Public Law – Issue 20

Kathryn Howard

Partner, Head of Hall & Wilcox Public Sector group and Editor of the Public Law newsletter

The start to 2024 has been a fast and fabulous one.

A highlight for me was hosting three very impressive women and Fitted for Work for International Women’s Day. We heard practical ways about how all genders can make everyday decisions that empower diversity, from being aware of having inclusive conversations to who we support with how we spend our money. Read all about it on pages 4 and 5. 

I am lucky too, to have just returned from a conference with my fellow Hall & Wilcox partners, where we heard practical insights about how we can live better. I was astonished to learn that it takes 23 minutes to regain focused attention after an interruption, and people who were not interrupted when given a task were 10 IQ points higher than people who were given the same task with the usual phone and email interruptions. It certainly gave me food for thought about how we can work together to structure our work days to facilitate optimised performance.

Dive into this edition of Public Law for many more ideas that inspire, educate and, we hope, entertain.  

Fleur Katsmartin, Chief Legal Officer and Corporate Secretary at Royal Melbourne Hospital, sat down with Natalie Demir to discuss her career, including challenges she faced early on and the importance live music plays in her life.

Let’s talk about how you came to the profession.

I studied Arts Law at Monash. I still remember my first day, thinking ‘I am not going to be a lawyer, this is definitely not for me’. But here I am…despite feedback from a partner at a big firm telling me my hair was too big and my laugh too loud to be a lawyer. It ruined my confidence as a law graduate. I thought where am I going to get a job? The role at the Australian Government Solicitor (AGS) came up and when they offered me the position I was like, you can’t be serious?!

Tell us about how you progressed after that?

After a few years at AGS, I took a role at Lander & Rogers. Not long after, I went on secondment to Healthdirect Australia – the national virtual public health service. I fell in love with the organisation and eventually went there inhouse, ultimately becoming General Counsel.

I am grateful that the CEOs at Healthdirect really believed in me. I was having kids during this time, and had imposter syndrome as a mother or a lawyer. However, I found my niche in health. When I was offered the job at The Royal Melbourne Hospital (RMH), I had my doubts again but I backed myself and have found my professional home. The RMH is purpose and values-driven.

What do you love about the role?

From a legal perspective, no two days are the same. I am constantly learning. People think working in a hospital is all medico-legal, but it is a billion-dollar business. I believe in the RMH and our values so strongly that I quote them to my children: we lead with kindness, put people first and strive for excellence together every day.

What big changes are on the horizon?

FOI legislation is under review in Victoria for the first time in 40 years. We deal with more than 3,000 applications a year. Privacy and data security keeps me awake. The positive duty introduced for sexual harassment prevention is also a hot topic.

How do you unwind, de-stress and have fun?

We have a team meeting at 2pm daily as a hard ‘stop’ to take a moment and check in (and I practise my standup comedy routine!).

In my free time, I am singing Bluey and Cocomelon tunes with my kids. At the end of the day, people won’t remember me for my work, but my kids will be there.

What do I do for myself? I make time to see my friends. I love music and try to go to concerts. I try to keep my cup, if not full, at least not empty.

By Amy Robinson

Australian charity Fitted for Work partnered with Hall & Wilcox to celebrate International Women’s Day 2024. At a signature event held in Melbourne, men and women from the business community and government came together to listen to three inspirational women: Mattea Davidson, professional equestrian rider and equine veterinarian; Rebecca Shot-Guppy, partner, Firemark Ventures; and Sugitha Seneviratne, plastic and reconstructive surgeon, NorthEast Plastic Surgery. The event was also an opportunity to spread the word about the important work being undertaken by Fitted for Work and to hear from its Managing Director, Donna De Zwart, about their great work.

What does Fitted for Work want to achieve?

We believe every woman in Australia has the right to economic security and independence. One of the best ways for her to achieve that is through employment. All of our services revolve around getting a woman ready for work, helping her find work, and then helping her stay in work and navigate her world of work. We see women aged from 16 through to 65-plus from all walks of life. Often, when they come to us, women are experiencing some form of disadvantage, for example, financial or domestic abuse, they may have been through a messy break-up or be exiting prison.

