State Civil Liability (Police Informants) Act 2024

The Act introduces several key defined concepts that shape its operation. A “specified human source” means only two individuals: Nicola Maree Gobbo and Joseph Acquaro (section 4, definition of “specified human source”). This is a highly targeted definition. No other persons can be added except by amendment of the Act. The cap does not apply to claims arising from any other human source used by Victoria Police. Thus the Act is essentially a piece of single-incident legislation, responding to the fallout from the Royal Commission’s investigation into Gobbo’s role as a criminal defence lawyer turned police informant.

A “cause of action” is defined broadly to mean “any claim seeking damages or other monetary compensation, whether in tort, in contract, in equity, under statute or common law or otherwise” (section 4). This ensures that the cap captures every conceivable legal basis for seeking money from the State, including intentional torts, negligence, breach of statutory duty, breach of contract, equitable compensation, and restitution. The word “otherwise” is a catch-all that prevents plaintiffs from circumventing the cap by characterising the claim under a novel legal theory.

The definition of “State” is extremely wide. It includes the State of Victoria as a legal person; a Minister of the Crown; Victoria Police (including current and former members under the Victoria Police Act 2013 and the Police Regulation Act 1958); any body corporate or unincorporate established by or under an Act for a public purpose; any body established by the Governor in Council or a Minister; any person holding an office or position established by or under an Act; any person appointed by the Governor in Council or a Minister; any public official within the meaning of the Public Administration Act 2004 (including former officials); and any other prescribed entity (section 4, definition of “State”). This list effectively covers the entire executive arm of the Victorian government and any statutorily created entity, ensuring that a plaintiff cannot sue an alternative government body not covered by the cap.

“Victoria Police” is given the same meaning as in the Victoria Police Act 2013 (section 4). That Act defines Victoria Police as the police force for the State, comprising members and police personnel. The combination of these definitions means that any claim against any police officer, whether current or former, acting in the course of their duties in connection with the two named informants, is captured.

The central operative provision is section 5(1): “The total maximum cumulative amount of damages or other monetary compensation that may be awarded to a person in respect of any and all causes of action against the State relating to, arising from or in connection with the provision of information or other assistance to Victoria Police by a specified human source must not exceed $1 000 000.” The phrase “to a person” in the singular, but read against the definition of “cause of action” and the context, means that each individual plaintiff is subject to the $1 million cumulative cap for all of their own claims against the State arising from the conduct of the specified human source. However, it is possible that multiple plaintiffs are each capped at $1 million individually, but the Act does not expressly limit the total aggregate payout across all plaintiffs. The phrase “total maximum cumulative amount … that may be awarded to a person” suggests a per-person cap. If ten persons each have claims, the State could potentially be ordered to pay up to $10 million in total, subject to the court’s discretion and the strength of each claim. This is an important nuance: the cap limits recovery per person, not per incident.

The Act also distinguishes between claims finally determined before commencement (excluded) and those not yet determined (covered). A proceeding “finally determined” is not defined, but would ordinarily mean a final judgment, order, or settlement that resolves the matter with no further possibility of appeal. The Act does not affect settlements reached before commencement if no proceeding was filed, but once a proceeding is on foot, whether filed before or after commencement, the cap applies unless there has been a final determination.

The Act directly affects any person who has suffered loss or damage that is causally connected to the provision of information or assistance by Nicola Gobbo or Joseph Acquaro to Victoria Police. This includes individuals whose criminal convictions may have been tainted by Gobbo’s role as a police informant while acting as their lawyer, family members who suffered consequential loss, business associates, and possibly persons whose privacy or fair trial rights were infringed. The Royal Commission’s work identified a large number of persons potentially affected, and many have already brought or threatened civil claims against the State of Victoria. The Act caps each such person’s total recovery at $1 million, regardless of the severity of the harm or the number of separate legal grounds they rely upon.

