Public Law – Issue 18

From the editor

John Gray

Partner, NSW Government Co-Lead

Earlier this year, my wife and I saw Rod Stewart in concert. Let me just say he was great in the ’70s, but his voice was not so great in his 70s. Still, the old crooner was on stage for three hours, clearly loving every musical moment. It reminded me of the golden life lesson he talks about in his autobiography. ‘To be properly contented,’ says the man with the spikey mullet, a person ‘needs three things: a job, a sport and a hobby’ – in Rod’s case, singer, soccer player and model train enthusiast!

In 2022, I celebrated 30 years in my job as a lawyer. Over that time, I’ve heard all the lawyer jokes in the world, but none of them has dented my firm belief that being a lawyer is one of the great careers a young person can embark upon. The law offers what experts say all bright and motivated young people seek – not just the mastery of useful knowledge and skills, but also, and more importantly, the chance to make a difference in society. 

As I write this piece, it’s just been announced that another bunch of old crooners, the Rolling Stones, have released a new single called ‘Angry’. The debate about the upcoming Voice referendum has produced anger in both the ‘yes’ and the ‘no’ camp. While lawyers are trained to move beyond anger and use our knowledge and skills to analyse the issues and inform others of the implications of each potential outcome, we all have this ability – and indeed a responsibility to inform ourselves before we cast our vote in this all-important referendum.

As we move into the new season of Spring, which generally heralds a time of rebirth and rejuvenation, my wish is that we can put anger behind us and focus on gratitude for all the good things we do have in life – which I hope for many of you includes a good job, a good sport and a good hobby. I’m certainly glad that I have a great job, a sport I love in golf, and the wonderful hobby of cooking for family and friends.

Law Firm of the Year

We were incredibly proud to win Law Firm of the Year at the Lawyers Weekly Australian Law Awards in Sydney last month. Thanks to our clients and our team for supporting us to achieve this recognition, which reflects excellence, innovation and corporate social responsibility.

Changing leadership

Hall & Wilcox’s Managing Partner Tony Macvean has announced he will be stepping down in June 2024 after 16 years in the role. We’re pleased to announce that fellow partner Graydon Dowd has been elected as the firm’s Chief Executive Partner from 1 July 2024. Stay tuned for upcoming interviews with both Tony and Graydon.

Navigating the transformative shift in Australian workplaces

By Alison Baker

An acronym everyone is now familiar with, the concept of WFH (work from home) has evolved significantly in recent years. From a somewhat novel arrangement
with limited adoption, it’s become a mainstream, regularly expected practice, that has reshaped workplaces and policies.

Accelerated during COVID-19, it’s on the radar of many in the public sector again with news that new WFH rights have been agreed for Commonwealth public service employees. This deal was part of a framework agreement negotiated by the Community and Public Sector Union and it is set to impact 174,000 people across more than 100 federal agencies. It grants public service employees the right to request unlimited WFH days, and the right to appeal refusals.

So, what does this mean in practice, and how could other parts of the country – at all levels of government – implement similar policies in a way that is sound, sustainable and fosters employee satisfaction?

Here are some considerations to work through:

• Assess organisational needs: Assess your organisational needs to evaluate your requirements and capacity for implementing WFH policies. Each workplace will have unique objectives, challenges, output, infrastructure and opportunities for remote work.
• Assess each role on an individual basis: While WFH opportunities may be suitable for certain roles, the nature of some jobs might make remote work impossible to fulfill their functions. Assess each role individually to determine its suitability for WFH, rather than implementing blanket policies. Also, it will be essential to ensure that employees who can perform their role remotely have a safe and healthy home office set-up.
• Consider culture, collaboration and communication: While certain roles might allow for remote work, it’s important to consider other aspects. Is collaboration
  with other teams or departments crucial to the role? Are regular face-to-face meetings required for effectiveness? Could culture be impacted if some employees are fully remote while others work at the office?
• Set solid and sound policies, with clear communication: Be clear in setting expectations and explicitly address exceptions. Be consistent, understand cultural impacts and reinforce responsibilities, such as expectations around attending team events in person or face-to-face meetings with certain stakeholders. Address the reasons upfront for remote versus in-office arrangements to avoid employee dissatisfaction.