What are some of the challenges that you see facing women in entering the workforce or re-entering the workforce?

One key issue we see is the gender pay gap, which really starts to impact women when they hit their 50s. Breaks in their career, such as for children or aging parents, can have a real impact on superannuation. Women are also underrepresented in leadership positions and overrepresented in low-paid industries.

During COVID, we saw many women step away from the workforce because the load was too great with working from home and homeschooling. Many households could go down to one income at this time because expenditure was so low and because of government payments. However, many of these women now need to return to the workforce. Many of these women are lacking confidence in returning to a workforce that is very different to pre-COVID.

Tell us about your social enterprises, Conscious Closet and Supervention?

Conscious Closet sees us receive donations of clothing from individuals and corporate sponsors that our clients can access for our dressing room service. This service provides women with clothing that makes them feel confident and professional when seeking work. Many of the donations we receive are very good quality and high-end, so we sell these onto the public to raise money.

There are often early warning signs for banks that a woman is entering financial distress. For example, they might be missing repayments on a loan. We therefore created the intervention program Supervention. This program sees banks refer women to us when they start exhibiting warning signs of financial distress. The woman makes a choice about whether she wants to work with us, but over 80 per cent of women involved do contact us and the bank pays for that service. We are currently working with three of the four major banks and Supervention accounts for around 40 per cent of our income.

Tell us why corporate support is important for your work?

Whether it was your mother, grandmother, sister, friend or colleague, everyone in your organisation will have a connection to a woman who has been disadvantaged. Therefore, when a corporate organisation supports us, they are actually supporting their own people and their people’s people. We also rely on corporates to elevate our message. Lastly, it’s about money. A charity can’t live off love alone.

Thank you all for joining us. What a remarkable event it was.

The exceptional attendance at our signature IWD panel event was a clear reflection of the significance of the topics discussed.

We had the great pleasure of listening to a moving conversation led by a panel of inspiring people who, despite the number of unique challenges facing them as women, have all paved the way as leaders in their respective fields.

The candour of our panellists led to a thought-provoking discussion around the critical importance of collaborative efforts to fix gender equality issues and drive economic inclusion.

The event’s speakers included a lineup of women who have risen to the top of their respective fields. They described how they have overcome the challenges associated with success in traditionally male dominated fields and offered motivational advice to those in the audience facing similar barriers. 

If you wish to support the important work this charity is doing to help women experiencing disadvantage get work, keep work and strive at work, you can do so via the Fitted for Work website.

We look forward to hosting future events that continue to uplift and inspire.

With housing availability and affordability in Australia an issue of national concern, Katrina Reye sat down with the new CEO of PowerHousing, Michelle Gegenhuber.

Michelle shared her views on the importance of ensuring society’s most vulnerable have a place to call home and her expectations for the sector over the coming months.

Tell us why you’re so passionate about social and affordable housing?

There are so many people frozen out of the housing market, unable to access quality rentals. I was therefore keen to work for a not-for-profit to use my broad leadership expertise to improve housing in Australia. This role provides me with an opportunity to contribute to a more equitable housing market where everyone has a safe and secure home over their head.

Social housing provides a valuable contribution to the Australian housing market, as a home is a key platform for people to feel safe and to be able to build on their lives. If you are sleeping in a car with a two- and four-year-old, how can you even start to focus on getting a job? This is why social housing is so important and why I am passionate about working in the sector.

What do you hope to achieve during your tenure as CEO?

Targeted advocacy is a goal for the next 12 months, making sure that both the Government and the community understand the value of our sector. We also want to support the enhancement of current initiatives, as well as the development of further initiatives to create long-term structural change that shifts the dial in response to unmet housing needs.

Can you tell us about build-to-rent and why you think it is so important?

