4. Risks to legal privilege when providing integrated legal assistance services
4.1As discussed in Chapter 2, legal privilege is a fundamental legal right that enables clients to keep confidential communications with their lawyer private. And as discussed in Chapter 3, integrated legal assistance services can ensure clients experiencing disadvantage secure the assistance they need to resolve their complex legal problems, resulting in a range of benefits to clients, service providers and the justice system. However, maintaining legal privilege while providing integrated legal assistance services is challenging on several fronts.
4.2This chapter examines two key challenges to retaining privilege while providing integrated legal assistance services. The first is complying with the requirements of legal privilege by demonstrating that the communications were confidential and for a dominant legal purpose, and—if contested—establishing a claim of privilege.
4.3The second challenge is that—when it is unclear whether legal privilege applies—social service professionals providing integrated legal assistance services alongside legal professionals may feel obliged to disclose those communications in accordance with the information disclosure obligations that ordinarily apply to their profession. While legally privileged communications are exempt from disclosure under these obligations, the lack of clarity regarding the application of the law on legal privilege to communications made in integrated legal assistance settings places social service professionals in a difficult situation when it comes to determining what information they should or should not reveal.
Complying with the requirements of legal privilege
4.4Common law and legislation allow confidential client-lawyer communications involving a third party to be covered by legal privilege in certain circumstances. The circumstances in which third-party communications will be privileged are broader for communications made for litigation than for communications made for legal advice.
4.5Third‑party communications made for the dominant purpose of supporting a client’s case at trial will often satisfy the requirements of litigation privilege. By contrast, where third‑party communications are made to support the provision of legal advice, legal privilege will not apply if an ‘equally important’ non-legal purpose can be inferred from the related but distinct area of expertise on which the communications are based.[113]
4.6For example, in integrated legal assistance services, communications made by a social service professional about a client’s alcohol and drug counselling may attract privilege, where that treatment is a fact in issue in the client’s case. However, communications that are not directly related to ongoing litigation but are nonetheless crucial to the client’s ability to safely navigate the legal system might not attract privilege—such as communications about the client’s accommodation needs. If these non-legal services were provided to support a client to obtain legal advice (rather than to prepare for litigation), neither communication is likely to attract privilege, owing to their ‘distinctive function and purpose’.[114]
4.7Applying the confidentiality requirement of legal privilege to the provision of integrated legal assistance services is equally difficult. A confidential conversation between a client, lawyer and social service professional for a dominant legal purpose is likely to attract privilege. It is less likely privilege will attach to the records that the social service professional makes, stores, shares and actions (to enrol the client in school, for example). While sharing privileged communications for a limited and confidential purpose may be consistent with the maintenance of privilege,[115] it is unclear how broadly ‘limited’ and ‘confidential’ can be interpreted in the context of integrated service provision.
4.8An additional challenge relates to the need for the party claiming privilege to establish that privilege exists, and the fact that the court’s decision will depend heavily on the circumstances of each case. As indicated in Case Study 4, it can be a difficult and stressful exercise for people experiencing disadvantage to assert their right to privilege in court.
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Case Study 4: Violent ex-partner subpoenaed records from loosely integrated legal assistance service |
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An umbrella organisation is home to a range of services that help a particular group of people experiencing hardship, including a community legal centre (CLC) and a counselling service. The CLC is staffed exclusively by lawyers and paralegals, and the counselling service is staffed solely by social workers. Although staff from both services meet with clients at the same physical location when needed, they never meet clients together and have separate electronic and paper record keeping systems. The CLC had previously acted for a mother, Anh*, in an immigration matter. With Anh’s consent, they had referred her to the organisation’s counselling service for assistance. A year after her immigration matter was finalised, Anh was a party to family law proceedings, in a context where, Lee*, her ex-partner and the father of her child, had been violent towards her over a long period of time. As part of these proceedings, Lee had subpoenas issued to the umbrella organisation. Both Anh and Lee were self-represented at the time the court first considered the subpoenas. The organisation advised the court that it held two sets of documents but objected to the release of either set, arguing its counselling service records were protected under legislation regarding ‘protected confidences’, and its CLC records were protected by legal privilege.
