introduced freedom and dignity. It has been This is where the LPP’s rationale has the “dominant purpose” test. The described as “an important human work to do. majority –comprised of a joint right deserving of special protection” The privilege at common law judgment by Gleeson CJ, Gaudron and a “bulwark against tyranny and 17. Because of the competing public and Gummow JJ, and the judgment oppression ... not to be sacrificed interests at stake, Courts have of Callinan JJ –held the “dominant even to promote the search for imposed several conditions on purpose” test strikes a just balance truth and justice.”29However, for the LPP’s operation. In brief, there between the competing public the most part, the rights-based must be a communication, which interests at hand. This brought the rationale appears to be secondary must be made for the dominant test into conformity with the statutory to the instrumentalist rationale, or purpose35of submission to the legal form of the privilege in the Uniform alternatively, a supporting framework adviser for advice or use in existing Evidence Legislation, concluding a for the instrumentalist rationale. or anticipated litigation.36 The five year period where Courts were The first balancing exercise communication may be oral,37 or in required to apply different tests 14. The LPP balances competing the form of written or other material.38 depending on the jurisdiction or the public interests. The benefits seen Documents or other material that phase in the litigation. The “dominant to flow from the LPP, promoting the are merely delivered to the legal purpose” test is used in other efficient conduct of legal business adviser are not protected,39 unless common law jurisdictions, including and litigation,are considered to they were physically brought into England, New Zealand, Ireland and outweigh the conflicting public existence and communicated for the Canada. interest in having all the information relevant purpose.40The LPP is also 19. The dominant purpose is the available to the court to assist in not available if a client seeks advice “ruling, prevailing, or most influential decision making.30It follows that in order to facilitate the commission purpose.”43In Esso, Gleeson CJ and the LPP is bound by contradiction, of a crime, fraud or civil offence, or and at once both helps and hinders where the communication is made continued on page 29

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45345-EzyGuardIngal Civil HC Products A4 Full page advert.indd 9 15/5/18 3:34:05 PM continued from page 27 hinders the administration of justice not strike the right balance between in Australian courts, the primary these competing interests, because Gaudron and Gummow JJ said that remaining difference is scope. of particular circumstances. the following test “appears close to a Scope However, perhaps due to the Court’s dominant purpose test”: 23. Client legal privilege concerns only warning in Esso52 or the ALRC’s “[I]f a document is created for the the admissibility of communications earlier recommendation that the LPP purpose of seeking legal advice, into evidence.50That means the only be abrogated in “exceptional but the maker has in mind to use it statutory protection only applies to circumstances”,53Commonwealth also for a subsidiary purpose which evidence led in court. In all other laws that abrogate the LPP are rare would not, by itself, have been contexts (such as pre-trial or non- –the ALRC identified only 7 laws that sufficient to give rise to the creation judicial), the LPP remains available. abrogate the LPP, as opposed to of the document, the existence of Some are of the view that there is over 30 laws that abrogate the PSI.54 that subsidiary purpose will not result an undesirable inconsistency where 27. In an earlier report, the ALRC in the loss of privilege.” a Court is required to apply the provided guidance to Parliament 20. Batt JA also explained the meaning LPP to pre-trial procedures and the by way of criteria justifying an of “dominant” as follows: client legal privilege to evidence abrogation of the LPP, including: “In its ordinary meaning “dominant” adduced at trial. Despite attempts §§ whether the inquiry concerns a indicates that purpose which was the by members of the judiciary to matter of major public importance; ruling, prevailing, or most influential construe the client legal privilege as §§ whether the information sought purpose. Barwick CJ, whose view applicable to pre-trial procedures, can be obtained in a timely and in Grant v Downs propounding the High Court held that it is complete way by using alternative the test of dominant purpose not.51However, the position has been means that do not abrogate the LPP; has now been adopted by the modified in some Australian states and majority decision in Esso Australia by legislation in relation to pre-trial §§ the degree to which the privilege Resources,distinguished “dominant” procedures. For example, in New claim will hamper or frustrate from “primary” and “substantial”. South Wales courts, the Uniform the investigation.55 Lord Edmund-Davies in Waugh [v Civil Procedure Rules 2005 (NSW) 28. In brief, these criteria set out a British Railways Board[1980] AC (“UCPR”)extend the application of proportionality approach (or, as I 521],in adopting the test propounded the statutory client legal privilege to have called it, the second balancing by Barwick CJ, was of the view that pre-trial processes. Accordingly,in exercise) –a consideration of the element of clear paramountcy those states one test is applied whether the abrogation has a should be the touchstone. That, as it consistently. legitimate objective, is necessary seems to me, shows the meaning of Novel privilege to meet that objective, and is in the “dominant”.”44 24. There is also a novel privilege for public interest. 21. The purpose of the communication unrepresented parties in the Uniform 29. Interestingly, in the context of the is to be determined as at the Evidence Legislation. Section 120(1) LPP and in stark contrast to the time of creation45having regard prevents evidence being adduced PSI, the second balancing exercise to its contents, the intention of if, on objection by an unrepresented rarely results in abrogation. In very the maker or the intention of the party to litigation, the court finds limited circumstances, the public person requiring the document or that adducing the evidence would interests in open and accountable communication be brought into result in disclosure of a confidential government have been relied on existence,46the function or identity communication which was prepared to justify statutory abrogation of of the maker, and the routine by the party for the dominant purpose the L P P. 56Again, in very limited procedures of the individuals of preparing for or conducting the circumstances, the LPP has been involved.47The Court may inspect a proceedings. abrogated regarding production of document to determine the dominant Loss of privilege a document, information or other purpose.48The dominant purpose 25. Section 121 of the Uniform Evidence evidence relating to a serious test is of particular importance to Legislation also specifies three terrorism offence,57and in relation privilege claims by in-house counsel, general situations in which the client to the proceeds of crime.58These and I will return to that point. legal privilege can be lost: laws tend to confer compensatory Statutory expression in the Uniform §§ evidence concerning the intentions, statutory protections for the Evidence Legislation or competence in law, of a client or abrogation in the form of evidentiary 22. In addition to the change of name, party who has died; immunities. This means the which I have already mentioned, there §§ evidence required to enforce an order privileged material is not admissible are several differences between the of an Australian court; and evidence in evidence against the person.59 (common law)LPP and the (statutory) that affects a right of a person. 30. In Australia, Commonwealth client legal privilege. Fortunately, Abrogation of or exceptions to the agencies with coercive information- following Esso and amendments in privilege gathering powers do not have the 2008,49many of these have been 26. What I shall call the second power to require the production of ironed out. For the purposes of balancing exercise occurs where considering whether the LPP helps or Parliament considers the LPP does continued on page 30

A Journal of Professional Practice and Research | AiPol Page 29 continued from page 29 protected by the PSI. Irrespective dominant purpose test. of where the right balance between 36. Before exploring these requirements, material subject to LPP.60Historically, interests lies, it is clear that we are it is important to recognise that the there was some doubt regarding all in Parliament’s hands. regulatory framework governing whether the ASIC Act abrogated The LPP and its application to in- practising lawyers imposes the the LPP. However, since 2007 ASIC house counsel same common law duties, statutory itself has notified persons subject to 33. Significant recent case law deals obligations, government scrutiny and compulsory powers that they are not with the privilege in the context of self-regulation on all practitioners– required to provide documents or in-house counsel. In recent years, be they employees of or partners information that are subject to the LPP the landscape of the profession, and in a law firm, sole practitioners or and its Information Sheet 165 indicates the structure of the domestic and in-house counsel. At the outset it that a person may withhold information international commercial sectors is clear that even if the roles and that attracts a valid claim of LPP.61 has changed significantly. Lawyers functions of in-house counsel vary, 31. Whilst this appears reassuring, are no longer faced with a clear the ethical duties remain the same.75 there is an historical exception choice between operating as a 37. It should also be acknowledged which may be cause for concern. sole practitioner or in a partnership. that the same changes in the legal The James Hardie (Investigations Today,an alternative career option profession that gave led to the rise of and Proceedings) Act 2004 (Cth) exists –namely, as a salaried lawyer in-house counsel also contributed to abrogated the LPP specifically within a corporation. The rise of a change in the repertoire of private and only in relation to James multinational companies with cross- practitioners. Lawyers in private Hardie investigations or jurisdictional work and permanent practice are now expected to provide proceedings.62This permitted ASIC in-house counsel has caused their clients with commercial advice and the Commonwealth DPP to questions regarding the LPP’s and expertise. There is a “close use evidence obtained under its application to salaried lawyers and association between the legal and information-gathering powers for foreign lawyers to come to the fore.69 corporate worlds”,76which has been the purpose of the James Hardie 34. The Courts have recognised that recognised in case law.77Accordingly, Special Commission of Inquiry. The in-house counsel have a unique these cases also provide a lesson for justifications for this Act included: position, different to other legal private practitioners whose work has §§ the prevalence of ‘claims for [LPP] advisers. This is because they are multiple purposes, and who “wear that [the witness] knew could not both legal adviser and employee. both a corporate and a legal hat”78– honestly be made’63; It follows that the type of work and to keep on the correct side of that §§ the need for efficient use of ASIC’s the structure of the relationship blurred line between legal and non- information-gathering powers;64and differs. In-house counsel often legal work.79 §§ the importance of the regulation of have dual responsibilities in an Independence corporate conduct, financial markets organisation, and are more likely 38. Numerous high profile Australian and services.65 to have commercial or managerial cases illustrate the courts’ concerns 32. Whilst the Act had a very limited functions as well as legal ones.70The as to the conduct of in-house application, some practitioners distinction between legal and non- counsel.80The key difference is the have expressed concern that legal work can be blurred. In fact, dependence and proximity between the language in the Explanatory in large organisations it has been in-house counsel and their corporate Memorandum and other extrinsic recognised that a “multiplicity of employers. The internal lawyer is materials may indicate a growing purposes is commonplace.”71 dependent on the employer client preference for prioritising the public 35. Accordingly, there was initially for their salary. In addition, Professor interest in effective regulation some debate concerning whether Dal Pont notes that an in-house over, and thus compromising,the communications between counsel is often in a more onerous public interests served by the commercial and legal branches position with respect to advice and L P P. 66It is conceivable that there of the same entity can or should conduct than the external lawyer, will be further movement away from be privileged. In 2008, the federal because of their proximity to client the paramountcy of the LPP. As government commissioned information.81 Desiatnik warned,the scope of legal the ALRC report, “Privilege in 39. The question was first addressed principles justified by public interest Perspective: Client Legal Privilege in Waterford v Commonwealth of grounds are particularly susceptible in Federal Investigations”,72to Australia.82There, the High Court to change because “the grading consider these issues. The held that the LPP can attach to of values accorded to competing ALRC noted “strong opposition” communications between clients interests can change.”67This would to treating in-house counsel and their salaried legal advisers also correspond with the steady differently.73Following “some initial provided the lawyers in question are trend of statutory limitation of hesitancy by the common law”,74the independent from their employer and the PSI.68Part Two of this Paper courts have adopted an approach competent. Brennan J reasoned that illustrates the consistent prioritisation that places paramount importance the rationale of the privilege can only of the public interest in effective on the “independence” of in-house be fulfilled where the legal adviser is regulation over the private interests counsel, in addition, of course, to the competent and independent:

Page 30 AiPol | A Journal of Professional Practice and Research Competent, in order that the legal where in-house counsel hold dual to the dominant purpose as being advice be sound and the conduct of commercial and legal roles. “of its author, or of the person or litigation be efficient; independent, 45. For example, merely copying authority under whose direction, in order that the personal loyalties, in-house counsel into an email whether particular or general, it duties or interests of the adviser intended for other recipients within was produced or brought into should not influence the legal advice the business is not sufficient to existence”.92In this case, the relevant which he gives or the fairness of his attract privilege.89Likewise,“routine purpose is that of the corporation, conduct of litigation on behalf of his reports and other documents because the in-house lawyer was client.83 prepared by subordinates for the the human agent whose thoughts 40. I interpose that this demonstrates the information of their superiors” will not and actions were those of the utility of the privilege’s rationale –it attract privilege just because it is in employer. provides an example of the rationale “the ordinary course”of procedure 49. The three identified purposes being “resorted to as a solid at that business to provide such included a purpose specific to the foundation against which to test the documents to the in-house in-house solicitor’s legal function (the [application of the privilege].”84 counsel.90 first purpose);and two others that 41. Accordingly,communications 46. The facts in Singapore Airlines Ltd more generally, were managerial or between in-house counsel and v Sydney Airports Corporation Ltd commercial purposes(the second their employer may remain subject & Anor91illustratethe difficulties that and third purposes).The evidence to the LPP provided they are arise in this context. I heard this did not demonstrate that the first able to establish “an appropriate case under the Uniform Evidence purpose was “dominant”. Nor was degree of independence” Legislation. My decision was upheld it possible, looking at the matter from their employer.85This is a on appeal. In that case, there was an objectively, to say that one purpose question of fact, and each case incident at Sydney Airport when an was inherently such that it should be will depend on the way in which aerobridge came into contact with regarded as dominant. Accordingly, the position is structured and a door of a Boeing 747-400 aircraft the report was not privileged. The executed.86Importantly, some owned and operated by Singapore judgment was upheld on appeal. degree of commercial involvement Airlines. Singapore Airlines claimed Spigelman CJ (Sheller JA and will not automatically negate any to have suffered substantial loss. Campbell AJA agreeing), also privilege claim.87 Shortly after the incident occurred, commented that the status of the 42. As Tamberlin J, writing extracurially, an in-house lawyer employed by legal practitioner (as an in-house and Bastin observed: Sydney Airports Corporation Ltd counsel or external solicitor) was Involvement which might (SACL) commissioned an expert “not irrelevant” to the dominant be regarded as vitiating the report. Singapore Airlines sought an purpose inquiry.93 independence of the in-house order for production. SACL claimed Foreign lawyers counsel may include membership the report was privileged. 50. Changes in the legal landscape also of certain committees, intensive 47. The primary issue concerned the raise the question of whether foreign dealings with the finance or policy purpose for which the report was lawyers advising on Australian law, arrangements of the organisation, prepared. It was possible to assign or vice versa, are entitled to the employment in other non-legal at least three purposes: privilege. This is connected to the offices such as secretary or director (1) for use in the litigation that SACL’s general requirement that the adviser of the corporation, or a devotion of in-house counsel thought was “likely”; be engaged in a legal capacity. This a majority of the employee’s time to (2) to enable SACL to allay the has been said not to amount to a activities not relating to the provision concerns of the Airline Operations requirement that the adviser have a of legal advice.88 Committee (AOC), both in relation current practising certificate.94 43. In short, the requisite degree of to the particular aerobridge and in 51. Three situations arise: independence requires in-house relation to other similar aerobridges, (1) when a foreign lawyer advises on counsel to be lawyers first and so as to persuade the AOC to allow Australian law; employees second. the aerobridge to be put back into (2) when an Australian lawyer Dominant purpose service; and advises on foreign law; and 44. The requirements of independence (3) for SACL’s own operational (3) when a foreign lawyer advises on and competence relate to the reasons: to seek to ensure that similar foreign law. lawyers. Once those requirements incidents would not occur again. 52. At common law, it has been clarified are met, attention turns to the 48. SACL was unable to establish that that the advice of a foreign lawyer communication itself, which of the first purpose was the dominant on Australian law is entitled to course must be one made for the purpose for commissioning the privilege95and the advice of an dominant purpose of obtaining report. In the ordinary case, the Australian lawyer on foreign law is legal advice or preparation for purpose would be that of the also entitled to privilege.96The third litigation. However, determining the person who brings the document (in situation, whether communications dominant purpose in the context of which the relevant communication relating to a foreign lawyer advising in-house counsel can be a difficult is embodied) into existence. In task. It is particularly problematic Grantv Downs, Barwick CJ referred continued on page 32