The State itself is the principal beneficiary of the Act. Its broad definition covers all government instrumentalities that could be named as defendants: Victoria Police, the Department of Justice, the Attorney General, public officials, and any statutory body that may have been involved in the management of police informants. The Act creates a statutory defence that the State can plead in any civil proceeding: that the damages or compensation sought exceed the $1 million cap and must be reduced accordingly.

Legal practitioners for both plaintiffs and defendants are significantly affected. Plaintiff lawyers must now advise clients that the maximum recoverable from the State is $1 million, which may fundamentally alter the economics of bringing a claim, particularly if the harm is catastrophic (e.g., wrongful imprisonment for decades). The cap may make it uneconomical for some plaintiffs to pursue litigation given legal costs, especially considering that the Act does not affect the court’s costs powers (section 5(2A)(b)) but the cap may still discourage risk. For defendant lawyers representing the State, the cap provides a clear ceiling to argue at trial or in settlement negotiations. However, the cap does not affect the State’s liability for costs if it loses, so the State still faces cost exposure.

The two named individuals, Gobbo and Acquaro, are indirectly affected. The Act does not impose any duty on them or limit their personal civil liability, but it expressly limits the liability of the State for their actions. This means a plaintiff who wishes to seek damages beyond $1 million cannot look to the State as a joint tortfeasor under vicarious liability or non-delegable duty; they would have to sue Gobbo or Acquaro personally. Given that these individuals may have limited assets, the cap may effectively bar meaningful recovery for those with large claims. The Act does not address any contribution claims the State might have against the sources, but the cap only applies to “causes of action against the State”, so it does not stop the State from suing the sources for contribution or indemnity.

Other potential litigants include class action plaintiffs. The Act does not expressly address class or representative proceedings, but the cap would likely apply to each class member individually. However, if the class action is brought on behalf of many persons, the total recovery could still be multi-million, but each class member’s share would be subject to the $1 million cap. This may complicate class action management and settlement.

Finally, the Act affects anyone considering a claim against Victoria Police for misconduct by informants other than the two named sources. The Act does not extend to other sources, so those claims remain uncapped. But the concentration of legislative attention on these two individuals signals a political preference to contain the financial fallout from the Gobbo affair, and may influence government willingness to enact similar caps in future.

The Act does not impose any new duties on any person. It creates no obligation on police to behave in any particular way, nor does it alter the existing duties of care, duties under statute, or fiduciary duties that may have been owed to plaintiffs. Instead, the Act operates purely as a limitation on rights. The central right it curtails is the right of a person to recover unlimited damages from the State for injury caused by the use of the two named informants. Prior to this Act, such claims would have been assessed under the ordinary law of tort, contract, equity, or statute, with no legislated ceiling other than the existing caps in the Wrongs Act 1958. The Act now superimposes a $1 million total ceiling on top of those existing limits.

The Act confers a right on the State to rely on the cap as a defence. In any proceeding where the plaintiff seeks damages or compensation covered by section 5(1), the State can plead that the court must not award an aggregate amount exceeding $1 million. The court has a corresponding duty to enforce the cap. If multiple judgments are entered against the State, the court must ensure that the cumulative amounts awarded to a single person do not exceed $1 million across all proceedings. This may require coordination between different courts or proceedings, which the Act does not explicitly address; it leaves the burden on the parties and the courts to manage.

The Act also preserves certain rights. Section 5(2A)(b) says that nothing in section 5 affects any power of a court to order costs in a proceeding. Thus a successful plaintiff can still obtain a costs order against the State, even if the damages award is capped. Section 5(2A)(c) preserves the court’s power to grant an indemnity certificate under the Appeal Costs Act 1998. Section 5(2A)(a) preserves the maximum amount for non-economic loss in section 28G of the Wrongs Act 1958, meaning that the $1 million cap is separate from and additional to that existing cap (but the combined effect may be that non-economic loss cannot exceed the Wrongs Act cap, and then the $1 million cap applies to total damages including economic loss). The interaction between the two caps is potentially complex: if the Wrongs Act cap on non-economic loss is, say, $500,000, and the plaintiff has economic loss of $800,000, the total would be $1.3 million, but the civil liability cap reduces it to $1 million. The Act does not say which cap is applied first. This ambiguity may generate litigation.

