Public Law – Issue 14

From the editor

Kathryn Howard

Partner, Head of Hall & Wilcox Public Sector Industry Group 

A GRATEFUL LIFE

I have reflected on the past few months as I sat down to write this column. The overwhelming feeling I have is one of gratitude.

Gratitude for the fact that we live in a country whose sovereignty is respected by its neighbours.

That we live in a democracy that respects the peaceful transfer of power. That we value women in our society.

That we care for the less privileged in our society.

That we strive to be better as a society, and to lift everyone up. That, as a firm, we get to contribute to this change.

That, as a woman in leadership, I get to contribute to this change.

In this edition, we hear great stories of people making a difference every day.

From the Hon. Natalie Ward’s mission to combat coercive control over women, to Housing First’s incredible support for homeless pregnant women, to Professor Nolan’s call to strengthen modern slavery laws – and there’s plenty more.

So please sit back, have a cuppa and be inspired.

Client Interview: The Hon. Natalie Ward NSW Government Minister

By Matthew Curll,

Partner Matthew Curll caught up with Natalie Ward, the NSW Minister for Metropolitan Roads and Minister for Women’s Safety and the Prevention of Domestic and Sexual Violence. They discussed everything from politics to roads to coercive control.

You had a 20-year career as a lawyer. What made you take the leap into politics? And do you have any advice for others who are thinking of doing the same thing?

If you are community minded, if you’re interested, I encourage you to consider politics because it is the most amazing career. Yes, it’s hard. Yes, you’re a target for a lot of things but it’s such a great privilege to serve the community.

I had no intention of getting into politics. I was very happy being a lawyer and mum but I had a couple of mentors who encouraged me – my beloved husband, who can be quite persistent, and a really great friend who I worked for.

How difficult was it to transition from your previous roles as Minister for Sport, Multiculturalism, Seniors and Veterans into your current role as Minister for Metropolitan Roads and Minister for Women’s Safety and the Prevention of Domestic and Sexual Violence?

I loved all my previous portfolios and I still get involved in some of those aspects. The transition for me was about bringing passion to the portfolio areas that I’m presently doing, and roads is such an interesting area. Women’s safety is also a very clear priority for us as a government.

I was honoured to chair the Inquiry into Coercive Control. Coercive control is not necessarily well-known. It doesn’t result in physical bruising, it’s actually a lot of other controls including mental, financial abuse, intimidation, isolation, monitoring movements, gaslighting and several other controls which entrap women. Attorney General Mark Speakman has committed to outlawing coercive control in current and former intimate partner relationships as part of the NSW Government’s response to recommendations from the committee’s report, and I look forward to working with him on these important reforms. I’ve been really pleased to see growing awareness of coercive control in the community.

Just on the coercive concept, is that a NSW initiative or is this something that’s happening globally?

It has been implemented in Scotland quite successfully. It has been implemented in Tasmania but not used very much, and other jurisdictions are looking at it. We have learned from the overseas experiences in the UK and Wales, and the challenge is to educate people about what coercive control is, which includes educating the police, corrective services and others.

This has been a long time coming. There was a time when rape in marriage was legal. And that’s changed. So this is the next step.

Apparently your Twitter handle ends with soccer mum, so it’s the age-old question, how do you balance work and family?

I’m not terribly well balanced, I’m not a great example. I’ve got a great team around me and, as I say to the team, I’m just the lead singer or ‘front man’ singing in the band. You can’t do this without a drummer and a bass player and backup singers and the ground crew and the roadies, you’ve all got to be there.

Two of the most important people in your life are your mother and your husband. When you get a quiet moment to reflect with them on what’s become of you, what do they say?

At the end of the day, you’ve got to go home and answer to your mum and my mum’s pretty clear. She’s on the phone if we’re looking at doing something that she doesn’t agree with. I try and explain it and she’s probably my toughest constituent… well actually my kids are my toughest constituents. They are by far the toughest and my husband is just the greatest man I’ve ever met… he’s so supportive, incredible, kind, generous, smart. He’s even still a bit funny, and he has great insight. I can come home at 1:00am after Parliament and he’ll say, ‘How’d you go? How was your day?’. You know, if I can explain it to him in five words or less, it’s probably been a good day.

