this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

2020 LIV Council Elections

Nominations are open until 5pm, Wednesday 7 October.

Learn More

LIV & Government FAQs for the legal profession

Stage 4 Restrictions – (Greater Melbourne)– LIV FAQs

UPDATED: 22 September 2020 at 9am

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:

  • The key priority of government and the Chief Health Officer at the moment is to restrict all community movement and interaction to protect against a serious risk to public health – especially in workplaces.
  • 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.
  • 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, regarding the updated ‘Stay at Home Directions (Restricted Areas) (No 15)’ (‘Stage 4 restrictions’), which can be read here (PDF). These restrictions were made under the Public Health and Wellbeing Act and came into effect at 11.59pm on 13 September 2020.

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 on (03) 9607 9378.

Q1. What areas do the Stage 4 restrictions apply to?

The Stage 4 restrictions apply to Victorians living within the greater Melbourne area.

The DHHS website sets out the areas in greater Melbourne where Stage 4 restrictions apply: https://www.dhhs.vic.gov.au/stage-4-restrictions-covid-19.   If your local government area is not listed, then the Stage 3 restrictions will apply to you.

If this is the case, please see our Stage 3 FAQs.

Q2. Can I leave my house to go to work?

All legal practices are required to close their offices.  

All solicitors must work from home unless one of the few exceptions apply, and this is only where it is not reasonably practicable for the solicitor to work from home and all other Chief Health Officer directions are complied with.

Note the following statement of the ‘Stage 4 Restrictions’ Permitted Work Premises table (version 7)' (DOC Download):

“Unless an exception applies, only Permitted Work Premises may operate with on-site operations during the restricted activity period in the Restricted Area, and only to the extent permitted as set out below.

Employers for Permitted Work Premises are only permitted to have employees on-site if it is not reasonably practicable for the employee to work from home and the employer and employee comply with the Directions currently in force, including the Workplace Directions and the Permitted Worker Permit Scheme Directions.”

See also the ‘Log of Changes to the Permitted Work Premises List’ published on 13 September 2020 here.

There is a blanket restriction for legal services performed ‘on-site’, unless you are covered by any of the following few exceptions set by DHHS:

  • you are required to attend urgent or priority court or tribunal matters as determined by the relevant head of jurisdiction, including for bail, family violence, remand, child protection, warrants and urgent guardianships, human rights, or residential tenancy issues
  • you are attending to administration of justice matters for your clients where the matter cannot be reasonably undertaken and/or the client cannot participate reasonably in an online communication, teleconference or by means of an audio visual link facility; and the matter cannot be reasonably postponed – for example signing or retrieving urgent emergency powers of attorney 
  • staff need to attend on-site for the purposes of performing critical safety and environmental works – for example maintenance of IT infrastructure (see clause (6)(2)(a) and clause 9(6)(b) of the Restricted Activity Directions (Restricted Areas) (No.8) which states:

6 Closed Work Premises

1. A person who owns, controls or operates a Closed Work Premises in the Restricted Area must not permit persons to attend that premises during the restricted activity period.

2. Despite subclause (1), a person who owns, controls or operates a Closed Work Premises in the Restricted Area may permit persons to attend that premises or operate the premises:

(a)for the purpose of essential maintenance; or
(b) to ensure that the premises is closed safely for the duration of the restricted activity period; or
(c)by permitting employees to work from the place where they ordinarily reside to operate the premises; or
(d)as required or authorised by law; or
(e) in an emergency; or
(f) as otherwise permitted by these Directions.

Clause 9(6)(b) states:

(6) essential maintenance means:
(a) treating or caring for animals or performing an animal rescue function; or
(b) critical maintenance and safety works including to satisfy environmental obligations;

Q3. How does the 5km radius apply to me, in terms of work?

Under the Stage 4 restrictions, if you are travelling for work, you must meet the requirements of being a ‘permitted worker’ and carry a ‘Permitted Worker Permit’.  The DHHS website states:

You should not travel further than you need to. Please use common sense and consideration when it comes to these activities and stay close to home. If you are leaving home to exercise or for shopping, you cannot travel more than 5km from your home.”

Permitted worker permit

If one of the exceptions applies, you will need a Permitted Worker Permit to attend permitted work. It is the employer’s responsibility to issue this permit. Details about the permitted worker scheme can be found on the DJCS website.

