Queensland Law Society

COVID-19 related FAQs

Updated Thursday 15 October 2020

15 October 2020 - Executing Affidavits Sworn Pursuant to Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020

Do Queensland lawyers need to lock down their firms?

23 August 2020 - No.

The 22 August 2020 restrictions to gatherings in Greater Brisbane and differing restrictions elsewhere do not affect the operation of law firms.

The Movement and Gathering Direction (No. 3) restricts certain gatherings in Greater Brisbane local government areas and applies differing restrictions to other areas in Queensland. Relevantly, some types of gatherings are exclude from these restrictions, including:

  • at a business, facility or service not restricted under the Restrictions on Businesses, Activities or Undertakings Direction (No. 5), such as law firms
  • at a workplace, including but not limited to an office building, factory, manufacturing facility, resource extraction, mine or mineral processing facility, utilities or construction sites that is necessary for the normal operation of those premises
  • at a court or tribunal
  • at a prison, corrective services facility, detention centre or other place of custody
  • for the purposes of or related to public transportation, including in vehicles or at public transportation facilities such as stations, platforms and stops.

However the Movement and Gathering Direction does provide that “an owner, residenttenant, occupier, temporary occupier or person in control of a premises, including a residence, must take reasonable steps to encourage visitors to the premises to practise physical distancing to the extent reasonably practicable” (see paragraph 6).

Law firms are not “restricted businesses, activities or undertakings” under the Restrictions on Businesses, Activities or Undertakings Direction (No. 5) and the operation of law firms is not restricted other than being required to observe social distancing (see paragraph 13).

In addition to the measures recommended by the Government, law firms may choose to implement strategies they believe suitable for the further protection of their own staff and clients.

Law firms should consider which staff can reasonably perform their work from the person’s principal place of residence. QLS has prepared materials that may assist in establishing work from home, available here.

General information about responding to COVID-19 is available at https://www.health.gov.au/  or for Queensland specific information visit https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/

QLS has also been providing updates as courts have been changing their operations.

Do I still need to attend conveyancing settlements?

23 August 2020 - Yes.

The Titles Office continues to receive documents. The Office of State Revenue is maintaining usual services. Social distancing requirements for businesses do not prevent settlements from occurring. Settlements are not restricted by the Restrictions on Businesses, Activities or Undertakings Direction (No. 5) or the Movement and Gathering Direction (No. 3).

Lawyers should consider closely the provisions of any relevant contracts of sale to be satisfied that any delay or force majeure clauses have in fact been triggered by the current state of events. This includes understanding the consequences of the current directives issued by Government on social distancing and other health protection measures. For Lexon insured practices, see Lexon’s alert 7 of 19/20 dealing with Suspension of Time concepts in the REIQ contract. Lexon will be releasing further targeted tools.

At this time it is also important for solicitors to be mindful that they have an obligation to represent clients with contracts on foot and have a variety of alternate methods available to them to bring about settlements such as settlement agents, other firms as town agents, electronic conveyancing, settlement intermediaries and electronic lodgement with the Titles Office.  If a solicitor considers that there are circumstances where it is not possible for them to continue to represent a client, please contact the QLS Ethics and Practice Centre for guidance as to the way in which they should move forward with the client matter.

Are law firms an essential service?

23 August 2020 – Yes.

Queensland Government has issued the Restrictions on Businesses, Activities or Undertakings Direction (No. 5) to restrict the operation of certain businesses, activities and undertakings.

The Direction does not include or restrict the operation of law firms. It does not restrict the operation of legal processes such as mediations or property settlements, but social distancing should be observed at all times.

Law firms may also continue to operate under the Queensland Movement and Gathering Direction (No. 3) issued by Queensland’s Chief Health Officer on 22 August 2020, as it excludes gatherings at a business, facility or service not restricted under the Restrictions on Businesses, Activities or Undertakings Direction (No. 5) or at a at a workplace, including an office building.

Under the Health Directions all Queensland law firms must observe social distancing.

In addition to the measures recommended by the Government, law firms may choose to implement strategies they believe suitable for the further protection of their own staff and clients.

The Queensland Law Society has advocated to Government that if further restrictions are placed on businesses, law firms should be considered to be essential services and exempted. The continued operation of law firms at this time is needed to ensure members of the community can access the expert legal assistance they need in a time of crisis. As the effects of COVID-19 ripple outwards, there will be an increased need in the community for legal advice and assistance on all aspects of disruption to daily life, whether personal or commercial, civil or criminal. On Wednesday 1 April, we received a response to this advocacy from the Attorney-General, which you can read in full here.

In summary, the Attorney-General has confirmed that firms can remain open, practitioners can attend court and attend property settlements. We will continue to engage with the Attorney-General on this issue and update practitioners should this advice change.

If a solicitor has queries please contact the QLS Ethics and Practice Centre for guidance.

Can a client come to see me at my office?

