Public Law – Issue 24

We hope you enjoy this latest edition of Public Law, which is designed to both enrich and entertain you.

In this edition, you will hear from an expert in ecology about the environment, tips from a Harvard Law Professor for collaborating, and how to avoid unwittingly entering a binding agreement from settlement negotiations, as well as enjoy all our usual columns from delicious food to great reads.

I have a great read of my own to recommend, and it is a book recently published by Sahil Bloom called The 5 Types of Wealth. 

Sahil’s book is divided into time, social, mental, physical and financial wealth. Fundamentally, it asks you to reflect each day on your priorities and then align what you actually do with those priorities.  

The question that rings in my mind now is: if you only had five years to live, would you be happy with how you spent your day today?  

Has quite the ring to it, doesn’t it?  

Sahil recounts his life-changing move across America following the epiphany of how little time he had left to spend with his parents. If you see someone once a year and they’re 70, you can do the maths.

I have asked myself Sahil’s question often, and I find it both liberating and empowering. If you knew you had five years to live, you would prioritise what actually matters, right?  And you wouldn’t get upset about things that don’t really matter, right? And if you knew your life (literally) depended on it, you’d prioritise your health, right?  

And so, in this way, the question is really empowering about how to live your best life every day. 

Here’s to living every day, well.

Hall & Wilcox recently held our Partners and Senior Leaders conference in Melbourne. It was a new experience for me, my first partners conference since I stepped down as National Managing Partner of Hall & Wilcox last June. 

At the conference, we heard from Dr Heidi Gardner, the author of ‘Smarter Collaboration’, who provided valuable insights about how we can harness the best in people to achieve peak performance, collaboratively across and within organisations. 

The key takeaways to share with Government include the importance of harnessing these ideas.

• Deep understanding: Dr Gardner emphasised the need for specialised experts to work together across boundaries to tackle complex issues.
• Effective collaboration: The importance of investing in relationships, both organisational and personal, was emphasised.

According to Dr Gardner, organisations that collaborate smarter consistently generate higher performance, boost innovation, inspire greater loyalty, and attract and retain better talent. 

• Momentum: Finding and recruiting people who are influencers who can help establish a shared language and common purpose is critical for creating energy and sustaining it, particularly when projects take a long time to execute.
• Proactive communication: An emphasis on the importance of being proactive and assertive to discuss challenges and opportunities relevant to our clients. This translates through engaging in open and transparent communication to address public sector challenges and leveraging opportunities for improvement.

Tony Macvean, Partner

Last week, Hall & Wilcox was announced as the joint winner of the ‘Best Australian Law Firm (>200m revenue)’ at the Beaton Client Choice Awards. These awards are judged by client feedback, with the winners receiving the highest overall client service scores in their categories. We put clients at the forefront of everything we do and thank them for their continuing support. 

Timothy Wills is a botanist with 25 years’ experience  in ecological research and consulting across Australia. A recognised expert in fire ecology, he holds a PhD focused on the fire ecology of heathlands in the  Gippsland Lakes Coastal Park. 

His research and fieldwork have made him a sought-after expert witness on ecological matters, offering critical insights and evidence in legal and environmental proceedings. 

What inspired you to pursue a career in ecology?

After high school, I ended up doing a Bachelor of Science degree, and it was during a field trip to the Grampians (Gariwerd) National Park where my passion for vegetation ecology was ignited. We were conducting transect studies to observe how vegetation changes from the base to the peak of Mount Sturgeon and I was fascinated to understand the factors that drove plant species to occur in different parts of the landscape.

I’m lucky to have a career that I’m passionate about, which allows me to explore and appreciate the natural beauty of Australia.

Can you share a memorable moment from your career that  had a significant impact on you?

I’ve had many memorable moments, but one that stands out was a once-in-a-generation opportunity to survey vegetation across Victoria following the Black Saturday bushfires. We conducted surveys in a range of remote locations with the goal of providing quality data to help the government in understanding Victoria’s vegetation, fuel loads and how best to manage it. The project arose out of recommendations from the Bushfires Royal Commission, and it was a wonderful opportunity for the team to gain a deeper understanding about the flora of Victoria.

What does a typical day look like for you at the Ecology Office?