Stay in touch for recent developments in the Fair Work Act and to understand the complex considerations of public sector enterprise agreements.

Inspiring careers: Dr Nikola Stepanov

By Brad Marland

Considering a career change? Exploring a different sector? Perhaps a whole new location? That’s what Dr Nikola Stepanov did. Transitioning from her career in regulatory and governance roles in Brisbane, she embarked on a journey to Toowoomba, in the rapidly growing region in South East Queensland. Now she leads Planning and Development at the Toowoomba Regional Council. Partner Brad Marland made the trip from Brisbane to Toowoomba and chatted to Nikola about her career, her diverse days and how this role looks to the future – to 2051 in fact.

You lead the planning and development team – but your background isn’t planning tell us about that.

That’s right – I don’t have a planning or development background; however, that’s not been a hindrance as the role is so diverse.

I work with a range of stakeholders to achieve the best outcomes for our community. Also, always thinking strategically about how to better position our Council to take advantage of economic development opportunities. Where needed, I sometimes resolve tensions that arise in development matters.

I’m an accredited mediator and have had various executive, regulatory (lobbying) and governance positions. This role is so diverse, so I’ve had to draw on different facets of my career experience.

What’s a day like working in a bustling local government?

It’s certainly some of the most interesting work I’ve ever done. For those wanting a real change – it’s such a rewarding role in beautiful surroundings. Life here really is good.

Each day is different. I can be reviewing development applications and infrastructure agreements, working with Councillors to achieve resolutions, managing multi milliondollar contracts, addressing workplace issues and developing policies to ensure our decision-making is just and fair.

It’s rewarding seeing the results of our decisions – and often in high viz gear!

Do you get to collaborate with others?

This role’s incredibly collaborative. It involves community consultation, industry engagement and representation by Councillors to promote economic development and to design and deliver the community’s vision.

I also lead a talented team of engineers, planners, plumbers, architects, building certifiers, administration, economic officers, project managers and urban modellers.

It’s a diverse group.

Why are diverse perspectives important for this role?

It’s crucial to have diverse people coming together if you truly want to see projects that represent your community. It’s why we encourage women and individuals from diverse backgrounds to pursue local government careers.

What’s going on in Toowoomba?

There’s lot going on here – and more to come! The driving force for my team is the Toowoomba Region Futures program. We’re planning for growth out to 2051, with a new growth plan and ongoing work around infrastructure and planning. Our projections predict 66,000 new residents, 35,900 jobs, and 27,000 homes in the next 30 years. So, to tackle this growth, we have several projects underway, including the Central Highfields City Centre, a 20-hectare space for businesses and homes. We also look at required infrastructure needs, like roads, sewerage and water.

We prioritise risk mitigation and management and responsiveness to natural disasters as well, so that Council can support our community through these events and recover.

How do you think lawyers can add value to planning and development roles?

To ensure Council decisions are carried out with integrity, it needs experts who uphold policies and procedures to the highest standard. Our legal experience puts us in a unique position to help ensure Council decisions are carried out transparently.

We follow inquiries to see if there are any learnings for how we can address any perceived or actual gaps. I’ve been waiting for the release of IBAC’s Operation Sandon report, looking at corruption allegations in local government planning and property decisions. It’ll be interesting for local governments nationally.

If anyone is interested in a local government role – and moving to Toowoomba especially – what should they do?

Our goal is to enhance our liveability for our community to thrive and flourish – and we’re always looking for diverse skills to achieve that. So, get in touch.

Forging Australia’s tech future

Partner Jacqui Barrett attended the Tech Council of Australia’s National Tech Summit, ‘Forging Australia’s Tech Future’. The inaugural summit focused on opportunities, challenges, the impact of AI, emerging cyber threats and upskilling the nation for the digital economy developments ahead.

According to Jacqui: ‘It was amazing to witness the optimism in the industry and incredible enthusiasm for the future of the tech sector in Australia. Another highlight was understanding the critical role of government in supporting and promoting the tech sector and the opportunity for greater collaboration with industry and all levels of government.’

Man Made: How the bias of the past is being built into the future by Tracey Spicer

By Melinda Woledge

AI is everywhere – and so are the debates around it. It’s often discussed in binary good/bad terms: AI is a great revolution that will transform our world, or it’s the end of civilisation as we know it.

