Public Law – Issue 21

Kathryn Howard

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

In offering this edition of Public Law, I find myself acutely conscious of the preciousness of life.  These past few months, I have simultaneously experienced professional highs and personal lows.

In the past few weeks, Hall & Wilcox has learnt of its successful appointment to the Commonwealth WOAG.  It is an incredible result that brings together the culmination of many years of investment and work and is a really rewarding recognition of our firm’s commitment to serving government and the public interest.  I am proud to be in a firm that truly invests in making our communities thrive. 

On a personal level, I have undergone major surgery and I have watched two people I love dearly fight cancer.  I am grateful for modern medicine and the skill and care of medical staff who work tirelessly for others, and humbled by the needs of the body.  I have struggled with regret that I have not appreciated time as I should.

I have asked myself what I learn from this.  Yes the professional success matters – I truly believe our work makes a difference, and empowers others.  And yes life is fragile, and must be savoured for all the little joys and the precious moments.

This reminded me of the reflections of Oliver Sacks, who wrote this in the New York Times on 19 February 2015.

“…my predominant feeling is one of gratitude.  I have loved and been loved.  I have been given much and have given something in return; I have read and travelled and thought and written.  I have had an intercourse with the world,…

Above all, I have been a sentient being, a thinking animal, on this beautiful planet, and that in itself has been an enormous privilege and adventure.”

May we live each day aware of the preciousness of our adventure, with every moment embraced for its fulness.

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

Marcus has worked in many facets of the law, including owning his own firm. Throughout his career, he has taken a keen interest in new and emerging legal technologies. Now working for government, Marcus speaks about his journey into the public sector and the impact he sees new technologies having on legal practice.

Marcus McCarthy, Senior Manager – Legal, Commercial and Technology at the NSW Department of Transport

Tell us about your career and how you came to your current position?

I've had an eclectic career, which began at Sparke Helmore, working on industrial accident and employment matters. I transitioned into commercial and corporate work focusing on construction/civil infrastructure. From there I moved into an in-house role with a mining company, doing general corporate work, M&A and mining infrastructure.

I formed Nexus in 2011, where we built a strong construction and corporate commercial focused practice.

I took some time off, then did some lecturing at Newcastle University before securing my position at TFNSW. I missed just being a lawyer when I was running Nexus and this was the type of work I really enjoyed back when I was practising full time.

What are some differences between working in private practice and government?

Government has a large, fixed hierarchy that dictates how everything is conducted. There are political considerations to consider and different levels of accountability that must be included in every decision. You may have to work across different divisions and consider the decision-makers in those divisions. There are more hoops to jump through in government, which ensures all the different elements of an issue are well thought out. I was accustomed to managing all aspects of a matter, whereas now I might only focus on one small aspect of a much larger matter or contract, for example.

What are some of the challenges the public sector faces in delivering new technology?

The challenge lies in the size of the agency, making implementation of any new technology tough. There are many levels of approval and due diligence required in government before any new technology can be adopted. There's a huge amount of legacy information that is extremely difficult to migrate into new systems. Governments also face the challenge of being subject to distinctive privacy regulations around data not faced by the private sector.

How do you see the future for legal technology and innovation?

AI is obviously the biggest thing in the pipeline. I might be a tech heretic in saying this, but I do not think it is game changing in terms of true legal practice. Certainly, it will add to efficiency but this is really just tinkering at the edges of law and (hopefully) improving access to justice. Even if you could train AI in all areas of law and jurisdictions, it would still need human overlay. I like the iceberg analogy when it comes to tech. 70 per cent is automatable process driven but 30 per cent is always going to be high-end, bespoke human-world professional services. There will always be demand for high-quality lawyers who have honed their skills.

‘Good lawyers are those who know how to use technology to speed up their work, not replace their skills’.

Obviously work takes up a lot of your time and headspace. What do you like to do to relax?

I have always loved the outdoors. Our family once had a small hobby farm near Nowra that I used to spend a lot of time working in. As a result, I love getting out in the bush and mountains, biking, surfing and fishing. Legal work is intense on the brain, so I’ve always found that high-focus activities outside work really helps recharge the batteries.