Build-to-rent housing is large-scale, purpose-built rental housing that is held in single ownership and professionally managed. The aim of build-to-rent housing is to provide more rental housing choice, particularly in areas where people need to live for work. It has been our core business for decades, and is an important part of the solution to the current crisis we are experiencing. It is pleasing to see it is currently a strong focus of the Government.

What are some key drivers of the housing crisis?

It is a multi-faceted problem: a decrease in household size; very low new build starts; high interest rates; disruption to the construction supply chain; the cost of materials for projects. The combination makes projects more difficult to deliver. Historically, there has not been consistent, reliable subsidy. However, the Federal Government is introducing 25-year funding that will hopefully facilitate institutional investment.

This is quite a demanding role and I can imagine there are quite a few stresses involved. What do you do outside of work to restore yourself?

I do short meditation four or five times a week. I love the gym. I get there most mornings if I’m not travelling. I also love to go for a long run and love time with my kids. And a good quality wine does not go astray.

Hall & Wilcox welcomed CEOs from Powerhousing Australia’s members to its Melbourne office to discuss key issues impacting Australia’s community housing sector. With housing policy one of the most pressing challenges for state and federal governments, this was a timely opportunity for sector leaders to consider the factors driving shortages and how public and private organisations can help relieve housing stress. Hall & Wilcox leaders offered their expertise, sharing insights on how social and affordable housing providers can manage data privacy and construction cost blowouts, along with the effects of immigration on housing stocks. Hall & Wilcox is a proud supporter of PowerHousing Australia and the firm is well known for its representation of social and affordable housing providers. Partners Katrina Reye and Shaun Whittaker have been providing legal guidance and support to PowerHousing Australia members in the development of their submission on the draft funding documentation for the Housing Australia Future Fund Facility (HAFFF) and National Housing Accord Facility (NHAF).

By Kristopher Kunasingam and Louisa Simmons

Australia is suffering from a shortage of skilled professionals in an increasing number of professions. Imbalances in worker supply and demand are particularly problematic for regional Australia, where lower population numbers mean a more limited range of employment options for qualified workers when compared to metro areas.

Addressing immigration shortages

Immigration policy plays a pivotal role in mitigating the severity of rural worker shortages and has far-reaching economic implications. To address shortages, Australia maintains targeted regional migration initiatives for skilled migrants to locate to regional areas experiencing acute shortages. These initiatives also promote regional development by promoting local spending and investment in regional areas.

Currently, the Temporary Skills Shortage (Subclass 482) (TSS) visa is the vehicle through which immigrants are encouraged to take up jobs outside the cities. Under the visa, migrants must work in a regional area for a set time before they can apply for permanent residency. Immigrants are incentivised to work in regional areas through this visa. For example, the TSS allows immigrants to access inclusion on the Regional Occupations List, providing them with a greater range of sponsorship options.

The TSS also gives students graduating from regional campuses a greater number of employment options.

However, despite the advantages of the TSS, one effect has been a skills mismatch in regional areas. Migrants hoping to obtain permanent residency in Australia may seek regional employment in low-skilled jobs to fulfill the minimum time requirements, despite possessing much more in-demand skills. This has seen the Government look at reforms that will make immigration policy more effective in addressing regional and rural labour shortages.

New strategy

The Government’s new strategy, scheduled for introduction later this year, includes a new ‘Skills in Demand’ visa that will replace the TSS. It is hoped this new strategy will provide visa holders with a more streamlined pathway towards permanent residency and ensure more visa holders will obtain permanent residency.

The new process will reduce upfront costs for employers and time spent with any approved employer will count towards timing requirements for permanent residency. If visa holders cease to be employed by their sponsor, they will have additional time to find a new sponsor (the current requirement of 28 days will increase to six months) and visa holders can work while new sponsorship arrangements are made. Regional visa applications will receive the highest priority when being processed.