Connecting You: Haleh Homaei, CEO, HousingFirst

By Kathryn Howard and Kelsey Essex,

Haleh Homaei, CEO, HousingFirst, talked to Partner Kathryn Howard and Senior Associate Kelsey Essex about the inspiring work her organisation is currently doing, her personal journey, and her thoughts on leadership.

What is HousingFirst?

HousingFirst is a not-for-profit and regulated community housing association providing social and affordable housing to over 1,600 people across Melbourne and is among Victoria’s largest providers of community housing. HousingFirst develops and builds properties, owns and manages a range of long-term housing properties, and offers tenancy management services. To enable residents to improve their personal wellbeing and sense of inclusion, we build relationships between residents and with the surrounding community and link with the full range of local support services.

HousingFirst recently announced an important initiative called the Cornelia Program. Can you tell us about the Program?

The Cornelia Program aims to address a major gap in the housing system: there is currently no dedicated program or service Australia-wide that supports pregnant, homeless women and their babies, a very vulnerable group. It provides a pathway out of homelessness for this cohort.

A key goal is to keep the mother and baby together by providing vulnerable women with the best opportunity possible to care for and stay with their child, with an emphasis on keeping the baby safe and supporting the mother-child attachment. Sadly, at the moment, some women experiencing homelessness who also experience health problems (such as addiction) are being separated from their babies shortly after birth, sometimes with babies being moved into foster care. The negative impacts of this separation can follow mothers and babies throughout their lives, and sometimes they are not reunited.

Additionally, we want to enhance the long- term health and wellbeing of vulnerable women and their babies through the provision of high-quality, holistic and integrated health care and support. The final goal is to break the all-too-common inter- generational cycle of disadvantage through establishing them in long-term, secure accommodation and helping them gain skills and independence.

The Cornelia Program seeks to change the trajectory for both mothers and their babies. We have partnered with the Royal Women’s Hospital and Launch Housing to help these vulnerable and often frightened women through their pregnancy, through the first year of motherhood and beyond by helping them obtain long-term housing. The Program provides wrap-around community services and compassionate health care to support women to build their lives.

The Cornelia Program is named after the Roman hero Cornelia Africana, who was celebrated for her dedication to her children.

What are the pathways for women in the Cornelia Program into secure housing over the medium- and longer- term?

The Program works with these young mothers to find accommodation that suits their circumstances. Cornelia Program participants typically enter community or public housing. Indeed, several ‘graduates’ are now living in long-term HousingFirst properties. Other ‘alumni’ might move in with family or go into the private residential sector. I’m pleased to say none of our former residents have reverted to homelessness.

What is the future for the Cornelia Program?

The Program will run for a minimum of five years, following which it will be formally evaluated to provide evidence of its overall impact. We are working towards the Cornelia Program running in perpetuity.

If you could change one thing about the social housing space, what would it be?

A fully funded, long-term, bi-partisan strategy to address housing shortages and access to affordable housing. The strategy must be considered a continuum, from crisis to social/affordable rentals to home ownership. Current strategies are focused on the short-to-medium term, which makes it difficult to drive real change in this space.

What is a common myth around homelessness or affordable housing you would like to see busted once and for all?

A common response to homelessness is ‘this would never happen to me, I work hard, I’ve made good choices, etc’. Yet many of us, particularly women over 55, are just two pay cycles away from being in their own housing crisis. Things like relationship breakdown, illness or unemployment, and often a combination of these things, may mean someone previously living the ‘Australian dream’ loses their home and finds themselves couch surfing or living from their car.

Coupled with this is the perception that social housing should be built in rural and less desirable locations; the ‘not in my backyard’ response. Our residents are part of the fabric of any community and contribute greatly to building a rich community. Segregating the rich and poor will inevitably lead to the entrenchment of poverty in our society.

Turning to your own personal journey, you have a rich history in this space, and in empowering migrants. Tell us more about you!