After 17 years of remarkable leadership from Tony Macvean, Hall & Wilcox is looking forward to an exciting new chapter, with Graydon Dowd taking the reins as Chief Executive

After 17 years of remarkable leadership from Tony Macvean, Hall & Wilcox is looking forward to an exciting new chapter, with Graydon Dowd taking the reins as Chief Executive Partner from 1 July 2024. Acknowledging Tony will remain an important part of our firm, Graydon shares his thoughts on the changing face of the practice of law in Australia and the importance of serving the public sector at Hall & Wilcox.

Tell us how you came to this point in your career?

I am Sydney born and bred. I began my career in 1993 as a lawyer at what was then known as Blake Dawson Waldron (now Ashurst). After being appointed a partner in 2002, I relocated to their Melbourne office in 2005 to head up their Litigation & Dispute Resolution team for what was supposed to be three years. However, I decided to stay in Melbourne. I joined Hall & Wilcox in 2012 to lead the Commercial Dispute Resolution team. In 2021, I joined the firm’s board and last year was appointed as Chief Executive Partner elect.

What are you most looking forward to in this new role?

Hall & Wilcox has been one of the fastest growing law firms in Australia over the past decade. I am looking forward to helping shape the firm’s next chapter and building on current momentum. We are a unique firm with many wonderful qualities. Our clients tell us that we deliver great service and the firm’s great culture helps us deliver the best outcomes for people, clients and community. A comment we hear regularly from new recruits is ‘Wow, what you said about firm culture during the recruitment process is actually true!’

In your experience, what do you think government clients value most from their relationships with private practice?

I have worked for clients at all levels of government and, consistently, they seek lawyers who are capable, efficient, diligent and understand the area they are operating in. Lawyers who will run the matter strategically and economically, with sensitivity and respect for the stakeholders and political considerations involved.

Why is the public sector so important to Hall & Wilcox?

Over the past five years our public sector practice has grown exponentially. It is the fastest growing area of our firm. We expect our public sector practice will evolve to become our ‘third pillar’, together with our commercial and insurance pillars. We are passionate about providing our government clients throughout Australia with exceptional service and outstanding technical legal advice. We are a full-service firm with strong practice groups that are well-equipped to support government and work in the public interest.

What are the main challenges facing leaders in the legal industry in the next few years?

At a firm level, the major change will be the way we practise law and deliver legal services. The relationships between firms and clients will become more entrenched. Firms need to become more efficient, underpinned by embracing solutions that improve the interface between the firm and clients. At an individual lawyer level, the challenge will be to ensure lawyers develop the skills that go beyond being technically excellent.

What are the qualities of a great leader?

A great leader identifies the objective and the strategic way forward, sets goals to achieve it and then inspires people to achieve those goals. It involves focusing on the strengths of the organisation and the individuals that comprise it and encouraging everyone to harness those strengths. It requires certain attributes such as passion, clarity, decisiveness, resilience, collaboration, initiative and empowerment.

No doubt your role is very busy. what do you enjoy outside of work and what types of activities help you to detach from the job?

I love spending time with my family and friends. My wife and two daughters have always been at the forefront of my life. I love travelling as a family and enjoying family dinners, outings and special occasions. I also like to play a little sport, including tennis and golf, with a group of friends. I try to escape the rat race by getting outdoors and I like seeing the odd concert or live gig as well.

Despite increased awareness of the need for healthy, respectful and inclusive workplaces, many remain troubled by unlawful conduct including sexual harassment, bullying, discrimination and psychosocial hazards, culminating in toxic workplace cultures and burnout. At the same time, extensive legislative reforms, including positive duties and the Respect @ Work laws, are increasing compliance requirements for employers and boards.

Melinda Woledge, Marketing & Communications Manager

The consequences of toxic workplace cultures are costly, not only financially, but legally and reputationally. It would be no surprise if many leaders are overwhelmed by the burden of compliance, personal liability and increasing scrutiny by regulators and the media that they face. How can leaders and organisations navigate the complexities of creating safe work environments?

