There are new laws in force in New South Wales relating to spitting and coughing because of the COVID-19 pandemic. These laws may result in very serious penalties.
Pictured: Public Interest student Marcus James and Managing Principal Solicitor Vasili Maroulis
Marrickville Legal Centre has welcomed 9 law students as part of its pilot student placement program. The program takes place over 12 weeks as part of the University of Sydney’s Public Interest Law Clinic. The elective course for law students provides practical experience with advice and cases, clients, and research projects. Student volunteers elect based off interest areas which MLC service they wish to work with and learn more about.
This semester MLC’s student placements had the opportunity to work across our Duty Lawyer Service, General Legal Service, Family Law Service, Strata Collective Sales Advice & Advocacy Service, and our two Tenants’ services.
“The placement allows students to engage and actively assist vulnerable and disadvantaged clients in a meaningful way.”
On the value of this opportunity for law students, MLC Assistant Principal Solicitor Justin Abi-Daher says, “The USYD public interest placement is a great opportunity for law students to truly practice the concept of access to justice in a real-life legal environment. The placement allows students to engage and actively assist our vulnerable and disadvantaged clients in a meaningful way. The students are an extremely valuable asset to have at the centre as they allow us to increase our ongoing assistance to clients. I highly recommend the placement.”
“You can’t learn that in a classroom.”
Public Interest Law Clinic student Marcus began his placement experience working with the Duty Lawyer Service (DLS) at Burwood Local Court. Marcus says this provided him with an opportunity to engage with clients face-to-face, support the solicitor with advice, and attend live court hearings. As the first port of call for clients who are often distressed, Marcus shares that it is important to show empathy and work efficiently. “It’s a lived experience. You listen, you take away key issues, and respond,” he shares. “You can’t learn that in a classroom.”
As COVID-19 restrictions set in and courts suspended operations, the DLS responded in real-time, launching a community education campaign to inform people in New South Wales about rapidly changing public health orders. Marcus and his cohort had a hand in helping the DLS team compile these resources, as well as assisting on traffic law cases and advice.
As the placement draws to a close, Marcus reflects that his placement experience was exciting, fulfilling, and “really highlighted the value of CLCs having the ability to quickly adapt and respond to change.”
Court proceedings can be daunting. For those who do not have the financial means to seek private legal representation, or who may be unfamiliar with the nuances of the legal process, this can particularly intimidating. A new Duty Lawyer Service (DLS) has stepped in to decode the process for anyone attending court.
Launched in February 2020, the DLS is an initiative from Marrickville Legal Centre in conjunction with the Burwood Local Court. The service works to fill the gap in the provision of legal services and representation of unrepresented litigants who attend the local court for domestic violence proceedings, traffic violations and summary crime. The initiative is a safety net for individuals who are not eligible for a grant of aid from Legal Aid NSW.
Burwood, and its surrounds, is home to a melting pot of cultures. It is therefore common for many Culturally And Linguistically Diverse litigants to encounter issues with complex legal jargon and court documents. The DLS works to overcome language barriers to ensure all people are given an equal opportunity at court.
In its early days, the benefits of the project are already apparent. Over a 4-week period, 80 individuals have been assisted in traffic and minor criminal matters and 39 in AVO matters.
On the value of the service for clients, Marrickville Legal Centre solicitor Danny Shaw shares “This service provides fundamental assistance and advice to help people navigate the legal system and the court process. Without the service,” he shares, “Many people have no understanding of court procedures, are unable to read court documents and are confused about what they should do.”
The initiative promotes efficient use of court time as DLS clients receive legal advice in a timely manner, including many instances where there is no legal defense.
Burwood Court has shown its support of Marrickville Legal Centre’s Duty Lawyer Service; providing its duty lawyers with conference rooms as well as facilitating collaborative relationships between MLC and the NSW Police Force, Domestic Violence Liaison Officers and Legal Aid.
“If these people did not receive legal support, they would remain confused, would take up court resources, and often enter inappropriate pleas,” Mr. Shaw commented. “It is critical that all people be able to understand their rights and obligations throughout the legal process.”
Since the onset of the global COVID-19 pandemic, the DLS has continued to provide legal advice and representation for disadvantaged clients on a remote basis.