I left Iran when I was 18 during the middle of the war between Iran and Iraq. I wanted to build a better life for myself, free from war and persecution, to feel safe and to have a chance as a woman to build my aspirations and contribute to my society. Australia has a rich history of migration and a significant proportion of Australians were born overseas, so empowering migrants empowers our nation; it is nation building.

What do you know now, that you wish you could tell your younger self?

I’m a perfectionist, and have spent many years worrying about ‘what if’. What if I fail, what if I make a mistake, or make a wrong decision. If I look back, I would tell myself don’t be afraid of making mistakes. The road is full of speed bumps, dust yourself off and make better mistakes next time. It will make you a more resilient person, stronger, and more insightful.

What inspires you as a leader?

Turning the impossible into the possible.

I like following people’s stories who have done this. Hitting impossible scenarios and not giving up, staying true to one’s values, and achieving possibilities that change the world and contribute to other people’s lives. I aspire to be like these people, and surround myself with them.

Award wins

We were honoured to win three awards at the Australasian Law Awards – Law Firm of the Year

(101-500 Lawyers), Law Firm Leader of the Year (>200 Employees): Tony Macvean, and Diversity Initiative of the Year.

The judges’ comments included: ‘Tony is an inspirational leader and a custodian of culture – his commitment to people and wellbeing is an example to all law firm leaders.’

‘Very impressed with the breadth of diversity and inclusion initiatives… A broad approach with eyes to all aspects of D&I.’

The judges praised the firm’s clear strategy and absolute commitment to delivering for clients.

Alison Choy Flannigan’s Celebration Granola

By Alison Choy Flannigan
Partner and Co-Lead, Health & Community

I make this granola every time I host a family celebration brunch, like Mother’s Day or Christmas. But it can work for any celebration.

Ingredients

120g pumpkin seeds 30g sesame seeds 120g almond flakes

50g pistachios, roughly chopped Pinch of cinnamon

2-6 tablespoons honey (I make it sweet!) 2-6 tablespoons brown sugar

150g toasted hazelnuts 150g macadamia nuts

150g toasted coconut (or toast your own desiccated coconut)

Dried fruit (I use small packs of dried cranberries and/or blueberries)

Method

Preheat oven to 160 degrees Celsius.

Spread the hazelnuts, macadamia nuts and coconut onto a tray lined with baking paper and toast lightly until golden, roasting each type of nut in a separate batch.

Combine all the ingredients together in a large bowl.

Line a large baking tray with baking paper, lay the mixture flat and cook for 15 minutes or until golden (I use two large baking trays and toast in batches).

Serve with fresh passionfruit yoghurt and fresh strawberries on the side. Alternatively, it can be served as a crunchy dessert on the bottom with layered gelato and strawberries (as a dessert, I make individual servings in a stemless wine glass and drizzle chocolate ganache on top).

Enjoy!
 

Can collaboration among local governments turn south east Queensland into a global powerhouse?

By Brad Marland

Changes approved by the International Olympic Committee (IOC) in June 2019, which ensured the Olympic Games could be hosted by regions and not only cities, could prove the catalyst to transform South East Queensland into a global powerhouse.

Local government areas poised to benefit from the IOC’s change of policy include Moreton Bay Regional Council, which sits between Brisbane and the Sunshine Coast and is the third largest local government in Australia – Moreton Bay is expected to have a population in excess of 700,000, bigger than Tasmania, within two decades.

Another is Logan City Council, located between the two major Olympic zones of Brisbane and the Gold Coast, which makes it ideally placed to capitalise on infrastructure development, forecast to have a population over 500,000.

The 2032 Olympics is a big driver toward South East Queensland acquiring powerhouse status, but so too is a rare level of collaboration between councils.

THE COUNCIL OF MAYORS OF SOUTH EAST QUEENSLAND

The Council of Mayors of South East Queensland was established in September 2005. It represents 11 councils in South East Queensland, and is now Australia’s largest regional local government advocacy organisation, representing the one in seven Australians who call South East Queensland home.

It was the driving force behind the Commonwealth Government, Queensland Government and Council of Mayors of South East Queensland signing the SEQ City Deal on 21 March 2022 – a joint commitment to deliver $1.8 billion worth of infrastructure that will transform the region.