The Act does not confer any right on a plaintiff to receive $1 million automatically. The cap is a maximum, not a minimum. The plaintiff must still prove their cause of action and establish the quantum of damages under ordinary principles. The cap only operates as a limitation on the amount that can be awarded if the assessed damages exceed $1 million.

The State also has a right under section 7 to make regulations prescribing matters “required to be prescribed” or “necessary to be prescribed”. This is a standard regulation-making power, but notably, section 4(i) allows the Governor in Council to prescribe additional entities as part of the definition of “State”. This is a potential expansion of the cap’s coverage beyond the listed categories, without further parliamentary scrutiny. It is a delegation of legislative power that could be used to add, for example, a statutory corporation that was not originally listed. Plaintiffs should watch for any such regulations.

The transitional regulation power in section 8 is particularly potent. It allows regulations to have retrospective effect to the date of Royal Assent (24 September 2024), to override any Act or subordinate instrument, and to leave matters to be decided by a specified person. This power has a two-year sunset (section 8(4)), but while in force it can alter the operation of the Act in ways not foretold. The Act does not limit the transitional regulations to matters “arising as a result of the enactment”, which is the stated scope, but the Governor in Council could arguably use this power to make substantive amendments to the cap or its application.

The Act contains no penal provisions. There are no fines, criminal offences, or regulatory penalties for non-compliance because the Act is purely civil in nature. It does not require any person to do anything or refrain from doing anything. Its enforcement is judicial: a court presented with a claim covered by section 5 must apply the cap in determining the amount of damages or compensation to award. If a court awards an amount that, cumulatively with earlier awards to the same person, exceeds $1 million, the excess would likely be set aside on appeal as contrary to the statute.

The only mechanism for enforcement of the cap is through the legal process. The State can raise the cap as a defence in any proceeding. If the State fails to plead the cap, a court may still be obliged to apply it because it is a substantive statutory limit, not merely a defence that is waived if not raised. However, this is a question of procedure; the Act does not specify whether the cap is a matter that must be pleaded or can be raised at any time. A cautious approach for the State would be to plead it in all relevant cases.

The Act does not create a cause of action for the State to recover overpayments. If a court inadvertently awards more than the cap, the State would need to rely on the general law of restitution or appeal rights to claw back the excess. Section 5(2A)(b) preserves costs powers, so if the State is successful in reducing an award, it may seek costs.

The Act also includes no monitoring or reporting obligations. There is no requirement for the State to report on how many claims have been capped, how much has been paid out, or whether the $1 million figure remains adequate. This is consistent with the Act’s narrow purpose: to cap liability, not to administer a compensation scheme. The only ongoing administrative mechanism is the regulation-making power, which may be used to prescribe additional entities as part of the State or to deal with transitional matters.

Regulations under sections 7 and 8 are made by the Governor in Council and are subject to disallowance if they are legislative instruments under the Subordinate Legislation Act 1994. But the Act does not expressly require them to be tabled in Parliament. The transitional regulation power in section 8(3) provides that regulations have effect despite anything to the contrary in any Act other than this Act or in any subordinate instrument. This is a strong override power that could effectively amend other legislation by regulation, without further parliamentary consideration. The two-year sunset on section 8 imposes a temporal limit, but if the government wishes to extend such powers, it would need to amend the Act.

The lack of any enforcement machinery means that the primary burden of ensuring compliance falls on the parties and the courts. Plaintiffs who believe the cap is unconstitutional (e.g., as an acquisition of property on unjust terms contrary to section 51(xxxi) of the Commonwealth Constitution, if applicable, or as a breach of the separation of powers) could challenge the validity of the Act. The Act does not provide for any administrative review or alternative dispute resolution. The only forum for contesting the application of the cap is a court of competent jurisdiction.