The service was endorsed by Chief Magistrate of the Local Court, Judge Graeme Henson AM, who stated the service “would be invaluable in the current climate as the Court begins addressing the backlog of matters arising from necessary COVID-19 pandemic arrangements.”
Marrickville Legal Centre hope to continue the initiative at Burwood Local Court in 2020-2021 and propose to expand to Sutherland Local Court. A $1.5 million saving to Government has been projected across the two local courts. Potential flow-on effects to NSW Police are likely, allowing the redeployment of officers and prosecutors.
The Duty Lawyer Service is part of Marrickville Legal Centre’s commitment to promoting social justice for people who are disadvantaged by our legal system, and its vision to create access to justice for all.
For media enquiries please contact Maeve Redmond, Fundraising & Communications Manager, email@example.com
Our state-wide Youth Legal Service (YLS) runs weekly advice clinics on Monday evenings. Recently the advice clinic has shifted how it operates to advise vulnerable young people, many of whom are impacted by COVID-19. We’ve put the spotlight on what a remote advice clinic looks like for the volunteer solicitors and staff who commit their time and expertise to help young people in challenging circumstances.
How the YLS Advice Clinic works
Ordinarily, the YLS advice clinic runs as a telephone advice clinic in the Sydney CBD. Volunteer solicitors will finish their workday around the city and head to Colin Biggers & Paisley (CBP) offices near Sydney Town Hall where they’re briefed on matters for the evening.
Volunteer solicitors come from a number of firms including pro bono partners Baker McKenzie, Colin, Biggers & Paisley, Hall & Wilcox and Johnson Winter & Slattery to provide legal advice to young people across NSW on matters including fines, employment and crime.
Adapting to remote advice clinics
Our volunteer solicitors have adapted quickly to their own new circumstances to continue delivering access to justice to those in need.
Youth solicitor Katie Green, who supervises the clinic, describes how the transition to remote advice clinics has been.
“Although we are currently all working from home, I have to say that running the clinic from Colin, Bigger and Paisleys’ offices is much easier and friendlier. I also don’t have to listen to my toddler crying in the background!” says Katie.
The advice clinics are generally very busy and tend to around 20 cases in a night. MLC is privileged to receive regular support from volunteer solicitors and legal assistants who now coordinate those matters over the phone, from their own homes.
The next day at MLC, Katie and Practical Legal Training students do all the follow-up work. Presently, for example, the YLS is assisting a number of young people to draft letters to their employers – to agree to change their employment contracts on a strictly temporary basis until COVID-19 subsides.
Despite temporary COVID-19 measures, young people are continuing to receive the legal advice they need and the MLC volunteer community remains tight-knit.
“For now we are missing our sushi dinners and the usual banter between our amazing volunteers but overall it has been a smooth transition and we are managing well.”
MLC champions and volunteer solicitors
Nick and Holly, pictured in the header image, are volunteer solicitors from Baker McKenzie. Nick and Holly play a huge role in assisting with COVID-19 employment-related enquiries for the YLS advice clinic.
“It’s a pleasure to work with all the solicitors who assist,” says Katie.
“We have great relationships with our pro bono partners, solicitors get a great feeling out of volunteering, and it’s fun and dynamic means of creating access to justice for more people in our community.”
Holly Ritson, 29, (pictured top-right) on what it’s like delivering legal services remotely, shares “providing advice to clients over the phone on a remote basis is not that different compared to how we normally work, where volunteers provide advice over the phone at CBP.”
Except now, says Holly, volunteers can provide legal advice “from the comfort of our own homes with a home-cooked meal”.
Holly notes that it’s been concerning to see a growing number of COVID-19 related issues affecting young people in terms of their employment and other consumer-related issues.
The YLS clinic is an essential service to young people who, like the rest of our community, are doing their best to get by in an uncertain and constantly changing climate.
Marrickville Legal Centre thanks all of our champion volunteers who are helping our community from home!
It is an offence to intentionally spit at, or cough on, a public official or a worker while the worker is at the worker’s place of work or travelling to or from that place.
The spitting or coughing must also be done “in a way that would reasonably be likely to cause fear about the spread of COVID-19.”
