Liberty Victoria opposes the Human Source Management Bill 2023 (Vic) in its current form.
We endorse the concerns of the Victorian Bar and the Law Institute of Victoria.
Lawyers should never be placed in the position of covertly informing against their clients. To allow that to occur, even in exceptional circumstances, will see a repeat of the kind of conduct deplored by the High Court in the Lawyer X litigation. It will result in lawyers being conflicted, people being inadequately represented, and to convictions (even where merited on the evidence) being overturned on appeal. Further, to permit this form of intelligence gathering erodes trust and confidence in the legal profession as a whole and potentially exposes lawyers to harm.
Given what occurred with the Lawyer X scandal (and the High Court’s condemnation of it), it is deeply concerning that the Victorian Government would provide a pathway for this to occur. Further, we note that under the Bill the test for registering a human source for the purpose of obtaining or disseminating privileged information (such as legal professional privilege, now known as client legal privilege) is ambiguous; what an authorising officer regards as a “serious threat” to the community or to “the life or welfare of any person” and therefore potentially justifies the use of human source with privileged information could be a relatively low bar in some circumstances.
While the oversight mechanisms proposed by the Bill are important, they are insufficient.
The Bill needs to be amended so that the kind of events that occurred during the Lawyer X scandal can never be repeated.
President, Liberty Victoria
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