Second Reading

Danny O’BRIEN (Gippsland South) (12:09): I am pleased to rise to speak on the Human Source Management Bill 2023 and to support the member for Malvern in his comments but also in the reasoned amendment that he has moved. Like the member for South Barwon, I am not a lawyer, not legally trained. Indeed I am an ex-journalist who became a politician, so one day I hope to get an honest job.

A member: Real estate.

Danny O’BRIEN: A real estate agent, yes, or a car salesman. As an ex-journalist, following the member for Malvern, I feel a bit like Justin Bieber following Pavarotti. This is a very complex but serious legal bill –

Michael O’Brien interjected.

Danny O’BRIEN: That was not a reference to any physical attributes of course, member for Malvern. Jokes aside, this is a very serious piece of legislation. Victorians will remember the Lawyer X saga, and indeed journalists do and people like me who follow media. As an ex-journalist, like an ex-smoker, I am most critical of the journalism. I do remember the series of articles leading up to the Lawyer X scandal breaking. There were some very difficult to understand headlines about things that the Herald Sun was not permitted to print. We were all wondering what the hell they were referring to. There were these sort of carefully worded front-page stories which ultimately became Lawyer X and the story of what the police had been doing in using Lawyer X as a human source came out. Ultimately Nicola Gobbo was revealed to be Lawyer X, but it took a long time and a lot of legal practice, and naturally the police did not want that information to come out.

As a punter, as a member of the community, and without knowing all the legal ins and outs, there is probably a bit of a feeling sometimes of ‘Well, we got the crooks. We got these guys who were gangsters and drug runners and murderers and we put them away. Isn’t that a good thing?’ and that the police went to whatever means necessary to do so. That sounds right in theory but not in principle, and certainly not in practice, because everyone in Victoria is entitled to fair representation in the law, particularly of course from their lawyer. We saw that absolutely not occur in the Lawyer X scandal, which, as the member for Malvern indicated, the High Court condemned as reprehensible conduct. Indeed it was. I think we all would like to think that if we were ever charged with something – and I am sure we would all say we were innocent, as most people who are charged do – the system was not stacked against us and that the people that were meant to be representing us were not working for the other side. That is really what this boils down to.

As the member for Malvern has indicated, this is not just about lawyers. It extends to other types of privilege, including journalistic privilege, doctor–patient privilege and that of faith leaders. That in itself is a concern – the fact that this legislation effectively would condone all of those people breaching the privilege that they have, whether that is with their client as a lawyer, with their parishioner as a faith leader, as a doctor or a medical professional with their patient, among others, indeed journalists as well. Not only that but as this legislation also makes it an offence for anyone to disclose the identity of a human source, we also have a situation where not only could the Lawyer X scandal occur again under this legislation but nobody would ever know about it. That is the concern that we have on this side with this bill. It is truly quite astounding that the government has gone ahead to draft this legislation, which, as the member for Malvern has pointed out, is pretty friendless. With the exception of the government and Victoria Police, there are not too many supporters of this legislation. We can see why.

It is all well and good to say there are safeguards in the legislation. Indeed I think we have got the Public Interest Monitor, we have got IBAC and we have got the Victorian Inspectorate all involved in the oversighting of human source management under this legislation, but only in an advisory sense. There is no compunction on the Chief Commissioner of Police or even the Attorney-General to accept the advice of IBAC. They can advise, they can make recommendations, but ultimately is up to the chief commissioner to make decisions with respect to human source management under this bill. We do not believe that is enough oversight or there are enough checks and balances in the system. That is why I certainly support the member for Malvern’s reasoned amendment that the government needs to go back and consult with those who would be impacted by this bill and that it should provide better oversight. As I said, the oversight now is literally that, oversight, but not actually any power to deal with issues of concern. This is the key point: the government needs to satisfy this chamber that this legislation will not result in a repeat of the Lawyer X scandal.

I certainly do not believe the government can do that. So we are effectively saying that this bill is wrong both in principle and in fact and the government needs to go back to the drawing board in that respect. I know that government members will say, ‘Well, we are implementing the recommendations of the McMurdo royal commission.’ It is an issue that I have always been uncomfortable with with many of the royal commissions that the government have implemented, where they have given terms of reference and then said, ‘We will implement all the recommendations of the royal commission.’ I have always been uncomfortable with that. How can you say ‘I’m going to do whatever they tell me’ when you have got no idea what they will tell you? This is a case in point where my fears are well founded. To just accept blindly the recommendations of a royal commission, which has of course assessed all the evidence, has assessed many circumstances and many different opinions and come up with recommendations – no royal commission is infallible. I think in this situation it is rather strange, in investigating the scandal that was Lawyer X, in which the High Court again, in a 7–0 judgement, found what the Victoria Police did to be reprehensible conduct, for then the royal commission to say, ‘But if you want to make it legal, here’s how you do it’, which is effectively what this legislation is now doing. I think that is wrong, so with respect to the royal commissioners, this is not something that we can support. Indeed it is a logical fallacy, when you think about it, to say that we have had a royal commission in this scandal, that we, the High Court and the Victorian Court of Appeal found how outrageous the actions were and that we then came up with a process that would allow it to occur again – and indeed, as I said earlier, not only would allow it to occur again but would stop anyone from ever finding out, because it becomes an offence to reveal the identity of a human source.

I say all this with full support for the efforts of Victoria Police, if not always the actions. We on this side support our police. We want to make sure that they are supported financially, legally, ethically, morally and politically, and we did that through the last couple of years when things were pretty difficult and there was a lot of criticism of the police. But that is not a blank cheque; that needs to come with appropriate checks and balances. Yes, we will always talk to the police about what we can do to help them do their job and keep the community safe, but that must be balanced against the rights that have been developed over centuries in our legal system – the privileges and the practices that ensure access to a fair trial, a presumption of innocence and legal professional privilege with a person’s lawyer as it extends to those other areas of privilege that I mentioned before.

So we are certainly very concerned about this legislation and will not be supporting it in in its current form. It is not to say that we do not support our police, and we will work with them as best we can, but we do think that this bill goes too far. I congratulate the member for Malvern for his contribution but also this reasoned amendment, which I strongly support.

Stay up-to-date

Subscribe to Danny’s regular newsletter to stay informed about issues relating to Gippsland South.