Your rights when flights are cancelled

The lifting of border restrictions between New South Wales and Victoria recently is a step-forward in reviving the airline industry. However, borders can also close very quickly if there is a sudden spike in Covid-19 infections, meaning flights may have to be cancelled or postponed. Last year, many Australian consumers waited over six months to obtain a refund on their plane tickets. Thus, it is no surprise that the pandemic resulted in 24,210 complaints to the Australian Competition and Consumer Commission (ACCC), which is an increase of 497 per cent compared to the same period in 2019. This article will share recommendations on what you need to be aware of before purchasing a flight ticket and what you can do when flights are cancelled.

Before purchasing a ticket

Paying attention to the terms and conditions of your booking is very important because they will determine whether you are entitled to a refund for cancelled bookings due to government restrictions. In some cases, consumers might not be entitled to a full, or any, refund of their booking. Some travel providers offer travel credits rather than refunds. If you receive travel credits, you should check when the expiration date is.

Terms and conditions will vary between travel providers (e.g. Qantas, Jetstar and Virgin). Terms and Conditions can also vary between different time periods. If you purchased a ticket via a travel agent, you should also read the travel agent’s terms and conditions.

When flights are cancelled

When cancellations occur due to government restrictions, consumers are not automatically entitled to a refund as they would be in normal circumstances under the consumer guarantees of the Australian Consumer Law (ACL). However, the pandemic does not permit business to engage in misleading, deceptive or unconscionable conduct.

If you paid by credit or debit card and you selected credit, you can ask your bank for a credit card charge back. Sometimes your bank reverses the disputed transaction with the merchant’s bank in accordance with the rules set by Visa, Mastercard and American Express.

Conclusion

Therefore, it is prudent for consumers to look closely at the terms and conditions of their booking before making payment. If you think you have been treated unfairly by a travel provider, we are available to help you.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Rent Relief for Small & Medium Enterprises in NSW amid COVID-19 Pandemic

On 7 April 2020, Australian states and territories agreed to adopt a National Cabinet Mandatory Code of Conduct—SME Commercial Leasing Principles During COVID-19 (‘Code of Conduct’) to address the pressing need for helping small and medium enterprises (SMEs) through the pandemic where they have difficulties in paying their rent as they face falls in trade, restrictions and even forced shut down of business. The Code of Conduct was formally implemented in New South Wales on 24 April 2020 under the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (‘the Regulation’).

The Regulation serves to enforce the principles in the Code of Conduct in the form of law with effect from 24 April 2020 for 6 months. In this article, we will outline the essential provisions in the Regulation.

Which leases are subject to the Regulation

The Regulation applies to commercial leases including those of:

  1. retail shops;
  2. shops in retail shopping centres; and
  3. other land or premises for commercial purposes such as offices, excluding agricultural tenancies.

The applicable lease must be:

  1. a leases entered into on or before 24 April 2020; or
  2. a leases entered into after 24 April 2020 by option or other means to extend or renew the lease on the same terms as the existing lease entered into on or before 24 April 2020.

Which lessees are eligible

An eligible lessee under the Regulation, termed ‘impacted lessee’, is an SME whose turnover of business in the 2018-2019 financial year was less than $50 million (‘turnover threshold’). The turnover threshold applies to the group turnover if the lessee is a member of a corporate group, but it applies to the lessee’s own turnover if the lessee is a franchisee. Notably, turnover includes that derived from internet sales.

Apart from the turnover threshold, the impacted lessee must also satisfy the fall in turnover test under the government JobKeeper scheme. Normally, the lessee’s turnover (monthly or quarterly) from March 2020 must have fallen by at least 30% compared to the same month or quarter in 2019.

For more information about the JobKeeper scheme, please refer to:

https://www.ato.gov.au/General/JobKeeper-Payment/

Freeze on rent increase

A freeze period is imposed on rent increases. Rent under commercial leases with an impacted lessee except turnover-based rent cannot increase before 24 October 2020. Moreover, the amount by which the rent could have been increased during that period cannot be recovered from the lessee afterwards.

Moratorium on eviction etc

A moratorium is also imposed to protect impacted lessees who have any of the following circumstances (‘Impacting Event’):

  1. failure to pay rent;
  2. failure to pay outgoings (such as lessee’s contribution to the expenses of the management, operation, maintenance or repair of a retail shop building);
  3. failure to operate business under the business hours specified in the lease; or
  4. doing or not doing a thing required under a federal or state law in response to the pandemic.