The Act operates in the context of Victorian civil liability law, which includes the Wrongs Act 1958, the Limitation of Actions Act 1958, the Public Administration Act 2004, and various other statutes governing the liability of public authorities. The Act sits alongside these but does not displace them except as specifically provided. Section 5(2A) expressly preserves the non-economic loss cap in section 28G of the Wrongs Act, the court’s costs powers, and the power to grant indemnity certificates under the Appeal Costs Act 1998. This means that the $1 million cap is an additional layer, not a replacement. A plaintiff’s damages are first assessed under the general law, then subject to the Wrongs Act cap on non-economic loss (if applicable), and then further reduced if the total exceeds $1 million. However, the Act does not state the order of operations, which could lead to argument about whether the Wrongs Act cap applies first or second. The more sensible construction is that the $1 million cap applies to the total amount of damages and other monetary compensation, regardless of the components, so if the total (after applying the Wrongs Act cap) is less than $1 million, the cap does not reduce it further; if the total exceeds $1 million, the cap reduces it to $1 million.

The Act also interacts with the common law of tort, contract, and equity. It does not abrogate any cause of action. A plaintiff can still sue for negligence, breach of fiduciary duty, or any other cause of action that arises from the informant relationship. The Act only limits the monetary remedy. In that sense, it is analogous to statutory caps on damages for personal injury, but unique in that it is tied to the identity of the informant rather than the type of harm. The Act does not affect causes of action against persons other than the State, so a plaintiff could still sue Nicola Gobbo personally for unlimited damages (though practical recovery may be limited). Similarly, the Act does not affect claims against the Commonwealth or other states, although the Gobbo matter appears to be entirely a Victoria Police issue.

The Act’s retrospective operation interacts with the common law principle against retrospective legislation. The Act expressly applies to causes of action that accrued before commencement and to proceedings already on foot. This is a clear abrogation of the presumption that statutes do not operate retrospectively. The Act does not provide any transitional provisions in the body itself beyond the regulation-making power. Courts may need to consider whether the retrospectivity offends the implied constitutional protection of judicial power: the Act, by capping damages, effectively extinguishes part of a vested right of action without a trial on the merits. However, the High Court has allowed state legislatures to cap damages retrospectively in certain contexts (e.g., workers compensation legislation), subject to constitutional limits. The Act does not purport to extinguish rights entirely, only to cap them, which may increase its chances of survival.

The Act may also interact with the Charter of Human Rights and Responsibilities Act 2006 (Vic). Section 28 of the Charter requires the Minister to make a statement of compatibility when introducing a Bill. The Act was passed in September 2024, and the second reading speeches are referenced in the endnotes. The Charter might be relevant if the cap limits a person’s right to an effective remedy or fair trial (sections 24 and 25). The Act does not include a statement that it overrides the Charter under section 31, so it is likely intended to operate subject to the Charter. A court might read down the cap if it were found to limit human rights unreasonably, but the Charter does not override other Acts unless a section 31 declaration is made. Hence the cap is likely valid.

The Act’s definition of “State” is broad enough to capture bodies created under other Acts, such as the Victorian Government Solicitor’s Office or the Office of Public Prosecutions, if they are ‘public officials’ within the meaning of the Public Administration Act. However, it does not include the courts or judicial officers. The Act also does not affect the liability of the named sources themselves, or of private contractors who may have been involved in informant management.

Finally, the regulation-making power under section 8 allows transitional regulations to override any Act other than this Act. This means that during the two-year life of section 8, the Governor in Council could effectively suspend other legislation in relation to these claims. For example, a regulation could purport to extend the cap to other informants or to limit the types of damages recoverable. The breadth of this power is significant and may be subject to challenge if used beyond transitional matters.

The State Civil Liability (Police Informants) Act 2024 is version No. 001, indicating it has not been amended since enactment. It received Royal Assent on 24 September 2024 and came into operation on 25 September 2024 under section 3. The Table of Amendments in the endnotes is empty: “There are no amendments made to the State Civil Liability (Police Informants) Act 2024 by Acts and subordinate instruments.” This is to be expected for a very new Act. The Act was passed in the 2024 spring session of the Victorian Parliament, with the second reading speeches occurring in the Legislative Assembly on 14 August 2024 and the Legislative Council on 11 September 2024. The Bill’s long title indicates it was introduced “for an Act to limit the civil liability of the State by providing for a maximum cumulative amount of damages or other monetary compensation which may be awarded in causes of action in relation to the provision of information and other assistance by specified human sources and for other purposes.”