The $1.8 billion investment will ensure South East Queensland is in a strong position to successfully host the 2032 Olympics, and should just be the start of future lobbying efforts to transform the region.

BEYOND 2032

There is already a push by the Council of Mayors for a speed rail linking Gold Coast, Brisbane, Toowoomba and Sunshine Coast – so far there has been talk of 160km an hour trains, but there is surely an opportunity to be more ambitious, and deliver a Japanese- style fast train network with higher speeds.

Big picture thinking is needed, both to serve South East Queensland’s growing population, and to grab the post-Olympics opportunity to become a major engine room of Australia, and eventually a global powerhouse.

ESG: Tackling modern slavery with Professor Justine Nolan

By Nathan Kennedy,

Head of Pro Bono & Community Nathan Kennedy spoke with Professor Justine Nolan about modern slavery and a new report calling on governments to strengthen Australia’s modern slavery laws.

Who are the most vulnerable groups when we consider modern slavery, and where do most problems occur?

There are often many layers to supply chains and most instances of modern slavery occur deeper into supply chains, where it is more opaque and harder to spot.

The most vulnerable people are generally migrant workers, both cross-border workers and workers within a country who seek work in another area. They often have little to no support, may not speak the language, and are generally not unionised or part of an organised group of workers.

People in the informal workforce are also vulnerable, as they fall outside the formal protections of workplaces. Modern slavery also occurs in sectors that are dispersed, such as fishing and palm oil plantations, where workers are often in far flung workplaces and divided.

Are there any common myths or misconceptions on modern slavery which you would like to expose?

The most common is that modern slavery does not happen in Australia, and that it’s not relevant to more developed countries. But there is a whole history of modern slavery occurring in Australia and other countries like the UK and the USA. Forced labour, forced marriage, and indentured servitude are present in nearly every country in the world.

What is the role of business in preventing modern slavery?

The first step is for companies to get better oversight and transparency across all levels of the supply chain. Responsibility for human and labour rights extends to all companies in their operations and supply chains, from top to bottom.

How is business held accountable for this?

Accountability is a challenge and there are a number of legislative initiatives emerging around the world (particularly in Europe) that seek to hold companies more accountable for labour exploitation. There is a need to incentivise business to do the right thing – both carrot and stick approaches, which may include introducing penalties and fines for non-compliance.

In Australia, the Modern Slavery Act requires certain businesses to report but no real accountability for a failure to act. At present there are no sanctions for businesses which do not report or do not take action to identify and redress modern slavery risks. Reporting is useful but not sufficient.

What do you hope to achieve from the current project analysing modern slavery statements?

The project involves a broad group (including Hall & Wilcox) and is looking at the effectiveness of modern slavery reporting by analysing over 100 companies’ second year modern slavery statements. The report on the first year of statements, ‘Paper Promises’ was released earlier this year. The current project will assess what comparative progress has been made by businesses to identify modern slavery and the effectiveness of the current modern slavery reporting requirements.

How can governments take steps to curb modern slavery in supply chains?

Establishing the Modern Slavery Act was significant, but we have to consider other regulatory approaches, such as a requirement to conduct human rights due diligence on a cyclical basis, like we do for environmental statements. New laws should make that mandatory and provide a compliance framework to make business accountable, such as the Corporate Sustainability Reporting Directive recently proposed by the European Commission. We also need to include remediation requirements and compensation for victims of modern slavery in our legislative approach.

What currently inspires you?

I’ve found working with the people on the ground, who often face retaliation and threats, inspiring. Groups like Save the Sepik in Papua New Guinea who are struggling to defend their land and their livelihood.

And students consistently inspire me, seeing their activism, purpose and promise gives more meaning to the work I do.

Who has been most influential on your career?

Michael Posner, now a professor at New York University. As a mentor, he provided opportunity, shared credit, and allowed mistakes. He has an amazingly optimistic outlook for someone who has worked on such grave and at times dispiriting human rights problems.

Also, Emeritus Professor Andrea Durbach at UNSW Sydney. Her knowledge and experience with the practice and politics of human rights is hard to surpass.