A Journal of Professional Practice and Research | AiPol Page 31 continued from page 31 lawyers reminds both salaried of the LPP, clients may require lawyers and external practitioners skilled legal advice in order to on foreign law was privileged in that to satisfy a privilege claim, determine relevance. Without proceedings in Australia, arose in communications must be brought the immunity provided by the Kennedy v Wallace.97Allsop J, divided into existence in a professional privilege, a client may unnecessarily this into two separate situations, capacity, must retain an independent withhold information that he or she namely where the communications character,and must be for the misconstrues as incriminating. would have been privileged in the dominant purpose of providing legal Accordingly, removing the privilege foreign jurisdiction in question and advice. would not automatically mean that where they would not. Allsop J Does the LPP help or hinder the the Court would gain access to considered that the reality of modern administration of justice in Australian more and significant evidence. In commercial business and the LPP’s courts? fact, there is every possibility that rationale justified its application Against the LPP: theoretical concerns less information, or indeed false to communications from foreign 55. For some, the very existence information, would be volunteered lawyers advising on foreign law in of the LPP is an obstacle to the instead. In addition, without the Australian proceedings. His Honour administration of justice. This is opportunity for candour and full held that the privilege should not be because, in their view, the interest in and frank disclosure between a “jurisdictionally specific right” and both the parties and the decision- the client and the lawyer, the that there was “no basis for viewing maker having unfettered access client may not learn of a defence foreign lawyers and foreign legal to information should be higher in available to them. In this sense, advisers differently to Australian the hierarchy of public interests the privilege helps, rather than lawyers and legal advice.”98However, than the benefits that flow from the hinders, the administration of he clarified that “nothing I have said LPP. In short, those who object to justice. Compelling disclosure of should be taken as expressing a the LPP argue that it hinders the confidential communications would view on the existence of privilege Court’s search for truth.102Jeremy not automatically make the court in Australia where, under the legal Bentham,the English philosopher any wiser.105 system governing the foreign and legal positivist, is among their 59. Third, this argument really lawyer, or under the legal system number. According to Bentham, only addresses the litigation of the state where the advice the LPP operates to shield guilty component of the LPP. As has was given, no privilege would clients and withhold relevant been acknowledged, the LPP attach.”99Accordingly, this question information from the parties and the relates also to the provision of legal is left open. decision-maker. This is based on advice unconnected to existing or 53. In 2008, the Uniform Evidence an argument that the innocent have contemplated litigation. For example, Legislation was amended so that nothing to hide, and therefore the people often consult lawyers to the definition of “lawyer” now LPP only assists guilty people. It determine the legality of some includes “Australian registered follows, he said,that removal of the action they are considering taking. foreign lawyers” and “overseas LPP would result “in a guilty person Proponents of the LPP assume registered foreign lawyers.”100The not being able to derive quite so that most clients would refrain from Explanatory Memorandum referred much assistance” and access to all doing an act if they are told that it is to the LPP’s rationale and indicated relevant information for the parties unlawful.106Whether that assumption that the amendment was in line and the decision-maker.103 is naïve is a topic on which I do not with the LPP’s rationale and 56. This argument is flawed for several feel qualified to express an opinion. intended to reflect the reasoning reasons. 60. At least theoretically, the LPP is in Kennedy v Wallace.101It follows 57. First, it assumes a bright line supportable and contributes to the that client legal privilege under distinction between innocent administration of justice. Even so, the Uniform Evidence Legislation and guilty, which, particularly in there remains room for legitimate may extend to communications civil litigation, does not always criticism of the absolute nature from a foreign lawyer advising on exist.104That is recognised, even in of the privilege. This is a point foreign law, and protect them from the criminal sphere, by the Scottish picked up by Lord Taylor, in R v compulsory production in Australian verdict “not proven”; more generally, Derby Magistrates’ Court; Ex parte legal proceedings. However, the a verdict of “not guilty” need convey B,107and adopted by Finkelstein J, Explanatory Memorandum did not no more than that one or two of writing extracurially.108Lord Taylor refer to the first two situations I 12 citizens was not persuaded recognised that“if a balancing mentioned –where a foreign lawyer beyond reasonable doubt of the exercise was ever required in the advises on Australian law or an accused’s guilt. case of [LPP], it was performed Australian lawyer advises on foreign 58. Second, this line of criticism wrongly once and for all in the sixteenth law. In any event, the Uniform assumes that the client can discern century, and since then has applied Evidence Legislation does not which facts are legally incriminating across the board in every case, change the common law. and which are exculpatory. irrespective of the client’s individual 54. In summary, the case law relating Conversely, as recognised by the merits.”109Finkelstein J suggested to in-house counsel and foreign public interest rationale in support a reform of the LPP to give the

Page 32 AiPol | A Journal of Professional Practice and Research court discretion to admit privileged evidence, where the interests A person is not bound to answer any of justice require it. Essentially, he argued that the balancing question or produce any document exercise should be performed by or thing if that material would have the judiciary on a case by case basis.110Judges have a not dissimilar a tendency to expose that person to balancing exercise to perform when considering whether the LPP conviction for a crime. has been waived or whether client legal privilege has been lost on the ground of inconsistency. Against the LPP: practical concerns 61. Despite having arguably sound that the client legal privilege had extent to which disputes should be theoretical foundations, it is plain that been waived upon disclosure. solved by the law governing the the privilege, like any legal principle, 64. The High Court reasoned that parties’ substantive rights or by the could be misused to the point where the provision of the privileged application of case management it causes harm. For instance, it may documents occurred as part of powers or choices by the tempt practitioners and their clients the process of discovery, which parties.122Some authors have queried into false swearing.111More readily is a court-ordered process whether the High Court’s comment available are examples of privilege subject to regulation under the that “[u]nduly technical and costly claims leading to time-consuming UCPR.116Orders for discovery are disputes about non-essential issues interlocutory disputes.112Such subject to the overriding purpose are clearly to be avoided”123suggests practices do not support the just, of facilitating the “just, quick and that “a decision to dispute an issue quick and cheap resolution of cheap resolution of the real issues should turn on the identification legal disputes, and are arguably in the dispute or proceedings” (the of the issue as “non-essential”, incompatible with the administration “overriding purpose).117The High as well as being unduly technical of justice. Court held that it followed from this or costly.”124No such general rule 62. The inadvertent disclosure of that the Supreme Court had all the has been articulated. Following privileged documents during the powers necessary to resolve the the Expense Reduction decision, discovery process can give rise to dispute, including “essentially, that it is at least clear that it is not lengthy and complex disputes. The a party be permitted to correct a intended that the privilege should volume and nature of electronically mistake.”118Mistakes do happen take on independent life in “satellite stored information in the information and the risk is certainly higher in interlocutory litigation” in Australian age heightens the risk that privileged large cases where the volume of courts.125The practical effect of material will not be identified and discovery is vast.119Accordingly, the High Court’s guidance will protected during discovery.113There the correct approach would have unfold through case by case may also be circumstances where been for the primary judge to implementation in the lower courts. the cost and burden of performing permit the correction of the verified a review to identify privileged list of documents and order the PART TWO: THE PRIVILEGE documents will be too great, and return of those entitled to privilege. AGAINST SELF-INCRIMINATION documents theoretically entitled This endorsement of“robust and Introduction to client legal privilege will be proactive”120case management 66. The PSI confers immunity from an inadvertently disclosed.114 demonstrates that the Supreme obligation to provide information 63. The High Court considered the Court has adequate powers to deal tending to prove one’s own guilt. A mistaken provision of privileged with inadvertent disclosure. person is not bound to answer any documents in Expense Reduction 65. The High Court’s reasoning question or produce any document Analysts Group Pty Ltd v Armstrong reiterated the court’s broad powers or thing if that material would have a Strategic Management and to facilitate the overriding purpose. tendency to expose that person to Marketing Pty Ltd.115This case That is not to say that judges may conviction for a crime.126In Australia, started life in the Commercial List of engage in a second balancing the PSI is a substantive common law the Equity Division of the Supreme exercise. The privilege remains a right.127However, it is not an entrenched Court of New South Wales. In substantive right protected by the constitutional right. Like the LPP, it is that case, the discovery process principle of legality, which may not immutable and must be balanced involved reviewing approximately only be abrogated expressly by against competing rights and interests. 60,000 documents. The defendant statute. In addition, it was stressed 67. The ALRC has raised a number of inadvertently omitted to claim the by the High Court that the parties issues for consideration concerning LPP for 13 confidential documents and their lawyers also have a duty legislative provisions that abrogate that were disclosed to the plaintiff. to assist the court in achieving the the PSI, including: The plaintiff declined to return the overriding purpose.121There is thus privileged documents and claimed some uncertainty regarding the continued on page 35

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Proudly Supporting the Police in the Local Area continued from page 33 70. A third theory suggests the PSI is It will be seen that individually, the a modern iteration of the ancient rationales are problematic and (1) “whether the extensive abrogation of common law maxim nemo tenetur cumulatively, they are overbroad or encroachment on the privilege by prodere seipsum.136It could be or inconsistent. Some of this Commonwealth laws is justified; thought that this does not say very confusion was resolved by the (2) if abrogation or encroachment is much about the origins of the PSI. High Court’s modern restatement justified, whether use immunity, 71. Ultimately, these three theories can of the PSI’s purpose, framed partial derivative use immunity, coexist. Cumulatively, they highlight specifically in terms of human or full derivative use immunity is the many facets of the PSI and rights.140In the alternative, recourse appropriate; demonstrate the PSI’s evolution over can be had to the instrumentalist or (3) if partial derivative use immunity time. It has been recognised that utilitarian rationales. is appropriate, then whether the the PSI encompasses ‘a disparate Prevention of abuse of power inherent powers of the court already group of immunities, which differ 76. Traditionally the PSI was intended to provide, or could provide, such in nature, origin, incidence and prevent a potential abuse of power: an immunity, or whether statutory importance’.137More specifically, the Once the Crown is able to compel protection is necessary; PSI encompasses three distinct the answering of a question, it is (4) whether compelled examinations privileges: (1) a privilege against a short step to accepting that the of persons subject to charge, self-incrimination; (2) a privilege Crown is entitled to use such means regarding the subject matter of the against self-exposure to a civil or as are necessary to get the answer. charge, should be permitted, and if administrative penalty; and, (3) a ... By insisting that a person could so, under what conditions; and privilege against self-exposure to the not be compelled to incriminate (5) whether it is appropriate for a forfeiture of an existing right. himself or herself, the common law prosecutor to be given transcripts of 72. The PSI can be claimed in three thus sought to ensure that the Crown compelled questioning.”128 circumstances: (1) by a witness; (2) would not use its power to oppress 68. In considering the impact of the by a defendant during trial; and, an accused person or witness PSI on the administration of justice, (3) by a suspect during pre-trial and compel that person to provide this paper really picks up the first investigation. The PSI is also related evidence against him or herself.141 three points. to other rights. For example, other 77. This argument contends that the History of the privilege jurisdictions,including Hong Kong, PSI exists to prevent evidence from 69. The history of the PSI has been South Africa and Europe, incorporate being elicited by torture, inhumane the subject of historiographical the PSI as an integral part of the treatment or abuse.142However, controversy. Until recently, it right to a fair trial,138or refer to the on one view, it is unlikely that this was thought the PSI emerged PSI interchangeably with the right remains a real risk in the context in the 17th century, born out of to silence.139 of Australian police or regulatory dissatisfaction with the practices of 73. In my view, the incremental history examinations. This is because that the prerogative and ecclesiastical of the PSI demonstrates that it is risk is diverted by other laws.143Lord courts of the High Commission and susceptible to re-evaluation and Templeman considered the PSI Star Chamber.129This theory, which evolution, in conformity with shifts ‘profoundly unsatisfactory when no is chiefly based on the writings in the complexity of society (and question of ill-treatment or dubious of Professors Wigmore130and the economy) and in society’s confession is involved’144and Levy,131contends that the abolition identification of key values. was quoted with approval by of these bodies and the oath The rationale behind the privilege Lord Griffiths, who added “days ex officio in 1641 inspired the 74. As mentioned in Part One, a rule’s [where people were tortured into introduction of the PSI into the rationale should justify its existence providing evidence] are surely common law. However, research and help to define its scope and past”.145Thus, if this is the sole, or by modern legal historians who operation. However, a number of even main,rationale for the PSI it have had access to material competing rationales claim to justify could be concluded that the PSI is that was not available to earlier the existence of the PSI. an ‘archaic and unjustifiable survival scholars has now ‘convincingly Rights-based rationales from the past’146based on fear rather demonstrated’132that the modern 75. The first group of rationales than reason. form of the PSI, which protects an may be called the rights-based 78. Nevertheless, this rationale accused and defendant before rationales. These include the continues to be invoked because it and at trial,did not originate protection of privacy, autonomy ‘resonate[s] well ... [in]the twentieth until the mid-19th century or and the presumption of innocence; century.’147Even acknowledging the later.133At this time, the PSI the undesirability of the State’s protections available in Australia,148I developed gradually as a result of subjecting individuals to the ‘cruel am not prepared to dismiss this the ‘lawyerisation’ of the criminal trial trilemma’ of self-accusation, perjury rationale entirely. Historically, in and the adoption of the adversarial or contempt; and a fear that self- societies where freedom from system.134Prior to this, defendants incriminating statements may be self-incrimination is not available, were unrepresented and disqualified elicited by inhumane treatment from testifying.135 and thus be inherently unreliable. continued on page 36