But what if this debate misses an essential point? Tracey Spicer argues that instead of focusing on how AI will change our lives, we should be looking at who is driving AI development and how it is being coded. If existing biases are encoded into the machines that will run our futures, will our future world end up replicating – even exacerbating – bias around race, gender, age, sexuality and disability?

Spicer argues that if there is bias in the datasets or algorithm, the results will be tainted: ‘These innovations are supposed to make our lives easier. Spoiler alert: they don’t. Instead, they’re reinforcing the mistakes of the past. Actually, it’s worse. They’re amplifying inequity.’

The machines look for patterns from the past; an expert Spicer interviews says the tech companies use texts from the 1970s and 1980s to train the machines. This throws up new issues that the law must catch up with. For example, discrimination may happen by proxy – the machine may have been trained on biased data, but this discrimination is covert and difficult to challenge.

In this well-researched, pacy book, Spicer looks at all aspects of AI in our lives: voice-activated software, submissive female-gendered voice assistants, smart home devices that malfunction and lock people in their homes or enable coercive control, sexbots, deep fakes – the list goes on.

Much of what Spicer highlights is deeply troubling. But she ends with a call to action: we can’t banish tech from our lives so how can we change the machines? A question for all of us to ponder.

Artificial intelligence: ‘the genie is out of the bottle’ – so how do we get in front of it?

By Angela Welsh

Getting in front of AI was discussed during the Australian Financial Review’s Government Services Summit in Canberra. The panel included a lineup of heavy-hitters – Dr Ian Oppermann, NSW Chief Data Scientist, Marek Rucinski, Deputy Commissioner for Smarter Data at the Australian Taxation Office (ATO), and Kris Lovejoy, Global Security and Resilience Practice Leader at Kyndryl.

We share our takeaways.

Good news for the ATO, but not for tax dodgers

According to ATO’s Marek Rucinski, while AI theory is not new, the tech was not there to make it real until recently. ‘We now have massive data sets, we can train the models, we have scalable cloud tech.’

ChatGPT and large language models have also created a buzz. AI conversations now pass Turing tests and we can create (almost) photo-real images with simple text prompts.

The ATO has begun running ‘primer workshops’ to upskill staff. According to Mr Rucinski: ‘The genie is out of the bottle. We need to have adult conversations around what large language models can do and what are the risks.’

The ATO is using natural language processing to troll global data leaks for specific words and patterns to spot payment irregularities. It’s identified upwards of $140 million in liabilities. They are also using deep learning models to detect (then investigate) superannuation guarantee underpayments. This has identified about $280 million in liabilities. $2.5 billion in potentially fraudulent payments have been averted through sophisticated machine learning models that pinpoint fraud in GST.

‘Deliberate but cautious’ engagement with AI

‘Generative AI still needs a lot of care,’ Dr Oppermann cautioned. ‘As users in this ongoing feedback loop, we’re still programming generative AI, so it requires thought about what we want to get out of it.’

AI Policy development is interesting too, Dr Oppermann noted. There are complex life journeys that the NSW Government is mapping, including from birth, moving, getting a job and ageing. Public sector employees then connect people to government services in an integrated way.

‘We’re trying “deliberate but cautious” engagement with generative AI,’ Dr Oppermann said. Therefore, exploring safe use cases following principles of privacy and security.

Productivity boost?

Linking AI and productivity was posed to the panel: the AI boom has not seen a concurrent increase in productivity. Why is this?

Kris Lovejoy from Kyndryl said AI ‘tends to have this peak where you spend considerable money getting systems working, evaluating, testing, implementing, then as the cost comes down, you see ROI.’ But this process can be fast, as ‘the market is unrolling rapidly. We’re going to be seeing some very “sticky” use cases.’

Traditionally, we talk about the dull and dangerous activities that can/should be automated, Dr Oppermann said. ‘Given how rapidly AI is entering our lives, it’s time to have those test beds and to keep experimenting with repetitive tasks.’

In closing, Dr Oppermann left us with some final thoughts to reflect on. ‘Experimenting safely and appropriately is the trick. That’s the difference between doing something which is interesting, and ultimately doing something which is valuable and that really makes a difference.’