Book review: The Good Wife of Bath by Karen Brooks

By Melinda Woledge 

Many women in history and fiction have had their story told and shaped by others. But more books are retelling women’s stories from their own perspective, offering a more nuanced look at tales ranging from Greek myths to the modern day.

The Good Wife of Bath takes its inspiration from ‘The Wife of Bath’s Tale’ from Chaucer’s fourteenth century collection, The Canterbury Tales. Chaucer wrote at a time when women were identified by their relations to men, as a maiden, a wife, or a widow. A literary classic, ‘The Wife of Bath’s Tale’ is seen as either pro-feminist (a cry against patriarchal medieval society that blamed women for all ills) or anti- feminist (a story that highlights every perceived negative trait about women).

In Brooks’s novel, Eleanor Cornfed takes charge of her own story. It’s a rollicking romp through the life of a woman who wants just one thing: control of her own life. But in medieval England, that control is subject to the demands and desires of men. Nevertheless, she makes the best of what she is dealt.

Following the end of her fifth marriage, Eleanor struggles to create a new life as a ‘feme sole’ (literally, ‘a woman alone’ – in law, it meant an adult woman who was not married, or who was acting on her own regarding her estate and property). But always she runs into men who refuse to accept that a woman could be their equal.

The historical period is vividly created and it has surprising resonances to modern life. Despite the darker aspects of life as a medieval woman, this is an enjoyable read, with Eleanor’s irreverent voice never flinching from her flaws, or from the compromised choices she is forced to make.

Cyber attacks and data breaches: The best defence is a good offense

By Eden Winokur

Cyber attacks and data breaches targeting the public sector have increased in both frequency and impact in recent years, through sophisticated cyber criminals and groups aligned with adversarial nation states targeting Australian organisations that provide critical services or hold sensitive data.

RECENT CYBER INCIDENTS

In 2021 and 2022 alone, a wide range of public sector organisations have been subject to a cyber attack or data breach.

This includes state ambulance organisations, financial regulators, health providers, research institutes, transport organisations, Minister’s private email accounts, parliamentary email networks, state education departments, state governments, and Commonwealth agencies.

The impact these attacks have can be significant and disrupt the ability to provide critical services. For example, within the health sector, an attack has meant that patient medical records cannot be accessed, or surgeries could not proceed. For the education sector, it has meant students are unable to attend remote classes. When personal information is stolen, it can result in cyber criminals committing financial fraud against victims or using that personal information to launch further cyber attacks.

There are various steps that public sector organisations can take to mitigate cyber risk, although it cannot be eliminated.

KEY STEPS FOR STRENGTHENING CYBER SECURITY

All organisations, including those in the public sector, should consider the following:

Employee training to develop a cyber security culture where employees can identify cyber risk, particularly phishing emails and malicious links or documents.

Incident response plans, which are up-to-date, tested, and include a step-by- step guide to investigating suspected cyber attacks.

Legal advice is important for understanding your legal and regulatory obligations and any potential liability arising from the cyber attack, depending on the incident. Involving your lawyer may also assist in maintaining privilege over investigations, should legal proceedings be commenced at a later date.

Network security hardening should be implemented, including the Australian Cyber Security Centre’s ‘Essential Eight’ at a minimum. Common-sense cyber security can materially reduce legal risks associated with an incident.

Understand notification obligations based on regulatory and contractual obligations and rights. Don’t wait until you are in the middle of a crisis to identify notification obligations.

Kitty’s Know How: How to use heads of agreements in projects and procurement

By Kitty Vo

Each important destination requires a road map. For government projects and procurement, these road maps may take various forms, including heads of agreement (HoA), memorandums of understanding (MOU), letters of intent (LOI) and terms sheets (referred to as ‘HoA’ for the purposes of this article). Each serve similar purposes.

A HoA records key commercial terms, such as:

• the identity of the parties;
• a description of the project or the goods or services being supplied;
• the project costs/fees for goods or services;
• key milestone dates and delivery times;
• outline of the parties’ rights and obligations;
• outline of conditions that must be satisfied;
• termination rights;
• confidentiality obligations;
• the requirement for parties to enter into a binding and definitive contract; and
• the requirement for board approval, Minister’s approval, satisfaction of regulatory processes etc.