I spend about 80 per cent of my time in the office, mainly writing reports, and about 20 per cent of my time in the field. For most projects we work on, there is a component of fieldwork. This might comprise a day visiting a small site in the suburbs of Melbourne or extended trips to more distant locations across south-east Australia.

My work often involves expert witness statements, generally for government clients. I write reports as part of the environmental approvals process for major projects in the transport, energy, water and tourism sectors. I also undertake ecological monitoring and research, focusing on the impacts of disturbances such as flood, fire, weed invasion or feral animals on ecosystems and threatened species.

What do you find most rewarding about your work?

Seeing the recommendations I make or the advice I give being taken on board by a client, which leads them to either minimise or avoid impacts on native vegetation, fauna habitats, and threatened species or ecological communities.

I enjoy training and mentoring botanists in the earlier phase of their careers. I’ve been fortunate to see many grow to be outstanding botanists and leaders in their own right. I received similar input from industry leaders when I first started, and it benefited me enormously. I love visiting new places. I am fascinated by seeing new vegetation and ecological communities, from alpine areas to coasts, wetlands, and semi-arid flood plains. It’s interesting and professionally stimulating. It keeps me going and I love to keep learning.

Can you tell us about an exciting project you're  currently working on?

I’m working on a project with the primary aim to facilitate the provision of environmental water onto stressed floodplain ecosystems along the Murray River, some of which are in National Parks. Owing to river regulation over the past century, less water now reaches the floodplains. Consequently, the ecosystem is gradually declining in condition.

If approved, the project will cover over 10,000 hectares of floodplain, wetlands, waterways, woodlands and shrublands, ensuring they are watered more frequently to enable the ecosystem to survive and thrive long-term. The project is now nearing the final stage of the planning and approvals process. It is an opportunity to make a real positive impact. 

What are your hopes for the future of ecology and environmental protection?

Australia currently has one of the highest rates of species extinctions in the world. The list of threatened flora and fauna is constantly increasing. I’d like to see a more effective process for protecting the ecological values that need to be preserved.

There is a lot of discussion about nature-positive approaches, but there is still considerable ambiguity and uncertainty. Significant changes are expected in the next five years, including mandatory reporting for larger organisations and their environmental impact.

What's your favourite outdoor activity or place to connect with nature?

I love going hiking or bushwalking with friends and family. The most memorable recent trip was a four-day hike in Tasmania last year. I love getting out among nature and am fortunate that I can do this with the projects I work on.

Alison Baker, Partner

When a notifiable incident occurs, a person conducting a business or undertaking (PCBU) must take specific steps to comply with Work Health and Safety laws – some of which must be considered in the first 24 hours after an incident. It is important to be on the front foot if an incident occurs.

Notifiable incidents

A notifiable incident is the death of a person, a serious injury or illness or a dangerous incident. Dangerous incidents include a ‘near miss’ (such as a person walking away from an electric shock, or an explosion where no one  is injured). 

First 24 hours 

Notifiable incidents must be reported to the regulator immediately. Failing to report is an offence and penalties apply. If you’re unsure a report has been submitted, you should report the incident. 

These steps must be taken in the first 24 hours after an incident: 

• make sure everyone is safe
• provide emergency medical treatment if needed
• implement the organisation’s emergency plan (if one exists)
• secure the site and exit anyone in the area, do not disturb the scene and
• attend to your employees.

If EAP is offered, make sure people who have secondary trauma from the incident are aware of support available for them. 

You are required to notify your insurer within 48 hours. 

Communications 

You may need a media response. If this is the case, notify the family and next of kin first. Assign one person to channel all media enquiries. Ensure communication is succinct, consistent and limited to the facts. Avoid speculation and don’t volunteer any information you don’t have to.

Responding to notices 

Prohibition, improvement and production notices are a significant part of an inspector's arsenal in both monitoring and enforcing duties under the Act. The notices are aimed at remedying non-compliance, rather than being punitive (although they can be issued in conjunction with punitive measures). Non-compliance is a breach and significant fines can be imposed. The main check is reasonable belief, which is both subjective and objective.

Improvement notices 

This notice is issued when an inspector has reason to believe that the PCBU has, is or is likely to contravene the WHS Act or Regulations, which then need to be remedied. The notice must highlight what provision of the Act has been contravened and how. It directs the PCBU to fix the issue within a specified timeframe, while allowing the workplace to continue operating. An example would be fixing a slip hazard, or training workers on correct usage of equipment.