A Journal of Professional Practice and Research | AiPol Page 35 continued from page 35 High Court, after considering the criminal proceedings,163in civil traditional position, provided a proceedings164and in non-curial coercive means have been used reassessment of the underlying contexts.165Its operation has been to compel a person to speak. The rationales for the PSI. The “modern described as ‘wide and inclusive’, treatment of suspected “terrorists” rationale”frames the PSI in terms of because it applies in circumstances and “jihadists” after the initial phase human rights: specifically the rights where the answer would have a of the current war in Afghanistan to dignity, privacy and freedom. This tendency to expose the person to shows that the lessons of history rationale underpins the concept of incrimination166as opposed to applying remain relevant today. Anation the PSI as a substantive human right only where the answer actually does that has the PSI enshrined in rather than simply a rule of evidence. expose the person to incrimination. its Constitution has denied it to Murphy J in Rochfort v Trade Type of evidence others within its power, and has Practices Commission said that:[t]he 85. Not all evidence is protected by at the least condoned the use of privilege against self-incrimination is the PSI. The PSI protects against illegitimate means in furtherance a human right, based on the desire compulsion to provide testimonial of the denial.149Hence, no doubt, to protect personal freedom and evidence. It does not apply to the casuistry as to what is or is not human dignity.154On this view, the the production of non-testimonial “torture”.150 privilege prevents “the indignity and evidence, such as fingerprints Protection of the presumption of invasion of privacy which occurs in or DNA samples.167This reflects innocence and the adversarial system compulsory self-incrimination.”155 a settled conceptual distinction 79. The PSI was also intended to protect 82. Again, this view of the PSI could be between compulsion to produce the adversarial system of criminal seen to justify it in a self-referential real evidence, which exists justice. The fundamental principle and essentially circular way. More independently of the person,and of Australia’s adversarial system is significantly it could be seen to compulsion to create testimony.168 that the Crown bears the onus of elevate the suggested right above 86. There is some debate as to whether proof beyond a reasonable doubt. the numerous and weighty public the PSI extends to the production of The presumption of innocence until interests in the criminal justice documents in Australia. While certain proven guilty underpins the PSI system: vindication of the law, decisions have indicated that it against self-incrimination. Those who punishment, protection, and all the does,169three judgments of the High allege another’s guilt should not be other ends that the criminal justice Court referred to documents as non- able to compel the accused to give system serves. testimonial evidence, suggesting evidence against themselves;151a Instrumentalist rationales that the PSI may not apply.170The proposition that begs rather than 83. In its recent Report, the ALRC also production of documents is also not answers the question, and that might referred “in more utilitarian terms”to protected by the PSI in the United surprise lawyers and judges trained other “benefits”156that it said flowed States and the United Kingdom.171 in the civilian/inquisitorial system. from the PSI. These included that Application to corporations Protection from the ‘cruel trilemma’ the protection provided by the 87. A corporation is not entitled to the 80. The ‘cruel trilemma’ refers to the PSI may encourage witnesses to PSI.172The High Court’s modern choice between lying and risking cooperate with investigators and restatement of the rights-based punishment for perjury, refusing prosecutors,157may prevent unlawful rationale behind the Psi has to answer and risking punishment coercion to obtain evidence,158and no application to corporations. for contempt and answering may reduce the incidence of In Australia as in England, a honestly and providing incriminating false confessions159or untruthful corporation “has no body to be evidence.152This has been criticised evidence160. Like the utilitarian kicked or soul to be damned”,173and as an appeal to emotion rather rationales, these are not bullet-proof. cannot suffer an encroachment on than reason. The prosecution of For instance, ascertaining evidence, its human rights. individuals is an integral part of the and the truth or falsity of it, is a 88. Further, application of the PSI to adversarial system, from which the necessary component of any police corporations would prevent the PSI developed, and which the Psi or regulatory investigation and the effective administration of justice: is apparently intended to serve. PSI only has the potential to assist. It In practice, corporate conduct is The trilemma is only relevant to will be seen that these by-products often complex. Assessment of a individuals who have contravened could also be achieved through the corporation’s conduct may only be the law, and it is reasonable that provision of statutory use immunities. possible through an examination of its they may be required to confront this The privilege at common law documents. ... A true understanding choice, albeit unpleasant or difficult. 84. At common law, the PSI entitles a of [a] corporation’s procedures is It is difficult to see how this could natural person to refuse to answer likely to be gained only through be considered cruel. In isolation, any question if the answer would evidence from the corporation itself, this rationale does not support the have a tendency to expose him particularly from its records.174 existence of the PSI. or her, either directly or indirectly, Statutory expression in the Uniform The rights-based rationale to the risk of incrimination.161The Evidence Acts 81. In Environment Protection Authority PSI is available to natural persons 89. A statutory form of the Psi is provided v Caltex Refining Co Pty Ltd153the who are suspected of a crime,162in in the Uniform Evidence Legislation.

Page 36 AiPol | A Journal of Professional Practice and Research Unlike the PSI, the statutory the Australian Crime Commission time, the provision has not been protection only applies to disclosure (“ACC”), the Australian Competition amended. of information in a court proceeding. and Consumer Commission 98. Section 68 operates as follows. 90. Section 128 of the Evidence Act (“ACCC”), the Australian Security Direct use immunity is conferred provides that an individual may Intelligence Organisation (“ASIO”), by s 68(3). This means that a object to giving particular evidence and ASIC. self-incriminating or penalty- of the ground of self-incrimination. If 95. In an attempt to strike a fair exposing statement, or the the objection is found to be justified, and workable balance between fact that a person has signed the Court may issue a certificate, the Parliament’s objectives and the a record, is not admissible in effect of which is to provide some common law right, statutes that subsequent proceedings against (although not complete) protection, abrogate the PSI tend to provide that person.179Such evidence is and thereafter require the witness to compensatory protection by way only admissible in a proceeding answer the question. of either direct use immunity or against that person in respect of the 91. Section 187 of the Evidence Act derivative use immunity. Direct falsity of the evidence.180There is no reflects the common law position use immunity provides that the prohibition against the admissibility and expressly denies the PSI compelled testimonial evidence is of the evidence against another to corporations. not admissible against the person person or corporation.181This is Application to documents in a subsequent proceeding. This because there is no privilege against 92. Section 128 is not directed in terms to means the person is compelled ‘other-incrimination’.182The direct use the production of documents under to give evidence, however the immunity in s 68 also does not apply compulsion of law; s 187 suggests subsequent use of that evidence to the act of producing incriminating that the legislature was well aware of is limited. Derivative use immunity books and records. It is a condition the distinction between answering renders inadmissible any material of the direct use evidential questions and producing documents. subsequently derived, directly immunity contained in s 68(3) that 93. There is however in s 87 of the or indirectly,from the information the subsequent proceeding must Civil Procedure Act 2005 (NSW) a disclosed by the statement-maker.176 be a criminal proceeding or a regime broadly equivalent to s 128 proceeding for the imposition of of the Evidence Act in relation to the PART THREE: THE ASIC a penalty.183There is no protection provision of evidence, including by the CASE STUDY against use in civil proceedings.184 production of documents, pursuant Operation and evolution of s 68 Justifications for abrogating to an order of a court. Also note the 96. Section 68(1)of the ASIC Act the privilege definitions of “privileged document” abrogates the PSI in relation to the 99. It is reasonably settled that the and “privileged information” in giving of information, the signing abrogation of the PSI by the ASIC the Dictionary to the Uniform Civil of a record or the production of Act is justified. Procedure Rules, in relation to (for books and governs the admissibility Effective regulation example) the discovery process of evidence compulsorily obtained 100. Regulatory regimes that compel and notices to produce.175Thus, an under ASIC’s information- gathering evidence are understood to be individual may (subject to legislation) powers. That abrogation has been in pursuing the following legitimate end: resist producing documents even operation for 25 years, having come ‘[T]he full investigation on the public where the documents that form the into force in the precursor to the interest of matters involving the subject of the subpoena or notice to ASIC Act in May 1992.177 possible commission of offences produce provide the only evidence as 97. Before 1991, direct use immunity which lie peculiarly within the to impropriety. was available for compelled knowledge of persons who cannot Abrogation of or exceptions to testimony and no immunity was reasonably be expected to make the privilege available for the act of producing their knowledge available otherwise 94. Despite the numerous rationales books. From January 1991 to May than under a statutory obligation.’185 justifying the PSI, none has been 1992, direct use and derivative 101. A limitation on the availability of the strong enough to prevent statutory use immunity was available for PSI is more likely to be justified if erosion. I repeat that in Australia, compelled testimony and the act it avoids serious risks and is in the the PSI is not an entrenched of producing books. This was public interest. Effective investigation constitutional right. There are the high watermark of protection. and prosecution of corporate circumstances where the legislature After less than a year, the malfeasance is important. ASIC has decided that the public interest Parliamentary Joint Committee has significant responsibilities for in the full investigation of a matter on Corporations and Securities safeguarding Australia’s financial outweighs the public interest (‘PJCCS’) conducted an inquiry. system and millions of consumers in the maintenance of the PSI. Following their recommendations, and investors. Australia’s financial In these cases, Parliament has in May 1992,178Parliament removed and insurance sector contributes conferred on government agencies derivative use immunity in relation to 4.9% of Australia’s real gross the power to compel a person compelled statements and removed value added by industry (second to answer questions or produce all immunity in relation to the act of documents. These agencies include producing documents. Since that continued on page 38

A Journal of Professional Practice and Research | AiPol Page 37 continued from page 37 activities.’197Accordingly, because of freely admissible.’203Direct use the nature of the corporate context, immunity also does not secure the only to the ‘Information Media a limitation on the availability of instrumentalist ‘truth-promoting and Telecommunications’ sector); the PSI facilitates the completion effect’. Examinees armed with the employs 3.6% of Australia’s total of ASIC’s function, and in turn, the knowledge that ASIC may derive workforce (over 460,000 people); administration of justice. clues from their testimony may and holds assets of A$7,500 billion Implied waiver be inclined to lie. However, the (4.5 times Australia’s nominal 104. There is also an argument that balancing exercise has in large GDP).186Contraventions of the law abrogation of the PSI may be part been determined by whether can damage the Australian economy justified where the person affected derivative use immunity is practical and can damage individuals’ participates voluntarily in a regulated and operational, as opposed to the financial or social positions. This activity or market.198This argument theoretical deficiencies in the direct sector is of ‘national strategic suggests that those who choose to use immunity model. important to Australia’187and it is operate in the corporate, markets, The practical operation of derivative settled that ‘[t]he honest conduct of financial services or consumer credit use immunity the affairs of companies is a matter sectors thereby choose to submit to 107. It has been argued many times that of great public concern’.188 the regulatory scheme that governs the practical difficulties allegedly The corporate context them, and have impliedly waived associated with derivative use 102. In addition, as I mentioned, there their right to the PSI (the “implied immunity outweigh its benefits. ASIC are unique difficulties associated waiver argument”). These people and its precursors have contended with enforcement of corporate law generally enjoy benefits because of to the contrary that the introduction that render compulsory testimony the scheme. The limitation is justified of derivative use immunity would useful, and often necessary, for not only by the person’s voluntary render the regulator’s investigative regulation and law enforcement. involvement and acceptance of the powers useless. They argue that Enforcement in this context has requirements of the scheme, but derivative use immunity creates been recognised as ‘notoriously’ also because to do otherwise may ‘insurmountable obstacles’ to difficult for three reasons.189First, undermine the scheme itself.199This prosecution and is inconsistent the evidence is extremely complex argument has been relied on with the regulator’s function.204At and can be unreliable. It is often extensively internationally and by its highest, it was argued that the necessary to have direct assistance ASIC.200However because ASIC’s practical difficulties associated with from the perpetrator to comprehend information-gathering power applies derivative use immunity meant it was the thousands of available to “any person”,201ASIC seeks to preferable to abstain from using the documents.190In addition to their extend the implied waiver argument powers until they were amended.205 sheer quantity, the documents may to ‘those who interact with [voluntary 108. According to ASIC and the DPP, be inadvertently or intentionally members of a regulatory scheme] the difficulty lies in the task of incomplete,or may have been (e.g. contractors, investors or establishing that a particular piece created to deceive.191Second, consumers) or otherwise participate of evidence did not derive from the the corporate structure may be within the field of regulation.’202This protected examination, and is thus manipulated to obfuscate illegal argument is a stretch –mere admissible. It is argued that this activity,192and subordinates ‘may not participation in or interaction with the would result in prolix, complicated know the full story’.193Third, there corporate, markets, financial services and lengthy trials.206In reality, is often no clear victim capable or consumer credit sectors cannot commentary regarding the operation of giving evidence.194Combined, amount to a voluntary implied waiver of derivative use immunity in the these factors mean that greater of rights. ASIC context is mere speculation assistance is required from Appropriateness of direct use immunity because it has not been tested in the perpetrator.195It follows that 105. I turn to consider the form of the court in Australia. compelled testimony would indeed abrogation,and the available 109. In addition to concerns regarding facilitate law enforcement. compensatory statutory protections difficulty, a Queensland Law Reform 103. An alternative way to demonstrate in relation to the admissibility of the Commission Report and the Kluver the utility of the limitation is to compelled evidence. Report (a report that reviewed the consider ASIC’s operation without 106. The primary objection to the precursor to the ASIC Act and it. The High Court has often availability of only direct use recommended the retention of observed that ASIC’s powers, and immunity is that the protection it direct use immunity only) observed thus its ability to regulate, would be affords is insufficient to protect also the risk that examinees frustrated and rendered nugatory the rights-based rationale. In might deliberately incriminate if they were subject to the PSI.196It 1991, the Law Institute of Victoria themselves to gain derivative use has been recognised that ‘the shield adopted the analogy of fruit from immunity.207However, there is no of PSI as applied to corporations a tree to oppose the provision evidence of conscious exploitation [would be] a formidable obstacle of only direct use immunity: ‘[t] occurring in Australia, which is to the ascertainment of the true here is little use in rejecting the hardly surprising given the non- facts in the realm of corporate tree when the fruits of the tree are existence of the test condition.