Even though a HoA is usually expressed to be a non-binding document, the parties can agree that certain parts of the HoA are binding. For example, keeping negotiations and the existence of the project confidential, or requiring a party to pay preliminary costs and expenses incurred by the other party if the former withdraws from the project before binding contracts are signed.

It is recommended that critical matters be addressed in the HoA at the outset because it may be difficult to introduce new concepts at a later date. Surprises will only delay negotiations. Issues falling in this category include early termination rights, liquidated damages (eg for delays), whether specifications or preconditions must be met, and whether an exclusive dealing period and a sunset date for the project applies.

However, parties can often be bogged down negotiating the HoA, which detracts from the Main Event – the binding contract. It is important to find the right balance so the HoA helps but does not hamper the parties’ flexibility to negotiate the binding contract.

What’s happening

UPCOMING WEBINARS

We’re delighted to be running our Public Sector series for the second half of 2022. Presented by Hall & Wilcox leading experts, all sessions will be virtual and complimentary to attend.

Topics include:

• Mitigating cyber risk
• Defamation and reputation management
• Enterprise agreements: hot topics and emerging issues
• Business and human rights
• Governance: investigative remit, powers and investigative processes of the IBAC
• Spotlight on contract disputes in the public sector

Register now

BOARDROOM LUNCH

We were delighted to host The Hon. Anthony Roberts, Minister for Planning and Homes, in our Newcastle office for a boardroom lunch with key Newcastle community housing providers and developers. It was an engaging discussion about the future of planning in the region, with a focus on social and affordable housing.

Repair and maintenance obligations under long-term government leases

Government authorities should consider several circumstances when negotiating a repair and maintenance provision with prospective tenants.

A well-drafted repair and maintenance provision should clearly identify:

• who is responsible for undertaking repairs and maintenance;
• who is responsible for repairs arising from fair wear and tear, or works of a structural or capital nature; and
• the recovery of costs.

A standard repair and maintenance clause provides that the tenant is responsible for repair and maintenance, except when the required repair or maintenance results from fair wear and tear or relates to items of a structural or capital nature. However, a standard clause may not be appropriate for all government leases and can lead to disputes.

WHAT SHOULD AN AUTHORITY CONSIDER WHEN NEGOTIATING A REPAIR AND MAINTENANCE PROVISION?

• Whether the tenant has been granted a ground lease with development obligations: if so, it is usually appropriate that the tenant will be responsible for all repairs and maintenance in relation to the developed asset, including rectification of defects, works of a structural or capital nature, and repairs required due to fair wear and tear.
• The term of the lease: repair and maintenance obligations in a 20-year lease are likely to be more onerous than obligations in a six-month lease.
  If the tenant will occupy the premises long-term, it is more appropriate they assume responsibility for all repairs and maintenance including structural and capital works.
• The make good obligations: if the tenant is required to leave the asset or infrastructure in place on termination of the lease, the authority may consider more prescriptive obligations to ensure premises are returned in a condition allowing them to continue being used and operated.
  If the tenant is required to remove the asset or infrastructure from the land on lease expiry, it may be appropriate that there is no obligation to repair damage arising from fair wear and tear, or to ‘water down’ those obligations toward lease’s end.
• The rent: if the tenant is paying a peppercorn rent, it may be appropriate they be responsible for all repair and maintenance obligations including structural and capital works in exchange for not paying a market rent. Alternatively, the lease may provide that the landlord will not be responsible for any structural or capital works, to minimise the risk of a dispute.
• A potential default by the tenant: if the tenant fails to comply with the repair and maintenance obligations in the lease, the authority should consider whether the obligations should then be broadened to include the repair or replacement of items of a capital nature where they have become dilapidated due to the tenant’s default.
   

KEY LESSONS

By Christine Scott

Authorities should ensure repair

and maintenance provisions are well drafted, clearly identify responsibility, consider the unique expectations of their leasing transaction, and ensure the lease reflects those expectations.

A well-drafted repair and maintenance clause ensures the authority’s assets are kept in good repair and mitigates the risk of tenant disputes.