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LIV & Government FAQs for the legal profession

Restrictions Victoria – LIV FAQs

UPDATED:  12 April 2021

Disclaimer

These questions and answers are still subject to final confirmation from the Department of Health and Human Services and have been compiled with the best of our knowledge based on Chief Health Officer Directions to date.

Overarching statements:

  • In welcome news for the profession and our community, the Victorian Government has announced a further relaxation of restrictions affecting businesses including legal practices.
  • From Friday 09 April 2021, new COVID safe settings came into effect.
  • The key priority of government and the Chief Health Officer at the moment is to keep Victorians safe, keep workplaces open and move towards the new COVID normal.
  • As restrictions have eased, and law firms (amongst other work places) have begun to return to work, it is vital that work places implement COVIDsafe plans to enable offices to stay open and limit the risk of transmission of COVID-19. There are many activities which solicitors can now conduct for clients remotely rather than ‘in person.’ See the LIV COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 Practice Note
  • Ultimately, determining whether a particular activity is allowed is a matter of legal interpretation of the relevant Chief Health Officer directions. You will need to read all the new directions and form your own conclusions about whether the detail of the proposed activity is permitted or restricted.

Below are a few frequently asked questions and answers. The coronavirus response is constantly evolving, and the LIV is working hard to provide timely updates to its members. We recommend that you check the DHHS website for more information and advice about current restriction levels in Victoria.

The LIV COVID-19 Hub is also regularly updated with FAQs, practice notes, templates and checklists. You can also call the LIV Practice Support Line: (03) 9607 9378.

Return to Work

Q1. Can we return to work?

From 6.00pm Friday 26 March 2021, the cap on private and public office workers was removed. Workplaces are no longer required to permit workers to work from home.

Workplaces must ensure workers can work from the office in a COVIDsafe way and comply with density quotients as per the Workplace Directions (No 24) clauses 6(13) and 6(14). From 11.59pm Friday 09 March 2021, there is no density quotient to be applied in office-based workplaces except in publicly accessible areas, see clause 6(15A), Restrictions regarding the wearing of face masks were relaxed from 6.00pm Friday 26 March 2021. Face masks must be carried at all times and are strongly recommended when physical distancing cannot be maintained. See also, https://www.coronavirus.vic.gov.au/face-masks-work

See also clause 5of the Chief Health Officer’s Workplace Directions (No 24) which provides further detail on the operation of a Work Premises.

See Stay Safe Directions (Victoria) (No 19) updated 11.59pm on 09 April 2021 (PDF).

See  Workplace Directions (No 24) updated 11.59pm on 09 April 2021 (PDF).

See  Statement from the Minister of Health of 09 April 2021.

Q2. Does our office require a COVIDsafe Plan?

Employers must ensure that offices have a COVID Safe Plan if there are employees attending the office. Refer to the Workplace Directions (No 24) which came into effect at 11.59 pm on 09 April 2021 for more information. See also the LIV’s Checklist for Legal Practices with Restricted Operations here (PDF). 

This includes complying with the density quotients as set out in the Workplace Directions No.24 at clauses 6(13)- 6(15A).

See also clause 6(5) of the Workplace Directions No.24 if you have no workers working at a Work Premises.

The COVID-19 Hub includes a range of guidance on COVIDSafe planning including a template COVID-Safe plan specifically for law firms and a LIVe Chat Video Recording – Transitioning from Home to Work & Infection Control.

Q3. Is our office required to use electronic record keeping?

Employers must keep records of all employees and visitors attending the work premises for longer than 15 minutes, refer to clause 6(7) of the Chief Health Officer’s   Workplace Directions (No 24). See also clauses 6(11) and 6(12) relating to additional records requirements.

The Department of Jobs, Precincts and Regions confirmed with the LIV on 19 March 2021, that as per the Industry Restart Guidelines whilst offices are ‘strongly recommended’ to utilise electronic record keeping, they are not mandated to do so in order to maintain the density quotient outlined in the  Workplace Directions (No 24)at clauses 6(13)-6(15A). 

Q4. Is our office required to comply with the density quotient of one person per two square metres?

The Minister for Health, Martin Foley outlined in his statement of 09 April 2021 that:

“…no density quotient will be applied in office-based workplaces except in publicly accessible areas such as lobbies. Previously, a density limit of one person per two square metres applied to shared spaces in the absence of a cap on the number of office workers.

Refer to clauses 6(13)-(15A) of the Workplace Directions (No 24).