COVIDsafe Plans

Employers must also ensure that offices have a COVID Safe Plan if there are employees attending the office. Refer to the Workplace Directions (No.5) which came into affect at 11.59pm on 16 September for more information. See also the LIV’s Checklist for Legal Practices with Restricted Operations here (PDF). 

This includes a requirement of one worker per four square metres of enclosed workspace or in shared areas, see here .

See also clause 7(5) of the Workplace Directions (No.2) if you have fewer than five workers working at a Work Premises or if the Work Premises is located outside of the Restricted Area.

Penalties

The DHHS website states that penalties of up to $19,826 (for individuals) and $99,132 (for businesses) will apply to employers who issue worker permits to employees who do not meet the requirements of the worker permit scheme or who otherwise breach the scheme requirements.

There will also be on-the-spot fines of up to $1,652 (for individuals) and up to $9,913 (for businesses) for anyone who breaches the scheme requirements. This includes employers and employees who do not carry their worker permit when travelling to and from work.

Note: It is very important not to go to work, even with a Permitted Worker Permit, if you either test positive to COVID-19 and are required to self-isolate, or you are a close contact of someone who has tested positive.

Q4. Is my work considered ‘Permitted Work’?

DHHS has prepared a table (PDF) that sets out the Permitted Work Premises. We recommend that you read the table for a wider overview.

Under ‘Public Administration and Safety’ the following areas are permitted work premises:

  • Public administration where it cannot be undertaken from home (including Medicare and Centrelink)/li>
  • Justice (see below for more detail)
  • Law enforcement
  • Defence and national security (including defence contractors for allied governments)
  • Public order, safety and regulatory services
  • Emergency services, including bushfire prevention and management including relief services
  • Road and maritime services.

“Justice Specific:

  • Judges, Associate-Judges, Judicial Registrars, Magistrates, Coroners, Tribunal Members and their offices for urgent or priority court or tribunal matters determined by the relevant head of jurisdiction, including for bail, family violence, remand, child protection, warrants and urgent guardianships, human rights or residential tenancies issues or any other priority matters
  • To the extent necessary to support the functioning of the court, tribunal and dispute services mentioned above:
    • Director of Public Prosecutions and the Office of Public Prosecutions
    • Defence lawyers, Victoria Legal Aid, the Child Protection litigation office, Aboriginal legal services and other legal assistance providers
    • Courts Services Victoria, court support services and court registry services including security, cleaning and interpreter services
    • Other lawyers
    • Bail justices
    • Office of the Public Advocate guardians for high priority, highly vulnerable citizens and relevant staff
    • Justices of the Peace only as urgently required noting the voluntary nature of their role
    • All systems support, maintenance and operation services required for DJCS and Victoria Police to support, maintain and operate Births, Deaths and Marriages, fixed traffic and mobile traffic cameras and Fines Victoria systems
    • Administration of justice matters by legal practitioners for their clients where the matter cannot be undertaken reasonably and/or the client cannot participate reasonably in an online communication, teleconference or by means of an audio-visual link facility
    • Required pathology and forensic services”

Q4a. Does my work fall under the ‘Justice Specific exception’?

There are very limited specific exceptions connected to solicitors acting in urgent priority court or tribunal matters as determined by the relevant head of jurisdiction.  This exception includes matters including bail, family violence, remand, child protection, warrants and urgent guardianships, human rights or residential tenancies issues or any other priority matters.

The administration of justice exception only applies in extremely limited and urgent circumstances (doing something that is critical).

Some examples include:

  • witnessing and executing a Will or Power of Attorney for a client who is in desperate need and in circumstances where that client does not have reasonable access to technology to do it some other way; or  
  • where a critical document needs to be obtained from the office where there is no other copy available i.e. a document being held for safe custody which is needed urgently and cannot be reasonably delayed, (for instance a paper certificate of title.) 

Q5. I am a sole practitioner. Am I able to go to work, even if I am the only person in the office/chambers?

Earlier government guidance about sole traders/operators being able to work on-site has changed. You must work from home unless the activity falls into one of the categories above. (This includes barristers working in chambers.)  If an exception applies, Sole Practitioners will still need to issue themselves a Permitted Work Permit in the approved form, signed as both the Permitted Employer and the employee. See the Permitted  Worker and Childcare/Kindergarten Permit Scheme Directions (No 5).

Q6. I live in a Stage 4 zone, but my client/office is in a Stage 3 zone. What restrictions apply to me?

