Message from the President

27/04/2020

Response from the Commonwealth Attorney-General

As I mentioned in an earlier President’s Message, I recently wrote to the Commonwealth Attorney-General the Hon Christian Porter MP regarding Commonwealth measures to assist the NSW Bar.

The Bar Association has now received a response from the Attorney-General, who in summary has advised as follows.

1. Commonwealth Courts and Tribunals

The Attorney has noted that the Association is maintaining an ongoing dialogue with Commonwealth Courts and Tribunals and that he has encouraged courts and tribunals to engage with the profession and keep the Association updated as to COVID-19 related measures.

2. Prompt payment of fees by Commonwealth agencies

The Attorney acknowledges the importance of the prompt payment of counsels’ fees. His Department will remind all Commonwealth agencies of the need to pay fees promptly, particularly in the current environment.

3. Business stimulus packages

The Attorney also acknowledges the Association‘s concerns regarding the application of stimulus packages to the Bar, and notes that a number of initiatives have been announced since the date of our letter:

• The $1500 a fortnight Jobkeeper Payment announced on 30 March; and

• The Cash Flow Boost for Employers – Business structures can receive this support if they have employees and meet other criteria, but there are no current plans to extend these payments to businesses without employees. The JobKeeper Payment is designed to support self-employed entities.

4.Deferral of payments to the ATO and extension of BAS and tax return deadlines

The Government is not applying tax relief options automatically. Barristers are encouraged to contact the ATO directly to discuss their individual circumstances through the ATO's Emergency Support Infoline (1800 806 218). The ATO may be able to provide assistance by way of remitting certain interest and penalty charges, deferring the payment of tax liabilities, and changing reporting cycles, depending on individual circumstances.

5. Relief from payment of rent and related protections

The Attorney’s response notes that the Government has announced a mandatory Code of Conduct for commercial tenancies and that the Code applies to all commercial leases held by a tenant with an annual turnover of up to $50 million and who are suffering financial stress or hardship as a result of the COVID-19 pandemic (as defined by their eligibility for the Commonwealth Government's JobKeeper program).

6. Engagement of barristers by Government agencies

The Attorney notes that the need for Commonwealth agencies to engage barristers is as important as ever and that his Department will continue to assist them in briefing the Bar in the current environment.

7. Federal Criminal Matters

The Attorney advises that all jurisdictions have already adopted or are in the process of adopting measures to enable bail applications and pre-trial procedures to progress without parties attending court in person. Further, while some criminal trials have been deferred, the Attorney is working with the Federal courts to implement arrangements for trials, including jury trials, to proceed safely and in accordance with social distancing requirements, including through the adoption of innovative technology where feasible. This will have a positive impact on the flow of work to Federal Crown and Defence Counsel.

8. Loan repayments

(a) The Attorney notes that many Australia banks are now offering sole traders the option to defer their payments for up to six months. Banks will ask applicants to self-assess the impact of COVID-19 on their business. To be eligible, the customer must have less than $10 million total debt to all credit providers.

(b) Interest free loans: The Coronavirus Small and Medium Enterprises (SME) Guarantee Scheme provides small and medium businesses, including barristers, with access to working capital to help them through the impact of COVID-19, whereby the Government will guarantee fifty per cent of new unsecured loans issued. The Government guarantee will apply to businesses with a turnover of up to $50 million on the following terms:

• Maximum total size of loans of 250,000 per borrower;

• Loans will be up to three years, with an initial six-month repayment holiday; and

• The finance will be unsecured, meaning that borrowers will not have to provide an asset as security for the loan.

(c) Support from the Australian Banking Association – Businesses, including barristers, with less than $10 million in total debt to all credit providers may be able to defer principal and interest repayments for all loans attached to the business for a period of six months, with interest to be capitalised and paid off over the life of the loan.

I intend to continue communicating with the Commonwealth Attorney-General in relation to these and related matters.

Guide to the JobKeeper Scheme - Employment in the time of COVID-19

Ian Neil SC, David Chin SC and Christopher Parkin of the NSW Bar have participated in a Zoom webinar entitled “Guide to the JobKeeper Scheme - Employment in the time of COVID-19”. The webinar is available to members and can be accessed using the password 9l$96u+2

The Bar Association would like to thank the Australian Labour Law Association for making the webinar available to our members.

The presentation is concerned with the position of employers and does not address (except to a very limited extent) eligibility as a business participant. Members are encouraged to check up to date information as it is evolving rapidly.

The Bar Association is also proposing to provide members with access to further webinars concerning COVID-19-related issues in the coming weeks and members will be kept informed of developments in this regard.

PWC advice

I mentioned in an earlier President’s Message that PWC Australia has provided the Australian Bar Association with a very useful high-level summary of tax issues associated with the spread of COVID-19 as they may apply to barristers and includes tax support measures and administrative relief available to barristers.

An updated version of that advice is now available here

The advice is general in nature and we draw your attention to the disclaimers contained in the summary. I would emphasise however that each member must take into account their own circumstances and seek their own specific advice as required.

Practising Certificate Renewals and Professional Indemnity Insurance for 2020-21

The practising certificate renewals process is imminent. As members are aware, professional indemnity insurance is a statutory requirement for all barristers in New South Wales. The NSW Attorney General, pursuant to section 95 of the Legal Profession Uniform Law Application Act 2014, approves the type of professional indemnity insurance policies, the level of insurance provided by the policies and the terms of the policies which can be offered to the NSW Bar.

For the 2020-21 practising year, the minimum level of PII insurance that a NSW barrister must take out is $1.5 million.

To assist barristers, the Bar Association publishes on its website all approved PII policies offered by Aon, Marsh, Suncorp, Willis Towers Watson and Austbrokers Countrywide, together with contact details, information about stamp duty exemptions and a table comparing the PII policies.

Please note that it remains the responsibility of the individual barrister to satisfy himself or herself as to the content of the policies on offer, the terms and conditions, and the premium applicable to them.

Practising certificate renewal documentation is expected to be provided to members next week. That documentation will also include information regarding hardship applications by eligible members.

Guide to COVID-19-related Court arrangements

The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments and includes a Note from the District Court of NSW entitled Satisfactory Arrangements for a Defendant to appear remotely - Virtual Appearance of Legally Represented Defendants in the company of Legal Representation.

Members are advised that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, they should refer to the latest court resources directly as circumstances are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

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