Page 38 AiPol | A Journal of Professional Practice and Research Direct use immunity v derivative use immunity is the only circumstance where or could provide, such an immunity, 110. ASIC’s objectives are important. the accused has been compelled or whether statutory protection They serve the public interest. to create self-incriminatory is necessary. They are difficult to manage evidence. Derivative evidence is, 116. ASIC contends that the Court’s and constrained by resources. by definition, evidence that existed inherent and statutory discretions Accordingly, Parliament would be independently of the compulsion. to exclude evidence where its disinclined to grant ASIC’s mandate The derivative evidence can only be prejudicial effect outweighs its and then frustrate its work with called self-incriminatory because probative value are sufficient complicated information-gathering of the circumstances leading to its protection. That is not to the point. powers that are limited in utility. discovery, as opposed to being ASIC’s suggestion looks at the use Derivative use immunity may be so by its very nature. This is an of evidence that has been obtained, a less restrictive intrusion on the extension of the PSI’s demarcation as opposed to the way it has been PSI. However this factor alone between testimonial evidence and obtained. They are difference will not render it justifiable. Direct non-testimonial real evidence,211and exercises, both conceptually and use immunity facilitates the public its protection only of the former. practically. interest in effective regulation, However, beyond the distinction 117. Regardless, it is my view that, a but does so consistently with between derivative evidence carbon copy adoption of Canada’s the essence of the PSI. This is that could have been found and model would be problematic. because it prohibits the admission understood independently of the Australian criticisms of derivative of direct testimony, which is what compelled testimony and derivative use immunity have largely focused the PSI, from its origins, was evidence that could not have been, on the concern regarding prolix designed to protect.208While the the Canadian Courts have been and complicated trials concerning libertarian view argues for full hesitant to elaborate or ‘imagine’ the admissibility of evidence. A derivative use immunity, it is not way in which the ‘partial derivative flexible judicial discretion based conceptually effective, and is not use immunity discretion’ will on the Canadian model would not rationally connected or reasonably be exercised.212 necessarily solve this concern. The appropriate and adapted to the 113. The Canadian Courts also reiterate two types of derivative evidence legitimate end of regulation and the importance of information- delineated by the Canadian model law enforcement. Conversely, it gathering powers and pre-trial –(1) evidence that could not have misconceives and complicates that investigation, bolstering the been found or understood without end. Accordingly, if the choice is Australian jurisprudence. In the compelled testimony and (2) between direct use immunity and formulating the partial derivative evidence that could have been derivative use immunity, practicality use immunity discretion, La Forest J found and understood without the and efficiency dictate that the former relied on the importance of focusing compelled testimony –are not always is more appropriate to the Australian investigations quickly and precisely, easily demarcated in practice. A corporate context. to increase effective regulation.213 statutory ‘but for’ test, while possible, Partial derivative use immunity 114. The partial derivative use immunity would raise all manner of practical 111. As I have tried to show, the current model has the benefit of providing difficulties. In my view, it would direct use immunity model is a greater compensatory protection be unlikely to create a consistent, justifiable approach and can be than the existing provision, and in practical application with predictable defensibly maintained. However, a turn, greater consistency with the outcomes. On the contrary as I third option exists, namely, partial PSI’s rights-based rationale. At have suggested, it would be likely derivative use immunity. the same time, it does not operate to create a diversion of public 112. Canada has implemented a to quarantine evidence to the resources, for the benefit of the ‘partial derivative use immunity point of frustrating completely a well-resourced malefactor and the discretion’.209Under this model, trial regulator’s powers. It has been said detriment of the public interest. judges have a flexible discretion to rely on and expand a settled and 118. Neither the historical development to exclude ‘derivative evidence workable distinction between types nor the PSI’s rationales support a that could not have been found or of evidence.214 rule whose application is determined appreciated except [because] of the 115. If this argument were to be put up on a case by case basis, based compelled testimony’.210This means for debate, it would be necessary on regard to the probative weight that some derivative evidence is to consider whether the analysis of evidence or other factors which admissible; for example, evidence required is practicable; whether it is the Canadian judiciary have been that would have been obtained likely to complicate investigations, reticent to outline but accept may under an alternative information- clog up the courts, and prolong be present. The probative weight of gathering power. La Forest J trials; and whether it will have any evidence was a consideration used to highlighted a conceptual distinction other significant impact on the demarcate whether the PSI applied between compelled testimony, investigation of potential criminal to testimonial or non-testimonial and real non-testimonial evidence activity. As an alternative, perhaps, evidence. Once settled, it did not derived from that testimony. Direct one could ask whether the inherent use of compelled testimony at trial powers of the court already provide, continued on page 40

A Journal of Professional Practice and Research | AiPol Page 39 continued from page 39 operation at common law and under of direct use immunity is supportable. the uniform evidence legislation has Evidentiary immunities have shaped operate flexibly. While Australian created some difficulties, but judicial investigations and prosecutions judges maintain a residual discretion and legislative efforts have clarified for over 150 years.215The modern to reject admissible but unfairly its scope and application. There corporate world is characterised prejudicial evidence, its exercise is remains room for misuse or error, by increasingly complex crime and an exception to the rule, as opposed however, the case management limited resources. The perspectives to the rule itself. The consistent powers of Australian courts can of commentators, practitioners and provision of blanket rules where the contain its effect and ensure it judges have informed this evaluation; PSI has been abrogated by statute has a positive contribution to the way forward is in Parliament’s demonstrates Parliament’s preference the administration of justice The hands. for this model. PSI’s foundations are less stable. 121. Analysis of the LPP and the PSI and Controversy surrounds its origins, the case study of abrogation of the CONCLUSION development and current rationale. PSI in the ASIC Act suggests that: 119. This paper has reviewed the By consequence, it is frequently (1) at the level of theory, both forms common law LPP and PSI, their abrogated by Commonwealth laws, of privilege are compatible with statutory expression in the uniform particularly in the regulatory context. the effective administration of both evidence legislation and their 120. A case study of the ASIC Act has criminal and civil justice; and operation in the ASIC context. In underpinned consideration and (2) where problems are seen to arise, relation to the LPP, its history and evaluation of the compensatory they are best dealt with by specific rationale were theoretically sound, statutory protections conferred where and targeted legislation, not by and it follows that its statutory he PSI is abrogated. Ultimately, it wholesale abrogation or limitations abrogation is rare. Its current concluded that the current position upon the privileges.

References To see references please refer to: Speeches/2017%20Speeches/McDougall_20170920.pdf http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/

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Page 40 AiPol | A Journal of Professional Practice and Research The Lawyer-turned-Informant: Where Does One Draw the Line On Legal Professional Privilege? How a prominent criminal barrister sparked a royal commission.

It sounds like a plot from a 1990s Scorsese movie, but it happened in real ...the lawyer is not to reveal confidential life. Unfortunately, the consequences are very real too. On monday, the media communications. When this privilege is announced that a barrister acting in lost it is due to fraud and abuses of power the cases of 386 Melbourne gangland criminals was in fact, a police informant. s 125. This means that the information she received while defending these criminals was used against them by the prosecution. The lawyer informant now faces serious threats to her safety. are still not to disclose this to the court Overturned Convictions This may sound highly unethical, and (80). Furthermore if a client says they For three years a suppression order it is. But beyond this, it’s a breach of one will disobey the court they still aren’t to existed. The purpose of such an order of the most important legal principles disclose this. The only reason to disclose is to prevent someone revealing the – the right of a defendant to disclose would be if they reasonably believe identity of the informant. However, the information to their lawyer in confidence. someones safety is at risk which varies High Court found the breach of privilege So what is legal professional privilege client to client (81&82). This leaves the to detract from the integrity of the legal and a lawyer’s duty of confidence? lawyer informant most likely as one who system. As a result, the court authorised Here, we’ll explain what it means has breached legal privilege. the publishing of the details. The issue and how this case could see many of previous convictions relates to how incarcerated figures of Melbourne’s Evidence Act & the Lawyer the prosecution obtained the evidence. underworld released. informant The Evidence Act 2008 (Vic) s 138 is The Evidence Act 2008 (Vic) also about illegally obtained evidence. In this Legal professional privilege provides for legal privilege. Hence, the section some important considerations As a barrister, the current legal ethics core concept is that the lawyer is not as to whether to use the evidence legislation is the Legal Profession to reveal confidential communications. include its usefulness (probative value). Uniform Conduct (barristers) Rules When this privilege is lost it is due to However, there are other factors like 2015 (Vic) . The relevant sections include fraud and abuses of powers 125. Even, if the breach was deliberate and the rule 114 which states that a barrister for this to take place, the person relying seriousness of the breach. The courts shouldn’t reveal confidential information. upon this must prove that the legal have held in the past that this section This leads to the tension between a duty privilege doesn’t apply and evidence is a balancing act between the system to the client (35) and the duty to the court must be provided. Ultimately, the crux sentencing the offender. The other being (23). Even in the case that the client tells is that a client should be candid and be if the integrity of the court and legal the barrister that they are guilty they able to trust their criminal lawyer. system is reduced.

References https://lawpath.com.au/blog/lawyer-turned-informant-draw-line-legal-professional-privilege 7 December 2018

A Journal of Professional Practice and Research | AiPol Page 41 Uniform Evidence Law (ALRC Report 102, Section 15) 8 February 2006

Professional confidential the furtherance of an accountant (LRCWA) recommended the relationship privilege and client relationship.[3] Given the enactment of a general discretion to 15.3 Under the common law, the controversial nature of some of protect information disclosed in the only relationship in which these categories, and the aim of course of a confidential relationship. communications are protected from the uniform Evidence Acts to allow The recommendation was based on disclosure in court is that between as much evidence as possible s 35 of the Evidence Amendment a lawyer and a client. In ALRC 26, to be made available in court Act (No 2) 1980 (NZ) and was similar the ALRC proposed the creation of proceedings, the ALRC proposed to the ALRC’s recommendation, a further discretionary privilege that that such a privilege be granted at proposing that the court weigh the would cover confidential professional the discretion of the court, stating: public interest in having the evidence relationships. Such a privilege would The public interest in the efficient disclosed against the public interest cover communications and records and informed disposal of litigation in in the preservation of confidentiality made in circumstances where one each case will be balanced against between the confider and the of the parties is under an obligation the public interest in the retention of professional.[6] This proposal has not (legal, ethical or moral) not to confidentiality within the relationship been adopted in Western Australia disclose them. and the needs of particular and to date. 15.4 The ALRC determined that there similar relationships.[4] are many relationships in society 15.5 This proposal was not adopted Confidential relationship privilege: where a public interest could as part of the Evidence Act 1995 New South Wales be established in maintaining (Cth). However, the Evidence 15.7 Under s 126A of the Evidence confidentiality.[1] These relationships Act 1995 (NSW) provides for a Act 1995 (NSW), a ‘protected could include, for example, doctor professional confidential relationship confidence’ for the purpose of the and patient, psychotherapist and privilege.[5] Section 127A of the section means a communication patient, social worker and client or Evidence Act 2001 (Tas) provides made by a person in confidence to journalist and source.[2] In ALRC an absolute privilege for medical another person (the confidant): 26, the Commission noted that, for communications in civil proceedings. (a) in the course of a relationship in example, there are circumstances 15.6 In 1993, the Law Reform which the confidant was acting in a in which confidentiality is crucial to Commission of Western Australia professional capacity, and

Page 42 AiPol | A Journal of Professional Practice and Research (b) when the confidant was under an (g) if the proceeding is a criminal taken into account in the exercise express or implied obligation not to proceeding—whether the party of discretions about what evidence disclose its contents, whether or not seeking to adduce evidence of the should be admitted in a hearing’.[10] the obligation arises under law or protected confidence or protected 15.12 The limits of the term ‘acting in a can be inferred from the nature of identity information is a defendant professional capacity’ have not the relationship between the person or the prosecutor, been tested yet in New South and the confidant. (h) whether the substance of the Wales. Odgers notes that the 15.8 Section 126B provides: protected confidence or the types of relationships referred to (1) The court may direct that evidence protected identity information has in the definition of a protected not be adduced in a proceeding already been disclosed by the confidence could include doctor/ if the court finds that adducing it protected confider or any other patient, nurse/patient, psychologist/ would disclose: person. client, therapist/client, counsellor/ (a) a protected confidence, or 15.9 Although the ALRC’s reports were client, social worker/client, private (b) the contents of a document canvassed in the context of the investigator/client and journalist/ recording a protected confidence, or New South Wales amendments, source.[11] It was the intention of (c) protected identity information. Odgers cites the source of the the ALRC in its original proposal (2) The court may give such a direction: privilege as the New South Wales that the privilege be sufficiently (a) on its own initiative, or Attorney General’s Department flexible to allow the court to (b) on the application of the protected 1996 Discussion Paper Protecting protect information in a range of confider or confidant concerned Confidential Communications from relationships where confidentiality is (whether or not either is a party). Disclosure in Court Proceedings. particuarly important.[12] (3) The court must give such a direction [7] The discretionary approach to 15.13 One relationship which has been if it is satisfied that: such a privilege, as advocated by brought to the attention of the (a) it is likely that harm would or might the ALRC, was adopted in the New Inquiry is that of medical and be caused (whether directly or South Wales amendments. social researchers and their indirectly) to a protected confider if The evidence must be excluded if interviewees.[13] It is envisaged by the evidence is adduced, and there is a likelihood that harm would the Commissions that this type of (b) the nature and extent of the harm be or might be caused, whether relationship may, depending on the outweighs the desirability of the directly or indirectly, to the person nature of the research undertaken, evidence being given. who imparted the confidence fall under the confidential (4) Without limiting the matters that the and the nature and extent of that relationship privilege. court may take into account for the harm outweighs the desirability of 15.14 In supporting the adoption of purposes of this section, it is to take having the evidence given or the a discretionary privilege for into account the following matters: documents produced.[8] confidential relationships, the (a) the probative value of the evidence 15.10 Division 1A does not create a LRCWA identified the advantages in the proceeding, true privilege, but allows the of the privilege as providing (b) the importance of the evidence in court a discretion to direct that greater flexibility for the courts the proceeding, evidence not be adduced where to assess the individual merits (c) the nature and gravity of the relevant it would involve the disclosure of each case, and placing all offence, cause of action or defence of a protected confidence.[9] The confidential relationships (other and the nature of the subject matter court must balance the matters than that between a lawyer and a of the proceeding, set out in s 126B(4), including the client) on an equal footing. Some (d) the availability of any other evidence probative value of the evidence in of the disadvantages were noted to concerning the matters to which the the proceeding and the nature of be that the ‘balancing test’ could protected confidence or protected the offence, with the likelihood of be difficult to assess in some identity information relates, harm to the protected confider in cases, that the provision could not (e) the likely effect of adducing evidence adducing the evidence, and then guarantee confidentiality and that of the protected confidence or decide if it is appropriate to give a it is undesirable to create further protected identity information, direction under the section. means whereby relevant evidence including the likelihood of harm, and 15.11 There have not been a significant can be excluded from the court.[14] the nature and extent of harm that number of cases concerning would be caused to the protected Division 1A. In Urquhart v Latham, Journalists’ sources confider, Campbell J considered how 15.15 Since the publication of DP 69, the (f) the means (including any ancillary the test in s 126B should be issue of protection of journalists’ orders that may be made under exercised. His Honour noted that sources has received significant section 126E) available to the ‘there is a policy concerning the media attention. Under the common court to limit the harm or extent protection of confidences which law, courts have consistently of the harm that is likely to be underlies s 126B, which requires refused to grant journalists a caused if evidence of the protected matters favouring the protection privilege or lawful excuse under confidence or the protected identity of professional confidences, of information is disclosed, the type defined in s 126A, to be continued on page 44