Hall & Wilcox partner Fay Calderone’s new book, Broken to Safe: Tackling Toxic Workplace Cultures and Burnout, is an essential guide, providing practical insights and a comprehensive framework to cultivate healthy workplaces. Part 1 outlines what ‘broken at work’ looks like, including bullying, sexual harassment, fear, burnout, psychosocial hazards and toxic cultures. Part 2 covers ‘safe at work’, including baseline compliance, how to assess risks, lessons from the law, the benefits of a positive culture, how to lead with trust instead of control, the benefits of flexibility and inclusion, and how to ‘enforce policies and exit jerks’.

Fay has been an employment lawyer for 25 years, specialising in assisting employers, boards, leaders and HR professionals create safe, respectful, inclusive and high-performing workplaces. In the book’s introduction, she writes, ‘What I remain curious about is the human condition, and why people do the things they do. Is it nature or is it nurture? Are there human traits that lead to dysfunction or does dysfunction arise from the environment we put people in?’

The book was launched at our Sydney office, where Angela Priestly from Women’s Agenda hosted a panel discussion on issues raised in the book, featuring Lisa Annese, CEO of Diversity Council Australia; Catherine Fox AM, speaker, author, and former AFR 'Corporate Woman' columnist; Marina Go AM, independent chair and non-executive director; and Georgie Dent, CEO of The Parenthood. The panellists shared some personal experiences, and provided insights into issues such as gender equity, psychosocial hazards and burnout, backed by their years of research, advocacy and experience.

At the launch, Fay said, ‘The spirit of the book is that if you treat people with respect and you build environments that are based on trust, safety and security, people will reward you with loyalty. I talk throughout the book about humans and I’m deliberate about that. I believe that we are humans and that’s how we show up to the workplace. As employment lawyers, we become guilty of saying “employees”, “workers”, “staff”, “personnel”, but we are humans and that’s what we show up to work as.’

As Marina Go AM says in her endorsement for the book: ‘We are how we lead. And in the briefest of glimpses into her background in the opening chapter, Fay provides an insight into why she leads with compassion, resilience and determination. Broken to Safe is compelling reading for leaders who need and want to do more for their workplace than merely comply with rules and regulations. Fay's assertion that "culture is at the heart of change" has never been more true or more challenging to get right. Broken to Safe humanises the key risks and opportunities all organisations face and provides a playbook for best practice.’

Fay’s book is available for purchase at: book.brokentosafe.com.au

James Whiley, Partner

The firm is a proud supporter of the Pinnacle Foundation, a charity providing educational scholarships, mentoring and opportunities for young LGBTQIA+ Australians. Andrew Staite, the Foundation’s CEO and Managing Director, explains how education can be transformative for a young person facing rejection and discrimination.

Talk us through your career journey to becoming CEO of the Pinnacle Foundation

I went to high school in an outer suburb of Melbourne in the 1980s. For me, school wasn't easy. I was called a poofter and a faggot. But I was fortunate that my parents encouraged me to focus on education and to go to university. I threw all my efforts into studying and got accepted into law at Melbourne University. In my year at uni, only 11 per cent of students came from public schools. This instilled in me the belief that education needs to be accessible for everyone.

After finishing law, I worked in one of Melbourne’s larger firms but struggled in that environment. I had a partner tell me that a particular senior associate would never become a partner because he was gay. I resigned the day my articles finished. I worked in the arts for a few years and then joined Morgan and Banks in 1997, ultimately leading that business in Australia and New Zealand. I then founded SHK, a specialist people advisory forum, and I am still a non-executive chair there. However, I got to a point in my career where I wanted to do something different and I joined the board of the Pinnacle Foundation. In 2019 I was asked to lead the Foundation as Managing Director and CEO, and of course, I said yes. My early experiences in life inform why I have such strong alignment with the Foundation. Too many young LGBTQIA+ people continue to miss out on an education because of community, family or faith rejection. The thing that can sustainably transform these young people’s lives is education.

Do you think over recent years law firms in Australia have changed their attitudes to LGBTQIA+ people?

Yes, radically. The Pinnacle Foundation has the support of many large firms, including Hall & Wilcox, who are deeply committed to inclusion. But that doesn’t mean that there are still no challenges. We always need to be focused on ensuring everyone is safe and respected at work.

