Public health directions affecting work from chambers and access to child care

Members will be aware that new public health directions introducing further restrictions came into force at 12:59 pm on Saturday 21 August 2021.  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)
• 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

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.

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

Accessing childcare

The directions have restricted access to childcare at a childcare centre or early childhood service.

Pursuant to clause 8(3) of the Stay at Home Directions, a person may only leave premises to obtain a childcare or early childhood service:

  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 person:

       i. has:

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/.