Family violence information sharing legislation submission

Response to Department of Premier and Cabinet consultation

August 2016

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Contents

Family violence information sharing legislation consultation

Information sharing to promote safety

Court information sharing

Family violence information sharing in the legal service delivery context

Victoria Legal Aid – Family violence information sharing legislation consultation – August 2016

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Victoria Legal Aid (VLA) is pleased to be contributing to this consultation, and is pleased to support prompt action on the Royal Commission into Family Violence recommendations on information sharing.

VLA plays a leading role in the co-ordination of family violence legal services in Victoria, providing legal advice, court-based legal services, legal education, and legal information.[1] This letter sets out some of the information-sharing considerations specific to VLA and presents our views on the safeguards necessary to promote information sharing that enhances safety and encourages perpetrators and survivors to seek help.

Information sharing to promote safety

VLA agrees that enhanced information sharing is required to provide better co-ordinated services to people experiencing family violence, and to stop survivors experiencing the re-traumatising effects of having to repeat their story unnecessarily.

However, safeguards are required to make sure that survivors and perpetrators are not deterred from seeking help by concerns or uncertainty about how their information will be used. We suggest that:

  • Victims and perpetrators need clear information about how their information will be used and who it will be shared with, when and why. From our experience in operating VLA’s Family Dispute Resolution Service (FDRS), for example, we know that the information that intake agencies collect is important for risk assessment and safety planning purposes, and this could be undermined if clients do not provide important information because they are not confident about how the information they provide will be used.
  • Clarity is also important for referrers. To promote perpetrator accountability, referrers (including lawyers, courts,and support services) need to be able to encourage perpetrators to attend programs, and encourage frank engagement in programs, with confidence that disclosures will not be shared with other agencies or with the victim. Without clarity about how information will be used, or can be shared, referrers may be concerned about prejudicing their client’s interests by referring them to a support service.
  • Consent is very important for survivors of family violence, who have by definition experienced a loss of power and control. Our experience suggests that this is particularly a concern for clients who are experiencing mental health issues. Clients who are receiving mental health treatment (including compulsory treatment) should not be presumed unable to give or refuse consent to information sharing, and should be empowered by being given the control of their information. Thresholds for sharing without consent need to be clear, and very high. Exceptions to consent need to be truly exceptional (‘unreasonable’ or ‘impracticable’ are too vague).
  • Thresholds to trigger sharing of perpetrator information without consent also need to be clear, and defined with awareness that family violence intervention orders are often made by consent without admission of the allegations, and that perpetrators can apply for intervention orders against victims as a means of abuse.
  • The classes of information to be shared should also be made clear, with a correlation between the threshold for sharing and the amount of information shared. Some types of information could be usefully shared between public bodies without deterring help-seeking (for example criminal histories or court decisions, judgments, or orders, weapon registration information, and corrections information about bail or parole conditions). Other classes of information need never be shared (the fact that a victim or perpetrator is a survivor of child sexual abuse, for example, or their general medical, psychological or psychiatric treatment history).

A targeted regime with clear thresholds and safeguards for consent-based sharing between relevant people and entities will best promote safety.

Court information sharing

VLA supports the inclusion of courts in the information sharing regime. As noted in our submission to the Royal Commission, the response to family violence requires peripheral vision, as families often present with multiple legal (and non-legal) issues.[2] Better information sharing between courts will reduce the difficulties created by the current siloes between the state family violence and criminal courts, federal family courts, and state children’s courts, and police and corrections. Better access to this information will support better decision-making and, as previously noted, this is information from public bodies that does not deter help-seeking.

Family violence information sharing in the legal service delivery context

We support the Royal Commission’s recommendation[3] that participant organisations are specified as a discrete and clearly identifiable list of participants. A defined list of named organisations will be necessary for this regime to function effectively, as obligations and permissions regarding information sharing must be clear and not confusing. We understand that this specification may be achieved through a combination of legislation and regulation.

VLA is uniquely positioned as a statutory authority providing legal advice to individuals. Most of VLA’s work is governed by legal professional rules, placing that work outside the information sharing regime, as recognised in the Royal Commission’s report[4] and in the consultation paper.

The protection of legal professional privilege allows for a confidential exchange of open information from a client and frank legal advice from a lawyer. Our experience is that an intervention order is less likely to be breached if there has been legal advice. The terms of the order are more likely to be appropriate to the circumstances, and the respondent will better understand their obligations.

Because of the lawyer-client relationship, VLA has taken a tailored approach to ensuring a safety-aware legal practice. For the purposes of the information sharing legislation, VLA would not be an intake body or a risk assessment body, but we do support many clients who are experiencing or using family violence. Our Client Safety Framework trains all VLA lawyers and other frontline staff to recognise family violence risk and to respond with appropriate advice and referrals. Legal professional rules allow information sharing to prevent imminent serious physical harm or to prevent serious crimes.[5]

As well as legal professional privilege, there are specialist privacy regimes operating in relation to VLA work, which provide for disclosure in certain circumstances:

  • The Legal Aid Act creates a privacy regime designed to ensure that those who cannot afford free legal help have the same privacy rights as those who can pay their lawyer directly.[6] This regime preserves the confidentiality of client information, e.g. applications for legal aid assistance.
  • VLA’s FDRS has additional privacy obligations, under both Commonwealth and State laws, designed to facilitate open and effective dispute resolution in a safe and highly confidential environment.[7] FDRS shares information with consent to refer users to family violence support services, and it shares information without consent in cases of risk to children and adults that create exceptions to confidentiality.

While we understand that VLA will not be covered by the information sharing regime, if VLA were included in the regime, the regime’s interaction with VLA’s other statutory obligations, including under Commonwealth laws, would need to be resolved and a number of exceptions would need to be considered in order to maintain equality between those who can afford to pay for legal services and those who can’t (as the information sharing regime will not apply to privately funded lawyers and it is unclear how it would apply to community legal service lawyers).

On balance, our view is that VLA should be excluded from participation in the information sharing regime. VLA’s unique position as a legal service means that we need tailored information sharing rules, and these have developed throughout the different arms of our operations. Further, the complications of VLA’s inclusion in the regime seem unnecessary to resolve in the development of a targeted and consent-based sharing regime.

Victoria Legal Aid – Family violence information sharing legislation consultation – August 2016

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[1]Our submission to the Royal Commission describes our work in more detail in the Foreword and Appendix 1.

[2] See the commentary to recommendations 25 to 27 of our submission, at pages 51-53. See further Victoria Legal Aid (2015) Submission to Family Law Council’s Terms of Reference.

[3] See “Prescribed organisations”, at vol I, p187 of the Report.

[4]At page 192.

[5]Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rules 9.2.4 and 9.2.5, available at

[6] Section 43 of the Legal Aid Act 1978 (Vic).

[7]Family Law Act 1975 (Cth) s10H; Legal Aid Act 1978 (Vic) s40J.