New public health directions, introducing further restrictions, came into force at 12:59 pm on Saturday 21 August 2021. They were modified, slightly, 35 hours later. The Victorian Bar has just advised members of the impact of these restrictions, on their work. I thought this was of sufficient relevance to lawyers as a whole (and perhaps other professions) to be worth reproducing. Take note – these directions, were replaced days later by Stay at Home Directions (Victoria) (No 7) which restrict access to ‘child-minding’ (see related TT article).
See below for the email advice.
Victorian Bar members will be aware that new public health directions introducing further restrictions came into force at 12:59 pm on Saturday 21 August 2021 and were further modified 23 hours later. We provide this update to members to assist members in identifying whether they are permitted to work in chambers and access childcare.
The relevant directions currently in force are the:
- Stay at Home Directions (Victoria) (No 5) – now superseded by No. 6.which came into place nearly a day later – 11.59pm Sunday 22.8.21.
- Workplace Directions (No 45)
As explained in previous updates, it appears that each barrister, being a self-employed person who controls their own chambers, is both an ‘employer’ and an ‘employee’ within the definitions of the Workplace Directions.
Attending chambers (or other workplaces of lawyers more generally)
Pursuant to clause 8(2) of the Stay at Home Directions, a person may only leave home to attend chambers only if:
- It is not reasonably practicable for the person to work from the premises where they ordinarily reside; and
- The person is an authorised worker, works for an authorised worker, or is required to attend closed work premises.
The list of authorised workers and authorised providers can be found at https://www.coronavirus.vic.gov.au/authorised-provider-and-authorised-worker-list-0
The list of authorised workers currently includes a number of categories which may be applicable to barristers, depending on the work they are doing. The list includes any person who performs work that is essential for the continued operation of:
- An Authorised Provider (which includes court, tribunal and commission services)
- Services related to the administration of justice, including the operation of courts in regional Victoria
- 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, or for any remote hearings
- 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
- 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
Members will need to consider whether the work they are doing satisfies one of the categories on the authorised worker list.
Issue yourself a permit
Members who are satisfied that they are an authorised worker will need to issue themselves an authorised worker permit before leaving home to attend work. Information about the permit system is available at https://www.coronavirus.vic.gov.au/authorised-provider-and-authorised-worker-permit
Attendance at childcare or early childhood services
As foreshadowed, the restrictions on access to a childcare or early childhood service have changed overnight.
The Stay at Home Directions have been amended (overnight – from 11.59pm Sunday 22.8.21) so that it is no longer necessary for both parents to be authorised workers.
Pursuant to clause 8(3) of the Stay at Home Directions (Victoria) (No 6), govern the situation. It provides as follows:
8. Leaving premises or entering the State of Victoria to attend work or education
(1) The reasons relating to work or education are:
(a) …; or
(b) to obtain a childcare or early childhood service provided in subclause (3); or ….
(3) A person may leave the premises under subclause (1)(b) only
(a) if it is not reasonably practicable for the person to obtain a childcare or early childhood service from the premises where they ordinarily reside; and
(b) for childcare or early childhood services, if the [child or young person]:
(A) two parents or guardians and one of them is ; or
(B) a single parent or guardian and that parent or guardian is:
(C) is not working from the premises; or
(D) is working from the premises and is unable to make alternative supervision arrangements for the person leaving the premises to attend childcare or early childhood services; or
Note 1: an authorised worker (or person who works for an Authorised Provider) working from home can access childcare if they have an Authorised Worker Permit
Note 2: a person will not be subject to a penalty pursuant to section 203 of the PHW Act for failing to hold an Authorised Worker Permit until after 11:59:00pm on [Monday] 23 August 2021.
Note 3: An Authorised Worker that is required to work shift work (e.g. overnight shift at a hospital) is permitted to send their child(ren) to childcare or an early childhood service outside their working hours so they can rest.
(ii) is a vulnerable child or young person.
Childcare or early childhood service is defined at clause 13(13) as onsite early childhood education and care services or children’s services provided under certain legislation.
Vulnerable child or young person is also defined at cl 13(59).
13(59) vulnerable child or young person means a child or young person who:
(a) resides in the care of the State or in out-of-home care; or
(b) is deemed vulnerable by a government agency, funded family or family violence service, and is assessed as requiring education and care outside the family home; or
(c) identified by a school as vulnerable, (including via referral from a government agency, or funded family or family violence service, homeless or youth justice service or mental health or other health service);
In Home child-minding assistance:
However, access to in-home child-minding assistance does not appear to have changed.
Clause 7(1)(l) of the Stay at Home Directions provides for a person to leave their ordinary residence to provide child-minding assistance (whether on a paid or voluntary basis). Clause 11(3)(b)(ii) provides an exception to the restriction on private gatherings for this purpose.
Clause 7(1)(b)(ii) of the Stay at Home Directions provides for a person to leave their ordinary residence to take the child to another person’s premises for the purpose of that other person providing child-minding assistance (whether on a paid or voluntary basis) so that the parent or guardian can do one of the things specified in clauses 6 (necessary goods or services), 7 (care or other compassionate reasons), 8 (work or education), 9 (exercise) or 10 (other specified reasons). Note however that, as explained above, clause 8 restricts attending work to authorised workers for whom it is not reasonably practicable to work from their ordinary residence.
Other restrictions remain in force
We remind members who are authorised workers and attend chambers of the need to comply with face-covering requirements, density quotients, COVIDSafe plans and QR code recording of visitors.
Familiarising yourself with the directions
This information is provided for your assistance, but of course the application of the relevant directions to each particular circumstance is a matter of legal interpretation. Each barrister is responsible for reading them and forming their own conclusions about their obligations as a self-employed person.
The information given above is designed to assist you to navigate the directions but is not a comprehensive list of all your obligations.
You can find the full text of the directions at https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19
Each member is encouraged to read the full text of the directions and ensure that they comply with them.
Looking after yourself
Please remember that two counselling service providers are available to all VicBar members and their immediate families. The counselling help lines contact numbers are: Re-Vision Group (Bernadette Healy) on 9650 5540 or Converge International 1300 687 327. Trained consultants are available 24 hours a day, 7 days a week.
The health & wellbeing portal has resources available to assist you and can be accessed here: https://wellbeing.vicbar.com.au/.