While the amendments appear to offer long‑term improvements to Australia’s migration system and easier pathways for migrants to stay in Australia, the new policies present some new challenges for rural and regional businesses. The requirement that visa holders spend a minimum amount of time in rural or regional areas has effectively been scrapped. Given the immense employment options in Australia’s cities,

many visa holders may choose to work in metropolitan areas. This is problematic for rural and regional businesses already experiencing labour shortages, which is likely to be exacerbated with many of the jobs generated by the country's transition to a net zero economy likely to be in regional Australia.

Looking ahead

A discussion paper is due to be published by the Federal Government in coming weeks, evaluating how current regional migration policies can better meet community and workforce needs. Watch this space to hear the latest.

With Ramadan in full swing, Muslim families across the world are breaking their fast on sundown with delicious Iftar meals. Yasmin Chalabi, a corporate and commercial lawyer at Hall & Wilcox, is celebrating the season and shares with us her Ramadan go-to recipe.

Ingredients

1 eggplant

Olive oil

2-3 pieces pita bread (ideally Lebanese flatbread)

3 cloves of garlic

1 can of chickpeas

Lemon juice

1½ cups Greek yogurt

2 tablespoons finely chopped pomegranate seeds

2 tablespoons mint

Optional: minced beef

Method

Slice eggplant into 2cm thick half moon slices. Bake for 20 minutes by laying them out onto baking sheet with olive oil.

In the meantime, cut pita bread into small cubes and drizzle with olive oil. Lay them out onto a baking sheet, spray with olive oil, and bake for 20 minutes in 180ºC-200ºC oven.

Drain and wash chickpeas and combine them with the juice of half a lemon and 2 cloves minced garlic.

Make the yogurt dressing by combining the yogurt and 1 clove of garlic.

Start to assemble. Place half of the baked pita bread at the bottom, then eggplant, then chickpeas. Top off with the remaining baked pita bread, yoghurt and then pomegranate seeds and mint.

21st-Century Virtues: How they are failing our democracy by Lucinda Holdforth

By Melinda Woledge

Courage, order, vigour, ritual, respect, education, self-knowledge, proportion, excellence: these are the virtues that helped shape and underpin some of the world’s great civilisations (ancient Rome, China, pre-Socratic Greece).

What are the virtues we hold dear in the 21st century? Authenticity, empathy, humility, vulnerability, self-care. Lucinda Holdforth argues that these seemingly inoffensive, even ‘insipid’, values, have two faults: one is that they are self-referential, and prize individual uniqueness. The other is that these virtues pose dangers for democracy: she contends that our 21st century virtues are ‘increasingly, if unwittingly, aiding the extreme right-wing agenda. Without the framework of a widely shared civic concept of virtue, democracy is weakened by neglect and default.’

How did these modern virtues come to be so lauded? This premise drives Holdforth’s book. In the 21st century, where democracy, and our planet’s future, feels precarious, do the virtues we celebrate help strengthen and save democracy, or can they be hijacked by totalitarian regimes to justify censorship, surveillance and ultra-nationalism?

‘My truth’, cancel culture, neo-liberalism, LinkedIn (which Holdforth calls ‘neoliberalism’s portal’), and social media, where transparency outranks privacy: all are threats to democracy, as dissected by Holdforth. She argues that neo-liberalism, in particular, has eradicated Aristotle’s polis, where ‘engaged and equal citizens are replaced…by anxious, insecure, gig-economy workers and passive consumers’. Everything public – utilities, spaces, commons and the public good – is eroded or shut down, making isolated individuals perfect targets for economic exploitation and/or despotic, oppressive or authoritarian politicians and regimes.

This slim book, packed with ideas, issues a challenge to us to consider what we value and how it will shape our democracies in the future, for better or worse.

By Nicola Johnson and Alana Meaney

The Australian Government recognises gender equality as a national priority and has committed to using gender responsive budgeting as a driver of gender equality.[1] Gender responsive budgeting incorporates consideration of gender impact through the budget process, which assists the Government to identify and fund measures to close gender gaps. A key tool that supports gender responsive budgeting is gender analysis.