Before 24 October 2020, lessors will be prevented by the Regulations from unilaterally seeking actions against the impacted lessee for an Impacting Event, including (‘Recovery Actions’):

  1. termination of the lease;
  2. requiring payment of interest on unpaid rent;
  3. eviction of the lessee (including re-entry, seeking possession, or distraint of goods); and
  4. drawing on the bond of guarantee to recover unpaid rents and damages.

Lessor-Lessee negotiation & mediation process

In order to seek the above actions for the lessee’s payment of rent, the Lessor must first undergo the lessor-lessee negotiation & mediation process below or otherwise agree with the lessee.

The negotiation, which can be request by any party to the lease, must take into account the economic impacts of the pandemic and the principles in the Code of Conduct. Under the essential principles of the Code of Conduct, the lessor is required to:

  1. offer the impacted lessee rent relief – the percentage of the rent relieved corresponds to the percentage of the lessee’s drop in turnover during the pandemic period and a subsequent reasonable recovery period afterwards.
  2. relief the rent in accordance with the legislation: (a) at least half should be waived; (b) the remainder of the rent must be deferred and amortised over the greater of 24 months or the balance of the lease term;
  3. offer the lessee extension of the lease for a period equivalent to the rent waiver or deferral, so that the lessee has more time to trade on existing lease terms for recovery after the pandemic;
  4. reduce the lessee’s contribution to tax, statutory charges (e.g. council rates) and insurance payments to the extent that the amounts of these charges payable by the lessor are reduced (for example, see the Land Tax Reduction below).

The lessor must not charge fees, interests or other punitive charges against the lessee regarding the rent relieved.

If the negotiation fails, the lessor needs to submit the matter to the New South Wales Small Business Commissioner for mediation. Only after the failure of the mediation as certified by the  Commissioner in writing can the lessor seek Recovery Actions.

Lessee must adhere to the terms of the lease

It is imperative that the lessee adhere to the terms of lease subject to any variation as a result of the negotiation, because the Regulation does not prevent Recovery Actions for reasons not related to the pandemic such as damage to the premises.

Land Tax Reduction

To stimulate rent relief, a lessor of commercial property in New South Wales may have the land tax payable in the 2020 land tax year (1 January to 31 December 2020) in relation to the leased property reduced by up to 25% if:

  1. the property is leased to an impacted lessee; and
  2. the landlord reduces the rent of the impacted lessee, the amount of rent reduction will be the amount of land tax reduction.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Remote Document Witnessing in NSW amid COVID-19 Pandemic

Various types of legal documents in Australia must be signed by a party in person before a witness. Such a requirement poses public health risks amid the COVID-19 pandemic as parties and witnesses such as legal practitioners have to travel to workplaces to proceed with the signing and witnessing, which expose them to the risk of infection.

In response, New South Wales recently introduced amendments to the Electronic Transactions Regulation 2017 (NSW) (‘the Regulation’) to allow the signing and witnessing of documents through audio visual link from 22 April 2020. The Regulation will be in force for 6 months unless otherwise resolved by the state Parliament. In this article, we will give you a brief outline of such an arrangement.

Technical Requirement for audio visual link

The link technology used by the signatories and witnesses at different places must meet the following criteria:

  1. the technology enables both audio and visual communication between the parties; and
  2. the communication must be continuous and contemporaneous.

Where audio visual link can be used

Where a document must be signed in the presence of a signatory, witness or other person, the person can be present by audio visual link. Particular circumstances where audio visual link can be used include:

  1. signing a document in the presence of a witness
  2. attesting a signature
  3. certifying matters required by law
  4. seeing the face of the signatory
  5. confirming or verifying the identity of the signatory
  6. swearing or affirming the contents of an affidavit

What document can be witnessed by audio visual lin

Documents that can be witnessed by audio visual link under the Regulation include:

  1. Deeds or agreements
  2. Wills
  3. Powers of attorney
  4. Enduring powers of attorney
  5. Enduring guardianship appointments
  6. Statutory declarations
  7. Affidavits (including its annexures or exhibits)

How audio-visual link witnessing works

Step 1:

A signatory and a witness meet by audio visual link such as video conference.

Step 2:

The signatory signs the document, with the witness observing the signatory sign the document in real time.

Step 3:

The witness confirms the witnessing of the signature. For the way of confirmation, two examples are specified in the Regulation:

  1. Signing a counterpart – after the witnessing the signing, the witness signs a counterpart of the document as soon as practicable.
  2. Countersigning – as soon as practicable after the witnessing of the signing, the signatory scans and sends a copy of the signed document to the witness electronically, and the witness countersigns that document.

