Monday saw the release of the Final Report of the Royal Commission into the Management of Police Informants. A number of recommendations made by the Commission directly affect the Bar and implementation of those recommendations will be the subject of discussion at the Bar Council meeting next week.
Members will be aware that the Bar’s continuing membership of the Law Council of Australia is currently the subject of discussion. On Monday, I met (virtually) with Pauline Wright, the current President of the LCA, to discuss that and other issues.
On Tuesday, I was delighted to have a face-to-face discussion with His Honour Chief Judge Peter Kidd about the challenges the County Court of Victoria is facing in dealing with the resumption of jury trials, in light of Covid restrictions. His Honour explained that space is probably the greatest issue and described the steps the Court is taking to try to address those logistical hurdles.
Also, this week, the Executive has spent considerable time finalising recommendations for membership of the various Bar Committees. I am pleased to report that there has been a 5% increase in Committee applications, hopefully reflecting a greater level of engagement by members.
Updated directions on returning to Chambers
My apologies to those members who will see the following as needless repetition. We have been fielding many questions not only about barristers returning to Chambers, but also visitors, instructors or clients. In those circumstances, I have chosen to publish an update reflecting the latest directions.
The Chief Health Officer has given new directions which came into force on 30 November 2020. The directions that primarily affect members’ ability to return to Chambers are the Workplace Directions (No 11) and the Stay Safe Directions (Victoria) (No 3).
As neither the Victorian Bar nor BCL employs barristers, and each barrister operates their own business and has control of their own leased Chambers, the Victorian Bar and BCL do not dictate each barrister’s return to Chambers. Each barrister may return to Chambers at the time that their own personal circumstances meet the requirements in the directions.
We provide the following information to assist you in navigating the directions and planning your own return to Chambers.
Clause 6 of the Stay Safe Directions (Victoria) (No 3) provides:
‘A person who ordinarily resides in the State of Victoria may attend work (whether paid or voluntary, including for charitable or religious purposes) at a work premises if:
The Workplace Directions (No 11) set out the circumstances in which an employer may permit employees to attend work from the Work Premises. In those Directions:
It, therefore, appears that each barrister, being a self-employed person who operates or controls their own Chambers, is both an ‘employer’ and an ‘employee’ and that their Chambers are Work Premises.
Working from Chambers in accordance with your COVIDSafe Plan
Clause 5(1)(c) of the Workplace Directions (No 11) provides that in relation to office-based Work Premises, an employer may permit workers to attend the Work Premises in accordance with the requirements of the COVIDSafe Plan for that Work Premises.
Clauses 6(3) and (4) provide that for each Work Premises, an employer must have in place a COVIDSafe Plan and comply with it. Each barrister who returns to work in Chambers should therefore complete and retain a COVIDSafe Plan for their own Chambers. A template can be found here.
Pursuant to clause 6(3)(v)(A), for office-based Work Premises where fewer than 40 workers ordinarily work, the COVIDSafe Plan may allow for up to 10 workers to work at any one time. I, therefore, expect that all barristers will be able to return to their own Chambers once they have created their COVIDSafe Plan.
BCL has a COVIDSafe Plan for the shared areas. You can view it here.
Visitors to Chambers and record-keeping
There is no restriction on visitors, instructors or clients entering Chambers.
However, clause 6(7) of the Workplace Directions (No 11) requires an employer to keep a record of all workers and all visitors who attend the Work Premises for longer than 15 minutes including their first name, contact telephone number, the date and time they attended and the areas of the Work Premises which they visited.
In order to comply with this requirement, BCL’s COVIDSafe Plan requires all visitors to scan the QR code at the entrance of each Chambers. When you receive visitors, you should ask them to do this.
If you invite visitors into your own Chambers rather than a shared meeting room, you should keep your own record of the above details.
BCL is dealing with lift and floor access on a floor-by-floor basis. Most have remained swipe-only. If your floor wishes the lifts and doors to be unlocked, or you have any other questions related to access, you can contact Paul Clark (CEO), James Campbell (Property Team) or the BCL service desk (03 9225 8888).
Clause 6(11) of the Workplace Directions (No 11) imposes a density quotient in any shared spaces (such as tearooms, print rooms or meeting rooms) of no more than one person per 4 square metres of space.
You should bear this in mind when inviting visitors into shared meeting rooms or into your own Chambers.
If your Chambers are shared and the size of your Chambers does not permit all occupants to be present at the same time in line with the density quotient, you will need to manage attendance with whom you share Chambers.
Clause 6(1) of the Workplace Directions (No 11) requires workers to wear a face-covering while in an indoor space. There are several exceptions which include:
You are therefore not required to wear a mask whilst working alone in your Chambers, but must wear a mask in the shared areas. If you receive visitors, you should ensure that they also wear masks when in the same space as others.
Familiarising yourself with the directions
I have provided this information for your assistance, but whether attendance in Chambers is permitted in your particular circumstances is, of course, a matter of legal interpretation of the relevant directions. Each barrister is responsible for reading them and forming their own conclusions about their obligations as a self-employed person.
The information I have given above is designed to assist you in navigating the directions but is not a comprehensive list of all your obligations.
You can find the full text of the directions here.
I encourage each of you to read the full text of the directions and ensure that you comply with them.
Christopher Blanden QC