Meaning of “worker”
“Worker” is very broad. Examples include:
- Retail workers;
- Bus, taxi and ride-share drivers;
- Food delivery workers; and
- Postal delivery staff.
Meaning of “public official”
For the purposes of the offence, a “public official” means:
- Health workers;
- Police officers;
- Immigration and border protection workers;
- Any person exercising public functions under NSW law – e.g. transport officers and council rangers; and
- People employed by the Commonwealth Department of Health.
If you commit an offence under these new provisions, you may be issued with an on-the-spot fine of $5,000. If the matter is dealt with by the Court, the Court may increase the penalty to $11,000 and record a conviction, or imprisonment for six months, or both.
Q: John films a viral prank video by coughing on police officers, while saying he has COVID-19. Has John committed an offence?
A: Yes. This is an offence under the new laws. John has intentionally coughed on police officers, who are “public officials”. He has done so in a manner that would reasonably be likely to cause fear about the spread of COVID-19.
Q: Mary is at hospital and has a coughing fit. She tries to cover her mouth using her elbow, but accidentally coughs on one of the nurses. Has Mary committed an offence?
A: No. Mary has not committed an offence because she did not intentionally cough on the nurse.
Q: Robert and Ruby are in self-isolation after their housemate Mary tested positive for COVID-19. An altercation occurs in their home office where Ruby spits on Robert while he is in a Zoom meeting. Has Ruby committed an offence?
A: This is an offence under the new laws since Robert works from home and the home office is not used solely for residential purposes.
Existing offences involving spitting or coughing
You may also be committing an offence or civil wrong under existing laws for spitting or coughing.
Spitting or coughing on someone may be a common assault under s 61 of the Crimes Act 1900 (NSW). It will be an offence if the coughing or spitting intentionally or recklessly causes another person to apprehend immediate and unlawful harm.
It is also an offence if there is an intentional or reckless application “of force” to another person. Spitting on another person, even if it only touches their clothes, is considered to be the application of “force” to another person.
The maximum penalty for common assault is 2 years’ imprisonment, a fine of $5,500 or both (when dealt with in the Local Court).
Spitting and coughing may also be a tort (a civil wrong against another person).
Seek legal advice
If you have received a penalty notice (i.e. a fine) or a Court Attendance Notice, please seek legal advice. It is very important to seek legal advice before electing to take a penalty notice to Court. Electing to take a penalty notice to Court can have very serious consequences.
You can submit an online enquiry to Marrickville Legal Centre through our website: www.mlc.org.au or by phone on (02) 9559 2899 if you are unable to access the internet.
This page is not legal advice. The legal information contained on this page is current as at 24 April 2020.
The NSW Government has introduced new laws that prevent some tenants being evicted during the coronavirus pandemic. Marrickville Legal Centre’s Tenants’ Services have broken down the new Regulations announced on 15 April 2020 to explain what the protections are and who they apply to. You can also find some practical tips about how to talk to your agent or landlord.
What are the protections?
There is an interim 60 day stop on landlords evicting tenants for rental arrears if their household has been financially impacted by coronavirus.
There is also a prohibition on listing a tenant on a tenancy database (‘blacklisting’) if the listing would be from rent arrears that are the result of being financially impacted by coronavirus.
Do the protections apply to me?
The 60 day stop on rent arrears evictions will apply to tenants who live in a household where:
- One or more people who pay rent have lost or have reduced income due to coronavirus; and
- The weekly income for the household has been reduced by 25% or more.
What happens to my rent?
Landlords are not required to agree to a reduced rent, but they must enter into a good faith negotiation with you about the rent.
It will be up to the NSW Civil and Administrative Tribunal decide what ‘good faith’ means, however that a good faith negotiation should mean that the landlord:
- Considers information provided by the tenant about their loss of income and the rent that they can afford.
- Considers reasonable offers made by the tenant about an affordable rent
- Provides reasons and financial information if they will not agree to an offer
- Does not simply insist on a deferral of rent payments (a temporary reduction that the tenant has to pay back)
Your rent will stay the same while you are negotiating with landlord or agent but you can suggest to the landlord or agent that any agreement to vary the rent should apply from the time that you lost income.
