Final Report Volume III NOVEMBER 2020 Royal Commission into the Management of Police Informants Final Report Volume III The Honourable Margaret McMurdo, AC Commissioner ORDERED TO BE PUBLISHED Victorian Government Printer November 2020 PP No. 175, Session 2018–2020 Final Report: Volume III 978-0-6485592-3-8 Published November 2020 ISBN: Volume I 978-0-6485592-1-4 Volume II 978-0-6485592-2-1 Volume III 978-0-6485592-3-8 Volume IV 978-0-6485592-4-5 Summary and Recommendations 978-0-6485592-5-2 Suggested citation: Royal Commission into the Management of Police Informants (Final Report, November 2020). Contents Chapter 10: Victoria Police’s use of other human sources with legal obligations of confidentiality or privilege 4 Chapter 11: Victoria Police’s implementation of the Kellam Report recommendations 34 Chapter 12: Victoria Police’s processes for the use and management of human sources involving legal 79 obligations of confidentiality or privilege Chapter 13: External oversight of Victoria Police’s use of human sources 183 10 Victoria Police’s use of other human sources with legal obligations of confidentiality or privilege INTRODUCTION In January 2019, the Commission obtained a copy of a letter from Victoria Police to the Independent Broad-based Anti-corruption Commission (IBAC) regarding its identification of seven human source files that required an assessment to determine whether there had been ‘any possible breaches of legal professional privilege’.1 Those files related to people in occupations associated with the legal profession. The disclosure prompted an amendment to the Commission’s Letters Patent, to extend the scope of its terms of reference to inquire into Victoria Police’s use of human sources, other than Ms Nicola Gobbo, with legal obligations confidentiality or privilege.2 Term of reference 5 required the Commission to recommend any measures that may be taken to address: a. the use of other human sources subject to legal obligations of confidentiality or privilege who came to the Commission’s attention during the inquiry b. any systemic or other failures in Victoria Police’s processes for its disclosures about and recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, and in the use of such human source information in the broader justice system, including how those failures may be avoided in future. 4 VICTORIA POLICE’S USE OF OTHER HUMAN SOURCES WITH LEGAL OBLIGATIONS OF CONFIDENTIALITY OR PRIVILEGE This chapter examines term of reference 5a and the use of other human sources subject to legal obligations of confidentiality or privilege who were disclosed to the Commission during the course of its inquiry. The use of a human source who is subject to legal obligations of confidentiality or privilege, such as a lawyer, doctor, journalist or priest, is not necessarily problematic if the information the source provides to law enforcement agencies does not relate to the person to whom they owe such an obligation. For example, a doctor may provide information to a law enforcement agency about a relative or a personal associate that does not relate to the doctor’s occupation or professional duties. Where, however, a person provides confidential or privileged information to a law enforcement agency in possible breach of legal obligations owed to other people, including their clients or patients, and that information is then used in the investigation and prosecution of a crime, it puts at risk the validity of any criminal convictions that may be obtained from the use of that information. During the Commission’s inquiry: • Victoria Police identified the seven human source files mentioned above, plus a further five files relating to people associated with the legal profession, dated between 1990 and 2016. The Commission reviewed these 12 files and, in some cases, examined relevant issues in private hearings. • Victoria Police identified 91 human source files, dated between 15 March 2016 and 30 September 2019, relating to people associated with other occupations that are potentially subject to legal obligations of confidentiality or privilege, such as nurses and government workers. The Commission audited a sample of 31 of these files. • Members of the public alleged that 45 people with legal obligations of confidentiality or privilege were used by Victoria Police as human sources. The Commission undertook inquiries to investigate the allegations, including by seeking information from Victoria Police. Based on the information available to the Commission, there is no evidence to indicate that Victoria Police’s use of any human sources, other than Ms Gobbo, resulted in the use of confidential or privileged information that may have affected the validity of any criminal prosecutions or convictions. There were, however, some limitations to the Commission’s inquiries. The Commission had to rely on Victoria Police to identify and disclose its relevant human source files, and it did not provide all relevant files to the Commission. During the Commission’s audit, Victoria Police steadfastly refused to make 11 human source files available, on the grounds of public interest immunity (PII). The Commission recommends that those 11 human source files be reviewed by an independent and suitably qualified person appointed by the Victorian Government to ensure that any issues relating to the use of those human sources are identified and addressed as a matter of priority. Security arrangements should be put in place to enable the appointed person to review all relevant information. Of the human source files that were reviewed, the Commission identified some instances of non-compliance with Victoria Police’s policies and procedures and a potential lack of understanding among police officers about issues and risks arising from the use of human sources subject to legal obligations of confidentiality or privilege. These observations were consistent with observations arising from other aspects of the Commission’s work, including its focus groups with Victoria Police officers who hold human source management responsibilities. In Chapters 12 and 13, the Commission makes recommendations to improve Victoria Police’s human source management practices and support officers’ compliance with policies and procedures, including by introducing a legislative framework to govern Victoria Police’s use of human sources, improved training for officers who work in human source management, and external oversight of Victoria Police’s registration and management of human sources. The Commission anticipates that the implementation of these reforms will help to address some of the issues and risks identified in this chapter. 5 ROYAL COMMISSION INTO THE MANAGEMENT OF POLICE INFORMANTS BOX 10.1: THE IDENTITY OF OTHER HUMAN SOURCES This chapter refers to people, other than Ms Gobbo, who may be subject to legal obligations of confidentiality or privilege and who were considered and/or used as human sources by Victoria Police. It also refers to people with legal obligations of confidentiality or privilege who are alleged to have been human sources by members of the public. None of these people are named or identified in this report. It is well established that it is in the public interest to protect information that might reveal the identity of a human source. The effective and continued use of human sources by law enforcement agencies depends on the identity of human sources being kept confidential and their safety being protected. Unlike in the case of Ms Gobbo, a court has not ruled that it is in the public interest to disclose the identity of the human sources or prospective human sources referred to in this chapter. THE USE OF OTHER HUMAN SOURCES WITH LEGAL OBLIGATIONS OF CONFIDENTIALITY OR PRIVILEGE Victoria Police’s use and management of human sources is governed by an internal policy, the Victoria Police Manual—Human Sources (Human Source Policy).3 Since 2008, all information relating to the registration and approval of human sources, contact with sources and the dissemination of information provided by them has been recorded in Interpose, Victoria Police’s intelligence and case management system.4 The use of human sources who are subject to legal obligations of confidentiality or privilege is not prohibited by Victoria Police policy or procedures; however, since 2014 there have been specific safeguards and requirements in place for their use and management.5 Those requirements were introduced following two reviews into Victoria Police’s use of Ms Gobbo as a human source between 2005 and 2009: the Comrie Review and the Kellam Report.6 As discussed in Chapter 11, both the Comrie Review in 2012 and the Kellam Report in 2015 identified failures and shortcomings in Victoria Police’s human source policies and practices in relation to its use of Ms Gobbo as a human source when she was registered for a third time in 2005 until 2009. Key recommendations of the Comrie Review and Kellam Report focused on the need for better safeguards around the use of human sources with legal obligations of confidentiality or privilege, including that: • the ‘utmost caution … be exercised before engaging a human source who may have conflicting professional duties (eg lawyers, doctors, parliamentarians, court officials, journalists and priests etc)’ • legal advice be obtained prior to the registration of a human source who may be subject to legal obligations of confidentiality or privilege.7 Victoria Police made changes