Amplifying the call for a Voice to Parliament

By Andrew Banks and Ruby Hunt

Hall & Wilcox is proud to reaffirm our commitment to the Uluru Statement from the Heart in full. We are actively supporting the Yes campaign for a successful referendum to establish an Aboriginal and Torres Strait Islander Voice to Parliament. We gratefully accept the invitation of Aboriginal and Torres Strait Islander peoples to work together to achieve reconciliation in Australia.

Our Managing Partner Tony Macvean said: ‘We have a moral duty to make a stand on this issue. The Voice will enhance our parliamentary democracy. It has been supported by a significant majority of First Nations representatives. It works legally. We will be actively supporting a Yes vote in the upcoming referendum.’

Webinar on the Voice to Parliament

As the country moves towards the referendum, we will be running a range of events and information sessions. We recently celebrated NAIDOC Week with an informative, insightful and interactive webinar panel discussion and Q&A session about the Aboriginal and Torres Strait Islander Voice.

We were joined by experts Thomas Mayo and Sean Brennan. Thomas Mayo is a Kaurareg Aboriginal and Kalkalgal, Erubamle Torres Strait Islander man. Thomas is a signatory of the Uluru Statement from the Heart and has been one of the leading advocates since its inception. He is the Chairperson of the Northern Territory Indigenous Labor Network and a director on the Australians for Indigenous Constitutional Recognition board. Thomas is a wellrespected author and his latest book, co-authored with journalist Kerry O’Brien, is a handbook on the Voice to Parliament.

Professor Sean Brennan is a constitutional law expert, with experience in Native Title and Aboriginal land rights. Sean was part of the pro bono legal team supporting the Regional Dialogues and First Nations Constitutional Convention that culminated in the Uluru Statement from the Heart.

Thomas shared the long journey that has led to this historic moment and the importance of the Voice referendum to First Nations peoples:

‘When we say yes, we’re saying yes to recognising Indigenous people by giving us the ability to make representations on matters that relate to us. That’s it. That’s what the question is: should we do that? No right to veto. No third chamber to Parliament.’

Thomas Mayo

Sean discussed the legal basis and wording of the proposed amendment which
he said had been kept on the side of ‘clarity, simplicity and brevity’.

‘The Australian people will be asked to determine the question of principle: whether or not constitutional recognition of Aboriginal and Torres Strait Islander peoples should take place through the establishment of a representative body that empowers them to have a say on the laws and policies affecting their daily lives.’

Professor Sean Brennan

Sean added: ‘If the answer is ‘Yes’ then Parliament will move to legislate the details within the constitutional parameters endorsed by the voters. It would potentially mislead voters and impair the constitutional functions of the referendum to present a detailed model of the Voice prior to the question of principle being resolved.’

Mark Petrucco’s chicken wings with jalapeño marinade

A fiery and flavour-packed recipe to spice up your dinner plate.

Ingredients

• 5kg mid-sized chicken wings

For the marinade

• 300 grams of jalapeño
• 100 grams of sugar
• 80 grams of chicken stock powder
• 30 grams of salt

Method

Rinse the chicken wings in water to clean.

Blitz or blend the marinade ingredients into a paste.

Cover the wings in the marinade, adding extra jalapeño brine liquid to make sure the wings are completely covered.

Refrigerate for between 3-6 hours (the longer the marination process, the better the flavour).

Deep fry wings straight from the liquid at 160ºC-170ºC for at least 5-6 minutes.

Note: For smaller batches, break down the quantities by half or a quarter.

Reading the small print: the outcome of the AEC v Kelly

By Jack Ferguson

Last month’s Federal Court judgement, sparked from the Federal Election in 2022, has drawn the attention of public sector entities and regulators alike. This article explores the focus of the case: electoral communications – from font size to authorisation, and the need for detailed and informative records.

The background

In the last Federal Election in 2023, former Member of Parliament Craig Kelly produced and mounted several election posters throughout his electorate using 8pt font authorisation details. The Australian Electoral Commission (the AEC) wrote to Mr Kelly stating that the authorisation details were too small and that he was in contravention of the Commonwealth Electoral Act 1918 (Cth). Mr Kelly obtained stickers with larger – 20pt – authorisation font and replaced the relevant text on the already-printed materials. He also printed new materials with 24pt authorisation details.