The witness must be reasonably satisfied that the document signed by the signatory is the same document as that signed by the witness.

Step 4:

The witness endorses the signed document with a statement which specifies the method of witnessing and that the document was witnessed in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Public Health Orders in New South Wales amid COVID-19 Pandemic

As at the date of this article, New South Wales has recorded over 2,000 confirmed cases of COVID-19 accounting for nearly a half of the national case number in Australia. Empowered by the Public Health Act 2010 (NSW) (‘the Act’), the state government has issued a series of public health orders in order to control the pandemic.

In this article, we will make an overview of these public health orders covering aspects of social distancing, quarantine, and protection of vulnerable groups of the community. It is highly advisable to comply with these orders for protecting oneself and the community. A failure to comply may incur substantial fines and even imprisonment.

Social distancing

Strict social distancing rules are imposed by the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 as follows:

  1. A person must not leave his place of residence without a reasonable excuse such as obtaining food or other goods and services, traveling to work or school if that cannot be done at home, exercise or medical or caring reasons. It is particularly stressed that taking a holiday in a regional area is not a reasonable excuse.
  2. No more than 2 persons can gather in public places except for work, care or assistance of vulnerable persons, emergency assistance, gathering by members of the same household, weddings attended by no more than 5 persons, funerals attended by no more than 10 persons, moving of home or business premises. Exemptions also apply to exempted premises such as courts, emergency services, schools, supermarkets etc.
  3. Non-essential business premises are either closed, such as entertainment and sports facilities, or restricted in operation, such as food and drink premises confined to take-away services.
  4. The occupier or operator of premises other than a person’s place of residence or exempted premises must ensure that less than 500 persons be allowed to enter or stay on an outdoor premises at the same time, and less than 100 allowed to enter or stay on an indoor premises at the same time. The occupier or operator must deny entry or stay if the premises is not large enough to keep each person there 4 square metres apart from another.

This order commenced on 31 March 2020. Its expiry remains at the direction of the government for it specifies no expiry date. Moreover, the government has a general power under the Section 7 of Act to make orders it thinks fit.

Quarantine

Under Public Health (COVID-19 Air Transportation Quarantine) Order 2020, persons arriving in the state by air who has been overseas within 14 days before his arrival must be quarantined upon arrival for a certain period, which is currently 14 days.

Under Public Health (COVID-19 Maritime Quarantine) Order 2020, persons on a vessel arriving in the state from a port outside the state must not disembark unless authorised by the Commissioner of Police or required as a result of emergency. Person allowed to disembark must also be quarantined for 14 days upon landing.

Under Public Health (COVID-19 Self-Isolation) Order 2020, a person diagnosed with COVID-19 must immediately self-isolate at a place of residence, or go to a hospital if a health practitioner thinks necessary. After being discharged from the hospital, the person still needs to self-isolate immediately. The person must remain in self-isolation until he is assessed by a medical practitioner to be free of the COVID-19 virus.

The person in self-isolation must not leave his place except for obtaining medical care or medical supplies or emergency circumstances. He cannot let anyone else in except those usually living with him, those for medical or emergency purposes, or those for delivery of food or essential items.

The order relating to arrival by air will be repealed on 25 June 2020, and the one on self-isolation on 23 June 2020. No such expiry date is specified in the order relating to maritime arrivals.

Protection of vulnerable groups

According to Public Health (COVID-19 Residential Aged Care Facilities) Order 2020, access to a residential aged care facility is restricted to its residents, prospective residents, employees or contractors of the facility operator, and persons providing necessary goods or services, health services, care and support visit on the day, end-of-life support, emergency management and law enforcement, unless exemption applies granted by the Minister of Health in writing.

However, persons except residents are denied access to aged care facilities if the person has a fever or other symptoms of acute respiratory infection, does not have up-to-date flu vaccination, or if within 14 days before the proposed access, the person has arrived from overseas or had known contact with another person who has a confirmed case of COVID-19. Persons under 16 are also denied access except for providing end-of-life support for a resident.

Lord Howe Island, an island group 600 km from the New South Wales mainland with a few hundred inhabitants, is also subject to access restriction and quarantine upon arrival measures under the Public Health (COVID-19 Lord Howe Island) Order 2020.

The order relating to aged care facilities is to end on 22 June 2020, and the one relating to Lord Howe Island on 18 June 2020.

