This provision has not been checked by a human. The text below was read automatically from the official PDF and has not yet been verified against it, so it may differ from the provision as published — in its wording, its numbering, or where one provision ends and the next begins. For the authorised text, see legislation.vic.gov.au.
defines, for the purposes of the Division, the terms client, confidential communication, confidential document, lawyer and party. The definition of client has a wide meaning, including, for example, government employees. The definition of client includes a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service). Under this definition there is no distinction between government and private lawyers—a client is allowed to be an employer of the lawyer. This clause contains the definition of client relevant to client legal privilege, in accordance with recommendation 14-2 of the 2005 LRCs' Report. The recommendation changes the definition of client (in section 117 of the UEAs) from "an employer (not a lawyer) of a lawyer" to "a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service)". The purpose of the amendment is to remove the distinction between government and private lawyers—a client is allowed to be an employer of the lawyer. Accordingly, subclause (1) defines lawyer for the purposes of client legal privilege to include "Australian lawyers", that is, those who are admitted to practice but do not necessarily have a current practising certificate. It is intended that the definition of lawyer for the client legal privilege provisions reflect the breadth of the concept in the case law. The policy of the privilege does not justify its restriction to those with a practising certificate, particularly since a range of lawyers may provide legal advice or professional legal services in various jurisdictions. It is the substance of the relationship that is important, rather than a strict requirement that the lawyer hold a practising certificate. Employees and agents of lawyers are also included. This clause is not intended to affect the common law concept of independent legal advice. This clause adopts the ACT Court of Appeal decision in Commonwealth v Vance [2005] ACTCA 35. In considering the definition of lawyer under section 117 of the UEAs, the ACT Court of Appeal found that a practising certificate was an important indicator, but not conclusive on the issue of whether the legal advice was sufficiently independent to constitute legal advice under the requirements of the UEAs. The broader definition in this clause includes a person who is admitted in a foreign jurisdiction. The rationale of client legal privilege is to serve the public interest in the administration of justice and its status as a substantive right means it should not be limited to advice obtained only from Australian lawyers. This position reflects the reasoning of the Full Federal Court in Kennedy v Wallace (2004) 142 FCR 185. Clauses 118–120 clarify the circumstances under which "client legal privilege" can arise.