Given the Act’s narrow focus and specific named sources, it is not a candidate for frequent amendment. However, the regulation-making power under section 8 is self-repealing after two years, so if the government wishes to extend the transitional power, it would need to amend the Act before section 8 is repealed. Otherwise, section 8 expires two years from commencement (i.e., around 25 September 2026). The rest of the Act remains in force indefinitely unless amended or repealed.

There is also a potential for amendment to add additional specified human sources. As it stands, only Gobbo and Acquaro are covered. If other police informants give rise to similar liability concerns, the government could amend the definition to include them. The Act does not set a process for adding sources; an amendment would require a new Act. Alternatively, the government might rely on the transitional regulation power to broaden the definition, but that would be a straining of section 8, which is limited to transitional matters “arising as a result of the enactment of this Act.” Adding new sources goes beyond transition.

The Act contains no provisions for review or sunset other than section 8. There is no automatic expiration of the cap itself. This contrasts with some civil liability bills that include a review clause. The absence of a review mechanism means that the $1 million figure remains fixed unless amended. Over time, inflation will erode its real value, which may become a political issue.

The endnotes include a general note about the interpretation of legislation under the Interpretation of Legislation Act 1984, covering style changes, headings, examples, and punctuation. These are standard and do not reflect any amendment history. The explanatory details section has “No entries at date of publication,” confirming no explanatory memoranda have been issued.

As of the publication date of this Act (25 September 2024), there is no litigation history because the Act is brand new. The Table of Amendments shows no amendments, and the Explanatory Details have no entries. However, the very existence of the Act presupposes that multiple civil claims were threatened or pending. The Royal Commission into the Management of Police Informants, which reported in 2023, identified many individuals who had been convicted of serious crimes while represented by Nicola Gobbo, who was simultaneously a police informant. Those individuals had commenced or were preparing to commence civil proceedings against Victoria Police for misfeasance in public office, negligence, breach of fiduciary duty, and other torts, seeking substantial damages for wrongful imprisonment, loss of liberty, and consequential harm. Some class actions were also foreshadowed.

The Act was clearly drafted to cap those anticipated awards. The retrospectivity provision in section 5(2)(c)(ii) catches any proceeding that had commenced but not been finally determined as at 25 September 2024. This would include any claims filed before that date but not yet resolved. The Act does not name the specific cases, but it is understood that several claims were on foot, including likely the class action brought on behalf of persons convicted of serious offences that Gobbo had acted for while also informing on them. The Act effectively extinguishes the part of those claims that would have exceeded $1 million per plaintiff.

Given the constitutional novelty and the retrospective deprivation of rights, the Act is likely to be challenged in court. The most probable ground is that it amounts to an acquisition of property otherwise than on just terms, contrary to section 51(xxxi) of the Commonwealth Constitution, but that provision applies only to Commonwealth acquisitions. State acquisitions are not directly constrained by section 51(xxxi), but there is an implied limitation on state legislative power with respect to acquisitions of property that may be found in the separation of judicial power or the requirement that states do not impair the exercise of federal jurisdiction. Additionally, the Act may be challenged as a violation of the implied constitutional right to a fair trial, or as an impermissible interference with the judicial process by retroactively altering the law applicable to pending proceedings. The High Court has previously held that state legislation that retrospectively extinguishes or limits causes of action may be valid if it does not impermissibly intrude on the judicial function. However, the Act does not extinguish the right to sue; it caps compensation, which is more moderate. The line between legitimate law reform and impermissible interference with judicial power is drawn by the High Court in cases like Kable and Fardon.

