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LIV & Government FAQs for the legal profession

Restrictions Victoria – LIV FAQs

Restrictions Victoria LIV FAQs

UPDATED:  18 February 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:

  • From 11.59pm on Wednesday 17 February 2021, Victoria returned to COVIDsafe Summer restrictions, with some revised changes.
  • 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 Thursday 18 February 2021, office based workplaces in the private sector are able to have up to 50 percent of the workforce on site on any one day. Workplaces with fewer than 40 staff can have up to 20 staff onsite – subject to density quotients.

From 11.59pm on Wednesday 17 February 2021, face masks must be worn in an indoor workplace.

See also clause 5(1) of the Chief Health Officer’s Workplace Directions (No 20) which provides further detail on the operation of a Work Premises.

See Stay Safe Directions (Victoria) (No 15)updated 11.59pm 17 February 2021 (PDF)

See Workplace Directions (No 20)updated 11.59pm 17 February 2021 (PDF).

See Statement from the Premier of 17 February 2021.

See COVIDsafe Summer – Table of Restrictions (PDF)

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 20) which came into effect at 11.59 pm on 17 February 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.20 at clauses 6(13) and 6(14)

See also clause 6(5) of the Workplace Directions No.19 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. Does the 50% cap apply only to staff or everyone I normally have in the office?

The intent of the worker cap is to sensibly manage the flow of people thorough the transport network and once they arrive at the office, the flow through the lifts and entry/exit points.

The cap applies to everyone who is normally in the office who has been working from home. Essential workers are not included as part of the cap.

Your 50% cap should encompass the staff, contractors and working visitors you will have on site that day. Your staff who normally work on client sites will be included in their worker cap if your client invites them on to site.

Electronic Signing and Witnessing

Q4. 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.

Q5. 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. 

Q6. 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. 

Q7. 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.

Q8. 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

Q9. 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.

The LIV November – March CPD program is available here.

Mental Health & Wellbeing Support

Q10. 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

Q11. 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.