(15A) Despite subclauses 6(13) and 6(14), an employer is not required to comply with the density quotient in respect of:

(a) any shared spaces in schools, non-school senior secondary providers, childcare or early childhood services, or higher education services used by students or children, including classrooms; and

(b) clinical areas of a hospital; and

(c) any office area that is not accessible by members of the public, including private offices, open plan offices, internal meeting rooms and shared spaces such as kitchens, lunchrooms and bathrooms; and

Note: an office area is considered not accessible by members of the public where an unaccompanied member of the public is not allowed or unable to access that area.

(d) a court or tribunal building when in use for the ordinary purposes of courts or tribunals; and

(e) Parliament House when it is used for the ordinary purposes of the Parliament of Victoria.

Note 1: in relation to a school, non-school senior secondary provider, education and care service, childcare or early childhood service, or higher education service, spaces for the purpose of student and children use (such as classrooms, hallways and gymnasiums) are not subject to the density quotient. Office areas (including shared spaces that form part of an office area such as kitchens, lunchrooms and bathrooms) used only by staff that are not publicly accessible are also not subject to the density quotient. However, the density quotient applies to any publicly accessible areas (including in relation to a school, non-school senior secondary providers, or childcare or early childhood service, or higher education service), and any such publicly accessible areas that are subject to the signage requirements under subclause (16).

Note 2: in relation to a school, non-school senior secondary provider, childcare or early childhood service, or higher education service using facilities other than Workplace Directions (No 24) 9 of 17 the school, childcare or higher education service premises, the density quotient of the relevant facility and the relevant requirements of the facility’s COVIDSafe Plan will apply to the school, non-school senior secondary provider, childcare or early childhood service, or higher education service when using that facility. As an alternative to using the facility’s COVIDSafe Plan, the school, non-school senior secondary provider, childcare or early childhood service, or higher education service may apply their own COVIDSafe Plan to the use of the facility, so long as it has been adjusted so that it is fit for purpose taking into account the unique features of the relevant facility. If the facility is being used exclusively by a single school, non-school senior secondary provider, childcare or early childhood service, or higher education service for educational purposes, the restrictions and guidance on teachers, staff, students and children under the Restricted Activity Directions (Victoria) apply in relation to the school, nonschool senior secondary provider, childcare or early childhood service, or higher education service having exclusive use of that facility.

Note 3: in relation to a hospital, clinical areas including emergency department waiting rooms and hospital wards are areas of a hospital that the density quotient does not apply to, however, other non-clinical areas of the hospital are subject to the density quotient where practicable.

See Statement from the Minister of Health of 09 April 2021.

Electronic Signing and Witnessing

Q5. What is the current situation regarding ​remote witnessing and electronic signing of documents?

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) provide temporary modification ​of the application of provisions of  the Electronic Transaction Act, (ETA), the Oaths and Affirmations Act 2018 (Vic) (OA Act), the Powers of Attorney Act 2018 and the Wills Act, allowing remoting witnessing by audio visual link and ​electronic signing of:

  • Deeds and mortgages
  • Transactions, as defined by the ETA, which includes contracts and agreements
  • Statutory declarations
  • Statutory short form Powers of Attorney and
  • Wills, codicils and other testamentary writings

They do NOT apply to the appointment of a medical treatment decision maker, the making of an advance care directive or the certification of original documents.

Q6. When do the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) (‘Regulations’) expire?

The operation of the Regulations was extended by the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 (Vic). The Regulations will expire on 26 April 2021.   

It is possible that the government may make further announcements regarding arrangements for electronic signing and witnessing beyond 26 April 2021. In that event, this FAQ will be updated. 

Q7. Can we certify copies of documents remotely?

No. The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 do not provide for the online certification of original/true copies of documents. If the client holds the original, you will need to ask the client to send the original documents to you, and you will need to certify them in the conventional way. 

Q8. Can affidavits be remotely witnessed and signed?

The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) ​temporarily amends the Oaths & Affirmations Act by inserting a new Part 5A which provides temporary measures relating to affidavits by allowing electronic signatures and provides that a thing that would normally be done ''in the presence of'' another person may be done by way of audio or audio visual link. It permits: 

  • Electronic signing or initialling of a document by deponents and affidavit takers;
  • Telephone or videoconferencing witnessing of affidavits;
  • Scanned hard copies or electronic copies to be used instead of the original copy.

In addition to the usual matters to be stated in the jurat in accordance with s27 of the Oaths & Affirmations Act, the jurat must also make additional statements as set out in s.49E(2).