Tell us about the work of the pinnacle foundation?

The Foundation was formed in 2007 and has been awarding scholarships since 2010. Scholarships are for full-time study at either university or TAFE in the scholar’s chosen discipline. Scholars are matched with a mentor who has walked a similar path to that experienced by the scholar. If you are a young LGBTQIA+ person rejected by your family or community and told terrible things about yourself, having a mentor with similar experiences that has gone on to have a very rich and rewarding life is powerful. We have amazing results. 98 percent of scholars complete their studies. Many of these people have multi-layered disadvantage so their achievements are incredibly inspiring.

How do you take your mind off work and escape the stress of your role?

My husband is a landscape architect and we have six acres of land. We have planted an incredible garden that has grown over many years. For me, it is a great joy to be out in nature and experience things grow. It keeps me sane.

By Arielle Zinn

On 19 July 2024, it was announced that the Administrative Review Tribunal (ART) will commence operations on 14 October 2024.

The Administrative Review Tribunal Act 2024 (ART Act) received assent on 3 June 2024 whilst the related Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 and Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (the Consequential and Transitional Acts) received assent on 31 May 2024.

The ART Act establishes the new Administrative Review Tribunal (ART) as a replacement for the Administrative Appeals Tribunal (AAT), whilst the Consequential and Transitional Acts makes the necessary amendments to a variety of Commonwealth Acts.

These changes are unquestionably significant in the administrative law space, particularly given that the AAT has been the relevant body for conducting independent merits review of administrative decisions made under Commonwealth laws since it commenced operations in 1976.

So, what will the new ART look like?

The objectives of the ART are broadly reflective of those of the AAT. The ART must provide an independent mechanism of review that is fair, just, quick, informal, accessible, involves transparency and quality government decision-making and promotes public trust and confidence in the Tribunal.

Despite these overlapping broad objectives, Justice Kyrou (President of the AAT and Judge of the Federal Court of Australia) has confirmed that the ART “will not simply be a rebadged AAT”.  The proposed changes aim to uniform the Tribunal’s processes and to keep jurisdictional area specific practice directions to a minimum.

A few of the most significant reforms introduced by the new legislation include:

• Abolishing the current divisional structure of the AAT in favour of grouping cases in jurisdictional areas and lists. Eight jurisdictional areas will be established which are areas of similar types of cases (General, Intelligence and Security, Migration, National Disability Insurance Scheme, Protection, Social Security, Taxation and Business and Veterans’ and Workers’ Compensation).

• Establishing the Guidance and Appeals Panel (GAP) to: (1) Hear proceedings at first instance that have been referred by the President on the basis that they raise an issue of significance to administrative decision-making and it is in the interests of justice to refer the application to the GAP; and (2) Conduct a second review of substantive decisions made by the ART where the President is satisfied that the ART decision raises an issue of significance and may contain an error of fact or law that materially affected the decision.

• Introducing conduct and performance standards and minimum qualifications for members, who will only be eligible for appointment if they undergo a merit-based selection process.

• Expanding the powers to terminate the appointment of non-judicial members. Presently, the AAT has no power to establish a code of conduct or a performance standard which can be enforced and relied upon to terminate the appointment of a Tribunal member.

• Re-establishing the Administrative Review Council, which will monitor the integrity of the administrative review system, inquire into and report on systemic challenges in administrative law and oversee education and training for Commonwealth officials in relation to administrative law and decision-making.

The Environmental Protection Authority (EPA) is writing to Victorian local councils requesting they review their quality controls for contaminated mulch found at several parks across Melbourne’s north and west.  The topic has national interest, with bonded asbestos recently found in more than 75 sites, including parks and schools in New South Wales.

