6.2.6 Legal professional privilege
When Services Australia officers seek information, an employer, parent or third party may claim that legal professional privilege applies to the document or information.
Information disclosed to a lawyer does not become privileged, merely because it has been disclosed to a lawyer. Legal professional privilege as defined by the Law Council of Australia:
- is a common law right that exists to protect the administration of justice and the right of individuals and other entities/organisations to obtain confidential advice about their legal circumstances
- protects communications between client and practitioner relating to the provision of legal advice and the advice given by a lawyer to their client (advice privilege), and communications pertaining to actual or contemplated litigation or court proceedings (litigation privilege).
The Registrar's statutory powers to obtain information provided in CSRC Act section 120 and CSA Act section 161 do not override legal professional privilege (Daniels Corp International v ACCC  HCA 49).
Wherever possible, the Registrar will avoid disputes over legal professional privilege. Accordingly, Services Australia officers will:
- seek information and documents from the parent concerned rather than their lawyer, and
- avoid using information-gathering powers in a way that may lead to claims of privilege if there is an alternative means of obtaining the information.
Access to employer records
Wage records are not communications made in the course of obtaining legal advice or with reference to litigation. The Registrar will resist any claim of legal professional privilege in relation to wage records.
Requirements to provide information or attend & answer questions
The CSA Act and the CSRC Act provide the Registrar with statutory powers to require a person to provide information or to answer questions. Claims of legal professional privilege are unlikely to be encountered when exercising these powers.
Example: Miguel is seeking advice in relation to a property settlement and provides a list of assets to a lawyer in the course of obtaining legal advice. Miguel cannot refuse to provide details of the assets or refuse to answer questions about the assets on the basis of legal professional privilege, which applies to Miguel's communication to the lawyer, not Miguel's knowledge of the assets.
Requirements to produce documents
Claims of legal professional privilege are more likely to be encountered when the Registrar requires documents to be produced. The Registrar will not normally be interested in the communication of information to a lawyer or the advice received from a lawyer.
Example: Cristian is seeking advice in relation to a property settlement and draws up a list of assets. Cristian provides the list of assets and copies of bank statements to a lawyer when obtaining legal advice. Cristian can claim privilege in relation to the list provided to the lawyer. Cristian would not be able to claim privilege in relation to the bank statements. The list is a communication, the bank statements are not. While the list may attract privilege, the Registrar can still seek details of the assets from Cristian under the power to provide information or attend and answer questions.