The AEC wrote to Mr Kelly again about several posters in his electorate that still contained the smaller font. Despite multiple requests from Mr Kelly’s lawyer, the AEC was unable to provide specific location details of the offending posters.

The AEC sought an order imposing civil penalties on Mr Kelly for allegedly breaching provisions of the Act, arguing Mr Kelly’s electoral communications were too small, and the authorisation details too hard to read.

The decision

Justice Steven Rares found that Mr Kelly had not breached the Act with his 8pt font. The Act requires authorisation details be readable by a person from a reasonable distance. In this case, a person could simply walk up to a poster and read them. His Honour also criticised the AEC for not informing Mr Kelly of the locations of the remaining offending posters. Justice Rares found that if the authorisation details were inadequate, Mr Kelly could use a defence of mistake of fact, as he and his team had made reasonable efforts to update all infringing posters.

The take-aways

The decision provides guidance on authorisation font sizes, and highlights the need for specific details to be provided of alleged breaches so that breaches can be remedied, and if not remedied, prosecuted.

Campfire Stories: embracing diversity, empowered by collaboration

Campfire Stories brings together a collection of short stories celebrating diversity. They’re brought to life each month by Small Fires and founders Grace O’Hara and Paty Galán, with the support of the City of Melbourne. We were delighted to hear from Grace about multicultural storytellers and the transformative power of uniting community and government.

What are Campfire Stories?

Campfire Stories are a series of illustrated and multilingual short-form stories. They’re created by some of the many different people who call Melbourne home.

Why is it important that we hear from diverse storytellers?

Right now, the world of publishing doesn’t reflect the richness of the world it lives within. Most authors, illustrators, editors and publishers are white, which results in lots of stories representing a white perspective. We’re making space for diverse creators to share their stories.

What are some of the stories and languages you have published?

We’ve been delighted by the array of genres, styles and topics we’ve published. There’s Very Blue, a story of a girl looking for her brother across the cosmos, and our latest story Strawberries in the Wastelands of Lygon Street is a love story set in postapocalyptic Melbourne!

Each story is written in English and one other language. We’ve published in Swedish, Bangla, Sinhalese, Simplified Chinese, Spanish, Japanese, Arabic, Vietnamese, Italian, Indonesian and Ukrainian.

Campfire Stories is supported by the City of Melbourne. How has local government support helped you achieve your goals around diversity and inclusion?

The City of Melbourne has been an amazing partner. We wouldn’t have had the resources to give something like this a go, and to create these kinds of paid opportunities for our creative partners. They’ve also helped with connections to different organisations, people and partners. It’s one of the few local governments that has funded specifically for social enterprises and specifically for organisations working on issues of diversity and inclusion, so it was a great fit.

What are some ways organisations like yours can be supported by Governments across Australia?

In a creative business, products require a lot of upfront costs and labour to bring them to life, creating a lot of risk for small businesses. Having early support from governments gives us a chance to turn something out of reach into a sustainable channel of impact. For social enterprises, funding helps raise awareness, provides visibility and elevates organisations that are improving social, cultural and environmental outcomes through business. An example is Purpose Precinct at the Queen Victoria Market, creating opportunities to support social enterprises and emerging impact businesses.

‘When you’re bringing people together from different backgrounds the best thing is take time to build solid foundations.’

What’s your advice for bringing a diverse community initiative together with Government?

When you’re bringing people together from different backgrounds (whether that’s cultural or professional!) the best thing is take time to build solid foundations. We spend a lot of time getting to know our creative partners. When challenges emerge, we have the understanding and trust needed to overcome anything.

You’re about to publish your 12th story, can we purchase it?

You can buy a limited edition print, or read the story.

What’s next for Campfire stories?

Our funding was for an initial series of 12 stories – and we’ve been finalising our newest picture book. So, we’re taking a small breather to reimagine the future of Campfire Stories. If people want to read all 12 stories, and to hear about our upcoming book, please head to www.smallfires.com.au.

ESG – unearthing green gems beyond high-emission sectors

When it comes to Environmental, Social and Governance (ESG), sectors traditionally tied with high emissions – like manufacturing, resources and retail – regularly take the spotlight.

For the rest of us, small changes in our office habits have the power to make a real difference in protecting our planet and creating a sustainable future for generations to come.

Here’s a snapshot of some recent sustainable initiatives to inspire, energise and spark change.

