6. Approaches in other common law jurisdictions

6.1​A review of other common law jurisdictions reveals a range of approaches to reducing the tension that exists in Victoria between legal privilege and integrated legal practice.

6.2​Some overseas jurisdictions have restricted integrated legal practice, which removes the tension by preserving the traditional service delivery model in which legal privilege emerged.

6.3​The Northern Territory has restricted legal privilege in very specific circumstances, which removes the tension by exposing the client’s information to scrutiny even when the client reveals that information to a lawyer.

6.4​Several Australian jurisdictions have adopted a professional confidential relationship privilege that coexists with legal privilege, which reduces the tension by enhancing the level of protection for social service professionals, including those working alongside lawyers providing integrated services.

6.5​New Zealand considered—but ultimately did not support—expanding legal privilege to protect communications with third parties involved in integrated legal practice. This would have removed the tension by protecting communications made by different types of professionals delivering integrated services.

Restrict integrated legal practice

6.6​In Canada, one of the ‘greatest regulatory concerns’ about multidisciplinary practice (or integrated legal practice) is the ability of clients and services to maintain legal privilege.^[142] Because of this, legal practice regulations do not permit lawyers to provide services with non-legal professionals in provinces other than British Columbia and Ontario.^[143]

6.7​This approach is not suitable in Victoria, as it is inconsistent with the Victorian Government’s support for integrated legal assistance services.

Restrict legal privilege

6.8​In the Northern Territory, mandatory reporting obligations under the Care and Protection of Children Act 2007 (NT) apply to all adults, ‘despite any other … law of the Territory’. Under these obligations, an adult must report any reasonably held belief of harm to a child, whether physical, sexual, or emotional, or due to neglect or exposure to family violence.

6.9​As all other laws are expressly overridden in the legislation, these obligations apply to lawyers, as well as social service professionals. Restricting legal privilege in this way removes some of the tension between lawyers and social service professionals providing integrated legal assistance services because the obligation to disclose is clear, regardless of who the information is disclosed to.

6.10​In all other integrated legal assistance service contexts in the Northern Territory, however, the lack of certainty remains in relation to which communications are privileged, and which are therefore excluded from the professional reporting obligations of social service professionals.

6.11​This approach is not suitable for further consideration in this inquiry as it is of limited benefit to the problem under review, and overriding legal privilege in this way would require a clear expression of intent from the government of the day.

Adopt a professional confidential relationship privilege

6.12​A number of professional privileges are enshrined in Australian legislation, including journalist privilege and religious confessions privilege. See Appendix A for a table of professional privileges across Australia.

6.13​A professional confidential relationship privilege exists in the Australian Capital Territory, New South Wales, Western Australia and Tasmania.^[144] This privilege protects communications from disclosure where a professional party is under an obligation not to disclose them, including communications between a client and their doctor, psychiatrist or social worker. Unlike legal privilege, this privilege is qualified, meaning the court may compel disclosure if the desirability of the evidence being given is greater than the harm of disclosure to the client claiming privilege.

6.14​As this privilege coexists with legal privilege in the abovementioned jurisdictions, lawyers can rely on either privilege, as needed.^[145]

6.15​There appears to be considerable scope for lawyers to participate in client conversations with social service professionals without compromising professional confidential relationship privilege.^[146] However, the fact that the presence of a social service professional may compromise legal privilege in those settings means that legal and social services must still be delivered separately,^[147] unless it is in the client’s best interests to deliver them jointly (in a crisis situation, for example) or the client consents.

6.16​Consequently, clients accessing loosely integrated legal assistance services in these jurisdictions enjoy professional confidential relationship privilege in relation to their communications with social services professionals, as well as legal privilege in relation to their communications with lawyers.

6.17​In 2005, a joint report by the Australian Law Reform Commission, New South Wales Law Reform Commission, and Victorian Law Reform Commission recommended that the Uniform Evidence Law be amended to include a professional confidential relationship privilege.^[148] The Victorian Law Reform Commission again adopted this recommendation in the Implementing the Uniform Evidence Act Report, noting that the privilege has been operating in New South Wales since 1998.^[149] To date, the Victorian Government has not introduced it.^[150]

6.18​Although the Commission broadly affirms its support for the adoption of this privilege in Victoria, reconsidering its adoption in full is beyond the scope of this inquiry. However, considering a version of this privilege that solely applies to social service professionals providing integrated legal assistance services, is within scope. This forms the foundation of the first reform option set out in Chapter 7.

Expand legal privilege to accommodate integrated legal practice

6.19​The New Zealand Law Commission (Te Aka Matua o te Ture) considered expanding legal privilege to non-legal professionals providing integrated legal services in commercial settings, as well as non-legal professionals working alongside legal aid, community and pro bono lawyers.

6.20​The proposed reform would have established a two-tiered system of legal privilege—absolute privilege for communications made by legal and non-legal professionals for the purpose of litigation, and qualified privilege for communications made by legal and non-legal professionals for the purpose of obtaining legal advice.

6.21​After receiving unfavourable feedback, particularly in relation to the proposed loss of absolute privilege for clients seeking legal advice, and the resulting need to go to court to determine which communications were privileged and which were not, the New Zealand Law Commission recommended the law stay as it is.^[151]

6.22​While this approach is beyond the scope of this inquiry (noting it also concerned commercial legal practice), considering a version of legal privilege that could potentially facilitate the full realisation of integrated legal assistance services is consistent with the position of the Victorian Government. This forms the foundation of the second reform option set out in Chapter 7.

142. ​Canadian Bar Association, Futures: Transforming the Delivery of Legal Services in Canada (Report, August 2014) 44 <https://cba.org/getmedia/a93c7208-99dc-48f8-a037-a5b3ee3266f0/Futures-Final-eng.pdf>.

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143. ​Ibid 40–44.

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144. ​See Evidence Act 1995 (NSW) ss 126A-126F; Evidence Act 2001 (Tas) ss 126A-126F; Evidence Act 2011 (ACT) ss 126A-126F; Evidence Act 1906 (WA) ss 20A-20F.

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145. ​See Urquhart v Lanham [2003] NSWSC 109, [12].

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146. ​See Evidence Act 1995 (NSW) s 126A(2) which states that ‘a communication may be made in confidence even if it is made in the presence of a third party if the third party’s presence is necessary to facilitate communication’.

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147. ​See Kang v Kwan & 2 Ors [2001] NSWSC 698 where Santow J stated, ‘It is not enough that the solicitor refrain from disclosing a privileged communication … The lawyer’s duty … is to do that lawyer’s best to ensure that a valid claim for privilege is not lost: at [30].

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148. ​Australian Law Reform Commission, Uniform Evidence Law: Report (Report No 102, 2005) [15-1]-[15-3]. The Uniform Evidence Law is discussed further at paragraphs 7.59-7.60.

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149. ​Victorian Law Reform Commission, Implementing the Uniform Evidence Act – Final Report (Report, 2006) [2.43]-[2.53].

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150. ​Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2636 (Rob Hulls, Attorney-General).

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151. ​New Zealand Law Commission Te Aka Matua O Te Ture, Evidence (Report 55 Volume 1 – Reform of the Law, August 1999) [252]-[253].

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