It is also possible that the Act will be tested under the Victorian Charter of Human Rights and Responsibilities. A plaintiff could argue that the cap limits their right to a fair hearing (Charter section 24) or their right to seek remedy for violations of other charter rights. The Act does not contain an override statement under Charter section 31, so it must be interpreted consistently with human rights. A court could read down the cap if it were found to limit charter rights unreasonably, though it is more likely the court would find the cap reasonable given the public interest in containing public expenditure. No litigation has yet occurred, but practitioners should anticipate constitutional challenges and human rights arguments. Any such litigation will be closely watched and will likely generate the first reported decisions on the Act.

The Act also does not affect settled claims; section 5(3) excludes causes of action where a proceeding had been finally determined before commencement. This means that any plaintiffs who had already obtained a judgment or settled their claims before 25 September 2024 are not affected. The Act consequently encourages potential defendants to settle quickly before the Act comes into force. There is anecdotal evidence that the State may have settled some claims pre-emptively to avoid the uncertainty of the cap’s application, but this is not part of the public record.

Several features of the Act may catch practitioners and plaintiffs off guard.

First, the cap is cumulative across all causes of action. Section 5(1) says “the total maximum cumulative amount of damages or other monetary compensation that may be awarded to a person in respect of any and all causes of action”. This means if a plaintiff sues for negligence, breach of fiduciary duty, and misfeasance in public office, the aggregate award is capped. It also means that if the plaintiff obtains judgment against multiple State entities (e.g., Victoria Police and the Department of Justice), the total from all judgments is capped. The cap is not per defendant but per plaintiff per source. Careful coordination is needed to ensure that separate proceedings do not lead to cumulative awards exceeding $1 million.

Second, the cap applies to proceedings already commenced (section 5(2)(c)(ii)). Any plaintiff who filed a claim before 25 September 2024 but had not obtained a final, unappealable judgment by that date is caught. The cap retroactively truncates their potential recovery. This is a serious interference with vested rights. Plaintiffs with high-value claims may have to reassess the viability of continuing litigation.

Third, the definition of “State” is extremely broad. It includes not only the obvious police and government departments but also “a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose” (section 4(d)). This could capture public hospitals, universities, or transport authorities if, hypothetically, they were involved in the informant scheme. It also includes “a person holding, or who has held, an office or a position established by or under an Act” (section 4(f)), which could include statutory officers like the Ombudsman or the Director of Public Prosecutions. The cap applies to any claim against any such entity if the claim relates to the specified informants.

Fourth, the Act does not contain a definition of “in connection with” in section 5(1). The phrase “relating to, arising from or in connection with the provision of information or other assistance” is broad. A claim that arises indirectly, such as a claim by a third party who lost money because of a collapsed drug gang, might be caught if it can be linked to the informant’s assistance. The courts will need to determine the outer limits of “in connection with”.

Fifth, the Act does not affect the rights of a plaintiff to sue the named informants personally. However, if a plaintiff recovers from the State under the cap and also recovers from the informant personally, the Act does not say whether the cap applies to the combined recovery. The cap is only on amounts awarded against the State. A plaintiff could potentially recover more than $1 million if they can get a separate judgment against the informant. But the State may seek contribution from the informant, which could complicate enforcement.

Sixth, the Act does not cap the number of plaintiffs; each plaintiff is capped at $1 million individually. In a class action, if there are 100 class members, the total recovery could be up to $100 million, subject to each member proving their claim. The State’s total exposure is not capped. This is a significant point: the Act saves the State from massive individual awards but does not limit the number of successful claimants. If thousands of persons were affected, the State could still face enormous aggregate liability.

Seventh, the Act preserves the court’s power to order costs (section 5(2A)(b)). A plaintiff who obtains a judgment for $1 million may also seek a costs order. The State may have to pay costs on top of the $1 million damages, which could be substantial. The cap does not apply to costs.