A Journal of Professional Practice and Research | AiPol Page 43 continued from page 43 achieve this end. In that case, it confidential relationship privilege to was determined that the interests the Evidence Act 1995 (Cth) for the which they can refuse to reveal of justice in the plaintiff having same reason it was supported in their sources.[15] The journalists’ an effective remedy outweighed the previous Evidence inquiry. code of ethics prohibits a journalist the possible harm which could The provision of a discretionary from revealing a source once a be caused to the reputation of privilege would allow the competing commitment to confidentiality has journalists and their ability to obtain public interests to be taken been made. At the time of writing, information if they were forced to into account when the court is legal proceedings had commenced reveal sources.[20] assessing whether evidence against two Herald Sun journalists 15.17 The New Zealand Evidence Bill ought in the circumstances to be for protecting the source of leaked 2005[21] includes a specific privilege compelled from witnesses, thus government documents regarding protecting journalists’ sources, allowing the courts to be sensitive changes to veterans entitlements. as well as a general confidential to the individual needs of witnesses [16] The Attorney-General of relationship privilege. The provision and of relationships.[25] Victoria has indicated his support is a qualified privilege, and applies 15.20 Most consultations undertaken for a uniform national approach a balancing test similar to s 126B. supported the adoption of a to journalists’ sources.[17] The Clause 64(1) of the Bill provides qualified confidential relationship Australian Government Attorney- a general presumption that privilege. Practitioners and judges General has also announced that where a journalist has promised were unaware of areas in which the issue would be considered by an informant not to disclose the the operation of either privilege the Government.[18] informant’s identity, neither the has caused concern in New 15.16 Journalism is a profession which journalist nor his or her employer South Wales.[26] Given the support falls under ss 126A and 126B of is compellable in a civil or criminal expressed for the New South the Evidence Act 1995 (NSW). proceeding to answer any question Wales provision, the Commissions The adoption of the New South or produce any document that argued it was in the interests of Wales provisions has been mooted would disclose the identity of the consistency and uniformity for by a number of submitters as a informant or enable that identity to the Commonwealth Act to adopt possible way forward in Australia as be discovered. However, a judge the New South Wales confidential a basis on which a journalist may may order that subsection (1) does communications provisions.[27] The legally protect a source’s identity. not apply if satisfied that the public Commissions further proposed Since its enactment, few cases interest in the disclosure of evidence that this privilege apply to pre- have considered the application of the identity of the informant trial discovery and the production of s 126B to journalists’ sources. outweighs any likely adverse effect of documents in response to a NRMA v John Fairfax Publications of the disclosure on the informant subpoena and non-curial contexts applied the section to a journalist or any other person; and also such as search warrants and and source relationship. In that outweighs the public interest in the notices to produce documents, as case, Macready M considered communication of facts and opinion well as court proceedings.[28] the discretionary factors in 126B. to the public by the news media On the first question of whether and, in the ability of the news media Submissions and consultations any harm would come about as to access sources of facts.[22] 15.21 A number of submissions were a result of the revealing of the 15.18 The New Zealand Law Commission opposed to this proposal.[29] information, the Master stated recommended this section in The Australian Securities and that, in the circumstances, giving its 1999 report on Evidence. Investment Commission (ASIC) the evidence was likely to lead to [23] The Commission based this argues that the major policy proceedings against the protected recommendation on the need to rationale for legal professional confider. The initation and running promote a free flow of information, privilege does not apply in of proceedings might cause harm, which is a vital component of the case of other professional ‘although if the proceedings are a democratic system. Whilst relationships as it is not a justified, the relevance of the the original proposal was to fundamental requirement of the harm is lessened’.[19] The Master have journalists’ sources fall justice system that a client be free then considered the actionable under the general confidential to obtain professional advice other breaches of the Corporations Act communications privilege, the than legal advice. Furthermore, not and other causes of action based Commission decided that a specific all other professions are subject on a directors’ code of conduct qualified privilege would give to the same rigorous regime (which was the information that greater confidence to a source of professional obligations as the source has disclosed). Finally, that his or her identity would be legal practitioners, including the Master Macready took into account protected.[24] overriding obligation to the court. policy considerations based on the If privilege were extended to other desirability of the flow of information DP 69 proposal professionals such as accountants, and the centrality of keeping the 15.19 In DP 69, the Commissions this would provide more avenues identity of sources confidential to proposed the addition of a qualified for abuse and pose greater

Page 44 AiPol | A Journal of Professional Practice and Research difficulties for ASIC in its attempt the protection it offers, ‘there is a ameliorate the harm, such as using to uncover the full facts. ASIC strong argument for not reinventing pseudonyms and holding hearings submits that if privileges are to be the wheel’. The Alliance further in camera.[37] extended beyond the obtaining of supports the extension of the 15.27 The Litigation Law and Practice legal advice, any such extension privilege to pre-trial processes, Committee of the New South should be confined to particular noting that, in most cases, issues of Wales Law Society supports the areas, such as sexual assault contempt arise at this stage of the proposal, and its extension to pre- communications and medical proceedings.[34] trial contexts. It notes that s 126A communication privilege, but 15.25 Corrs Chambers Westgarth makes does not create a true privilege, should not be extended to include a submission to the Inquiry on but rather a discretion to direct that business and commercial areas.[30] behalf of a number of major news evidence not be adduced. It would 15.22 This view was shared by the and broadcasting services. In that be inappropriate for the privilege not Commonwealth Director of Public submission, it is proposed that the to apply to pre-trial matters, such as Prosecutions (CDPP), which uniform Evidence Acts be amended discovery, where the issues relating recommends that confidential to give journalists a legal right to to protected confidences are most relationships privilege not be refuse to disclose the identity of likely to arise.[38] enacted. In the CDPP’s view, it is confidential sources other than 15.28 The Australian Government difficult to see that the interests of in exceptional circumstances. Attorney-General’s Department justice are served by introducing These circumstances include the submits that the Government provisions which could operate to protection of national security, supports the introduction of a inhibit evidence being tendered to prevention of the commission of qualified professional confidential a court. Further, the policy rationale a serious crime or protection of communications privilege. However for legal professional privilege the physical safety of any person it considers that clearer direction does not apply to relationships where it is in the public interest to should be given to the court in other than lawyer and client. The allow disclosure. The submission how to exercise its discretion, in CDPP states that claims for legal further argues that it should be particular by specifying certain professional privilege are currently presumed that disclosure is circumstances in which the abused in criminal investigations unnecessary, and that journalists privilege would not apply. The in Australia and the extension of a should be provided with protection Australian Government’s preferred confidential relationship privilege from search and seizure powers approach is that the legislation to other professional relationships which may lead to disclosure should create a presumption that would be potentially open to the of a confidential source. The a confidential communication will same abuse.[31] submission bases this proposal be protected from disclosure. 15.23 The Office of the Director of Public on the fundamental nature of However, the protection will not Prosecutions (NSW) (NSW DPP) the journalist’s undertaking not apply where: disclosure is required supports the adoption of the New to reveal sources, and the role in the interests of justice, including South Wales provisions in the of the media in encouraging interests of national security; there Commonwealth Act. However, political discussion, and scrutiny is a need to protect classified the submission does not support of the democratic process.[35] The material (subject to appropriate extension of the privilege to the submission notes a number of safeguards to protect against the investigatory stage, as it could important cases where anonymous disclosure of sensitive information adversely impact on the ability of journalists’ sources have exposed in evidence); the communication investigatory agencies to gather matters of public significance such was made in furtherance of relevant material and identify leads as the Watergate investigations, the commission of a fraud or for investigation.[32] and in Australia, the Khemlani loans other serious criminal offence, 15.24 On the issue of protection of affair and the political corruption or participation in serious and journalists’ sources, the Press which resulted in the Fitzgerald organised crime; or the disclosure Council of Australia expresses Inquiry in Queensland. [36] is necessary to demonstrate support for the uniform Evidence 15.26 The Office of the Victorian Privacy the innocence of an accused. It Acts to adopt a provision based Commissioner submits that would be a matter for the court on the New Zealand Evidence Bill. in considering the competing to determine whether one of the However, as an alternative position, interests in privacy related circumstances applies or the the Council supports adopting matters, matters additional to interests of justice otherwise require a provision equivalent to that in the public interest test should the disclosure of the information, in the Evidence Act 1995 (NSW). be considered. These additional which case the court could direct [33] The Media, Entertainment and matters should include the effect a witness to answer the relevant Arts Alliance expresses a similar of disclosure on the privacy of question.[39] view in its submission, arguing third parties, the availability of 15.29 One area in which the proposal that, although little litigation has other, less privacy-invasive means will have a significant impact occurred around s 126A and of obtaining the information, and therefore it is unclear the extent of express consideration of ways to continued on page 46

A Journal of Professional Practice and Research | AiPol Page 45 continued from page 45 the child should be a paramount should be disclosed, will allow a consideration. The Family Court judge to circumvent illegitimate is in relation to Family Court also suggests that provision be attempts to claim the privilege. proceedings. The Commissions made for the situation where a child 15.34 The different formulation of a were told in a number of is the protected confider. This will confidential relationship privilege consultations that psychiatrists’ allow a representative of the child as proposed by the Australian and doctors’ reports are often to make the claim for privilege on Government Attorney-General’s subpoenaed in child residency behalf of the child.[43] Department is noted. However, matters. This is sometimes crucial given the support expressed for the information for the court when Commissions’ view New South Wales provisions, and making a parenting order. There 15.31 The Commissions agree there is the lack of submissions indicating were concerns raised that a an ongoing tension between the there is a serious problem with confidential relationship privilege codes of ethics and professional them, the Commissions believe it is could prevent courts obtaining duties of many professions in in the interests of consistency and access to this information.[40] The Australia and the legal duty to uniformity for the Commonwealth Family Law Council submits that reveal to the courts information said Act to adopt the New South other relevant information that the in confidence. In many of these Wales confidential professional court may need to access includes relationships, there is a clear public relationship privilege provisions. files from state and territory child interest that can be demonstrated [45] These provisions should welfare agencies, medical records in protection of a confidence, such apply to any compulsory process and school counsellors’ records. In as the encouragement of people for disclosure, such as pre-trial the Council’s view, it is imperative to seek treatment or the provision discovery and the production that the court has access to this of information that could expose of documents in response to information. If a parent is able to corruption or maladministration a subpoena, and in non-curial claim privilege, it may hamper in government. However, the contexts including search warrants the operation of the paramountcy exclusion of otherwise relevant and notices to produce documents, principle in the Family Law Act evidence from the court’s as well as court proceedings. 1975 (Cth) and limit the information consideration is a very serious 15.35 The Commissions agree that in the court has available to make matter. The legal protection family law proceedings concerning the best possible decision.[41] of professional confidential children, the interests of the child The Family Law Council also has communications thus raises may outweigh the harm that concerns about the effect of the a ‘difficult mix of fundamental may be caused, whether directly privilege on projects such as the private and public interests’.[44] or indirectly, to the person Family Court’s Magellan project, The Commissions believe that who imparted the confidence. which involves disputes which the ALRC’s original reasoning for The Commissions support the include allegations of serious proposing a confidential relationship suggestion of the Family Court physical and sexual abuse against privilege remains sound. that, in the adoption of s 126A children. The project is based 15.32 The Commissions agree that in the Commonwealth Evidence on information sharing between an analogy cannot be drawn Act, explicit reference should agencies to reach fast resolution between the lawyer and client be made to consideration of the in matters, and a confidential relationship and other professional paramountcy principle in family law relationship privilege may impinge relationships. Client legal privilege proceedings concerning children. on its successful operation.[42] affords an absolute protection The Commissions also note that, 15.30 However, the Family Court of because it is always considered to in family law proceedings, a child’s Australia agrees that, in the be in the interests of justice that a interests are often represented by interests of uniformity and client knows that any facts relating independent counsel. Provision consistency, the Commonwealth to past events revealed to a lawyer should therefore be made for a Act should include a provision will remain confidential. representative of the child to make allowing the court to direct 15.33 A qualified professional confidential the claim for privilege on behalf that evidence should not be relationship privilege acknowledges of the child. It has been noted in adduced where it would disclose that it may be in the interests of consultations that additional hearing confidences made in the context of justice to protect the confidentiality time will now be required to hear a professional relationship. In order of a particular relationship in argument over whether the privilege to overcome the problem identified the circumstances of that case. applies to subpoenaed documents. by the Family Law Council, the The view of ASIC regarding [46] The Commissions acknowledge Family Court proposes that an the potential abuse of such a that the addition of a new privilege additional balancing criterion privilege is noted. However, the in the family law jurisdiction will be applied to the Evidence Act Commissions believe that the fact have some resource implications 1995 (Cth) stating that in family that the privilege is discretionary, for the Family Court, but believe the law proceedings concerning and that parties are able to make wider benefits of the adoption of children, the best interests of an argument as to why the material the privilege in the Commonwealth

