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COVID-19 Hub

LIV & Government FAQs for the legal profession

Restrictions Victoria LIV FAQs

COVID-19 Information & Resources for the Legal Profession

Update 30 July 2021

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 to the profession, the Premier announced that from 11.59pm on Tuesday 27 July 2021, COVID restrictions across Victoria will ease.   
  • We understand that this is a difficult and challenging time for members of the legal profession, but the health and safety of the Victorian community is the big driver and rationale behind these recent changes.
  • 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.

Current restrictions in Victoria

The current Chief Health Officer directions are available here.

Premier Daniel Andrews announced that the lockdown in Victoria will be lifted from 11.59pm Tuesday 27 July.  There is no stay at home requirement, and the 5km travel limit has been lifted.

Face masks must be worn at all times when leaving the home, unless an exemption applies pursuant to clause 5(2)-(3) of the Stay Safe Directions (Victoria) (No. 27).

The abovementioned restrictions commence at 11.59pm 29 July 2021 and end at 11.59pm on 26 August 2021.

Q1. Can I attend the office?

As per the Table of Restrictionsthe key message remains that if you can work from home, you must do so.

Employees may attend the office if it is not reasonably practicable to work from home, and your employer has advised that it is permissible to do so in accordance with the current Directions in force. Refer to clause 6 of the Stay Safe Directions (Victoria) (No. 27).

Clause 5 of the Workplace Directions (No. 40) considers the operation of the work premises where employees are in attendance. Offices are permitted to have up to 25% of workers at the work premises, or up to 10 workers. Clause 5(2)(b)-(c) provides further detail to this as below:

5 Operation of a Work Premises

(2) An employer in relation to office-based Work Premises:

(a) may, despite subclause (1)(a) and subject to subclauses (b) and (c), permit workers who do not fall within subclause (1)(a) to work from the employers Work Premises; and

(b) must use their best endeavours to ensure that the number of workers permitted to attend the Work Premises at any one time is limited to the greater of:

(i) 25 per cent of the total number of workers for that Work Premises; and

(ii) 10; and

(c) the cap in subclause (b) does not apply, and may be exceeded, where it is not reasonably practicable for more than 25 per cent of the total number of workers for that Work Premises or 10 workers (whichever is greater), to work at the workers place of residence or another suitable premises which is not the Work Premises.

Example 1: where an employer has 100 workers employed at a Work Premises, 25 per cent of the total number of workers for that Work Premises is 25. If it is not reasonably practicable for 10 workers to work from home, those workers may attend the work premises and represent 10 per cent of the total number of workers for that Work Premises. Therefore another 15 workers may be permitted to attend the workplace.

Example 2: where an employer has 100 workers employed at a Work Premises, 25 per cent of the total number of workers from that Work Premises is 25. If it is not reasonably practicable for 30 workers to work from home, those workers may attend the work premises under subclause (2)(c) and represent 30 per cent of the total number of workers for that Work Premises. As the workplace cap has been filled with workers who cannot work from home, workers for whom it is reasonably practicable to work from home are not permitted to attend the Work Premises.

The density quotient of 1 person per 4sqm applies to all shared and publicly accessible areas at the Work Premises. Refer to clause 6(17)-(20) of the Workplace Directions (No. 40).

Q2. Can clients attend the office?

Ultimately, determining whether or not a client may attend the office is a matter of interpretation, and you must form your own conclusion as to whether the client is permitted to attend the office on a case-by-case basis. In the event that you do determine that the client can attend the office, it is recommended that you keep a detailed file note of this decision.

It is useful to consider that whilst there is no longer an Authorised Worker List, the recent Circuit Breaker Lockdown considered an Authorised worker as one who was essential for the continued operation of:

  • Services related to the administration of justice; and
  • Essential legal services not able to be provided electronically, including urgent legal matters such as executing a will in-person.

During the Stage 4 Directions of 2020, ‘administration of justice’ matters were considered to be those in which  the matter could not be reasonably undertaken and/or the client could not participate reasonably in an online communication, teleconference or via an audio-visual link facility, and the matter could not reasonably be postponed.   We suggest the same definition could be applied to the current directions.

Employers must be aware that the density quotient of 1 person per 4sqm applies to all shared and publicly accessible areas at the Work Premises. Refer to clause 6(17)-(20) of the Workplace Directions (No. 40) .

Q3. Does our office require a COVIDsafe Plan?

Employers must ensure that offices have a COVIDSafe Plan if there are employees attending the office. Refer to Clause 6(2) of the Workplace Directions (No. 40)   which came into effect at 11.59pm on 29 July 2021 for more information. See also information relating to COVIDSafe Planning available on the LIV COVID-19 Hub here.

This includes complying with the density quotients as set out in the Workplace Directions (No. 40)  at clauses 6(17)-(20).

See also clause 6(4) of the Workplace Directions (No. 40) if you have no workers working at a Work Premises.

An employer is required to comply with directions provided by Authorised Officers or WorkSafe inspectors to modify a COVIDSafe plan, refer to clause 6 (5) of the Workplace Directions (No. 40) .

Q4. Is our office required to use electronic record keeping?

Yes, an employer must keep a record of all persons who attend the Work Premises utilising the QR code system provided by the Victorian Government as per clause 6(6)-(7) of the Workplace Directions (No. 40). Where it is not reasonably practicable to record attendance using the Victorian Government QR code system or there is an access issue preventing the QR code system from operating, an employer must use an alternative record-keeping method to comply with the record keeping requirements. Refer to clause 6(8) of the Workplace Directions (No. 40) .

Electronic Signing and Witnessing

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

On 23 March 2021 the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (the Act) received royal assent. For the most part, the Act came into force in Victoria on 26 April 2021, being the date that the previous temporary regulations were due to end.

The LIV has recently published a Practice Note which provides further guidance on the introduction and application of the Act.  

Prior to the commencement of the Act, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) temporarily allowed the remote witnessing and signing of certain documents in Victoria by audio visual link. The Act permanently amends various justice Acts to allow for the continued operation of processes and procedures implemented during the COVID-19 pandemic, including the remote witnessing and signing of certain documents in Victoria by way of audio visual link. The Act includes amendments to the following:

  • Electronic Transactions (Victoria) Act 2000;
  • Oaths and Affirmations Act 2018;
  • Wills Act 1997; and
  • Powers of Attorney Act 2014.

Q6. Can we certify copies of documents remotely?

No. The Justice Legislation Amendment (System Enhancements and Other Measures) Act 2021 does 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. 

Q7. 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 (PDF), which on page 43 refers to a court’s inherent power to admit unsworn affidavits.

Mental Health & Wellbeing Support

Q8. 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 Member Counselling Service 24/7 on 1800 818 728 (services delivered through our partner, AccessEAP).  You should also check relevant government websites to see what mental health services may be available to you.

Additional LIV Support Services

Q9. 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.