The EPA has found asbestos contaminated mulch was delivered to the locations by third party providers.  As the EPA has made clear, ultimately councils in management and control of land will be ‘liable for the quality of mulch that gets laid’.^[1]

Recovery of costs for remediating contamination under the EP Act

In Victoria, section 274(6) of the EP Act permits a person in management or control of land who is served with an Environmental Action Notice (EAN) to recover any reasonable costs incurred in complying with the EAN, against any person responsible for causing or contributing to contamination.^[2]

The courts have ultimate discretion to determine what constitutes reasonable costs in complying with an EAN.  However, in making a claim under section 274(6) of the EP Act, the person is obliged to substantiate any claimed costs, including the testing, removal and disposal of contaminated soil, and the legal fees for remediation recovery.^[3]

Responding to the EPA

Councils should begin collating and reviewing detailed records of:

• contracts with suppliers, including any specific warranties and indemnities included;

• suppliers and their contact details;

• dates and details of locations of supply; and

• any correspondence in relation to the supply, particularly as to quality of the material.

Councils should review their arrangements with suppliers to understand the nature of the material permitted to be used in landscaping and ensure that it is properly documented.

Where material is known to be recycled industrial waste material, the Act has a statutory process which provides a means of authorising the place of receipt as being a ‘lawful place’ that is ‘authorised to receive’ the waste.  This statutory tool is specifically envisaged to be used for recycled landscaping materials under reg 64(1)(b).

By Julian Hammond Partner & ESG Co-Lead, Caroline Sakinofsky and Benjamin Wilson

[1] Duncan Prendrigh, EPA Director of Regulatory Services, during press conference, 8 April 2024, as reported by A Ore, ‘EPA issues warning to councils after asbestos found in Melbourne parks’, The Guardian (online, 8 April 2024).
[2] Environmental Protection Act 2017 (Vic), s 274(6).
[3] Environmental Protection Act 2017 (Vic), s 274(6).

Australia’s population is aging. In just two years, around 22 per cent of Australians will be over the age of 65, an increase of 16 per cent since 2020. As more Australians age, incidences of elder abuse are also on the rise – up to six per cent of elderly Australians suffer from elder abuse. The pro bono team at Hall & Wilcox are supporting elderly Australians suffering elder abuse. Dan Poole, Senior Associate in the firm’s Pro Bono & Community team, and Ruby Hunt, Pro Bono and Community Co-ordinator, break down the facts on elder abuse.

What is elder abuse?

Elder abuse is any act which causes harm to an older person and is carried out by someone they know and trust, for example, a child, grandchild, friend or neighbour. Usually, elder abuse is intentional and can take several forms, such as financial, social, emotional or even physical or sexual. Signs of elder abuse can be obvious or more discreet and may include signs of neglect (such as weight loss or poor hygiene), depression, social withdrawal, financial stress or physical harm. Some people are more susceptible to elder abuse, such as those with dementia or other mental impairment, functional dependency, substance dependency or who are socially or geographically isolated.

What legal remedies are available?

The Australian Law Reform Commission published the report, Elder Abuse – A National Legal Response in 2017. The Commission has been working with Government agencies to implement the recommendations of the report. Remedies for elder abuse may be criminal or civil, depending on the nature and severity of the abuse, and differ from state to state. The ACT has been a leading jurisdiction in the fight against elder abuse, implementing new laws with up to three years imprisonment for those perpetrating financial elder abuse. The legislation also criminalises neglect of a vulnerable person, and the failure to protect a vulnerable person from a criminal offence.

Case study: lost savings and residence

We are seeing an increasing trend of financial abuse and misuse of legal mechanisms, such as powers of attorney, by family members or family friends against their older relatives.  

Often, these matters involve ‘granny flat’ type arrangements where the older person agrees to transfer significant amounts of money or property to their children or other family members for limited or nil consideration based on an understanding that the older person will be entitled to live in the granny flat or house for the remainder of their lives. At face value, these arrangements can appear ‘win, win’: the older person gets a place to live with the care and company of their children, and the children benefit from the early ‘inheritance’.

However, unsurprisingly, such arrangements often do not work out and the relationships involved often break down. Fortunately, the Court is generally empowered to intervene in such situations and make orders to rectify any resulting inequity, usually in favour of the older person.

The firm recently acted for an older woman, Carla Smith*, in respect of court proceedings involving a granny flat. After receiving an inheritance of around $200,000 after her father passed away, Carla reached an agreement with her daughter, Hilary, and her daughter’s partner, Rebecca, that Carla would transfer the entire inheritance to the couple in exchange for a lifetime right to reside in a granny flat that would be constructed on a property owned by Rebecca, where Rebecca and Hilary also lived.