Page 46 AiPol | A Journal of Professional Practice and Research Evidence Act outweigh this concern. (e) The court should not be entitled Medical communications privilege: If adopted, the Family Court and to make an order where the Tasmania the Australian Government should person who made the confidential 15.38 Under s 127A(1) of the Evidence monitor the resource implications communication has consented to Act 2001 (Tas), a medical resulting from the proposal. the evidence being given, or where practitioner must not divulge, 15.36 The Commissions therefore the communication was made (or in any civil proceeding, any recommend that the uniform the document prepared) in the communication made to him or Evidence Acts be amended furtherance of the commission her in a professional capacity by to provide for a professional of a fraud or an offence or the the patient that was necessary to confidential relationship privilege as commission of an act that renders prescribe treatment or act for the set out in this recommendation. The a person liable to a civil penalty. patient (unless the sanity of the proposed provisions are modelled This provision should be similar to s patient is the matter in dispute). (with some modifications) on the 125(1)(a).[47] 15.39 This privilege was carried over privilege available under Part 3.10 (f) The court should have the power from the Evidence Act 1910 (Tas) Division 1A of the Evidence Act 1995 to make appropriate orders to and can also be found in the (NSW). The principal elements of this limit the possible harm, or extent evidence legislation in Victoria and privilege should be as follows. of the harm, likely to be caused the Northern Territory.[48] In these (a) The privilege should protect: by the disclosure of evidence of a jurisdictions, the privilege is only (1) protected confidences— protected confidence or protected available in civil proceedings. communications made in the course of identity information, as provided in 15.40 As noted in Chapter 2, in addition a professional relationship, whenever the Evidence Act 1995 (NSW). to its participation in the joint review, made, where the person to whom 15.37 A draft of Part 3.10 Division the VLRC is also undertaking a the communication was made was 1A is included in Appendix 1. review of the laws of evidence under an express or implied obligation However, the draft does not currently applying in Victoria. The of confidence. The Evidence Act deal with the implementation of VLRC has consulted widely on 1995 (NSW) definition of protected Recommendation 15–3 regarding whether a medical communications confidence (in s 126A) should be extension of privilege for the privilege should remain in Victoria or clarified to ensure that the confidentiality reasons discussed in Chapter 14. whether a confidential relationship obligations are not restricted to those Recommendation 15–1 privilege is the preferred model. arising under law; and The uniform Evidence Acts should be It should be noted that the VLRC (2) protected identity information—the amended to provide for a professional has received submissions from Evidence Act 1995 (NSW) definition confidential relationship privilege. Such health practitioners, nurses and of this concept (in s 126A) should a privilege should be qualified and allow pharmacists supporting the adoption be clarified so that it only relates to the court to balance the likely harm to of a confidential relationship information from which the identity of the confider if the evidence is adduced privilege rather than a strict medical the person making the confidential and the desirability of the evidence communications privilege.[49] communication can reasonably be being given. The confidential relationship 15.41 The ALRC considered this privilege ascertained. privilege available under Part 3.10, in ALRC 26 and found three main (b) The court should be able to give Division 1A of the Evidence Act 1995 benefits—protecting patients’ such a direction on application (NSW) should therefore be adopted privacy, encouraging people to by the person who made the under Part 3.10 of the Evidence Act seek treatment, and promoting the confidential communication, or 1995 (Cth). public interest in effective treatment the person to whom it was made Recommendation 15–2 of patients. Associate Professor (whether or not a party). If Recommendation 15–1 is adopted, Sue McNicol has criticised the (c) In determining whether to give a Part 3.10, Division 1A of the Evidence Act privilege on the grounds that, direction, the court should be required 1995 (Cth) should include that in family particularly in personal injury to balance the nature and extent of law proceedings concerning children, matters, doctor-patient privilege the likely harm that would or might the best interests of the child should be could well constitute an impediment be caused to the person who made a paramount consideration and that, to the fact-finding process.[50] She the confidential communication by where a child is the protected confider, a further argues that the grant of the adducing the evidence against the representative of the child may make the privilege is unlikely to induce or desirability of the evidence being given. claim for privilege on behalf of the child. encourage patients to visit doctors, However, if it finds that the former Recommendation 15–3 and therefore there is no sound outweighs the latter, the court should The professional confidential relationship policy rationale for the privilege.[51] be required to give the direction. privilege should apply to any compulsory 15.42 The ALRC noted that many of (d) The uniform Evidence Acts should process for disclosure, such as pre- the arguments in favour of the include a non-exhaustive list of factors trial discovery and the production of privilege focused more on a that the court should be required documents in response to a subpoena right to privacy than on whether to take into account under these and in non-curial contexts including problems are caused by the provisions. That list should be the same search warrants and notices to produce as in the Evidence Act 1995 (NSW). documents, as well as court proceedings continued on page 49

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Special O er for Aipol readers $200 off the program fee if you mention ‘Aipol’ when booking continued from page 47 legislation to limit disclosure of these confidential, complainants will communications.[56] The question not seek counselling, or will not absence of the privilege or whether these communications be entirely frank during counselling benefits that would follow from are privileged may arise where sessions. This will reduce the efficacy its implementation.[52] The ALRC records of counselling session are of the counselling process. Further, if found that this rationale suggests subpoenaed, or where evidence of complainants do not use the services a need for a power to excuse a communication is sought to be of counsellors then the likely result will medical witnesses in certain adduced in a proceeding. be lower reporting of sexual offences cases, rather than to provide 15.46 Every state and territory except and withdrawal of complaints. If a blanket privilege or primary Queensland now has some notes are not protected, sexual rule of privilege with exceptions. restriction on access to counselling assault counselling services may [53] It contrasted the position of a communications.[57] A number of adopt practices—such as minimal doctor with that of a lawyer. While the provisions are based on the record keeping or making dummy each relationship is aided by model developed by the Model files—that both inhibit the counselling confidentiality, and confidentiality Criminal Code Officers Committee relationship, and mitigate against the will encourage people to seek of the Standing Committee of accountability of the counsellor.[62] professional services, different Attorneys-General in its 1999 report 15.49 The MCCOC also suggests that considerations apply to doctors on Sexual Offences Against the records of counselling will have and lawyers. Unlike the doctor’s Person.[58] Most jurisdictions allow very limited relevance in cases role, the lawyer’s role cannot be the court to examine the evidence involving allegations of sexual performed if he or she can be and then determine whether assault. Sexual assault counsellors compelled to give evidence against disclosure should be ordered, argued that sexual assault a client.[54] As such, the ALRC based on whether the public interest counselling is concerned with proposed that the doctor–client in protecting the confidentiality of the emotional and psychological relationship should fall under the the communication is substantially responses of the complainant to general privilege proposed to cover outweighed by the interest in its the assault. As such, the ‘facts’ confidential relationships. disclosure. In the ACT, Western surrounding the assault are 15.43 The LRCWA similarly found that the Australia and South Australia, likely not to be discussed, and public interest in the protection of the court can only consider an the exploration of feelings will confidential information in the hands application for disclosure once it has undermine the forensic reliability of of doctors does not outweigh the been satisfied by the applicant that what is recorded.[63] public interest in courts having all there is a legitimate forensic purpose 15.50 Sexual assault communications relevant information available to for the application.[59] Only Tasmania are also seen as deserving of them so as to justify the creation of provides an absolute protection for protection because of the nature a privilege.[55] such communications.[60] of the crime itself, which is widely Rationale for the privilege considered a more distressing Commissions’ view 15.47 The issue of the confidentiality of and intimate crime than other 15.44 In DP 69, the Commissions did not sexual assault communications crimes involving physical injury. support the inclusion of a medical emerged in the 1990s. In supporting a privilege for relationship privilege in the Evidence Commentators at the time sexual assault communications, Act 1995 (Cth) for the same reasons noted that, as an unintended the Supreme Court of Canada it was not supported in the previous consequence of the ‘rape shield’ drew a distinction between sexual Evidence inquiry. It was considered provisions limiting questioning of a assault communications and other that proper protection of confidential complainant’s sexual history and communications in a doctor/patient medical communications could conduct, subpoenas in criminal context. occur under the confidential proceedings were increasingly A rule of privilege which fails to relationship privilege. On that being used by defence counsel protect confidential doctor/patient basis no recommendation to access counsellors’ notes. communications in the context of an regarding adoption of a medical The notes were sought with a action arising out of sexual assault communications privilege is made. view potentially to impugn the perpetuates the disadvantage felt by complainant’s story.[61] victims of sexual assault, often women. Sexual assault communications 15.48 The Model Criminal Code Officers The intimate nature of sexual assault privilege Committee (MCCOC) suggests a heightens the privacy concerns of the 15.45 Sexual assault communications number of public policy reasons victim and may increase, if automatic are communications made in the in favour of a sexual assault disclosure is the rule, the difficulty of course of the confidential relationship communications privilege. It argues obtaining redress for the wrong. The between the victim of a sexual that sexual assault counsellors victim of a sexual assault is thus placed assault and a counsellor. From now serve a crucial role in the in a disadvantaged position as compared the mid-1990s onwards, ongoing justice system and that it is not with the victim of a different wrong.[64] reform of sexual assault laws and unreasonable to assume that, procedure included the enactment of if counselling notes are not continued on page 50

A Journal of Professional Practice and Research | AiPol Page 49 continued from page 49 a sexual assault communications (NSW) and Division 1B was amended privilege. It argues that the client/ and confined to apply only in civil Different models of sexual assault lawyer relationship is central to proceedings.[73] counselling privilege the operation of the law, and 15.57 The chief reason for re-enacting the 15.51 While some form of protection therefore requires the highest level provisions in the Criminal Procedure is afforded to sexual assault of protection. While the outcomes Act was the decision in R v Young.[74] counselling communications in of a failure to protect confidences It was held in that case that Division each state and territory, the models between a complainant and a 1B applied only to the adducing adopted by different jurisdictions sexual assault counsellor may be of evidence and could not protect differ markedly. The main point of regrettable if offenders are not sexual assault communications divergence is whether the privilege brought to justice, the absence in relation to discovery and the is qualified or absolute. Within of a privilege does not affect the production of documents. that distinction, there is a further operation of the legal system. 15.58 Division 1B now applies only to differentiation as to whether an [69] Further, the MCCOC’s view the adducing of evidence in civil absolute or qualified privilege applies is that an accused must have proceedings ‘in which substantially in preliminary criminal proceedings the right to seek production of the same acts are in issue as the such as committal proceedings. and access to records, as a acts that were in issue in relation 15.52 A further issue encountered in fundamental aspect of criminal to a criminal proceeding’.[75] this area is whether the privilege procedure. In the MCCOC’s view, Further, the privilege only applies provisions apply in the context of a blanket prohibition will promote where the evidence is found to be inspection of documents produced stay applications and increase the privileged under Chapter 6 of the on subpoena. A number of prospects of successful appeals Criminal Procedure Act.[76] This provisions were drafted in terms of against conviction on the ground effectively limits the privilege in ‘adducing evidence’. This means that the particular conviction is civil proceedings to circumstances that the provisions do not apply to unsafe and unsatisfactory.[70] where a criminal proceeding has prevent counselling records being 15.55 The MCCOC supports a qualified been brought and a privilege claim subpoenaed and inspected.[65] privilege, in which competing has been made and determined in public interests are balanced. that proceeding. An absolute or qualified privilege? However, the MCCOC considers 15.59 At the time of enacting the 15.53 A common argument against the that the prohibition on the production confidential relationship privilege, availability of a sexual assault of notes at committal is justified on the New South Wales Government communications privilege is that an the basis that once production and argued that communications accused must be able to access access to the material is gained for between a sexual assault victim all available evidence that may the purposes of bail proceedings or and a counsellor require a be used in his or her defence. A committal, the immunity is defeated particular privilege.[77] At trial, the mandatory prohibition or absolute for the purposes of the trial. The Criminal Procedure Act provides privilege is supported on the basis MCCOC also considers that the that evidence of counselling that the policy arguments in favour differentiation is consistent with communications[78] is not be of non-disclosure of the material other provisions in some states that disclosed or admitted unless the are sufficiently strong to support a limit the defence’s scope to cross- defence can show the evidence statutory exclusion of the type given examine a complainant at committal. has substantial probative value to client legal privilege.[66] Annie [71] This model has been adopted and that the public interest in Cossins and Ruth Pilkington have in New South Wales and a number protecting the confidentiality of the argued that the effect of disclosure, of other states, and was recently communications is substantially and its impact on complainants recommended by the Victorian Law outweighed by the public interest reporting or proceeding with claims Reform Commission.[72] in allowing disclosure. The of sexual assault, are serious Qualified privilege: New South Wales requirement that the public interest impediments to the effective 15.56 A qualified privilege for sexual in protection be substantially administration of justice.[67] In assault communications is available outweighed by the public interest Canada, L’Heureux-Dube J drew under Part 3.10 Division 1B of the in allowing disclosure is a higher this conclusion in R v Osolin: Evidence Act 1995 (NSW) and test than, for example, the similar If the net result is to discourage Division 2 of Part 5 of Chapter 6 of the balancing exercise under the witnesses from reporting and Criminal Procedure Act 1986 (NSW). confidential relationship privilege.[79] coming forward with evidence, Originally, Division 1B of the Evidence In preliminary criminal proceedings, then, in my view, it cannot be said Act 1995 (NSW) was inserted by the such as committal proceedings, that such practices would advance Evidence Amendment (Confidential there is an absolute prohibition on either the trial process itself or Communications) Act 1997 (NSW) records being sought or evidence enhance the general goals of the and applied in both civil and criminal being adduced.[80] administration of justice.[68] proceedings. In 1999, part of Division 15.60 Central to the granting of the 15.54 The MCCOC rejects any analogy 1B was re-enacted as (the then) Part privilege is the existence of a between client legal privilege and 7 of the Criminal Procedure Act 1986 counselling relationship. Under s

Page 50 AiPol | A Journal of Professional Practice and Research 296(5) of the Criminal Procedure §§ the contents of the document have also heard strong support for Act, a definition of ‘counselling’ is substantial probative value; an absolute privilege, from both given which includes a requirement §§ other evidence of the contents of academics and from sexual assault that the counsellor has undertaken the document or the confidence is counsellors.[91] One academic study or has relevant experience, not available; and argued that the public interest and that support, encouragement, §§ the public interest in preserving supports a need for victims of advice, therapy or treatment is the confidentiality of the sexual assault to enjoy open given.[81] The counselling must also communication and protecting the and trusting relationships with be given in relation to any harm the confider from harm is substantially counsellors, without the possibility person may have suffered. Under outweighed by the public interest that their communications will later s 295(1), ‘harm’ includes physical in allowing disclosure of the be subject to scrutiny in court. This bodily harm, financial loss, stress communication.[86] possibility, which is still present or shock, damage to reputation or 15.63 Following the NSW and MCCOC under qualified privilege, threatens emotional or psychological harm model, the VLRC also recommended the relationship of trust between a (such as shame, humiliation or fear). an absolute privilege in committal victim and his or her counsellor.[92] Absolute privilege: Tasmania proceedings. This is the way the 15.66 Women’s Legal Services Victoria 15.61 The privilege for communications privilege currently operates in South argues that, in making the privilege to sexual assault counsellors Australia[87] and the ACT.[88] The VLRC qualified, the proposal will create under s 127B of the Evidence argues that these recommendations disincentives for victims of sexual Act 2001 (Tas) differs from the strike the right balance between assault to seek counselling and privilege under the Criminal protection of the communication and may inhibit them from reporting the Procedure Act as the former the rights of the accused. assaults to police. From a public provides absolute protection of the communications unless the complainant consents to their Allowing the court to access these notes production. Section 127B applies only to criminal proceedings and continues the invasions of privacy that was enacted following a review those that have been sexually assaulted of sexual offences in Tasmania. [82] After examining the New South routinely experience. Wales legislation, the Tasmanian government determined that, given the nature of the material, an absolute protection is warranted.[83] Victorian Law Reform Commission report 15.62 In August 2004, the VLRC released Our recommendations will policy perspective, both those its final report on sexual offences. allow evidence of confidential outcomes are undesirable.[93] One [84] In that report, the VLRC communications to be accessed sexual assault service agreed considered both the New South by counsel and used in evidence with this position, noting that the Wales and Tasmanian models of where specified criteria are possibility of counselling session sexual assault counselling privilege. satisfied. These criteria balance notes being viewed by the judge, Although considerable support the competing public interests of and potentially by the defence, is a was received for the Tasmanian ensuring a fair trial for the accused source of anxiety and distress for approach of an absolute privilege, and preserving the confidentiality many victims (and counsellors). the VLRC recommended that of protected communications to the Allowing the court to access these the Victorian evidence legislation greatest extent possible.[89] notes continues the invasions adopt a model closer to the New of privacy that those that have South Wales priovisions. Under this Submissions and consultations been sexually assaulted routinely recommendation, a counselling 15.64 In DP 69, the Commissions proposed experience: beginning with communication must not be the adoption in the Evidence Act violations of their bodily integrity disclosed except with the leave 1995 (Cth) of a qualified sexual at the time of the assault and of the court.[85] Where a person assault communications privilege, persisting through the responses of objects to production of a document as enacted in Division 1B of the the heath and legal systems.[94] which records a counselling Evidence Act 1995 (NSW) and 15.67 Annie Cossins echoed this view, communication, he or she cannot be Chapter 6 the Criminal Procedure Act advising the Inquiry that her required to produce the document 1986 (NSW). support for an absolute privilege unless the document is produced 15.65 As was the case following IP 28, was based on the fact that the for examination by the court for the the Commissions received support notes serve little forensic purpose, purposes of ruling on the objection. for a qualified privilege protecting and that some complainants will Before ordering production, the court sexual assault communications. must be satified that: [90] However, the Commissions continued on page 52

