Lawyer X scandal: Denying the rights of those affected comes at a cost
The Victorian government has introduced legislation into parliament that will override the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”).
The State Civil Liability (Police Informants) Bill 2024 extinguishes civil actions arising out of the Lawyer X saga, in which criminal barrister Nicola Gobbo became an informant for Victoria Police.
Gobbo informed on clients she was ostensibly representing, likely undermining her clients’ defence to criminal charges, for which they were ultimately convicted.
The High Court of Australia described Gobbo’s actions as “fundamental and appalling breaches of [her] obligations”, considered Victoria Police’s conduct as “reprehensible” and constituting “atrocious breaches” of their duties, and concluded that the relevant prosecutions were “corrupted in a manner which debased fundamental premises of the criminal justice system”.
The Royal Commission into the Management of Police Informants made 111 recommendations.
Having had their criminal convictions overturned because of the associated miscarriages of justice, individuals are now seeking compensation from the state of Victoria arising from their wrongful conviction and false imprisonment.
Bid to limit civil liability
The bill aims to “limit the civil liability of the State” by extinguishing any cause of action against the state of Victoria through which an individual seeks damages or other monetary compensation “relating to, arising from or in connection to” specified human sources, naming Nicola Gobbo (and solicitor Joseph Acquaro, subsequently identified as another police informant).
The bill will apply prospectively and retrospectively, including to proceedings that have already commenced but are not yet determined.
The state of Victoria is broadly defined, including current and former members of Victoria Police and the Office of Public Prosecutions. Notably, it doesn’t extinguish causes of action brought against Gobbo.
Extinguishing such causes of action will deny the rights of many involved. Gobbo has genuine reasons to fear for her safety, with the evidence before the High Court that her risk of death was “almost certain”, so she may pursue claims that rely on her rights to life and bodily integrity.
Individuals who were imprisoned based on Gobbo’s informing may pursue claims of malicious prosecution, wrongful conviction and false imprisonment, and those claims may rely on their rights to a fair trial, not to be arbitrarily detained, to family and home.
Such claims may not succeed because rights are not absolute. Under the Charter, rights can be restricted. First, some rights are conferred in qualified form, including the right to liberty, which protects only arbitrary deprivations of liberty (non-arbitrary deprivations of liberty, such as imprisonment upon criminal conviction following fair investigations and a fair trial, are allowed).
Second, all rights are permissibly limitable – a limit may permissibly be imposed on rights where reasonable (for a legislative purpose that serves a pressing and substantial need) and demonstrably justified (where the legislative means chosen to pursue the legislative purpose is proportionate).
Overriding the Charter
Rather than allow these arguments to proceed to independent assessment through regular court processes, the Victorian government is overriding the Charter. The override allows parliament to pass legislation notwithstanding the Charter, such that Charter rights and all Charter enforcement mechanisms don’t apply.
This means any rights arguments Gobbo or individuals may have pursued in the courts will not be aired. It also means the Victorian government’s analysis of the rights-impact of the bill, as per its Statement of Compatibility, won’t be tested, including the claims that the right to fair trial and against double jeopardy are not engaged, that the right to freedom from cruel, inhuman and degrading treatment or punishment isn’t violated, and that any limitations on the right to property are permissible.
In addition, it means anyone interpreting the bill doesn’t have to consider rights in so interpreting, and any public authority need not align its actions and decisions under the bill with rights, nor give proper consideration to rights when making decisions under the bill.
As an extraordinary power, an exercise of the override must be based on exceptional circumstances, and lasts for renewable five-year periods.
Similarly to two earlier exercises of the power, the exceptional circumstances offered in the Second Reading Speech (to protect against additional expenditure linked to the royal commission and promote finality regarding the causes of action) don’t meet the internationally recognised threshold for suspending rights, and the five-year sunset requirement is expressly disapplied.
A political compromise
The override power supports parliamentary sovereignty – we all have rights, but parliament may seek to violate rights for the greater good via the override.
This political compromise is at the heart of the Charter. Legally, the override isn’t needed – courts can’t invalidate rights-incompatible legislation, and parliament can enact rights-incompatible legislation.
However, politically the government and parliament were only willing to guarantee rights if they could override the Charter when it suited political imperatives.
Rights protect against the excesses of democracy; rights protect minorities, and the marginalised, vulnerable and unpopular, from majoritarian decision-making.
Individuals imprisoned after criminal conviction are unpopular, yet rights are needed precisely to protect them. Such protection is most vital when the might of the state’s policing powers has been, as per the High Court, “so abused as to corrupt the criminal justice system”.
The government is focusing on the cost of running the royal commission, the cost of delivering the royal commission’s recommendations, the cost of reforming VicPol’s human source management framework, the cost of IBAC oversight, and so on.
But what is the cost of denying the rights of those impacted by this scandal, and the broader cost to society when rights can be so readily extinguished when an abuse of state power is uncovered?