Prohibition notices 

This notice is issued when an inspector has reason to believe an activity involves or will involve a serious risk to health and safety due to imminent or immediate exposure to a hazard. It requires that the activity is to be stopped immediately until the risk is mitigated. The notice will provide both compulsory and non-compulsory recommendations. The notice needs to be sufficiently detailed to understand which section was contravened and how to remedy the situation. 

Challenging improvement and prohibition notices 

Timeframes to challenge these notices are strict. Internal reviews are your first option. You can suggest an internal review to the regulator within the first 14 days of the notice coming out. This triggers an external review which is far more formal. The key is to consider the ‘reasonable belief’; if it is too subjective, the notice cannot be upheld.

Production notices 

This is a fact-finding exercise to ensure compliance with the WHS laws. There are two types: pre-incident (based on reasonable grounds to monitor or enforce compliance) and post-incident (issued within 30 days of an incident to gather information).

Dealing with action by WHS Entry Permit Holders 

A WHS Entry Permit Holder, typically  a union official, has specific rights and entitlements under the WHS Act.  They must:

• hold a valid entry permit;
• provide 24 hours’ notice to enter and inspect the premises within 14 days (unless there is an imminent risk to health and safety);
• only attempt entry during usual working hours;
• have issued a notice of entry;
• not behave in a way that contravenes WHS law (and you can deny them access to certain areas you deem unsafe); and
• not intentionally or unreasonably delay, hinder or obstruct any person, or disrupt work.

The PCBU obligations are: cannot refuse entry or unduly delay entry; can make a reasonable rejection, such as them not showing their permit after you request it; and cannot intentionally or unreasonably hinder or obstruct the permit holder from entering a workplace or exercising their rights. 

We appreciate that these can be challenging and difficult circumstances, so please reach out for support.

Nicholas Beech, Partner

Navigating the vast array of legal resources available online can feel overwhelming. In this issue, Naish Peterson shares some tips and tricks for navigating AustLII, with over 1000 databases and more than 1.7 million documents. It is the recognised judgment repository for most courts and tribunals around Australia and includes a large historical collection of law reports, legislation, and extrinsic material.

To effectively navigate this wealth of information, it's essential to have clear search strategies. Using Boolean operators can help you refine your search terms and generate better results. Here are some commonly used boolean operators for AustLII and how you can use them to structure a search.

Here are ways to refine and narrow your search for better results:

• A search for land tax primary production returns over 22,000 documents.
• A search for ‘land tax’ near ‘primary production’ reduces this to around 600.
• A search for ‘land tax’ w/10 ’primary production’ comes down to 350.
• These numbers can be further reduced by limiting to a specific court or jurisdiction. As an example on the AustLII home page, select VIC from the top menu. Then select Vic Case Law. The same search now returns 50 cases. You can also narrow the results further by limiting your Vic Case Law search to specific courts/tribunals.
• AustLII also provides additional search options, such as search title only (great for case names, citations or legislation) and an Advanced search template (allows to refine your search to cases, legislation, journals, etc only)

Once you are viewing a judgment, you can obtain further information about other cases that refer to the decision, legislation cited in the judgment, and cases and articles cited in the judgment by clicking on LawCite and NoteUp references.

Although you should use authorised government sites for your legislation, AustLII can be useful for reviewing cases that have interpreted a specific provision.

By using these search strategies, you'll be able to navigate AustLII more efficiently and find the information you need with ease. Happy searching!

Webinar series

To assist you in staying up to date and meeting your annual CPD/CLE requirements, we are offering a series of complimentary webinars filled with the latest insights and practical knowledge to assist your day-to-day practice.

2025 NSW Government webinar series - Register now.

2025 Victorian Government webinar series - Register now.

IWD 2025

The IWD 2025 theme, ‘March Forward’, continues our pursuit of a gender-equal future. To celebrate this theme, Hall & Wilcox hosted a panel discussion focused on the economic empowerment of women. On the panel were Donna de Zwart, Managing Director of Fitted for Work, Sheree Rubenstein, CEO of One Roof, Chief Executive Partner Graydon Dowd and Director of People & Culture Kit Vati. 