If you reside in greater Melbourne, the Stage 4 restrictions will apply. This will not change, regardless of where your work or client(s) are located. If you are travelling to meet a client under one of the ’administration of justice’ exception, for example to witness and execute a Will or Power of Attorney for a client in circumstances where it cannot reasonably be carried out remotely and that client lives in a Stage 3 zone, you must still comply with all safety requirements regarding physical distancing (at least 1.5 metre distance), face masks, hand hygiene, etc., and must obtain a ‘Permitted Worker Permit’.  

See also clause 8 of the Stay At Home Directions (Restricted Areas) (No.14) as follows:

8 Leaving premises to attend work or education

1. Subject to subclauses (2) and (3), a person who ordinarily resides in the Restricted Area may leave the premises to:
(a) attend work if the person is a permitted worker; or
Note: a person who ordinarily resides in the Restricted Area, regardless of where they work, must hold a Permitted Worker Permit in accordance with, and comply with, the Permitted Worker Permit Scheme Directions (No 4).
(b) obtain educational services (which includes going to primary or secondary school including outside school hours care).

2. A person may leave the premises under subclause (1)(a) only if it is not reasonably practicable for the person to work from the premises.

Court / Tribunal Related Work

Q7. I think my work is considered ‘Permitted Work’. Can I physically attend court?

Victorian Courts and VCAT released a joint statement in August on stage 4 Coronavirus (COVID-19) restrictions. This statement provides that physical attendance will be limited to urgent or priority court or tribunal matters determined by the relevant head of jurisdiction.

A further joint statement was issued in September 2020.

All Victorian courts and VCAT continue to operate during this period, and will continue to use technology to conduct a range of hearings – see here.

Q8. Can my client attend court?

Yes, your client can leave their home to attend court for the purposes relating to the administration of justice, including to seek protection from family violence. This could include visiting a police station, court or law enforcement or justice system premises - see here.

Q9. Where can I find court and Tribunal specific updates?

The LIV COVID-19 Hub is regularly updated to include updates from courts and Tribunals.

Property Transactions

Q10. I have a property settlement coming up which is supposed to take place ‘physically’ as there is a paper Certificate of Title, what should I do?

Guidance will be provided ASAP.  Please check this FAQ regularly for updates.

Q11. Our firm holds the paper Certificate of Title for a former client, and a new firm has requested delivery of the paper Certificate of Title as there is a property settlement scheduled within the next 6 weeks, can we collect this from our closed office?

Yes, under the ‘administration of justice’ exception you may retrieve critical documents which are being held in safe custody and which are needed urgently and cannot otherwise be reasonably delayed.

Q12. Our firm is trying to determine if it is acceptable for a Victorian SRO duties on-line (DOL) user to sight electronic versions of trust deeds for duty processing.   

The State Revenue Office confirmed with the LIV on 4 September 2020 that it has changed its practice to allow DOL users to sight either the original executed trust deed, or a full copy of the executed original trust deed (either in hardcopy or electronically) when assessing the transaction for duty. The practitioner must keep a full copy of the document sighted and records of how they sighted the document.

This change has been communicated to the Duties subscriber list and it will be reflected in the DOL messages and the evidentiary manual.

Q13. I have been asked to prepare a solicitor’s certificate which requires an ‘in person’ meeting in order to verify the identity of the client in accordance with rule 11.2 of the Legal Profession Legal Practice (Solicitors) Rules 2015.  Can I travel to the client for this purpose? 

There is no ability at law to do a solicitor’s certificate in Victoria remotely because the verification of identity required by rule 11.2  of the Legal Profession Legal Practice (Solicitors) Rules 2015 for Solicitors’ Certificates requires it to be done face to face.  The client can still receive the practitioner’s advice remotely, by video conference, and provide a client acknowledgement to the lender that the advice has been received.  If providing advice remotely via video conference, it is recommended that you review the LPLC’s bulletin.

Unfortunately it is not clear whether a solicitor’s certificate fits within the ‘administration of justice’ exception in the ‘Justice Specific’ column of the DHHS table published by DHHS.  However, it is the LIV’s view at present that a solicitor’s certificate does not fit within the  spirit and intent  of the ‘administration of justice’ exception.  This exception is extremely limited.  It states:

“Administration of justice matters by legal practitioners for their clients where the matter cannot be undertaken reasonably and/or the client cannot participate reasonably in an online communication, teleconference or by means of an audio-visual link facility.”   