A Journal of Professional Practice and Research | AiPol Page 51 continued from page 51 What stopped me was what was going refuse to go to court if they know that the notes are going to be read, to come out in the trial; knowing that the even if only by the trial judge.[95] defence lawyer had researched all about me, 15.68 The advantage of the absolute privilege is that it addresses the like my medical history and employment, policy concern of preventing subpoenas from being issued and the offender would hear all about me. by the defence. Sexual assault counselling centres continue to be required to appear in court and argue privilege.[96] In this Inquiry, one service stated that counselling against conviction on the ground a credit purpose due to the nature services use a substantial that the conviction was unsafe and of the counselling relationship, the proportion of their limited resources unsatisfactory.[102] The VLRC also notes nature of the particular offence, defending subpoenas in court. in its Sexual Offences Interim Report and to the variances in the way that Whilst those applications are usually that a complete prohibition on access counsellors take notes. successful, the cost is significant to to notes may result in some people 15.75 Counsellors’ notes are generally the counselling service.[97] being able to appeal successfully made for the purpose of providing 15.69 One prosecutor notes that despite against their conviction.[103] therapy to the client, and not as a the rape shield laws, in an ‘oath 15.73 The decision to prevent what could record of the assault. As part of the on oath’ case, the character of the otherwise be relevant information counselling process, a victim of a complainant is still often very much from consideration by a court sexual assault is likely to discuss part of the case. In his view, it is is not one that should be taken feelings of his or her own shame problematic to be able to delve into lightly, especially in the context and guilt, and may disclose prior one side’s rehabilitative processes of a criminal trial. The strong view assaults or be unclear about the without the same capacity to delve has been put that a failure to events surrounding the assault.[107] into the accused’s background.[98] allow this evidence at least to be 15.76 This Inquiry has heard that, 15.70 The New South Public Defenders considered by a judge may result depending on the policies of Office (NSW PDO) does not support in a miscarriage of justice. In this the counselling service and the enactment of a sexual assault Inquiry, the Commissions were told individual counsellor’s preference, communications privilege in the that it cannot be assumed that all notes may be taken as a stream Evidence Act 1995 (Cth), however, sexual assault complainants are of consciousness or they may should one be recommended by telling the truth.[104] Another view have the views of the counsellor the Inquiry, a qualified privilege is that matters communicated interspersed with those of the is preferable.[99] The Law Society to a rape crisis counsellor by a client. The actual ‘evidence’ or facts of New South Wales also does complainant shortly after the event of the case may be quite different not support a sexual assault might include relevant evidence to what is represented in the notes. communications privilege, on the that contradicts a later version of [108] In most counselling practices, a basis that defendants should be events.[105] In the VLRC Inquiry, client does not have an opportunity able to access any information that the Criminal Bar Association of to check the notes that are taken, is exculpatory.[100] Victoria submitted that disclosure and so will not be able to correct of counselling notes can reveal the counsellor if an inaccurate The Commissions’ view that the complainant is mentally version of his or her comments 15.71 The Commissions agree with ill, that alleged sexual misconduct are recorded. Their forensic value the finding of the VLRC (and did not occur, that the complainant cannot be equated to a police the conclusion of the MCCOC) has a documented motive to lie or statement or other account. that such legislation serves that a child’s disclosure has been 15.77 Sexual assault is one of the the important public interest of ‘infected’ by a person in authority.[106] most under-reported crimes in encouraging people who have 15.74 It is the view of the Commissions, Australia. In its Interim Report, been sexually assaulted to seek however, that this concern regarding the VLRC found that it has the therapy and may also encourage a possible miscarriage of justice lowest reporting rate of any crime. people who are sexually assaulted can be overstated. In a majority of [109] Studies have estimated that at to report the crime to the police.[101] cases, attacks on a complainant on least 85 per cent of sexual assaults 15.72 As noted above, the MCCOC the basis of disclosures made in a never reach the criminal justice rejected an absolute privilege counselling context will be directed system, and, of those that do, very on the basis that a blanket to the complainant’s credibility. few reach trial.[110] The VLRC argues prohibition would promote stay As has been discussed earlier, that concerns about the fairness applications and increase the disclosures made in a counselling of the criminal justice process prospects of a successful appeal context may well be misleading for contribute to substantial under-

Page 52 AiPol | A Journal of Professional Practice and Research reporting of sexual offences and justice system. The community assault communications privilege, may discourage people from giving has an interest in encouraging consistent with that provided for evidence against alleged offenders people to report sexual crimes and under Division 2 of Part 5, Chapter 6 at committal and at trial.[111] in apprehending and dealing with of the Criminal Procedure Act 1986 15.78 Rape crisis centres have estimated those who commit them.[117] (NSW). This privilege should apply that for twenty five per cent of clients 15.80 The Commissions are of the view in both civil and criminal matters, as the knowledge that sexual assault that sexual assault communications was the intention of the original New counselling notes can be subpoenaed fall into a special category outside South Wales legislation. had influenced the decision whether that of other confidential professional 15.84 The Commissions further propose they would seek counselling or not. communications. As concluded that the confidential communications [112] Similar evidence was presented by the MCCOC, the Commissions privilege and the sexual assault to the New South Wales Government believe it is reasonable to assume communications privilege apply to prior to the enactment of the privilege that an inability to protect the pre-trial processes. This is currently in the original Division 1B of the confidentiality of communications what occurs in New South Wales. It Evidence Act 1995 (NSW).[113] The with a counsellor is likely to is noted that the extension of these Australian Institute of Criminology has discourage sexual assault victims provisions will resolve the difficulty in R recently prepared a report studying from going to counsellors. It is v Young and allow the sexual assault the reasons behind a woman’s equally clear that sexual assault communications privilege sections decision to seek help from various counselling is a vital part of ensuring currently located in Chapter 6 of the services following a sexual assault.[114] that victims are helped appropriately Criminal Procedure Act 1986 (NSW) The report found that, amongst other to recover from an assault and also to be re-enacted in the Evidence Act issues, two key concerns influencing that they pursue complaints. 1995 (NSW). A draft of how this might the decision whether to report an 15.81 It has been the finding of other be achieved in the Commonwealth assault to the police are confidentiality, inquiries that have considered this Evidence Act is included in Appendix fear of the assault becoming public issue that the balancing of the 1. This draft does not completely knowledge, and the possibility of a interests of justice is best served implement Recommendation 15–6 for defence lawyer being able to access by allowing a judge to determine the reasons discussed in Chapter 14 details of medical and sexual histories. the admission of sexual assault regarding the extension of Part 3.10 [115] One woman reported: communications by reference to generally. What stopped me was what a set of determined criteria. The Recommendation 15–4 was going to come out in the Commissions support the argument Part 3.10 of the Evidence Act 1995 (Cth) and trial; knowing that the defence that a qualified sexual assault Part 3.10, Division 1B of the Evidence Act lawyer had researched all about communications privilege serves the 1995 (NSW) should be amended to include me, like my medical history and broader public interest of ensuring a sexual assault communications privilege employment, and the offender the legal system is fair both to the based on the wording of Division 2 of Part would hear all about me.[116] accused and the accuser. Under 5, Chapter 6 of the Criminal Procedure Act 15.79 It is clearly of the utmost importance the public interest test, the notes 1986 (NSW) applicable in both civil and that, in trying to make the legal will only be admissible where they criminal proceedings. The amendment system more supportive of the have substantial probative value and should include a general discretion privilege needs of complainants, the the public interest in protecting the and an absolute privilege in preliminary fundamental principles of a fair confidentiality of the document is criminal proceedings. trial are not overridden. The VLRC substantially outweighed by the public Recommendation 15–5 commented:Prosecution for a interest in allowing its inspection. If Recommendation 15–4 is accepted, sexual offence has very serious 15.82 The Commissions agree with the Division 2 of Part 5 of Chapter 6 of the consequences for the accused, VLRC that confidential sexual assault Criminal Procedure Act 1986 (NSW) including life-long stigma and communications should not be should be repealed. the possibility of a lengthy prison disclosed in committal proceedings. Recommendation 15–6 sentence if convicted. It is vital It should be left to the trial judge to The sexual assault communications to safeguard the presumption of determine any issues of disclosure privilege should apply to any compulsory innocence and ensure that the or admissibility. Enactment of the process for disclosure, such as pre- criminal justice system treats privilege as it currently stands in New trial discovery and the production of people accused of offences fairly. South Wales would achieve this effect. documents in response to a subpoena However, the Commission does 15.83 It is therefore recommended and in non-curial contexts including not accept the argument that this that the Evidence Act 1995 (Cth) search warrants and notices to produce is the sole purpose of the criminal be amended to adopt a sexual documents, as well as court proceedings.

References To see references please refer to the document title on: https://www.alrc.gov.au/publications/15.%20Privilege%3A%20Other%20 Privileges/privileges-protecting-other-confidential-communications July 2004

A Journal of Professional Practice and Research | AiPol Page 53 Lawyer X and police informants: what is a lawyer’s duty to their client and are there exceptions?

The police-informer relationship has come under scrutiny in the case of A barrister whose client threatens the Lawyer X – a barrister who acted as counsel for a number of prominent safety of any person may … if the barrister criminal defendants. Victoria police believes on reasonable grounds that there initially reported Lawyer X had been registered as an informant between 2005 is a risk to any person’s safety, advise the and 2009. This week, it was revealed Lawyer X was first registered as early as police or other appropriate authorities. 1995. Victorian Premier Daniel Andrews announced a Royal Commission in December, 2018 to determine if any criminal convictions have So, what are the obligations of a Commission and the NSW Crime been affected by the scandal. The lawyer to their client, and what rules Commission. Commission is also expected to assess govern a police-informer relationship? But the organisation-informer whether changes need to be made to relationship can be ethically fraught. how Victoria Police manages informants Why use informers? Informers could fabricate or exaggerate in the future. Police informers are critical to the facts in exchange for benefits, such as The High Court criticised Lawyer X’s gathering of criminal intelligence. monetary payments, and reductions actions as “fundamental and appalling Human source information is also in criminal charges and sentences. breaches” of her obligations to her clients essential to intelligence gathered by Unreliable or false information can in turn and to the court. And Victoria police organisations such as the Australian result in unjustified convictions. were admonished for their “reprehensible Security Intelligence Organisation The relationship between the informer conduct in knowingly encouraging” the (ASIO), the Australian Secret Intelligence and handler of information is regulated by barrister to inform against her clients. Service (ASIS), the Australian Crime internal policies and protocols. There is

Page 54 AiPol | A Journal of Professional Practice and Research little by way of legislation to circumscribe Rule 35 stipulates a barrister must how law enforcement agencies select “fearlessly” promote and protect their and use informers. This lack of regulation, client’s best interests to the best of and the covert nature of the relationships, the barrister’s skill and diligence. They means they largely evade external must do this without regard to their scrutiny. own interest. In addition, rigid secrecy provisions A barrister must also refuse to accept can dissuade whistleblowers from or retain a brief if: reporting potentially unethical conduct §§ the client’s interest in the matter is or relating to informers. Without such would be in conflict with the barrister’s scrutiny, we cannot know how many own interest; or Australian lawyers or barristers may be §§ where he or she has already registered as human sources. discussed the facts of the matter in On Thursday, the ABC reported up to any detail (even on an informal basis) six additional lawyers may be registered with another party with an adverse as informants with Victoria Police. interest (rule 101). It is not known if other law enforcement agencies have lawyers But, there are exceptions “on their books”. The ABC’s Fran Kelly Victoria Police Commissioner Graham Police Chief Graham Ashton has defended the use of Lawyer X noting the gangland wars in Victoria asked NSW barrister, Arthur Moses Ashton has defended the use of Lawyer were a dangerous time. ELLEN SMITH/AAP. SC, President of the Law Council of X as an informant. He argued Victoria’s Australia, if he “was aware of whether gangland wars – in which Lawyer X was Aside from the disclosure of confidential NSW police or indeed the police of any said to have been used as a “weapon” – client information, the registration of criminal other jurisdiction” used criminal defence were “a desperate and dangerous time” lawyers as informants in any circumstances lawyers as informants. where “a genuine sense of urgency was may undermine the nature of the criminal Moses replied he wasn’t at liberty to enveloping the criminal justice system, trial. Where lawyers or barristers are disclose any matters he “may have come including police”. registered as a human source, this may into possession of through some other On this issue, rule 87 states: conflict with their duties to their client and means.” This raises the possibility additional A barrister whose client threatens their role as an officer of the court. lawyers are registered as informants. the safety of any person may … if the Revelations additional lawyers may be barrister believes on reasonable grounds registered as police informants have the A lawyer’s duty to their client that there is a risk to any person’s safety, potential to undermine public confidence in Disclosing client communications to advise the police or other appropriate the integrity of the criminal justice system. law enforcement may conflict with a authorities. To maintain or restore this confidence, there lawyer’s obligations to their client. These include duties relating to confidentiality, promoting their client’s best interests, and Aside from legal profession rules, no avoiding and disclosing any conflicts of interest. It may consequently compromise legislation expressly prohibits lawyers a client’s right to a fair trial. from acting as human sources. Rule 114 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) provides that a barrister must not disclose or use confidential information obtained in the course of practice concerning any person to whom the In other words, a barrister may report is a need to review how legislation regulates barrister owes some obligation to keep confidential client communications to lawyers’ disclosures of confidential client the information confidential. police where their client has threatened information to law enforcement. This is consistent with the the safety of another person, for example, Aside from legal profession rules, no observations of Dr Matthew Collins QC, the client intends to seriously injure or kill legislation expressly prohibits lawyers President of the Victorian Bar, that: someone. From what has been reported from acting as human sources. The Royal All Australians are entitled to know about the Lawyer X case, it is not clear Commission presents an opportunity that, when they seek legal advice, the whether her covert communications were to consider if new laws are needed to information they provide to their lawyer limited to discrete instances where her clarify the circumstances (if any) in which will be treated in the strictest confidence. clients threatened imminent harm. lawyers may act as a human source.