As part of the 2023-2024 Budget, the Government announced that Australian Government Departments must undertake gender analysis for all new policy proposals (NPPs) and cabinet submissions.[2] This involves research to determine whether an NPP or cabinet submission has a gendered impact. If the NPP or submission meets one of the four criteria[3] included in the gender analysis, then a gender impact assessment must be completed. If none of the criteria are met, then a gender analysis summary must be completed. A gender impact assessment is detailed and should include information about how a policy can avoid, address, or mitigate negative gender impacts. Gender analysis summaries are comparatively brief, high-level summaries of the gendered impact.

Points to consider…does the NPP or Cabinet submission:

• have a significant positive or negative impact on gender equality?

• affect people who can be typically disadvantaged?

• relate to a gender segregated industry?

• establish a National Partnership Agreement?

• have a value of $250 million or more over the forward estimates?

Looking forward: OECD recommendations

In its report, ‘Gender Equality in Australia: Strengthening Gender Considerations in Policy and Budget Decisions’,[4] the Organisation for Economic Co-operation and Development (OECD) recommends several steps be taken to bolster Australia’s efforts to improve gender equality, including:

• Providing a legal foundation for genderbudgeting to ensure it is sustained over time and across successive governments.

• Enhancing the quality and depth of gender analysis, including by undertaking the analysis at an early stage of the policy making cycle and by incorporating intersectional analysis throughout the process.

• Building institutional capacity by requiring gender ‘champions’ and focal points to exist within all departments and agencies.

• Developing a Gender Data Action Plan to strengthen the breadth and depth of gender-disaggregated data to support the implementation of gender analysis.

• Strengthening the policy co-ordination function of the Office for Women.

[1] Commonwealth of Australia, Department of the Prime Minister and Cabinet, ‘Including Gender: An APS Guide to Gender Analysis and Gender Impact Assessments, January 2024.
[2] Commonwealth of Australia, ‘Budget 2023-24: Women’s Budget Statement’, 9 May 2023.
[3] See Figure 1.
[4] OECD (2023), Gender Equality in Australia: Strengthening Gender Considerations in Policy and Budget Decisions, OECD Publishing, Paris, https://doi.org/10.1787/54c8b400-en (OECD report).

Giving feedback is an essential skill for a leader – but it can be tricky. Giving feedback to lawyers (who tend to be high performance and perfectionistic) even more so. Here are some tips from Special Counsel Clare Kerley on providing effective feedback to your legal team.

Time is of the essence: Feedback should be timely. It can lose effectiveness or purpose if there is too long between the performance that needs addressing, and the feedback discussion. Timing is also important in terms of frequency. It is a continuous process, rather than a yearly event.

Be selective: Feedback should be limited to the most important issues, rather than a dump of everything that needs improvement. If you find yourself in a situation where you have a long list of feedback to give, chances are you need to provide feedback more frequently. It might be helpful to consider the potential value of the feedback – how will this help the recipient? If it won’t, or the benefit is negligible, is it worth providing?

Play the ball, not the person: Concentrate on the behaviour or performance that requires addressing, rather than the person.

Be specific: Good quality feedback is specific and linked to relevant goals or outcomes. Using real life examples can assist in communicating any concerns.

Make it a discussion: Have a two-way conversation; ask questions, check for understanding, and try to empathise with motivations, reasons or explanation for the behaviour or performance.

Receiving feedback can also be difficult, particularly if the feedback does not align with the way in which we see ourselves. It can be helpful to try to shift our perspective, to view it as an opportunity for growth and development, rather than conflating our performance and actions with our personal identity.

Three top tips for making the most of feedback provided

• Actively request it: Practice makes perfect! The more frequently we give and receive feedback, the better we get at doing so.

• Focus on how it is benefiting you: The point of feedback is to improve your performance. Focus on what it is intended to do, rather than on drawing an implication that you are not good enough.

• Actively listen with curiosity: Don’t get caught up in the method of the delivery – too often, we focus on the delivery rather than the message. Listen with genuine curiosity and understand it from the other’s perspective. You will absorb more information if you are actively listening and understanding rather than being defensive and focusing on what your response will be. Listening to the full message may also stop you jumping to conclusions about the deliverer’s intent.