Our conversations with government to date indicate that this exception only applies in extremely limited and urgent circumstances such as to execute a Will or urgent power of attorney or to retrieve critical documents being held in safe custody and which are needed urgently and cannot otherwise be reasonably delayed.

Following further clarification from government around ancillary services, the LIV is of the view that a solicitor may be deemed to be an ancillary service to support the provision of credit facilities. Therefore, a solicitor’s certificate may be classed as a support service to ‘financial and insurance services’ (ie the banking sector).

Therefore, it is the LIV’s view that in circumstances where the lender will not accept the alternative of a client acknowledgement, and the circumstances are extremely urgent, and that by not providing a solicitor’s certificate the client will likely suffer severe financial harm, then a legal practitioner may be able to travel to a client to do a solicitor’s certificate, as this is an ancillary or support service required for the operation of a permitted work premises (being critical banking services to support the provision of financial services- being the provision of credit facilities.)

The LPLC has excellent resources on Solicitors’ Certificates

General Issues

Q14. I need to remotely witness a legal document. Where can I find guidance?

The LIV has published a Practice Note on the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.

Q15. Our office is closed, but I need to pick up the post, can I do this?

You should set up mail re-direction with Australia Post and DX (if applicable).  DX members can request for their DX mail to be redirected. You can do this by contacting your local DX team on 13 88 44 or via email at dxvic@tollgroup.com.

Noting that the key priority of government and the Chief Health Officer is to restrict all community movement and interaction to protect against a serious risk to public health (especially workplaces) there is the ability to attend the office to retrieve critical documents where there is no other copy available (under the administration of justice exception.) From time to time, this might include critical items that a firm is awaiting in the post which cannot be emailed or which cannot be obtained any other way (ie by courier.)

Q16. Some clients prefer to receive cheques rather than monies to be transferred into their accounts and when significant sums are involved, they prefer to pick up cheques personally.  Can I attend my office to hand over a cheque to a client?

This would not appear to fit any of the exceptions as the delivery of the cheque can reasonably be provided by registered mail or courier.  You should not attend the office in order to hand over a cheque to a client.

Q17. Can I access the office to collect documents being held in safe custody, such as a deed or will?

Yes, under the ‘administration of justice’ exception you may retrieve critical documents which are being held in safe custody and which are needed urgently and access to the documents cannot otherwise be reasonably delayed. 

However, if a copy of the will or deed can be made available some other way, and retrieving the original can be delayed until the end of the stage 4 restrictions, you should delay retrieving the original document from the office.

Note regarding applications for probate or administration: The Acting Registrar of Probates, Kate Price, issued a notice on 19 August 2020 explaining temporary changes to make allowances where an original will is stored at a practitioner's office. In these circumstances, an application may be submitted for probate or administration of the will as contained in a copy. Such applications must be supported by an affidavit of the legal practitioner setting out specific matters. See the full notice here.

Q18. It might be necessary for me to access a hard copy file in the office due to unforeseen circumstances, can I do this?

Yes, under the ‘administration of justice’ exception you may retrieve critical documents, if the only copy which can be reasonably obtained is located in the office, and only where that document is needed urgently and cannot otherwise be reasonably delayed.

Q19. 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. 

Childcare

Q20. I need childcare whilst I work from home, what are the rules?

The LIV has published a set of Stage 4 Restrictions (Greater Melbourne) Childcare FAQs (see below).

Mental Health & Wellbeing Support

Q20. Where can I access mental health support during this time?

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.

Q.21 Our Firm is moving premises to a new location, can my staff help during the move?

Regarding relocation of firms with confidential material, if it is necessary for staff to be present to undertake the relocation in order to handle specific equipment or materials (e.g. legal documents and IT servers), it could be considered as an ancillary service to permitted real estate and hiring services (services related to property settlement or commencement/end-of-lease (including removalists)). The firm would need to issue a permit for any workers necessary to undertake this task and a COVIDSafe Plan should also be in place.

Only those staff who are necessary to complete the move of the specific equipment or materials should be present, and staff should not stay to set up the new premises beyond necessary equipment for remote operation such as IT servers.

 

Exemption from Permitted Worker Scheme and Access to Onsite Childcare/Kindergarten Permit Scheme – Department of Justice and Community Safety Q&As

Updated 3pm, 19 August 2020

To support the administration of justice during Stage 4 restrictions, the Chief Health Officer has authorised an exemption under section 15(1) of the Permitted Worker Scheme and Access to Onsite Childcare/Kindergarten Permit Scheme.