In accordance with that agreement, Carla transferred her inheritance to Rebecca and Hilary, leaving her with only approximately $200 in her bank account, and a granny flat was constructed on the property. Carla moved in, and the trio lived at the property together happily for a few years.

In 2018, Carla’s daughter and Rebecca split up, and Hilary moved out. Soon after, Rebecca evicted Carla into homelessness, and yet refused to return any of the $200,000 Carla had paid. Hilary did not want to intervene out of concerns that Rebecca would try to prevent her from having shared custody of their child.

For Carla, this left her destitute, with nowhere to live and no way of funding her living costs for the remainder of her life.

Hall & Wilcox assisted Carla to issue court proceedings to enforce her rights, which ultimately resulted in a confidential settlement at mediation that involved Rebecca agreeing to repay most of the $200,000 Carla had paid. With the proceeds, Carla has been able to purchase a block of land in a rural area in Queensland and is now building a tiny house.

* Not her real name

Dan Poole Senior Associate, Pro Bono & Community and Ruby Hunt Pro Bono & Community

Hall & Wilcox has marked a significant step in the expansion of its government practice with its appointment to the Whole of Australian Government Legal Services Panel (WoAG) Panel.

Chief Executive Partner Graydon Dowd said, ‘This is an exciting time for Hall & Wilcox as we deepen our engagement with government. We’re dedicated to leveraging our expertise to partner with Commonwealth departments and agencies navigating complex legal challenges and supporting the delivery of objectives in the public interest.

‘We value the privilege of serving the government and have demonstrated our commitment over the past decade through strategic investments in our government practice. The Hall & Wilcox team proudly offers a fresh perspective and leading expertise to all levels of government.’

The firm was appointed to all five areas of law it tendered for, and is delighted to offer the Commonwealth a full service commercial law firm.

The panel commenced on July 1.

Vegan spinach pastries

Nicole Plain, Hall & Wilcox’s Brisbane Office Manager, has been a committed vegan for 10 years. She is so invested in the cause she has even has the word ‘vegan’ tattooed on her arm! Nicole is passionate about sharing delicious vegan recipes. Here is her son’s favourite.

Ingredients

• 1 block of hard tofu

• 1 onion diced

• 2 tablespoons of olive oil

• 3 cloves of garlic

• ¼ cup of nutritional yeast

• ¼ cup of grated vegan cheese

• 1 tablespoon of vegetable powder stock

• Salt & pepper to taste

• 2 tablespoons of corn flour

• 1½ cups of soy milk

• 1 packet of baby spinach

• 3 sheets of vegan puff pastry

• Spray oil

Method

• Heat the oil in a frying pan and add onion and garlic. Cook until translucent.

• Crumble the tofu into the frying pan and mix.

• Mix some of the soy milk with the corn flour until combined. Add this and the remaining soy milk to the pan.

• Add salt, pepper, vegetable stock power, nutritional yeast and vegan cheese. Mix well and taste for salt and pepper.

• Once you have the mixture to your liking, turn the heat off and add the baby spinach. This will wilt from the heat of the pan and mixture.

• Let this cool, then divide the mixture between the puff pastry sheets. Fold the puff pastry over to enclose the mixture into a neat package. Use spray oil to stick the pastry together and use a fork to press down the edges to create the seal.

• Spray the pastries with spray oil and cook in a moderate oven for about 20 mins or until golden brown on top.

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 now.

Finalists in Lawyers Weekly Australian Law Awards

Hall & Wilcox are thrilled to have been shortlisted as a finalist for six categories, including ‘Government Team of the Year’, in the 2024 Lawyers Weekly Australian Law Awards.

The nomination reflects our team’s dedication to partnering with all levels of government where our Smarter Law approach to client service continues to set us apart. Thank you to our wonderful clients who supported us in achieving this nomination.

The other categories Hall & Wilcox have been shortlisted for are:

• Law Firm of the Year (reigning recipients for the past two years)

• Workplace Relations and Employment Team of the Year

• Innovator of the Year – Company

• Banking & Finance Team of the Year

• Wellness Initiative of the Year

Congratulations to all nominees.