The landlord wants me to pay back the rent later on, do I have to agree to that?
The new laws do not prevent a landlord from asking you to repay rent at a later date.
However, the negotiation with the landlord has to be about a fair and reasonable rent. Our position as Tenants’ Advocates is that is not fair and reasonable for a landlord insisting that a tenant repay all of the rent later. Having to repay a large debt in 3 or 6 months time would place many tenants in severe financial hardship and may mean that they still lose their tenancy.
The code of conduct for commercial tenancies suggests that the variation of the rent can be a mix of rent waiver and deferral, but the rent waiver has to be at least 50% of the variation. The commercial code of conduct won’t apply to your tenancy, but it gives some guidance about what might be a reasonable offer from the landlord.
What happens if my landlord won’t agree to vary the rent?
If the landlord and tenant can’t agree a change to the rent, there will need to be a formal rent negotiation through the NSW Fair Trading dispute resolution service. Either the tenant or the landlord can contact Fair Trading and start that formal process.
NSW Fair Trading can’t make binding decisions about a fair rent, but they will assist the parties to negotiate and give advice.
What happens after the 60 day stop on evictions?
After the end of the 60 day stop on evictions, the landlord can issue a 14 day notice of termination on the grounds of rent arrears if the tenant is more than 14 days behind in their rent. However, for the next 6 months the landlord will only be able to give that notice if:
- If it is after the 60 day stop on evictions has expired; and
- The landlord entered in good faith into a formal rent negotiation through NSW Fair Trading;
- It is fair and reasonable in the circumstances to terminate the tenancy.
Do I have to leave if I get a notice of termination for rent arrears?
If you are in an impacted household and you get a rent arrears notice of termination notice in the next 60 days, that notice is invalid and unenforceable.
If you are in an impacted household and you are given a rent arrears notice after the end of the 60 days, you don’t have to leave and you aren’t doing anything wrong if you stay in the property.
The landlord will need to apply to the NSW Civil & Administrative Tribunal for an order terminating the agreement.
What will happen at the Tribunal?
If you are in an impacted household and your landlord applies to the Tribunal to terminate your agreement, the Tribunal will decide whether or not to evict you from the property.
The Tribunal has a choice whether or not to terminate your tenancy and can consider all the circumstances, including:
- Any advice provided by NSW Fair Trading about the landlord and tenant’s participation in the formal rent negotiation process, including whether they refused reasonable offers.
- Whether the tenant was able to make any payment towards the rent
- Any financial hardship experienced by the landlord or tenant, including their general financial position.
- Any special vulnerability that the tenant has.
- The general public health objectives of keeping people in their homes.
The Tribunal can decide not to evict you from the property, but it cannot reduce your rent because of financial hardship and any rent arrears owed will be payable to the landlord.
What about other types of termination, can my landlord evict me for no reason?
The 60 day stop on evictions only applies to terminating a tenant in an impacted household on the grounds of rent arrears (or a failure to pay water or utility charges).
There is no prohibition on a landlord issuing a notice on ‘no grounds’ or for other reasons. However, for the next 6 months the notice period for some terminations has been extended to 90 days. That extension applies to:
- Termination at the end of the fixed term of an agreement
- Termination of a periodic tenancy (that was already a 90 day notice period)
- Termination for a breach of the tenancy agreement
- Termination of a tenancy of longer than 20 years.
Those extended notice periods apply to all tenancies in NSW, you do not need to be a tenant in a household that has been financially impacted by coronavirus.
This is a lot of legal information, but what should I be doing now?
If you are a tenant in a household that is financially impacted by coronavirus, we think the practical first steps are to:
- Contact your agent or landlord and let them know that you have lost income and cannot afford the full rent.
- Provide them with information about your previous income and what your income is now.
- Have a look at your household budget and work out what you can afford to pay in rent. Paying more than 30% of your gross weekly income towards housing costs (rent, utilities etc) is rent stress. You can reasonably say to your agent or landlord that you can’t pay more than 30% of what you are getting as income each week.
- Continue to pay an amount of rent that you can afford while you are negotiating.