This exempts solicitors and barristers from the requirement to have an Onsite Childcare/Kindergarten Permit in certain circumstances, even where the person is not otherwise a permitted worker. The following Q&As are intended to assist legal practitioners in applying this exemption.

Who does the exemption apply to?

The exemption applies to legal practitioners with no other access to childcare who are appearing online as part of court proceedings only, and require access to early childhood education and care,  including in-home care. Such legal practitioners will be exempt from the requirement to have an Onsite Childcare/Kindergarten Permit.

The exemption would be applied only where there is not a second carer who can supervise the children (as per DHHS guidance). If there is another carer in the household, it is not necessary that they be a permitted worker or fall within this exemption themselves – they must simply be unable to supervise the child.

Does the exemption apply to all court proceedings whether online or onsite?

No, the exemption only applies to court proceedings in which the individual must appear online. However only urgent and priority matters are being conducted onsite at courts, bringing those matters within the existing permit scheme.

Does the relevant online matter need to be an urgent or priority matter, as per the Justice Exemption under the Permitted Worker Scheme?

No. This exemption extends the access to childcare which previously applied only to urgent or priority matters (or other permitted activities) to include all court proceedings in which the person must appear online.

Does the exemption apply to ‘quasi-judicial’ proceedings, such as Royal Commissions?

No. The exemption only applies where the individual is appearing online as part of court proceedings.

Does the exemption apply to mediation and arbitrations?

Yes, provided that the mediation or arbitration must be both (1) court-ordered (i.e. not a private mediation or arbitration), and (2) conducted online.

Does the exemption apply to case management?

Yes, provided that the case management is (1) court-ordered, and (2) conducted online.

Does the exemption apply to pre-proceedings preparation?

No, the exemption does not apply to work being undertaken to prepare for a trial.

Does the exemption allow me to attend my chambers/office?

No, this exemption relates only to accessing childcare.

Does the exemption allow me to access primary school for children?

No, this exemption only allows access to onsite childcare/kindergarten services. It does not include school.

How should permits be administered?

Under the exemption, legal practitioners are not required to have an Access to Onsite Childcare/Kindergarten Permit provided that they have photographic personal identification issued by the organisation which employs or engages them. Where they are self-employed barristers it is recommended that they do retain evidence of the matter on which they are working that forms the grounds for the exemption.

 

Stage 4 Restrictions (Greater Melbourne) Childcare – LIV FAQ's

Dated 11 August 2020, 1pm - Version 3.

Disclaimer

These questions and answers are still subject to final confirmation and endorsement from the Department of Health and Human Services and the Department of Jobs Precinct and Regions to ensure consistency across all permitted industries and therefore may change. They have been compiled with the best of our knowledge based on Chief Health Officer Directions to date.

Overview

From Thursday 6 August, only vulnerable children and the children of permitted workers will be able to access childcare and kinder.
The primary purpose is to minimise the movement of people and the interaction of people in order to stop the spread of COVID-19.
For the purposes of childcare and kinder, a permitted worker can also include someone working from home who is undertaking public-facing or client facing work i.e. a lawyer conducting online court hearings; a telehealth worker undertaking client assessments over the phone; and who doesn’t have anyone else in the household who can supervise their children.

This could conceivably allow childcare where a second parent is working from home and, although not a permitted worker, is so busy that they cannot supervise the child however advice to date has been to administer the permit judiciously to avoid unnecessary movement of people at day care centres and through in-home care.

There are two permits that can be provided to access childcare and kindergarten, depending on whether the employee is working onsite or from home. Links to both forms are below.

The Permitted Worker Permit (Including Childcare)

The Permitted Worker Permit (including Childcare) form is for permitted workers who are:

  • working from a worksite and are a Permitted Worker, and
  • unable to supervise their children in the course of their duties and
  • do not have another adult in the household who can supervise their children.

Note : DHHS has clarified that a Permitted Worker Permit is a necessary but not sufficient condition for access to independent childcare services. Permitted workers who are still required to attend work onsite, and who don’t have anyone else in the household who can supervise their children, must fill out an addendum to the Permitted Worker Permit. The employee is required to fill the childcare section of the form out. You must tick the box indicating you are seeking access to onsite childcare and kindergarten. Eligibility for childcare exists only while the Permitted Worker Permit is valid. These forms are available here.