Consequences of failure to comply

It is an offence under Section 10 of the Act not to comply with the public health orders, such as violating social distancing rules, opening up business when it should have been closed, or breaking out of self-isolation or quarantine. Currently

  1. An individual offender may be fined up to $11,000 with a further $5,500 fine for each day the offence continues. The offender may even be sentenced to imprisonment for up to 6 months.
  2. A corporation offender may be fined up to $55,000 with a further $27,500 fine for each day the offence continues.

Moreover, the police have powers to arrest an offender and take him back to his home or place of quarantine, and issue penalty notices to offenders. Such powers will be in effect for 1 year since 25 March 2020 according to Sections 71A and 118 of the Act.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

 

Legal Issues regarding Domestic Violence amid COVID-19 Pandemic

Domestic violence involves violence (including physical, psychological, financial or other forms of abuse) in relationships of family, de facto partnership, cohabitants etc. Concerns are aroused to a potential rise in domestic violence as a vast population is sent home without a job as a result of the COVID-19 pandemic. Such a concern is made clear as the Australian government included in its pandemic relief package $150 million for support related to domestic violence.

In this article, we will briefly explore some legal issues relating to domestic violence in New South Wales in the midst of the pandemic, including the potential release of domestic violence offenders and changes to the justice system relating to domestic violence cases in response to the pandemic.

Release of domestic violence offenders

Correctional premises such as prisons attract public health concerns during the pandemic given the dense concentration of inmates on those premises. In New South Wales, the Crimes (Administration of Sentences) Act 1999 has been amended to empower the Corrective Services to release an inmate on parole if its Commissioner is satisfied that the release is reasonably necessary considering the risk of public health and the good order and security of the correctional premises. Such a power lasts for 6 to 12 months from 25 March 2020. In this context, what if domestic violence offenders are released from prison and pose a risk to victims of their domestic violence after they return home?

Such a concern can be addressed by multiple safeguards in the relevant laws and regulations.

First, offenders that might be released are confined to those who face higher health risks during the pandemic because of existing medical conditions or vulnerability, such as old inmates, and inmates who might expect a release in no more than 12 months ahead. Moreover, the Corrective Services cannot release serious offenders or sex offenders. Only low-risk inmates might be released.

Second, the Commissioner of Corrective Services must take into account a range of factors when considering the release of an offender. For domestic violence offenders, the Commissioner must consider, in particular, the impact on the victim of domestic violence and persons who are likely to reside with the offender after the release. Therefore, no decision can be made lightly.

Third, an offender is only released on parole subject to parole conditions including that the offender must maintain good behaviour and must not commit any offence. If the offender breaches the conditions, minor breaches will be dealt with by Community Corrections. If the breach is serious, Community Corrections can report it to the Parole Authority which has the power to revoke the parole and have the offender arrested and returned to custody. For offenders released on parole during the pandemic by the Corrective Services, the Commissioner also has the power to impose parole conditions and revoke the parole for any reason. Therefore, should domestic violence occur again, it is possible for the offender to be taken back to prison.

Therefore, although possibility exists for domestic violence offenders to be released before completing their prison terms, multiple legal safeguards are in place to minimise their risk to the victims of domestic violence and the community.

Protection of domestic violence victims

In general, protection available to victims of domestic violence remains unchanged. In the event of domestic violence, including the victim being harmed or being threatened of harm by the offender, it is common for the victim to report to the police which might on behalf of the victim apply for an Apprehended Violence Order (AVO). If the police refuse to apply for the AVO, the victim can apply for the AVO on their own. An AVO imposes restrictions on the offender’s behaviour to protect the victim.  It is an offence to breach the restrictions under an AVO with penalties including fines and imprisonment.

What is changed amid the COVID-19 pandemic relates to court procedure aiming at reducing the risk of spreading the virus through court proceedings.

In New South Wales, an AVO application is filed with the Local Court which will schedule a court hearing to hear the case and, if circumstances so justify, make a final AVO. In response to the pandemic, the Local Court has adjourned existing AVO proceedings for at least 3 months and postponed AVO hearings. Despite that final AVO decisions will be delayed as a result, the victims can still be protected as the court can issue a provisional AVO or an interim AVO. A provisional AVO is applied for by the police if they think it necessary to give the victim immediate protection upon the victim’s report. An interim AVO is made when a victim applies for an AVO on their own or the AVO proceeding is adjourned. Moreover, the Local Court will continue to deal with urgent applications and issue interim AVOs promptly when necessary. When the parties need to communicate with the court, they are required to do so in writing or by email.