Eighth, the transitional regulation power under section 8 is sweeping. The Governor in Council may make regulations that have “retrospective effect to a day on or from the day on which this Act received the Royal Assent” and may “provide for the exemption of persons or things or a class of persons or things”. This means the government could, by regulation, exempt certain categories of plaintiffs from the cap, or expand the cap to other informants, or change the $1 million figure, without parliamentary debate. Such regulations would have effect “despite anything to the contrary in any Act other than this Act” (section 8(3)). This is a Henry VIII clause, granting executive power to override primary legislation. The two-year sunset provides some safeguard, but during the two years, the regulation power is almost absolute.

Ninth, the Act does not define “person” in the cap. Does it include corporations? “Person” would ordinarily include a body corporate under the Interpretation of Legislation Act 1984. So a company that suffered loss due to the informant’s activities (e.g., a company that lost business because its director was wrongly convicted) would be subject to the cap.

Finally, the Act is silent on whether a plaintiff can receive compensation for costs from other sources, like the statutory victims of crime scheme. The cap applies only to awards in civil proceedings against the State. It does not affect other statutory entitlements, but plaintiffs might have to offset those under general law.

Compliance with the Act is straightforward because it imposes no ongoing obligations. The principal compliance requirement is for the State and its legal representatives to ensure the cap is applied in any relevant civil proceeding. This means that when a claim is made against the State that relates to information or assistance provided by Nicola Gobbo or Joseph Acquaro, the State’s solicitors should immediately identify whether the claim falls within the scope of section 5. If it does, they must plead the cap as a defence and ensure the court is aware of the $1 million cumulative limit. The State should also keep a centralised register of all claims and awards made to each person, to ensure that cumulative awards to the same person do not inadvertently exceed $1 million. Without such a register, a court might later award damages to a person without knowing that another court had already made an award that brings that person close to the cap. The State should coordinate across all government departments and agencies included in the definition of “State” to track claims. This is an administrative burden that the Act does not address, but prudent compliance requires it.

For plaintiffs, compliance is not required; instead, they are subject to the cap. They should be aware that if they have multiple claims arising from the informant, they cannot recover more than $1 million in total from the State. They may need to elect which causes of action to pursue or may need to prioritise their strongest claim. Plaintiffs should also consider any other limitation on damages, such as the Wrongs Act cap on non-economic loss. Legal practitioners advising plaintiffs should inform clients of the cap at the earliest opportunity, as it may affect settlement strategy and the decision to litigate.

The State may also wish to use the regulation-making power under section 7 to prescribe additional entities as part of the definition of “State” or to clarify the operation of the cap. For example, the government could prescribe a list of all agencies that are likely to be sued, to remove any ambiguity. However, such regulations are discretionary and may not be necessary.

The transitional regulation power under section 8 is a tool the government can use to address unforeseen issues. For instance, if it becomes clear that the cap is causing unintended hardship or that certain categories of claims should be excluded, the government can make regulations to exempt those claims or to impose a different cap for subclassifications. The government should consider issuing regulations promptly to clarify grey areas, such as the interaction with the Wrongs Act non-economic loss cap or the treatment of multiple plaintiffs. Failure to regulate may lead to conflicting court decisions.

For the courts, compliance means applying the cap as a substantive limit. When awarding damages, the court must determine the total monetary compensation to which the plaintiff is entitled under general law, then reduce it to $1 million if necessary. The court should also take into account any previous awards to that same person. If the plaintiff has already received compensation from the State in another proceeding, the court must ensure that the new award plus any previous award does not exceed $1 million. This may require evidence of prior awards.

Finally, ordinary citizens and businesses who may have been affected by the Gobbo or Acquaro informant activities should seek legal advice promptly. If they have potential claims, they should file proceedings as soon as possible to avoid any further legislative changes. Although the Act is now in force, the cap applies to all claims, so timing no longer makes a difference in terms of the cap, but the earlier a claim is filed, the sooner it can be resolved. Additionally, plaintiffs should preserve all documentary evidence linking their loss to the provision of information by the specified human sources, as the onus will be on them to prove causation and then the cap will limit recovery. They should also consider whether they have any claims against the informants personally, as that avenue remains unlimited but is likely to be practically unenforceable. The interaction between the Act and any potential award from the informants should be discussed with a solicitor.