The Access to Onsite Childcare/Kindergarten Permit (Permitted Industry – Employee Working from Home) 

The Access to Onsite Childcare/Kindergarten Permit (Permitted Industry – Employee Working from Home) form is for permitted workers who are:

  • working from home, and
  • unable to supervise their children in the course of their duties and
  • do not have another adult in the household who can supervise their children.

These forms must be completed by both employer and employee, and significant penalties attach to the provision of false information.

Q1. I am a permitted worker and my partner is not a permitted worker but is working from home do we get access to childcare?

Generally no – if your partner is a responsible adult and even if they are working from home it is expected during Stage 4 restrictions that they will look after the children. However, note the following information that has been taken from the DHHS website:

“Permitted workers, are able to access onsite childcare and kinder if there is no one else in their household who is able to supervise children. For example, a permitted worker in a single parent household may access childcare and kinder. If there is another carer in the household, permitted workers can still access onsite childcare if the other parent/carer cannot supervise children. This could be for a number of reasons - for example, their partner or co-parent:

  • has a medical condition, or chronic illness which prevents them from caring for the child
  • has a disability
  • is completing full time study and must attend onsite
  • works from home, but in a role that means they cannot supervise the children - resulting in the permitted worker not being able to do their job. 

Both carers do not have to be permitted workers to access childcare - but we are asking that Victorians only access childcare and kinder services if they have to.”

Q2. Are legal administration staff who are working from home eligible for childcare?

If the legal administration staff member is undertaking client facing work or interaction and there is no other adult in the household who can take care of the children then a permit is available.

If there is another responsible adult in the household (even if they are working from home) then they are required to look after the children for the period of Stage 4 restrictions.

Q3. Is a Childcare permit a one-off permit providing cover for the entire lockdown period?

The permit is a one-off however the purpose of the restrictions on childcare is to limit the movement of and interaction with people given this childcare should be used when needed on days people are undertaking client-facing or participating in court proceedings.

Q4. Can lawyers who meet the other eligibility requirements who are instructing in court from home via Webex be provided a permit?

Yes, if they are participating in/instructing in court proceedings that requires significant engagement and there is no other adult in the household who can supervise the children. 

Q5. Can I get access to childcare for preparation work in the lead up to a trial or proceeding?

The purpose of the childcare restrictions is to limit the movement of and interaction with people. Noting that childcare is available where a person is undertaking a trial or proceeding online for the purposes of preparation individuals should use their discretion noting the primary purpose of minimising movements and keeping people safe.

Q6: Can I get a baby-sitter to come to my home?

The DHHS website provides the following:

Permitted workers, whether they are working onsite or from home, may access childcare if their children cannot otherwise be cared for during work hours by the employee or another responsible member of the household. A permit is required.

Q7: Can I drop my children at childcare?

The DHHS website provides the following:

Yes. Permitted workers whether they are working onsite or from home, may maintain existing arrangements for in-home childcare if their children cannot otherwise be cared for during work hours by the employee or another responsible member of the household. These arrangements can be paid or unpaid.

New arrangements are not permitted and only one person may enter the house at any one time for the purposes of providing in-home childcare.

People in at-risk cohorts, such as grandparents or elderly relatives, are strongly advised not to participate in in-home childcare arrangements and should limit their movement as much as possible.

 

Regional Victoria (Non-Melbourne) – LIV FAQs

Dated 17 September 2020

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:

  • The purpose of the current government restrictions in Victoria is to restrict the movement of people and the spread of COVID-19. 
  • There are many activities which solicitors can now conduct 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, regarding the updated ‘Stay Safe Directions (Non-Melbourne)’ which can be read here. These restrictions came into effect at 11:59pm on Wednesday 16 September 2020 and will end on 11 October 2020.

The coronavirus response is constantly evolving, and the LIV is working hard to provide timely updates. 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 on (03) 9607 9378.

Q1. Regional Victoria is now in the '3rd Step to Reopening' (from 11.59pm on 16 September 2020)

Restrictions affecting regional Victoria have eased as compared with Melbourne. Regional Victorians can now leave their homes for any reason and have a household ‘bubble’ of 5 visitors. The face coverings requirement still applies. Refer to clause 5(1) and (2) of the Stay Safe Directions (Non-Melbourne) - PDF.

The DHHS website sets out the areas in Metropolitan Melbourne where Stage 4 restrictions apply: https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19.
If your local government area is not listed, then the Stage 3 restrictions will apply to you.