Plastic Free July

To mark Plastic Free July, our firm launched multiple initiatives to reduce plastic waste. This included promoting reusable cups, debunking plastic myths, engaging with container deposit schemes and sharing our how-to videos. This is part of the global movement to combat plastic pollution and encouraging people to ‘choose to refuse’ single-use plastics.

For more information about refusing single-use plastics, click here: Plastic Free July – Be Part of the Plastic Pollution Solution

International Compost Awareness Week

The annual International Compost Awareness Week raises global awareness of composting organic waste and utilising
compost. To mark the week, we shared tips and tricks on disposing organic waste through composting. For more information about composting, click here: Homepage – Compost Week

National Recycling Week

National Recycling Week – coming up again in November – aims to reduce landfill by promoting recycling. Australians generate around 75 million tonnes of waste every year, with about half going to landfill due to improper recycling. For more information about how you can be part of this initiative, click here: National Recycling Week (planetark.org)

Cooking your way to do your part!

As part of their #SmallActsBigImpact initiative, Sustainability Victoria has launched its I Love Leftovers Challenge.

Did you know that each year the average household in Victoria throws away around $2,200 worth of food, most of which could have been eaten? This challenge, which runs from now until 7 October, gives you access to simple tips on reducing waste and special recipes from Julia Busuttil Nishimura. All this while saving money and helping the planet!

Shaping Sydney’s future with Hon. Patrick Gorman MP

The Sydney office recently hosted a Business Sydney luncheon with Hon. Patrick Gorman MP, Assistant Minister to the Prime Minister, Assistant Minister for the Public Service and Federal Member for Perth, and City of Sydney Councillor Linda Scott (GAICD).

Hosted by Partners Stan Kondilios and Leigh Parker, it was an educational and enlightening event, bringing together a range of experts to discuss Sydney’s housing requirements.

Minister Gorman also highlighted Business Sydney’s extensive history since 1826, while covering four pivotal Federal Government policy areas: renewable energy, modernising Australia’s industries, addressing social and affordable housing challenges and building a skilled workforce.

Cr Linda Scott, who is also President of the Australian Local Government Association, said of the event: ‘It was wonderful to see such a thriving Sydney legal practice taking community engagement so seriously’.

The NACC in operation

By Julian Hammond and Caroline Sakinofsky

On 1 July 2023 the National Anti-Corruption Commission (NACC) opened its doors as the Commonwealth’s new anti-corruption board and has since been inundated with over 200 online referrals and 100 calls of complaints against ‘public officials’.

As we have previously reported, the Labor Government introduced the National Anti-Corruption Commission Bill 2022 (Bill) on 28 September 2022. The Bill was given Royal Assent on 12 December 2022 establishing the NACC as an independent federal agency with broad powers to investigate ‘serious or systemic’ corruption allegations within the public and private sectors (the NACC Act).

There are four key reasons why your organisation should consider the effects of the NACC Act:

1. The NACC has the power to investigate allegations of corruption made against any person, whether or not they are a public official, provided that the conduct adversely affects, or could adversely affect, a public official in some way.1
2. This definition extends the NACC’s investigative powers by including private firms performing functions ‘for or on behalf of’ the Commonwealth. This may include private companies involved in projects relating to the NDIS, aged care, recruitment, infrastructure, or, most topical in today’s media headlines, institutional banking and tax.
3. The Act expands the definition of ‘corrupt conduct’ to include an analysis of government efficacy.2 This means, for example, where corporate staff are
   seconded to Government departments, their conduct may be deemed corrupt if they are found to be ineffective in their role.
4. The NACC has coercive and intrusive powers, including the ability to compel the production of documents or information, obtain a warrant to enter and search premises, enter certain Commonwealth premises without a search warrant, seize evidence and exercise limited powers of arrest to ensure attendance at hearing.

The terms ‘serious’ and ‘systemic’ are not defined in the Act. Therefore, the question of whether corrupt conduct falls within these terms will ultimately be a matter to be determined by the Commissioner.

Our experience with anti-corruption investigations is that the body will require action being taken with little to no notice. If organisations do not already have robust policies in place, they should develop procedures for responding to investigations, including public relations and media strategies, employee support measures and internal training for key persons (particularly individuals with mandatory reporting obligations).