The Oaths & Affirmations Act provides in section 49F the circumstances where a court may admit a purported affidavit in evidence if compliance with the requirements of the Oaths & Affirmations Act, including as modified by Part 5A, was not reasonably practicable, and the purported affidavit states the reasons why that was so. 

Further information is provided in the LIV COVID 19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 Practice Note.

Q9. Are we still able to file unsworn affidavits with the court?

It would be prudent to check whether the relevant court has provided any information on its requirements. The Victorian Bar Incorporated has produced a Consolidated Guide to Victorian and Commonwealth Court and Tribunal Responses to COVID-19, which on page 43 refers to a court’s inherent power to admit unsworn affidavits.

General Issues

Q10. What are the CPD requirements in COVID-19?

The VLSBC has provided an update regarding CPD activities due to COVID-19 here.  The cap on private study of 5 hours has been removed for the 2019/20 and 2020/21 practising years. 10 CPD units are still required to be completed by 31 March 2021.

Mental Health & Wellbeing Support

Q11. Where can I access mental health support?

We recognise that the current situation continues to challenge our resilience.  If you are feeling overwhelmed or just struggling to cope please ask for help. LIV Members can contact the LIV’s confidential support service ‘Converge’ 24/7 on 1300 687 327.  You should also check relevant government websites to see what mental health services may be available to you.

Additional LIV Support Services

Q12. What other services does the LIV have available to support me?

The LIV welcomes Megan Fulford in the new role of Wellbeing Manager in the Ethics, Wellbeing & Practitioner Support Department. Megan will develop the mental health and wellbeing strategy for LIV members, and facilitate the promotion of new wellbeing initiatives in response to member needs for the benefit of the profession. Megan has worked as a consultant psychologist in the public sector as well as large corporate organisations and brings a wealth of experience to the LIV.

The Law Institute of Victoria is investing in expanding and diversifying our support for members in these unprecedented times. We are now able to offer members a number of new or extended services that have been designed to assist practitioners understand the impact of COVID-19 on their Firms and facilitate a phased return to onsite work as Victoria moves towards COVID normal.

The free and confidential services are provided by a panel of experienced and highly qualified subject matter experts, and have been designed to complement existing services, tools and resources.

Employment Law Advisory Service (New Service)

Providing confidential advice to members with respect to employment law issues arising from the impact of COVID-19.

The service is available to:

  • Individuals with personal employment law queries related to the COVID-19 pandemic.
  • Practitioners, Managing Partners or Legal Practitioner Directors of an Incorporated Legal Practice with enquiries related to the conduct of their practice, where their practice has no more than 5 PC holders (unless otherwise agreed on a case by case basis).

Contact us for a referral:

Infection Control and COVIDSafe Planning (New Service)

Providing advice on infection control principles and the development of a COVID Safe Plan for your legal practice.

Contact the Practice Support Line for a referral:

You can also visit the LIV COVID-19 Hub for information and resources for the legal profession.

Ethical Guidance (Existing Service)

Access confidential ethics guidance, support and resources to assist lawyers in making informed decisions, including accessing confidential support via the Ethics help line, submitting a ruling request to the LIV Ethics Committee, staying on top of ethics guidelines and ruling updates, and participating in ethics professional development workshops.

Practice Support Line (Existing Service)

Access support via the Practice Support helpline regarding starting, managing and closing a legal practice, human resources, day to day practice issues and requirements and obligations under the Legal Profession Uniform Law.

Practice Management Consultancy Service (Now includes Cashflow Management advice)

The Practice Management Consultancy Service (PMConsult) is a bespoke confidential service designed to assist practitioners who may need a helping hand to develop their practice and risk management skills and comply with the Uniform Law and Legal Profession Uniform Rules.

The service compliments the existing Practice Support Line and provides an additional layer of support via a confidential and complimentary one-on-one consultancy service which is designed to work with practitioners to strengthen areas of practice management and develop remedial action plans.

The service has been expanded to provide access to experts who can assist with cashflow management, guidance on government assistance programs and practice strategy.

Trust Accounting (Existing Service)

The Trust Consultancy Service (TrustConsult) is a confidential service designed to support legal practitioners implement sound management practices, or validate existing practices, in the way trust money and trust records are handled, ensuring the Uniform Law and Legal Profession Uniform General Rules requirements are met.

The services range from a telephone help line to a one-on-one consultancy service with an experienced practitioner with significant expertise in trust management.