Q2. Can I leave my house to go to work?

You can leave home to go to work, but if it is 'reasonably practical' to work from home then you're expected to do so.

3---Work-of-Education.jpg

However, if you cannot do your work from home, you can go to work. You must wear a face covering when you leave home, this includes wearing your face covering while at work, unless you have a lawful reason for not doing so. Even while wearing a face covering, you should keep at least 1.5 metres distance between yourself and others.

If your place of work is in the ‘restricted area’, Stage 4 restrictions will apply.

Working in the Stage 4 zone: there is a blanket restriction for legal services performed ‘on-site’, unless you are covered by any of the following few exceptions set by DHHS.

  • you are required to attend urgent or priority court or tribunal matters as determined by the relevant head of jurisdiction, including for bail, family violence, remand, child protection, warrants and urgent guardianships, human rights, or residential tenancy issues
  • you are attending to administration of justice matters for your clients where the matter cannot be reasonably undertaken and/or the client cannot participate reasonably in an online communication, teleconference or by means of an audio visual link facility; and the matter cannot be reasonably postponed – for example signing or retrieving urgent emergency powers of attorney 
  • staff need to attend on-site for the purposes of performing critical safety and environmental works – for example maintenance of IT infrastructure

If one of the exemptions applies, you will need a worker permit to travel to a Stage 4 zone, for work purposes. It is the employer’s responsibility to issue this permit. Details about the permitted worker scheme can be found on the DJCS website. Employers must also ensure that offices have a COVID Safe Plan if there are employees attending the office.

Q3. Can law firms with several staff continue to work from the office (as opposed to working from home)?

As stated above, if you can work from home, you must do so. However, if you are unable to, you can work in the office with other staff so long as you wear a face covering and keep at least 1.5 metres distance between yourself and others - see here.

Q4. My client lives in a regional Victoria zone. Can I go to visit their home?

Yes, you can visit their home for work purposes, so long as you wear a face covering and wherever possible and keep at least a 1.5 metre distance wherever possible - see here.

Q5. My client lives in a Stage 4 zone. Can I go to visit their home?

As provided above, there are only a few limited exceptions for visiting a client in a Stage 4 zone. This is further detailed in the Stage 4 FAQs.

Q6. Can I attend court?

Generally speaking, yes you can attend court, but only if it is not reasonably practicable to do so by audio visual link - see here.

However, if the court, tribunal or dispute service is in a Stage 4 zone, then the matter must be a ‘justice specific’ urgent or priority matter, to the extent necessary to support the functioning of the court, tribunal and dispute services. The administration of justice exception only applies in extremely limited and urgent circumstances such as to execute a Will or urgent power of attorney or to retrieve critical documents being held in safe custody which are needed urgently and cannot otherwise be reasonably delayed.  This exception has been achieved as a direct result of the continual advocacy of the LIV on behalf of members.
This includes matters related to bail, family violence, remand, child protection, warrants and urgent guardianships, human rights or residential tenancies issues or any other priority matters - see here. An employee will also require a ‘Permitted Worker Permit’.

Q7. Can my client attend my office (or my home if that is now my office) for a court – ordered mediation, or duties list hearing which is being held over audio-visual link?  

If it is possible for a solicitor to prepare the required legal documents and obtain instructions by audio-visual link, then this is preferred as the safer option. The LIV has prepared a Practice Note on the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.

However if a solicitor cannot reasonably undertake legal work with the client by audio-visual link, for example the client cannot participate reasonably in an online communication, teleconference or by means of an audio visual link facility, then the client can attend the solicitor’s residence, or the solicitor can attend the client’s residence - see here. If this is the case, the solicitor must comply with all safety requirements regarding physical distancing, face masks, hand hygiene, etc.  

Q8. Does the 5km radius apply to me?

There is no 5km restriction for travel in regional Victoria. However, you must not travel into metropolitan Melbourne under Stage 4 restrictions, except to buy necessary goods and services, for care and compassionate reasons or permitted work, and provided you comply with the Stage 4 restrictions. (See clause 5(3) of the Stay Safe Directions (Non-Melbourne)- PDF).

You can travel through metropolitan Melbourne to attend work, but if you stop it must be for one of the following three reasons - see here:

  • to shop for food and essential goods or services
  • to provide care, for compassionate reasons or to seek medical treatment
  • for work or study, if you cannot do it from home, and it meets one of the few exemptions established by DHHS.