National public sector webinar series

The 2024 Public Sector Webinar Series offers public sector stakeholders the opportunity to learn from, and engage with, Hall & Wilcox’s team of legal experts, providing insights into key issues impacting the sector in 2024. Register here.

NSW public sector webinar series

Through this series, Hall & Wilcox’s skilled and experienced legal advisors will offer insights, recommendations and pathways, helping the sector navigate new legal boundaries and prepare public sector legal teams for the changing environments in which they must operate. Register here.

Administrative Law webinar series

Led by renowned administrative lawyer Nicola Johnson and her team, our inaugural Administrative Law Webinar series offers engaging and practical insights into this field of law. Register here.

The NSW Government has recently released social media influencer guidelines, which offer assistance to agencies already engaged in influencer marketing or which are thinking about using influencers in their social media. Chloe Taylor and Pragya Sharma break down the key points of these new guidelines and offer advice to government agencies considering the use of influencers.

Recent regulatory scrutiny, such as the ACCC’s internet sweep of influencer advertising on social media, and ASIC’s guidance for social media influencers who discuss financial products and services online, highlights the importance of a well-defined strategy and ethical practices when engaging in influencer marketing. The NSW Government has released welcome guidance in developing an influencer strategy by outlining 11 steps for Government agencies to develop a successful influencer campaign. Here is a checklist to help navigate influencer use.

1. Define your influencer strategy

Consider whether using an influencer is the best approach to achieving your campaign objectives. Relevant considerations include your campaign objectives, target audiences, budget, the influencer’s brand and values and your agency’s compatibility with the influencer’s existing content.

2. Hire an agency

Engaging a media agency can streamline the influencer selection process. Media agencies specialising in influencer marketing can vet influencers by applying relevant filters (such as psychological or demographic), detecting fake followers and identifying appropriate personalities.

3. Define success

Identify clear performance indicators aligned with your goals, such as reach, impressions, engagement, brand awareness, and conversion goals such as downloads, subscribers and purchasers.

4. Choose an influencer

Some agencies are starting to look beyond social media influencers to those famous in sport, comedy, music and television. Microinfluencers or those with expertise outside social media can be effective to engage with more local or niche communities.

5. Identifying influencers to avoid

Avoid influencers who, among other things, engage in risky, unhealthy, illegal or undesirable activities (such as taking illicit substances or promoting extreme dieting), post or express racist, sexist or homophobic views, or are associated with organisations that may bring disrepute.

6. Check the influencer’s following

Beyond follower count, scrutinise an influencer's following to ensure it is authentic. Online tools can reveal signs of purchased followers or inauthentic engagement, providing a more accurate measure of an influencer's ‘worth’.

7. Acknowledgement of partnerships

Influencers must transparently disclose partnerships with the NSW Government. The partnership can be recognised by using in-platform tags, subtitles, or audio mentions within the relevant content.

8. Write a contract

Draft comprehensive contracts covering all key issues. As set out in the Social Media  Guidelines - Influencer contract template, these issues include goals, objectives and reporting requirements, content approval processes, partnership duration, post and content types, remuneration details, ethical disclosure methods, intellectual property rights and measures for handling unforeseen circumstances. The contract should align with the guidance in the Australian Influencer Marketing Code of Practice.

9. Consider remuneration

Remuneration should be clearly specified in your contract with the influencer. It is also worth exploring non-monetary options such as experiences or media opportunities, and the triggers for payment. The Social Media  Guidelines - Influencer contract template is a useful base for this.

10. Monitor the campaign

Monitor influencer accounts using social listening tools, ensuring your chosen influencer is authentic and shares your agency’s values and objectives.

11. Evaluate the campaign

Evaluate the campaign based on predetermined goals, comparing results with objectives for future improvements. The evaluation framework will help you define and measure the success of your work, in line with global best practice.