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When you give blood, you save three lives. No wonder the biscuit you eat afterwards is so satisfying. To donate, call 13 14 95 or visit donateblood.com.au because giving blood feels good. Privilege, policing and the pub test: Questions to be answered from the Lawyer X scandal JEROME DORAISAMY While the Royal Commission into Management of Informants will be held in and limited to Victoria, its ramifications for both justice and law enforcement will go further than the physical boundaries of the Garden State. In this feature, Jerome Doraisamy explores some of the broader issues at play, including the concept of professional privilege, community expectations of legal practitioners and the dangers of certain police tactics.

Victoria’s recently-announced Royal she represented – over the course of Commission into Management of approximately five years, including a Informants gives rise to numerous period as a registered informant. questions. How and why did a criminal It’s a concept seemingly so bizarre defence barrister collaborate with the and understandably has not just the state’s police force? Were convictions nation’s legal profession dumbfounded against Melbourne gangland criminals but also the wider Aussie community. fair and in accordance with the law? Are What will the fallout of such a unique current management processes for police commission be? How will this alter legal informants adequate? services as we know them today? And One particular question we at most importantly – given that a core Lawyers Weekly have been interested principle of the Rule of Law is that justice Breaking it down in is whether the case of Lawyer X – must be accessible to all – are there any Victorian Bar president Dr Matt Collins also known as Informer 3838 – a still- circumstances where a duty higher than QC says that the balance struck by anonymous criminal defence barrister one’s practice obligations can be set the law provides a clear line for legal who represented numerous figures in aside, in favour of public interest, or even practitioners. Melbourne’s so-called ‘underworld’ – national security? “Confidential communications between clients and practitioners are privileged if they are made for the Privilege does not attach to dominant purpose of giving or obtaining legal advice, or the dominant purpose communications that are made in of actual, anticipated or pending legal furtherance of a crime or fraud or in proceedings,” he explains, citing both common law and relevant sections of deliberate abuse of power. Victoria’s Evidence Act. More relevantly in the present context, he continues, privilege does not attach to communications that are made in furtherance of a crime or fraud or in deliberate abuse of a power. gives rise to reflection on the nature of To answer these questions – and For Rebecca Treston QC, the legal professional privilege, and when or also consider the methodology of new president of Bar Association of if it can ever be set aside. certain police actions and strategies – we Queensland, answers to such questions After all, Lawyer X is known to spoke with the presidents of two state- about privilege must engage with the have provided pages upon pages of based barrister associations, as well rationale that underpin its very notion. information to the police about criminal as the principal solicitor of a criminal “Emphatically, it has nothing to do associates and clients – some of whom law firm. with protection of privilege of lawyers.

A Journal of Professional Practice and Research | AiPol Page 57 It arises from the basic right of every person in a democratic civilisation to get “Communication in furtherance of a advice from a lawyer with confidence, and in confidence,” she posits. fraud or crime are not protected by “Unrestricted communication between legal professional privilege” McHugh J. lawyer and client upon professional matters is, simply, necessary for the Commissioner AFP v Propend Finance Pty proper functioning of our legal system.” It is not open, she continues, to erode Ltd (1997) 188 CLR 501. this privilege in individual cases, not even by invoking a “higher public interest”. If that were to happen, she muses, the application of privilege would become uncertain and the intent behind it would be undermined. furtherance of a fraud or crime are not continually upholding the profession’s Dr Collins is of a similar mindset, protected by legal professional privilege.” values, and advocating for the submitting that the definition of privilege This is not an exception to the rule, importance of those lawyers in the public and its application did not lead to the she outlines. The privilege never attached square, even where they may meet circumstances giving rise to the new royal to them in the first place – their illegal opposition. commission. On the contrary, he says, object has prevented that. “What the Lawyer X controversy a central cause was a failure by Victoria Not even changes in an evolving has demonstrated already is that where Police and Lawyer X to respect legal legal marketplace can justify any ethical obligations are not honoured, professional privilege. rebalancing of the obligations owed by corners are cut on the false premise that “While the Victorian Bar will always be legal practitioners, argues Dr Collins, nor the ends may justify the means,” he says. prepared to participate in a debate about does he accept that there is an inherent “The fact that a royal commission is whether the law strikes the right balance, conflict between a legal practitioner’s now required, and that convictions will confidentiality of communications obligation to protect his or her clients and need to be reviewed, demonstrates that between legal practitioners and their the best interests of the community. the ends here most assuredly did not clients, where the dominant purpose is “The true position is quite to the justify the means.” the giving or obtaining of legal advice or contrary: the community is best served “It would be, I believe, quite wrong, in connection with actual, anticipated or by maintaining a strong, independent to think that the circumstances involving pending legal proceedings, is a bedrock and fearless legal profession whose Lawyer X and the royal commission foundation in our justice system for members honour their paramount duty to are anything other than wholly the protection of every Australian,” he the administration of justice, including by unprecedented. The public can and reflects. assiduously discharging their duties to should retain trust in Victoria’s 2,100 “It is scarcely less important than courts and clients,” he says. practising barristers,” he asserts. the presumption of innocence, the “Fundamental to those duties is the Ms Treston thinks any comparisons privilege against self-incrimination, sanctity of confidentiality in privileged between the banking royal commission and the importance of maintaining an communications between lawyers and and the new Victorian inquiry should be independent and incorruptible judiciary.” clients.” drawn cautiously. “There were, for [the banking] The proverbial pub test Public accountability inquiry, widespread systemic issues to Discussion of the outcomes of this year’s The unwavering nature of privilege, be investigated. At present, we know state-based royal commission will need to as surmised by Dr Collins QC and Ms of nothing that suggests [the Lawyer X] pass the proverbial pub test, and from a Treston QC, seems particularly pertinent case has implications for any practising broader societal perspective, Ms Treston when considered in the context of 2018’s lawyer, or that it points to systemic issues acknowledges that there is a need for Royal Commission into Misconduct in the legal profession,” she says. the notion of privilege to be carefully in the Banking, Superannuation and “It may be a different matter for explained. Financial Services Industry, conducted the Victorian Police, but that is for the “It can be understood that the private on a federal level, which uncovered commission to determine. That said, and inscrutable nature of privileged significant and wide-reaching patterns of the recommendations of any royal communications might give rise to misbehavior by Australia’s major banking commission must always receive speculation. Unjustified suspicions may institutions. considered attention, and that will happen be aroused,” she notes. On the question of how Australia’s in this case.” “That is one reason why it is legal profession can ensure public important to understand that not every trust is retained in 2019 – or at least The fall-out communication between lawyer and client how a potential loss of trust, such as This case is certainly one that has is privileged. For example, and as was that suffered by the financial services demanded the attention not just of the explained by McHugh J in Commissioner industry in 2018, can be staved off – legal profession, but that of the entire AFP v Propend Finance Pty Ltd (1997) Dr Collins says lawyers will maintain nation. It has elicited strong reactions 188 CLR 501, communications in the enhance their reputation by from lawyers across Australia, including

Page 58 AiPol | A Journal of Professional Practice and Research National Criminal Lawyers principal solicitor Michael Moussa, who said he police and intelligence authorities now was “outraged and appalled” by the conduct of Lawyer X, in conjunction with almost always attend either university or Victoria Police. police college wherein they are taught “Charasmatic, charming and in-control, this defence barrister amongst other tools of the trade, how to convinced some of Australia’s most dangerous men to tell her everything. deploy effective covert forms of policing. As it now turns out, [she] informed on her clients and others to the Victorian police department. Even more outrageous is the fact she was paid for her information,” Mr Moussa pens. The head of the western Sydney- “These forms of policing are easily legal duties for the person in whom the based boutique firm feels strongly that accessible online, [but it] is much more trust has been placed (the lawyer) vis- police powers are “ever-increasing” in proactive. That is to say, nowadays there à-vis the client. In particular, the lawyer Australian society, and that the saga of is a new kind of policing.” must act in the best interests of the Lawyer X may be demonstrative of that New-age methodologies being client which is considered a paramount increase. undertaken that purport to prevent crime, rule after their duty to the court,” he “This includes changes of NSW bail rather than apprehend, are now “widely reflects. laws, the introduction of Strike Force employed” in and around Australia, There are inalienable duties for Raptor [in the state] to crack down he posits, including but not limited to legal practitioners to adhere to, he on those not who have committed a “clandestine” profiling/screening, the use continues, such as maintaining client crime but are thought may do so and of ‘honey traps’, sensory deprivation, confidence, avoiding conflicts of other increasing police powers such as psychological surveillance and interest and compromises to integrity preventative detention, control orders and manipulation of environment. and professional independence, and the like,” he submits. What does this all have to do with being honest. As a criminal solicitor, Mr Moussa Lawyer X and the new Victorian royal “While time will tell what happens is particularly concerned about commission, though? There has been no for those members of the Victorian the prospect of the deployment of suggestion of the use of any such tactics underworld who are appealing their “effective covert forms of policing” by Victoria Police in this matter, nor any convictions, in my opinion Lawyer X’s by those in law enforcement. Lawyer undue influence or duress placed on actions are an atrocious breach of her X began providing information to the barrister in question to serve as an previous clients’ rights,” Mr Moussa Victoria Police in mid-2003, he muses, informant. surmises. supposedly motivated to do so by A nexus exists, Mr Moussa theorises, “Moreover, she has – in my view – an alleged mishandling of gangland via the engagement of Lawyer X to be a placed justice, the rule of law and due investigations and having been bullied by police informant in the first place, given process into doubt, leaving hundreds of certain crime figures. that she was supposed to uphold the all- other convictions now in jeopardy and “However, she only became a important duty of professional privilege to ensuring lengthy and costly legal action registered informer from 2005 to 2009, her clients. will follow.” during that time formally providing He invoked the words of former No doubt, he adds, such legal action information about criminal associates Turkish president Ahmet Necdet Sezer will unfold at the expense of the taxpayer. and clients, some while she was actually in pronouncing that “unless we abandon “The time is nearly here when representing them in legal proceedings,” elements which resemble a police state, legitimate clients will no longer feel he says. we can’t meet the demands of being a safe with the ability of solicitors and modern society”. barristers to properly respect the Moving forward For lawyers and barristers, this means duties owed to them. For this and Looking broadly at the Lawyer X case, abiding by the myriad duties demanded other reasons, Lawyer X and the Mr Moussa feels it important to recognise of practitioners while practising – revelation of her actions has turned that there is a “new kind of policing” including and especially privilege. back the clock for lawyers and their pervasive in our society. “Not abiding by those duties might not clients to the times where nobody could “What I’ve discovered, through always equate to a criminal act, however, trust anybody and to when informers speaking with clients and my own it could lead to being reprimanded and in were rife in the community,” he declares. research, is police and intelligence some instances being removed from the “With her unethical actions, [she] has authorities now almost always attend roll of solicitors and barristers. In some brought law into a state of disrepute.” either university or police college wherein instances, criminal charges can follow.” It is perhaps no wonder that criminal they are taught amongst other tools of “Without doubt, Lawyer X has severely solicitors and barrister associations alike the trade, how to deploy effective covert breached fundamental legal rules with deem it so fundamentally important forms of policing at the drop of the hat,” all the clients she informed police on. for professional privilege to remain an he says. This is because the law creates several immovable principle.

A Journal of Professional Practice and Research | AiPol Page 59 Background & Outcome of Australasian Institute of Policing General Meeting

On Friday 14 December 2018 the the Institute, were appointed to the Institute and have the legal authority to Australasian Institute of Policing Inc. casual vacancies on the Committee of act as an agent of the Institute to obtain (AiPOL) held a General Meeting at 23 St Management and will hold office until records from banking institutions and in Andrews Place, East Melbourne, Victoria. the next Annual General Meeting of relation to dealings with the regulatory The General meeting was in the Institute. agencies. accordance with the Rules of the Institute The Secretary/Public Officer advised as last amended on 25 October 2008. Election of office bearers that Dr Amanda Davies had been In accordance with Rule 12 the Mr Jonathan Hunt-Sharman was elected appointed to be editor of the Institute’s Secretary and Public Officer Mr Luke to the vacant Office of President. Mr Dave journal and that the journal has continued Farrell, received a request to call a Allen was elected to the Office of Vice- to be produced by CW Austral on behalf General Meeting from at least 5% of the President. Mr Russell Rowell was elected of the Institute. financial members of the Institute. The to the Office of Treasurer. The Committee of Management reasons for the meeting were set out in Mr Luke Farrell was thanked for formally thanks the previous editor of the the request. his tireless effort as the Public Officer AiPOL journal, Professor Roger Collins On 23 November 2018 the Notice of and Secretary of the Institute and was for his service to the Institute as well as the General Meeting was provided by reaffirmed as Public Officer and in the thanking his recommended replacement, email to all current financial members of Office of Secretary. Dr Amanda Davies, for her efforts to date. the Institute. The Notice advised financial members that the purpose of the General AiPol bank accounts, Paypal, AiPol Notice of annual general meeting Meeting was to: website, AiPol Journal, reporting The meeting resolved that the Annual (i) Fill casual vacancies on the Committee requirements etc General Meeting and election of Office of Management until the next Annual The Secretary/Public Officer advised that bearers is to take place within 60 days General Meeting; a number of signatories for various AiPOL after the end of the 2018/19 financial year. (ii) Elect Office bearers to the casual administrative functions were now no I thank all members for their ongoing vacancies to hold office until the next longer financial members of the Institute. support of the Australasian Institute of Annual General Meeting; A motion was carried unanimously that Policing. 2019 will be an exciting year for (iii) Advise relevant financial institutions all relevant financial institutions and the Institute. I believe members will see a and Regulatory bodies of the change Regulatory bodies be advised that the number of positive outcomes achieved by in Office bearers and authorised current Office bearers are authorised the Institute over the coming year. signatories; by the General Meeting to act on behalf I particularly like to thank the newly (iv) Authorise the auditing firm Andrea’s of the Institute and to be authorised appointed Committee of Management Business Solutions P/L to act as an signatories on behalf of the Institute in and the newly elected Office Bearers who authorised agent for the Institute; and accordance with the Rules of the Institute. will be assisting me in 2019. (v) To determine a date for the Annual Further, that all persons not current Office I wish you all the best in 2019 and General Meeting. bearers have no ongoing authority to act again thank you for your continued on behalf of the Institute or be signatories support of the Institute. Election of committee of on behalf of the Institute. management The General Meeting authorised the Yours sincerely Mr Jonathan Hunt-Sharman, Mr Romi auditing firm Andrea’s Business Solutions Luke Farrell Gyergyak, Mr Dave Allen and Mr Russell P/L to have access to all financial and Public Officer & Secretary Rowell, being financial members of administrative records held by the AiPOL

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