The state’s latest, into the Lawyer X scandal exposed by Melbourne’s Herald Sun newspaper, handed down its findings on November 30. Queensland judge Margaret McMurdo investigated the decision to co-opt a prominent gangland defence lawyer, Nicola Gobbo, as a human source for Victoria Police in the middle of Melbourne’s gangland wars. The commission was set up in December 2018 after the High Court upheld a decision of Victorian courts to allow the state’s DPP to reveal Gobbo’s role.
McMurdo described police attempts at secrecy during her royal commission as “Kafkaesque”. The Age reported on December 11 that the force had outspent the commission $64m to $40m trying to keep matters confidential.
The Lawyer X scandal has blown up in Vicpol’s face as convicted criminals — including Tony Mokbel just last week — succeed in having some of their convictions overturned because their defence counsel was in effect a source for the prosecution.
McMurdo recommended a special prosecutor look at the roles of senior police in the matter. These are likely to include 100 serving and former officers and three former state police commissioners: Christine Nixon, Simon Overland and Graham Ashton.
This newspaper started advocating for a royal commission into the relationship between the then state Labor government and Vicpol in the early noughties. It argued for the sort of transformational look at government and policing that another Queensland judge, Tony Fitzgerald, brought to Bjelke-Petersen-era Queensland in 1989.
Fitzgerald exposed corrupt former police commissioner Terry Lewis. He analysed the role of the media in allowing corruption to flourish and showed how the government used police as a political weapon.
Think police blockading anti-apartheid protesters in Brisbane in 1971. Compare to arrests of anti-lockdown protesters in Melbourne in 2020 after police turned a blind eye to 10,000 Black Lives Matter demonstrators only months earlier.
So why, when Victoria is struggling economically in the wake of its long COVID-19 lockdown, would the state’s taxpayers want to fork out for another “lawyers’ picnic”?
It’s about the terms of reference. McMurdo, like the hearing by Justice Jennifer Coate into the Victoria’s handling of hotel quarantine which is expected to report this week, was tightly focused by terms of reference. Doubtless some police in the Lawyer X saga will be prosecuted. The Coate inquiry has already produced resignations of ministers and bureaucrats.
But Victoria’s problems are deeper than Nicola Gobbo and hotel quarantine. Just as Sir Joh Bjelke-Petersen used the police as an arm of National Party decision making, Victorians need to know if Vicpol is too close to the state’s Labor government, in power for all but one term since the fall of Jeff Kennett in 1999.
The Coate inquiry heard of phone calls between commissioner Ashton and Premier’s Department secretary Chris Eccles on March 27. This column reported mid-year that Ashton had made it clear he did not want police involved in hotel quarantine. It appears Eccles that day assured Ashton that private security would be used. Epidemiological evidence shows 99 per cent of Victoria’s 800 deaths were directly attributable to hotel quarantine failures. Eccles resigned on October 12.
Why would a senior bureaucrat privilege the demands of a police commissioner over public safety?
This is not a partisan comment on Victorian Premier Dan Andrews. Even though he presided over mistakes that forced the state’s second lockdown, he did eliminate community transmission of the virus and fixed his antiquated contact-tracing system. Yet a royal commission could examine Labor’s relationship with public sector unions. Labor is the party of organised labour, and union membership is strongest in the public sector.
In the wake of Vicpol’s pursuit of Cardinal George Pell and the failings of the two court cases and a Court of Appeal hearing to withstand a unanimous 7-0 verdict in favour of Pell in the High Court, a broadbased inquiry could also examine changes to the state’s sexual offences laws. When Mr Andrews tweeted after that High Court decision to alleged victims of sexual assault — “I see you, I hear you, I believe you” — what was he really saying? This newspaper’s former legal affairs editor Chris Merritt argued on April 7 that changes to the state’s laws effectively reversed the presumption of innocence until proven guilty beyond reasonable doubt.
“Victorian legislation meant the Pell jury was denied the full story about the man who claimed to have been assaulted by the cardinal. Relevant evidence about the complainant was kept from the jury by virtue of legislation that was put in place with the clear intention of protecting those who claim to be victims of sexual assault,” Merritt wrote.
Victims’ stories are to be believed by police, and defendants’ ability to challenge those stories in court has been curtailed. The High Court found this was at the heart of the Pell matter. Experienced journalists already knew this.
The Age’s John Silvester wrote on February 27 that Vicpol must have relished the opportunity to reverse years of mishandling of clergy abuse cases: “Now police are told to come from a mindset of believing a person who says they have been sexually assaulted.”
In the case of Pell’s alleged assault of two choristers (one of whom had died but had denied ever being molested) at Melbourne’s St Patrick’s Cathedral in late 1996, Silvester wrote: “Pell was found guilty beyond reasonable doubt on the uncorroborated evidence of one witness, without forensic evidence, a pattern of behaviour or a confession … it is rare to run a case on the word of one witness, let alone gain a conviction.”
This column and Silvester argued a common feature in clergy abuse cases was absent in the Pell matter. There was no evidence of grooming of the alleged victims. One of the most intelligent men in the country was meant to have assaulted two boys he had never met, boys whose parents could have been police or judges.
The dissenting minority judgment of Justice Mark Weinberg in the Victorian Court of Appeal decision has been widely praised. Legal academic Mirko Bagaric in this newspaper asked why the other two judges on the court did not fall in behind Weinberg, one of the country’s most experienced criminal lawyers.
Chris Maxwell, president of the Victorian Court of Appeal, is a former president of Liberty Victoria and former principal private secretary to federal ALP minister Gareth Evans.
Chief Justice Anne Ferguson was a brilliant commercial lawyer who came to the position as a solicitor rather than barrister. Neither would claim Weinberg’s criminal law experience.
A royal commission that looked at relationships between politics, judicial appointments, the bureaucracy and policing could help Victoria avoid repeats of such problems. It might even be fertile ground for Four Corners — as Chris Masters’s The Moonlight State was — and might show viewers it can scrutinise both sides of politics.
More Coverage
Pro-Israel lobbyists fail in contempt bid over Lattouf case
A group of pro-Israel lobbyists who campaigned for Antoinette Lattouf’s dismissal from the ABC have failed in their bid to have the Nine newspapers prosecuted for contempt of court.
ABC’s frequent flyer: Chairman’s booming travel bill revealed
Kim Williams spent almost eight times as much in his first 14 months in the top job as his predecessor Ita Buttrose did in over two-and-a-half years, it has emerged.
Royal commissions have been overused recently but one more is needed in Victoria.