- If the agent or landlord says that they cannot afford to vary the rent, ask them to provide specific information about the landlord’s financial position. That could include information about:
- Whether the landlord has a mortgage for the property
- What the payments on the mortgage are and whether they have been deferred
- What are the landlord’s fixed costs for the property in the next 3 – 6 months (rates, maintenance etc)
- Whether the landlord is eligible for the land tax relief announced by the NSW Government
- Be careful of agreeing a deferral of the rent, rather than a reduction. A deferral means that you have to pay back the rent at a later date and this may put you into severe financial distress.
- If the agent or landlord is insisting on a rent deferral, give them information about your likely income once the pandemic has passed and whether you could afford to make repayments on top of your weekly rent.
If you can’t reach an agreement on a new rent or if the agent or landlord is insisting that you pay back all the rent at a later date, contact the NSW Fair Trading dispute resolution service and ask them to help you negotiate a fair and reasonable rent.
My agent or landlord has asked me for a lot of details about my finances, can they do that?
The Australian Securities & Investment Commission has been very clear that agents and landlords cannot suggest that you should access your superannuation to meet rent payments. They can make you aware of the Government’s scheme allowing early access, but anything beyond that may be unlicensed financial advice and they could face serious penalties including imprisonment.
There is no prohibition on agents or landlords asking for other types of financial information, such as your income or the amount of your savings in the bank.
However, our view is that the negotiation should be about the tenant’s loss of income and the landlord’s ongoing expenses. This is in line with the code of conduct introduced for commercial tenancies and the sort of information that tenants need to provide when they apply for a property. We do not believe it is fair and reasonable to require a tenant to spend all their savings to pay rent during the coronavirus pandemic.
Do you have any examples of how this all works?
NSW Fair Trading have published examples of how the laws will apply in different situations. You can see those examples at the end of the page here.
We will provide more examples as we talk to tenants and get an idea of the most common or confusing situations.
How do I get more information and advice?
NSW Fair Trading has put an explanation of the new laws on its website and you can find that here.
The Tenants’ Union of New South Wales has excellent resources and explanations about renting under COVID-19. You find that information here.
The Tenants’ Union has also put up an analysis of the new laws and their concerns about what’s missing from the protections. You can see that here.
If you have read through this FAQ and looked at the information from the Tenants’ Union and Fair Trading and you need advice about your situation, you can contact our service on 02 9559 2899 or submit a web enquiry.
Updated on 16 April 2020.
If you have read through this FAQ and looked at the information from the Tenants’ Union and Fair Trading and you need advice about your situation, you can contact our service on 02 9559 2899 or submit a web enquiry.
This page is not legal advice. The legal information contained on this page is current as at 16 April 2020.
Marrickville Legal Centre Tenants’ Advocates provide a brief summary of the eviction moratorium announced by the NSW Government. A more detailed update will be posted following the publication of the Regulations implementing the moratorium on 15 April 2020.
Emergency measures to protect tenants
Over the weekend the NSW Government announced emergency measures to protect tenants experiencing hardship as a result of the coronavirus pandemic. NSW Fair Trading has provided some information about the measures and who they will apply to.
The Regulations to implement the emergency measures have not yet been published* so precise details of the measures are still to come, particularly those preventing evictions for reasons other than rent arrears and protecting tenants from listing on a tenancy database.
However, from the information provided on the website of NSW Fair Trading it appears that:
- There is protection from eviction for households who have lost 25% or more of their income due to COVID-19 (inclusive of any Government assistance).
- There is a requirement for landlords and tenants to try and negotiate rent reductions or deferrals, but no requirement for a landlord to agree to a reduction.
- NSW Fair Trading’s dispute resolution service can assist tenants and landlords to try and agree on a variation to the rent.
The Tenants’ Union of NSW publishes regular updates on renting and COVID-19 and is an excellent source of reliable information.
You can call our service for advice on 02 9559 2899 or submit a web enquiry for the Inner West and Northern Sydney tenancy services. We are experiencing a high level of demand at the moment but we will contact you as quickly as we can.
Further information from the NSW state government is available here.
Marrickville Legal Centre’s tenancy services will provide a further detailed update following the publication of the Regulations implementing the moratorium on 15 April 2020.
*Regulations have been published on 15 April 2020 after this Marrickville Legal Centre article was published.