2 May 2023, (15:04)
Victorian Legislative Council, Melbourne
Rachel PAYNE (South-Eastern Metropolitan):
I rise to make a short contribution to this bill. I will not restate its purpose or the background, which have been well and truly canvassed in this house, but I will speak to the amendments that Legalise Cannabis Victoria has negotiated. The bill before us today is fundamentally different to the bill that was first presented to this Parliament. The original framework proposed by the government was heavily criticised by stakeholders as it seemingly enabled the holders of privileged information, including lawyers, to be registered as human sources and potentially tasked to undertake information gathering on behalf of the police.
This would have been, in our view, entirely inconsistent with the very purpose of the bill. Under the amended bill this cannot happen. We heard from stakeholders, and we have worked constructively with the government. Following our negotiations, we are pleased to see an extensive set of government house amendments that fundamentally change the nature of the bill and mitigate stakeholder concerns.
In relation to lawyers, these amendments change the act to effectively mirror existing legal profession uniform conduct rules that allow a solicitor or a barrister to disclose information to police if they believe there is a serious and imminent threat to national security, to the health or safety of the public, to the life of a person or of serious physical harm to a person. This is the only type of information that may be provided by a solicitor or a barrister to police in breach of client confidentiality. The amended bill provides a strict framework for the disclosure of this information. The disclosure requires the registration of the solicitor or barrister. The registration can only occur via application to and approval from the Supreme Court of Victoria. The period of registration will be determined by the court, with a legislated maximum of seven days.
Under the amendments, the police cannot task a lawyer to do anything. The police cannot assign or give instructions to the solicitor or barrister to assign them with criminal investigations or gathering criminal intelligence. This is now not the registration of a lawyer as a police informant, it is the registration of a lawyer’s contact with police in very limited circumstances and only where there is an imminent threat and oversight by the Supreme Court of Victoria – and this means that a Lawyer X can never, ever be repeated.
The Royal Commission into the Management of Police Informants has also recommended that the Victorian Bar and the Law Council of Australia develop ethics guidance on these conflict-of-interest scenarios. We understand that guidance should be to cease to act. Importantly, these amendments prevent a conflict from arising at law between the existing uniform conduct rules for legal practitioners and these proposed human source management laws. This is why this framework is preferable to that proposed by the opposition. To exclude lawyers from registration and to not record the contact between a lawyer and police is to risk the repeating of the very same conduct that this bill seeks to prevent. We cannot push lawyers back into the same grey area in which the Gobbo debacle occurred.
Additionally, amendments now provide significant improvements to the bill as applied to children. Under the amended bill, the definition of ‘child’ is moved from ‘under 14’ to ‘under 18’. Any child must have legal representation and/or an independent third party present in any discussions with police. Children may not be tasked by police.
Oversight of the management of human sources as a whole will continue to be undertaken by the Public Interest Monitor and IBAC. For a lawyer’s contact with police to now be overseen by the Supreme Court and limited to circumstances where the lawyer is proactively divulging information because they believe there is an imminent threat to life or of serious physical harm strikes the right balance and mirrors existing professional rules. At Legalise Cannabis Victoria we are proud of the progress we have made in securing these important changes. We can now support the amended bill in this context. This is important legislation. It acts on the advice of the royal commission. Victoria now leads the country in introducing legislation to guide and oversight police use of human sources.