Police would need to convince the Supreme Court there is an imminent risk to public safety or national security before using lawyers as informers under changes to proposed laws responding to the Lawyer X scandal.
Attorney-General Jaclyn Symes said amendments to the bill, which is before the upper house and has been met with condemnation from the legal sector, would create an “extremely high” threshold before lawyers could be registered as informants.
Victorian Attorney-General Jaclyn Symes.Credit:Penny Stephens
But legal groups aren’t convinced the draft amendments go far enough to protect the lawyer-client relationship.
“It is my view, as well as the royal commission’s view, that lawyers shouldn’t be used as human sources except in the most exceptional and rarest of circumstances, [to] prevent … risk to [someone’s] safety such as murder, or threats to national security,” Symes said on Wednesday.
“The amendments from the government further clarify that the threshold is extremely high in that the chief commissioner has to be satisfied that there is an imminent risk to a person’s safety or the safety of the community and must be convinced that there is no alternative sources of securing that information.”
The Human Source Management Bill was drafted in response to Justice Margaret McMurdo’s royal commission into Victoria Police’s use of criminal defence barrister Nicola Gobbo – who was referred to as Lawyer X until her identity was revealed – to inform on her gangland clients.
However, it met with strong condemnation from legal groups, including the Law Institute of Victoria, Victorian Bar, Law Council of Australia, Australian Lawyers Alliance, and the Australian Bar Association, which called for the bill in its current form to be scrapped.
Chief among their concerns was the discretion the bill gave police to register lawyers to inform on their own clients, undermining one of the fundamental principles of the legal system.
The government now proposes prohibiting lawyers or other people with access to legally privileged information from being “tasked” – for example, by being asked to wear a wire and record conversations with their clients.
Law Institute of Victoria president Tania Wolff said the organisation was reviewing the amendments.
“We will be looking for these amendments to clearly express that lawyers who are in that trusted and traditional lawyer-client relationship can’t be used as informers by the police,” she said.
“We’re not an arm of the police, and we’re not an information-gathering wing of the police. Our role is to the court and to represent our clients.”
Wolff said the institute was not opposed to lawyers being registered as informers in circumstances where they were not breaching client privilege, but protecting lawyer-client confidentiality was a critical issue for the sector.
The government’s amendments are yet to be tabled in parliament, but were circulated to legal groups and the crossbench on Wednesday.
Under the changes, before police can register a lawyer or other people with access to legally privileged information as informants, the chief commissioner of police must be satisfied there is an imminent threat to national security, the health or safety of the public or of serious physical harm to a person.
If the chief commissioner is satisfied this risk exists, police must then apply to the Supreme Court to register an informer to obtain information subject to client-legal privilege.
Victorian Bar president Sam Hay, KC, said it was unclear whether the amendments to the bill addressed the organisation’s principal concerns.
“The Victorian Bar maintains its opposition to the use of lawyers as informants against their clients,” he said.
The Greens are planning to move their own amendments to the bill to strengthen protections for children registered as informers.
“We’re also concerned about the lack of effective independent oversight or power to limit the recruitment of certain individuals being registered as reportable human sources,” Victorian Greens’ justice spokesperson, Katherine Copsey, said.
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