If the domestic violence offence is so serious as to be heard before the District Court or the Supreme Court, the court may direct, or the party can apply for a direction, that a witness give evidence by audio-visual link. The court may also order that the victim give evidence in a separate evidential hearing rather than in a jury trial. Such an evidential hearing will be recorded and then played in the jury trial.

To conclude, the pandemic only brought changes to court procedure in relation to domestic violence cases for reducing the risks of parties contracting the virus by attending court hearings. The protection available to victims of domestic violence under Australian law remains unchanged.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Residential Tenancy Relief Measures in NSW amid COVID-19 Pandemic

The COVID-19 pandemic makes it difficult for a large number of Australians to pay rents for their residence as they either lost or suffer a significant reduction in their income. They risk being evicted from their homes and rent recovery actions by landlords. On 29 March 2020, the Australian states and territories agreed on a moratorium period on eviction of tenants during the pandemic which moratorium is to be implemented in the respective states and territories.

In New South Wales, not only were relevant regulations amended to impose a 6-month moratorium period from 15 April 2020, the government also grant land tax reductions to help ease the financial stress of landlords and tenants. In this article, we will make an overview of such relief measures.

TERMINATION OF TENANCY FOR RENTS OR UTILITY CHARGES IN ARREARS

  • Relevant law

The residential tenancy is regulated in New South Wales by the Residential Tenancies Act 2010 (‘the Act’) and its subordinate legislation Residential Tenancies Regulation 2019 (‘the Regulation’). Under the Act, if rents or utility charges for water, electricity, gas or oil remain in arrears for 14 days or more, the landlord can terminate the tenancy by giving the tenant at least 14 days’ of notice.

After the termination date in the notice, if the tenant fails to vacate the premises, the landlord can apply to the New South Wales Civil and Administrative Tribunal (NCAT) for a termination order and a possession order. The possession order is enforceable as the NCAT may issue a warrant of possession and have a sheriff’s officer to evict the tenant from the premises.

  • Who benefits from the moratorium

On 15 April 2020, the Regulation was amended to impose a 6-month moratorium period on eviction of an “impacted tenant”.

An impacted tenant is a member of a household which is “impacted by the COVID-19 pandemic”. Under the Regulation, any of the following events which happened to any rent-paying member of a household as a result of the pandemic can be regarded as an impacting event:

  1. loss of employment or income;
  2. reduction in work hours or income;
  3. stopping of work or material reduction of work hours because: the member or another member fell ill with COVID-19; or the member has to take care of another member who fell ill with COVID-19.

A household is ‘impacted by the COVID-19 pandemic’, and thus benefits from the moratorium, if its weekly household income fell by at least 25% compared to that before an impacting event above occurred.

It should be noted that the moratorium does not apply to social housing tenancies as they have their own rental arrangements.

  • Notes on weekly household income

First, “household” means ‘any tenants or other persons living together in the same residential premises’. They can be a family, or mere co-tenants, or even head tenants and sub-tenants (e.g. one tenant having a head tenancy with the landlord, while the other tenant having subtenancy with the first tenant).

Second, “income” is that of all the rent-paying members of the household combined. Thus, even if only one member is impacted, if the impact on that member is so great that the weekly income of the entire household dropped by at least 25%, then the moratorium still applies.

Third, “income” refers to income after tax, but it includes government payments such as social security benefits. For example, if a tenant loses his job for the pandemic but receives the JobSeeker payment, the payment will be included in the weekly household income. If that income is not at least 25% lower than the weekly household income before the tenant loses his job, then the moratorium does not apply.

  • Termination of tenancy during the moratorium

During the moratorium, if an impacted tenant is unable to pay the rent or utility charges, the landlord must first, in good faith, participate in a formal rent negotiation process with the tenant. If the landlord and the tenant cannot reach an agreement in private, they must seek assistance from NSW Fair Trading to facilitate a formal rent negotiation.

More information in this regard can be found the website of NSW Fair Trading:

https://www.fairtrading.nsw.gov.au/

Following the formal negotiation process, the landlord can issue the termination notice or apply to NCAT for termination and possession orders on or after 14 June 2020, if it is fair and reasonable in the circumstances to do so.