23 August 2020 - Yes.

The Movement and Gathering Direction (No. 3) does not restrict a person from obtaining legal advice or legal services at the business premises of a law firm.

The provision of legal services is an essential business activity or undertaking. The provision of such legal services are needed for the operation of society. A client could therefore attend upon a solicitor at the solicitor’s office to obtain legal services. The solicitor would need to ensure that the firm complies with the social distancing requirements that have been outlined in prior directions by the Chief Health Officer for the State of Queensland.

Can I sign company documents electronically?

6 May 2020

The Treasurer, Josh Frydenberg, has made a determination under section 1362A of the Corporations Act 2001 modifying the operation of provisions of the Corporations Act 2001, the Corporations Regulations 2001 and other specified rules.  This is a temporary modification of the operation of certain provisions and rules in response to the impacts of the coronavirus known as COVID‑19. The determination provides for:

  • using technology to give notice of meetings and to hold meetings, including by using technologies that “give all persons entitled to attend a reasonable opportunity to participate without being physically present in the same place”; and
  • authorises the execution of documents by a company in counterparts, including electronic or paper counterparts, subject to certain requirements.

The Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 is available here. The instrument is valid for 6 months from 5 May 2020.

Mediating using technology: The new normal?

30 April 2020

Donna Cooper on behalf of the QLS Alternative Dispute Resolution Committee has prepared the article Mediating using technology: The new normal? which you can find on our LawTalk blog.

Guidance for serving documents in civil proceedings

30 April 2020

QLS has prepared guidance for serving documents in civil proceedings for practitioners.

We will continue to consult with the Government and the Courts on any changes to the Rules or Court processes.

Exemption from the Hospital Visitors Direction for solicitors

3 April 2020

The Chief Health Officer has provided an exemption to Public Health Directions to permit solicitors to access hospitals to assist clients with instruments such as powers of attorney, wills and advanced health directives.

Read the full letter from Queensland's Chief Health Officer here.

Can I interview a client by video conference for the purposes of providing an independent solicitor’s certificate?

1 April 2020

If all the circumstances are such that a person to person interview is not possible then the use of video conferencing is a possibility where you have been requested to provide an independent solicitor’s certificate for a third party guarantor, surety mortgagor, or indemnifier for a principal borrower. As a matter of caution, you should ensure that you are able to undertake this interview in circumstances where the third party guarantor, surety mortgagor, or indemnifier are in the absence of the principal borrower.

You must take reasonable steps to ensure the persons who are receiving the independent advice are not the subject of undue influence and you should ensure your file note records the steps you have taken.

You must carefully read the independent solicitor’s certificate that is provided on our website to ensure that you can comply with the explanations and advices you are to give as the certifying solicitor.

A video conference will not exclude you undertaking verification of the identity of the third party guarantor, surety mortgagor, or indemnifier. You will need to modify your retainer agreement and the certificate to reflect the circumstances under which the interview is taking place. In the absence of a change to the law to permit remote witnessing of instruments, you will be unable to witness the third party security documents by remote means. The acknowledgment which is to be given by the third party guarantor, surety mortgagor, or indemnifier should be modified to reflect the circumstances of the interview. The certification with respect to the guarantor’s certificate should also be modified to reflect the fact that the certificate will not be able to be handed to the third party guarantor, surety mortgagor, or indemnifier.

Solicitors should also read carefully the checklist that has been provided on the website for the providing of independent legal advice. For those solicitors who are Lexon insured you should also review the Lexon material.

Solicitors should be mindful of the risks involved by the use of video conferencing and it would be prudent to confine the provision of a certificate in all circumstances to existing clients. A comprehensive file note and preferably the recording of the interview (with the client’s consent) should take place. If you have any doubts as to the suitability of video conferencing then you should not undertake this as a means of the interviewing of the third party guarantor, surety mortgagor, or indemnifier.

You should also insist that the third party guarantor, surety mortgagor, or indemnifier read the document fully prior to the interview. It is not sufficient for you to confirm merely that the third party guarantor, surety mortgagor, or indemnifier has read through the document. Open questioning and enquiry as to the third party guarantor, surety mortgagor, or indemnifiers understanding of the true position will be required. Solicitors are reminded that they must satisfy themselves that the third party guarantor, surety mortgagor, or indemnifier has freely made the statements which are referred to in Part D of the certificate, and appear to have an understanding referred to in that part. If it appears to you that the third party guarantor, surety mortgagor, or indemnifier does not have an understanding, do not sign the certificate.

You will not be in a position to remotely witness the third party guarantee documents. Personal presence is still required for such execution.

Practice Note for Queensland practitioners taking Will and Enduring Power of Attorney Instructions during COVID-19

Thursday 2 April 2020

This practice note has been prepared after a careful consideration of the current legal position in Queensland, current duties to the Court and client and the most recent advice released from the Department of Health. We recognise that this is an unprecedented public health crisis and this note may viewed in the context of the crisis and government decisions with respect to isolation and the definition of essential services.

To access the practice note please click here.