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The organisation provided evidence in support of the claim of legal privilege in the form of its accreditation as a community legal centre, its organisational structure and the strict information barriers in place. The court heard arguments on the protected confidence and legal privilege arguments in two separate hearings. At the first hearing, the court determined the social work documents (records of confidential counselling) were not covered by qualified privilege, and ordered the organisation to make them available to Lee’s lawyers. The court held that Anh’s distress at Lee gaining access to this personal information could be managed by restricting access to Lee’s lawyers. The court also ordered that in advance of the second hearing, the organisation produce the documents to which it said legal privilege applied, and required that Anh (who was still self-represented) review the documents and decide whether to claim legal privilege over them, or whether Lee would be given access to them. Anh could not afford private legal representation for the second hearing on legal privilege, but Lee had secured legal representation by that stage. The organisation’s CLC secured legal representation for itself at the second hearing. The CLC felt compelled to do this due to the level of disadvantage Anh was facing without legal representation of her own, and because it considered that Lee’s conduct in seeking these documents was part of a long pattern of family violence. This pattern included seeking to undermine Anh’s mental health and parenting ability. Lee’s attempts to access the information Anh had provided to support services caused her significant distress, as she feared he would ‘weaponise’ the confidential information about her distress while trying to escape him, to further undermine her position in their family court proceedings. During the second hearing, despite the evidence already provided regarding the organisational structure and the strict information barriers in place, Lee’s lawyer argued, without supporting evidence, that the information barriers within the organisation may not be secure and that the legal records may contain information that were not legally privileged. Lee’s lawyer also argued that Anh had waived privilege over all the documents in question by signing the organisation’s client agreement, which permitted the organisation to disclose confidential information if required in compliance with a court order or insurance obligations, and also because an affidavit which the CLC had assisted Anh to prepare had been filed in court in the immigration matter. Ultimately, the court found the legal documents were legally privileged and did not allow Lee to access them. Prior to this case, the CLC had considered increasing its level of integration with the counselling service to enhance their capacity to meet their clients’ needs. After this case, it abandoned the idea.[116] * Not their real name. |
Obligations to disclose information
4.9In Victoria, social service professionals are required to disclose information in a number of contexts. Failing to comply with some obligations may amount to professional misconduct and result in dismissal, whereas failing to comply with others might also amount to a criminal offence.
4.10If a client receives legal assistance and social services in the same room at the same time, and both parties keep records of the meeting, this may put the social service professional in a difficult position in relation to their information disclosure obligations. While legally privileged communications are exempt from these disclosure obligations, for the reasons outlined above it can be difficult to determine which communications are legally privileged and which are not. This means that, in some cases, social service professionals may inadvertently disclose privileged information, while in other cases they may fail to disclose information that should be disclosed because they mistakenly believe it is privileged.
Professional disclosure obligations
4.11For more than a decade, there has been a policy shift in Victoria towards information sharing to combat risks of family violence and child abuse and prioritise the safety and wellbeing of victim survivors.[117] As a result, social service professionals now have obligations under mandatory reporting, information-sharing schemes, and professional ethical codes. These obligations require social service professionals to share information that is confidential, but not privileged. However, if a client’s legal privilege is compromised because they accessed integrated legal assistance services, social service professionals may be required to share confidential information that would otherwise be protected by privilege.[118]
Mandatory reporting
4.12Under the Children, Youth and Families Act 2005 (Vic), certain professionals must make a report to child protection if they form a belief on reasonable grounds that a child is at risk of significant harm due to physical injury or sexual abuse, where the child’s parent is not acting ‘protectively’.[119]
4.13Some mandated reporters are professionals likely to participate in legal assistance partnerships, including:
•registered medical practitioners
•nurses
•midwives
•registered teachers and school principals
•registered psychologists
•school counsellors.[120]
4.14These obligations are particularly significant for health justice and school lawyer programs.
Information sharing
4.15The Child and Family Violence Information Sharing Schemes, established under the Child Wellbeing and Safety Act 2005 (Vic) and the Family Violence Protection Act 2008 (Vic) respectively, require ‘Information Sharing Entities’ to disclose information about risks to children and/or victims and people who use family violence.[121]
4.16Information Sharing Entities under the schemes include:
•nurses
•general practitioners
•public health services (including midwives, psychologists and allied health workers in those services)
•schools
•state-funded services for alcohol and other drug use, homelessness, sexual assault, and specialist family violence support
•registered community-based child and family services
•state-funded financial counsellors[122]
•the Victorian Disability Worker Commission
•settlement services for migrants, refugees and asylum seekers.
