Liberty Victoria Statement on Lawyers as Human Sources

Liberty Victoria is strongly opposed to the Human Source Management Act 2023 (Vic). We are committed to its repeal.  We are also deeply concerned by the closure of the Office of the Special Investigator.

We have reached the point where it appears there will be no accountability for what the High Court described as “reprehensible conduct” by police in knowingly encouraging Nicola Gobbo to do as she did, and in sanctioning “atrocious breaches of the sworn duty of all police officers to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will”.

The High Court found this debased the foundations of the criminal justice system.

As we have previously stated, lawyers should never be placed in the position of covertly informing against their clients. To allow that to occur, even with oversight and only in exceptional circumstances, is likely to result in lawyers being targeted as informants and placed in conflict with their clients, and may result in accused people being inadequately represented and to convictions being overturned on appeal.

The Act was not necessary to prevent the risk of imminent harm. There is already an ethical rule where, if a client threatens the safety of any person and a lawyer believes on reasonable grounds that there is a risk to any person’s safety, the lawyer may advise the police or other appropriate authorities.

The Act does something very different. It creates a legislatively endorsed pathway for intelligence gathering. This will erode trust and confidence in the legal profession as a whole and potentially expose lawyers to harm.

While the oversight mechanisms provided for by the Act are important, they are inadequate.

The Legal Services Commissioner has already made it clear that any lawyers engaged in such conduct will likely be in breach of their ethical, regulatory, and professional obligations.

It should never be forgotten how difficult it was for the Lawyer X scandal to come to light. Lengthy and costly litigation was conducted to try to keep this information secret, even when it had resulted in substantial miscarriages of justice.

We must do better than this. We must learn from the lessons of our recent history, not create mechanisms for them to be repeated.