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‘The roles of informant and lawyer are fundamentally opposed,’ says Victorian Bar president
The newly introduced “Lawyer X legislation” has come under criticism from the Law Institute of Victoria and the Victorian Bar.
Jess Feyder
The Law Institute of Victoria (LIV) and Victorian Bar have expressed concerns over the Human Source Management Bill 2023 introduced into Parliament last week (7 February).
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“The LIV and Victorian Bar have substantive issues with the proposed legislation,” they said in a statement.
The bill aims to implement a number of recommendations from the Royal Commission into the Management of Police Informants (RCMPI), including introducing a framework for the registration, use, and management of human sources by Victoria Police.
The royal commission and bill came after barrister Nicola Gobbo spent the 1990s and most of the 2000s working with Victoria Police to put her own clients behind bars, having been dubbed “Lawyer X” by media before her identity was revealed.
“We welcome the transparency that the bill provides for the registration, use and management of human sources by Victoria Police,” said LIV president Tania Wolff. “However, if we have learned anything from the royal commission, it’s that lawyers should never be used as human sources.
“We are opposed to the idea that lawyers could ever be used as human sources or that they should covertly inform against their clients.
“To do so is contrary to a lawyer’s role as an officer of the court and violates many other ethical duties that a lawyer owes to their client.
“The duty of strict confidentiality is there to protect the client. Encroaching on this undermines community trust and confidence in the administration of justice.”
In 2018, the High Court stated that “[Ms Gobbo’s] actions in purporting to act as counsel for clients while covertly informing against them were fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court”.
“Despite royal commission findings and a High Court ruling that a lawyer who informs on their client to the police while purporting to act for them is a clear breach of ethical obligations, this legislation in its current form would legitimise such conduct,” Ms Wolff highlighted.
Victorian Bar president Sam Hay KC commented that the registration of lawyers as informants would lead to “precisely the same conduct that gave rise to the royal commission in the first place”.
“The roles of informant and lawyer are fundamentally opposed. One person cannot ethically wear both hats at the same time,” explained Mr Hay.
“In raising these concerns, we understand that the government is acting on one of the recommendations made by the RCMPI,” he said. “However, in light of the fundamental inconsistency between the roles of informant and that of lawyer, we respectfully urge the government to withdraw the provisions in the bill that would allow the Chief Commissioner to register lawyers as informants.”
The LIV and the Victorian Bar noted that they would continue to consult with the government and members of parliament about the proposed legislation.