4.17When the information relates to adult victim survivors of family violence, it can only be shared with their consent, except in certain high-risk circumstances. In addition, social service providers are prohibited from asking for, or providing, legally privileged information.[123]
4.18In practice, however, there is a risk that neither the client nor the social service professional would be alert to the fact that the information they are seeking to share is (or could be) privileged, and that they could reasonably decline a request to share that information. Further, in some circumstances, sharing information could amount to a waiver of privilege, even though this was not contemplated at the time.
Ethical obligations of social service professionals
4.19Many social service professionals are subject to codes of ethics or professional rules set by their employer, by a peak body, or under an accreditation scheme, in addition to legal obligations relating to the sharing of confidential information. These typically state that information may be shared without client consent if there is a risk or threat of harm to any person. A failure to follow these obligations could result in professional sanctions.[124]
4.20These professional expectations could potentially create conflict between social service professionals seeking to share information, and legal professionals seeking to prevent the disclosure of information due to legal privilege concerns.
Crimes of non-disclosure
4.21A person who fails to make a mandatory report under the Children, Youth and Families Act 2005 (Vic) may be guilty of a crime, and subject to a fine.[125] This Act does not explicitly exempt those whose belief is based on legally privileged information, and it has not been tested in court. However, in keeping with the requirement for Parliament to express a clear intention to override legal privilege,[126] the better view is that it would be a defence to a charge of failing to report to argue that the information was covered by legal professional privilege.
4.22Under the Crimes Act 1958 (Vic), an adult who forms a reasonable belief that another person has committed (or attempted to commit) a sexual offence against a child under the age of 16, must report their belief to the police.[127] Failure to do so attracts a penalty of up to three years imprisonment.
4.23A person will not be guilty of this crime if they have a reasonable excuse for failing to report their belief, or they are exempt.[128] Among the people who are exempt are those whose belief is based on information that is protected by client legal privilege,[129] or that was given to a medical practitioner or counsellor.[130]
4.24Given the serious consequences for failing to comply with these obligations, and the lack of clarity regarding the application of legal privilege, social service professionals providing integrated legal assistance services may err on the side of disclosing communications. However, disclosure may undermine the client’s trust in their service provider, in addition to a range of other harmful consequences explored in Chapter 5.
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Question 3.Integrated legal assistance services may compromise a client’s ability to retain legal privilege and expose their private information, including through the professional reporting obligations of social service professionals. Do you have case studies, examples or other evidence that demonstrate how easy or difficult it is for lawyers, social service professionals or clients to manage information disclosure requirements and requests in this context? |
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Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266, 278–82 [30]; cited in Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [144].
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Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, 368 [46] (Finn J).
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Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39; (1995) 185 CLR 83, 95 [17] (Dean, Dawson and Gaudron JJ).
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Preliminary Consultation 2 (Confidential).
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Family Violence Reform Implementation Monitor, Legislative Review of Family Violence Information Sharing and Risk Management: Reviewing the Effectiveness of Parts 5A and 11 of the Family Violence Protection Act 2008 (Vic) (Report, May 2023) 27–29 <https://www.vic.gov.au/sites/default/files/2023-08/Legislative-review-of-family-violence-information-sharing-and-risk-management-2023.PDF>; Ellie Florence and Angus Tonkin, ‘A Moment of Reckoning’: Recent Developments in Victoria’s Child Safety Framework (Research Note No 1, Parliament of Victoria, January 2026) 6–7.
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The more limited circumstances in which solicitors and barristers may reveal non-privileged confidential information in Victoria is at paragraphs 2.43-2.45.
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Children, Youth and Families Act 2005 (Vic) s 184(1).
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Ibid s 182.
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Child Wellbeing and Safety Act 2005 (Vic) pt 6A; Family Violence Protection Act 2008 (Vic) pt 5A.
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Only in relation to the Family Violence Information Sharing Scheme.
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Child Wellbeing and Safety Act 2005 (Vic) s 41Q(a)(v); Family Violence Protection Act 2008 (Vic) s 144C(e).
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For example, Australian Association of Social Workers, Australian Association of Social Workers Code of Ethics (Report, 2020) rr 5.4.5 and 10.3
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Children, Youth and Families Act 2005 (Vic) s 184(1).
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Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 90 [18] (Murphy J), 96 [16] (Wilson J), 116 [11] (Deane J).
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Crimes Act 1958 (Vic) s 327(2).
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Ibid ss 327(5), 327(7).
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Ibid s 327(7)(b).
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Ibid s 327(7)(c).
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