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Legal institutions and lawyers react to new royal commission
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Legal institutions and lawyers react to new royal commission

The Australian legal profession is having its say on Victoria’s newly-announced royal commission into the management of police informants, following the raising of questions about the conduct of a criminal defence barrister and Victoria Police in securing criminal convictions against gangland figures.

Law Institute of Victoria voiced its support for the new royal commission, saying it is “extremely concerned” by disclosures that a legal professional acted as a police informer against a client during the gangland wars.

LIV president Belinda Wilson said the action goes against legal professional rules and is unethical.

“Legal professional privilege protects the disclosure of communications between a lawyer and clients when they relate to legal advice or for use in legal proceedings. Legal professional privilege is essential to the effective workings of the justice system. Lawyers have legal professional privilege over communications with their clients,” LIV said in a statement.

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“It exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. Clients need to have confidence that the information they provide to their lawyer will not be used against them. Privilege also protects the right to privacy, access to justice and equality before the law.”

It is fundamental to our democracy, LIV continued, that clients who seek legal advice can expect and rely on their lawyers not to divulge information to anyone else.

The justice system would not be able to operate effectively if clients could not trust their lawyers. It is not permitted, nor is it ethical, for legal representatives to act as informers against their clients. This raises the potential of tainted justice,” it said.

“These are very serious issues that go to the heart of the criminal justice system. The community deserves to have faith that everyone has equal access to confidential and independent legal advice.”

Victorian Bar President Dr Matthew Collins QC said the conduct of [unnamed barrister] EF, as revealed by [the High Court] judgments, was “egregious and unprecedented” in the 135-year history of the Victorian Bar.

“The Victorian Bar has been constrained in responding to this matter by the suppressed nature of the allegations and the proceedings but will co-operate fully with the Royal Commission into Management of Informants and other relevant authorities in relation to this matter.

“The public can have confidence that Victoria’s barristers are bound by a strict code of ethics under which their paramount obligation is to the administration of justice. They are required to display the highest standards of professional conduct and integrity at all times. The Victorian Bar holds its members to these standards, with a robust disciplinary regime which is administered without fear or favour.”

New Australian Bar Association president Jennifer Batrouney SC deemed the actions of the barrister in question to be "abhorrent", and agreed with the High Court's summation of the conduct as "fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court". 

Law Council of Australia President, Morry Bailes, said the disclosures reveal a clear breach of legal professional rules and reinforced the need for properly resourced oversight bodies to supervise the activities of law enforcement.

“A lawyer purporting to act as counsel for the convicted person, while also covertly informing against them, is a fundamental breach of a lawyer's duties to the court,” he argued.

“As a result, and as noted by the High Court, the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system. Client legal privilege is a fundamental protection and pillar of the Australian legal system. It ensures full and frank discussions between legal advisers and their clients. This promotes the administration of justice and encourages compliance with the law. It must not be abrogated in any circumstance." 

Individual lawyers also chimed in with their thoughts.

Former NSW Bar Association president Jane Needham SC tweeted the following: “This is the most extraordinary conduct by both the barrister and the Police. I hope the royal commission is able to clear it up.”

In welcoming the Royal Commission, Robinson Gill Lawyers principal Jeremy King emphasised that Victorians deserve a police force they can trust.

“The highest court of Australia has described the actions of Victoria Police as ‘reprehensible’. More than ever, Victoria needs strong police accountability mechanisms. This Government should not delay implementing the Parliamentary Committee’s recommendations to overhaul the police accountability system. [The Independent Broad-Based Anti-Corruption Commission] must be strengthened and properly resourced in order to prevent police misconduct of this scale from happening again,” he said. 

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