Human source management laws criticised as ‘sloppy and incompetent’, sparking fears of another Lawyer X scandal

The Andrews government has come under fire from a former Supreme Court judge over concerns new laws could lead to a repeat of the Lawyer X scandal.

A former Supreme Court judge has lashed the Andrews government, warning new human source management laws will create another Lawyer X scandal.

Legislation giving police the authority to register those with privileged information, including lawyers, journalists and doctors as human sources passed the parliament’s lower house on Thursday.

It came in response to sweeping reforms as a result of the police’s use of criminal lawyer Nicola Gobbo as a registered police informer against her own clients.

The scandal was exposed by a five-year campaign by the Herald Sun which sparked a High Court ruling, a royal commission and a wave of appeals.

But former Court of Appeal Justice Stephen Charles, KC, has criticised the legislation as “sloppy and incompetent”.

“This is a terrible piece of legislation. The government should be thoroughly ashamed of putting it forward for enactment,” he told the Herald Sun.

“It’s doing more and worse than has happened in the Gobbo case. And we’ve seen what the High Court said about it in the most clear and strong terms.

The new laws came in response to the scandal involving Lawyer X Nicola Gobbo.

“They’re making it easier for the police to get access to these sources, get them on the list and keep them there. Its an appalling thing.

“I sat in the Court of Appeal hearing criminal cases for 11 years, and I can say to you that if I’d been sitting there in any case where it turned out that evidence of this kind had been obtained, I’d be giving the prosecution the most ferocious attack.”

Mr Charles said the legislation would make it easier for police to register secret sources and questioned why the government had ignored an explicit recommendation of the Royal Commission into the Management of Police Informants which recommended the registration of a human source should only be done in exceptional and compelling circumstances.

But under the new laws, police can register informants when satisfied of a serious threat to national security, the community or the life and welfare of any person.

The laws would also criminalise the revealing of a human source’s identity, meaning journalists could be prosecuted and jailed for the pursuit and publication of a story such as the Lawyer X scandal.

“The High Court, seven judges unanimously, said that what Gobbo did were fundamental and appalling breaches of her obligations as counsel to her clients, and of her duties to the court,” Mr Charles said.

“They said of Victoria Police, that they were guilty of reprehensible conduct for knowingly encouraging her to do as she did, and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties faithfully and according to the law.

“As a result the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.

“That is true not only of the case they were considering but of hundreds of cases.

“The last thing they said is it’s greatly to be hoped that it will never be repeated.

“This legislation is doing its best to repeat what the High Court said was so obnoxious.”

Mr Charles’ concerns have been echoed across the legal community, with Law Institute of Victoria president Tania Wolff urging the government to reconsider the legislation.

“This framework could legitimise what has been labelled by the High Court an appalling breach of obligations,” she said.

“Lawyers take their ethical obligations very seriously, but the very inclusion of lawyers within this framework is enough to seriously affect the community’s confidence in our legal system.”

Liberty Victoria president Michael Stanton said the legislation needed to be amended to avoid a repeat of the Lawyer X scandal.

“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,” he said.

“It will result in lawyers being conflicted, people being inadequately represented and to convictions, even where merited on the evidence, being overturned on appeal.”

Criminal lawyer George Defteros warned the legislation threatened the stability of the entire legal system.

“The Andrews Government is legislating in such a way that is directly contrary to the findings of the Royal Commission and that the concept of legal professional privilege is now a thing of the past,” he said.

“No client will ever be able to confer with their lawyer in confidence that his or her instructions will not be the subject of information passed on to police through the use of registered paid up human sources.”