Note: the standard of fair and reasonable is based on a range of factors which the NCAT will take into account, including:

  1. financial positions and nature of financial stress of the landlord and the tenant;
  2. payments made by the tenant towards the rent;
  3. circumstances affecting the tenant such as vulnerability, alternative accommodation options etc;
  4. public health risks related to eviction and moving of residence; and
  5. advice from NSW Fair Trading relating to the negotiation process, e.g. whether a reasonable offer about rent was made or refused.
  • Listing in residential tenancy database

According to the Act, if the amount that the tenant owes the landlord exceeds the rental bond, or the NCAT makes a termination order, the tenant’s personal information can be listed in a residential tenancy database for landlords and agents to decide whether to give the tenant a tenancy.

However, under the amended Regulation, impacted tenants who breached their tenancy only because of rents or utilities charges in arrears cannot be listed in such databases.

TERMINATION OF TENANCY ON OTHER GROUNDS

Under the Act, the tenancy can be terminated by the landlord on a number of grounds to which different notice periods apply.

During the moratorium period, the landlord must give the tenant at least 90 days’ notice for terminating the tenancy on the following grounds:

  1. end of a fixed term tenancy;
  2. termination of a periodic tenancy, or a long term tenancy for 20 years or more; or
  3. breach of tenancy terms other than rent or utility charges in arrears.

Termination of tenancy by the landlord on other grounds remain unaffected, such as sale of premises, serious damage to the premises or injury to the landlord or agent caused by the tenant, use of premises for illegal purposes, hardship to landlord etc.

LAND TAX REDUCTION

In New South Wales, a property owner must pay land tax annually unless an exception applies such as the property being the owner’s principal place of residence or the total taxable value of the property being below the land tax threshold (which changes every year and is $734,000 for the 2020 land tax year).

A landlord of residential property may have the land tax payable in the 2020 land tax year (1 January to 31 December 2020) in relation to the leased property reduced by up to 25% if:

  1. the property is leased to an impacted tenant; and
  2. the landlord reduces the rent of the impacted tenant, the amount of rent reduction will be the amount of land tax reduction

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Justice amid COVID-19 Pandemic in New South Wales

To tackle the COVID-19 pandemic in New South Wales, which unfortunately has the most confirmed cases, the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 commenced on 25 March 2020. The general goal is to enforce social distancing and reduce travels and contacts of people, in order to control the spread of the virus and protect the general public from it.

The justice system, where personal contact such as appearance in courts and jury trials play an essential role, face changes under the measures introduced by the Bill. Such measures are temporary for at least 6 months after its commencement, but not more than 12 months as prescribed by regulations.

Alternative appearance in proceedings

An accused person in bail proceedings will appear by audio visual link unless the court directs otherwise.

The court may also direct, or a party may apply for a direction, that an accused person, a witness, or a legal practitioner representing a party appear in a proceeding by audio visual link. To make the direction, the court must consider the interest of justice and give the parties an opportunity to be heard. The court must also be satisfied that a party has a reasonable opportunity to communicate with his legal representative in private.

A person may appear before the Mental Health Review Tribunal for the purposes of mental health inquiry by way of telephone upon the Tribunal’s approval, if the Tribunal thinks it necessary due to the COVID-19 pandemic.

Trial by jury

The sheriff may exempt a person from being selected to be summoned for jury trials or coronial inquests by considering the safety or welfare of that person or the community at large.

A court may order that an accused person be tried by a judge alone if the accused having received legal advice consents such an arrangement. The court must also consider the interest of justice if the prosecutor does not agree to the arrangement.

Use of pre-recorded evidence

For criminal proceedings in the District Court or the Supreme Court, the court may order that evidence be given in pre-recorded evidence hearings without a jury. Such pre-recorded evidence is then viewed or heard in subsequent jury trials of the case. Subsequently, if there are new trials in all courts because the original trial is discontinued for any reason, or new trials ordered upon an appeal against conviction, then the pre-recorded evidence can also be admitted in such new trials unless the court declines admission on the ground of unfair disadvantage to the accused.

Witnesses eligible to give evidence in pre-recorded hearings are complainants in proceedings of sexual offence, domestic violence offences and serious indictable violence offences, as well as those who are more susceptible to COVID-19 because of age or health. Having given pre-recorded evidence, the witness will need the court’s leave to give further evidence in trials and subsequent proceedings.

To make such an order, the court must be satisfied with the interest of justice of doing so. In particular, the court must consider the wishes and circumstances of the witness and the availability of necessary facilities. The accused person must have received legal advice in this regard, and both parties must be given an opportunity to be heard. Moreover, and all the pre-trial disclosure and case management requirements are complied with.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.