The panel discussed how economic empowerment is fundamental to achieving equality, what strategies can be implemented to support people in different life stages, how to combat systemic barriers, the role of education and skills in empowering women and how we contribute to our own economic empowerment. 

Hector West, a Partner in the Perth office, has mastered the art of making spaghetti from scratch and promises it isn’t that hard! With the holidays approaching, why not put on an apron and get the kids involved in preparing this family favourite.

Ingredients

50g flour

50g semola flour

1 egg

pinch of salt

1 teaspoon of extra virgin olive oil

Method

Mix the flours together and create a volcano shape. In the centre, place the de-shelled egg.

With a fork, break the egg by taking a little flour around. When the mixture is no longer liquid, knead vigorously on a work surface until you obtain a smooth and consistent paste, which you will wrap in a plastic film and let it rest for at least 15 minutes in the fridge.

Roll the dough using a rolling machine or a rolling pin to the desired thickness, then wrap it from both sides to the centre and cut it to size you want: fettuccine, tagliolini, pappardelle etc.

Once the dough is cut, leave it on a wooden chopping board on top and add a small percentage of flour to prevent it from drying too much.

For a simple topping that the kids and adults alike will love, toss the freshly cooked pasta in melted butter, freshly cracked black pepper and lashings of finely grated pecorino romano. And voila, the whole family will enjoy the simple Italian dish cacio e pepe. 

Tips to consider when communicating during negotiations (toward settlement), with a spotlight on the recent Federal Court decision of Farrell v Super Retail Group Limited (Specific Performance Claim) [2024] FCA 1515.

On 23 December 2024, Justice Lee of the Federal Court ruled that partly written, partly oral communications between a former executive of Rebel Sport owner Super Retail Group (SRG), and SRG, did not form a binding agreement. 

This decision highlights the challenges of enforcing contracts from informal discussions and negotiations. It's crucial to keep this in mind when negotiating a settlement.

Case summary: Farrell v Super Retail Group Limited

After an unsuccessful mediation, the parties continued to negotiate. Emails, phone calls and texts between their solicitors suggested some key terms were agreed and that a deed would be entered, but no deed was ultimately signed. The applicant sought specific performance of the alleged oral agreement. 

Key question: was a legally binding agreement formed? In considering whether an agreement was formed, Justice Lee outlined the following six helpful propositions (Farrell [14]-[20]): 

1. The commercial circumstances in which the parties exchanged their communications (be it a series of communications or individual documents), and the subject matter of the alleged contract.
2. Where the parties are sophisticated entities, or where the negotiations concern a significant transaction, it is less likely such parties intended to be immediately bound unless they expressly say so.
3. The post-contractual conduct of the parties; is it consistent with a binding agreement?
4. Whether agreement has been reached with respect to matters of importance.
5. Whether the expressions ‘subject to contract’ or ’subject to deed’ are included, as this generally denotes an executed contract will be required.
6. Whether subsequent communications show that the parties continued to negotiate.

Applied the facts in Farrell: 

1. His Honour noted that the parties’ solicitors were ʼhighly accomplished, experienced and sophisticated commercial solicitorsʼ and that the ‘commercial sophistication of the parties (and their legal representatives) is not an insignificant contextual matterʼ. Rather, it suggests the parties wished any accord struck be embodied in a formal document (Farrell at [119]);
2. earlier discussions between the parties evidenced they understood that any settlement would necessarily be reflected in a formalised deed (Farrell [120]);
3. that a consensus had emerged, but that it was subject to finalisation of a mutually agreeable instrument, which would only then take effect as a concluded bargain (Farrell [124]);
4. the parties had yet to agree upon what might objectively be thought to be quite substantive terms necessary to be resolved prior to a concluded settlement (Farrell [145]); and
5. reference to the requirement of a ‘deedʼ and ‘in-principle agreementʼ, and to the confidentiality of the without prejudice ʼnegotiationsʼ being maintained would lead a reasonable person to conclude that the communications regarding the draft deeds were negotiations following an ‘in-principleʼ, but not yet finalised, settlement (Farrell [140]);

Practically, beware of uncertainty within communications when next negotiating.

• Set clear parameters with unambiguous language.
• Does the mediation agreement state a signed contract will be required?
• Does your communication say ‘subject to contract’?
• Have you agreed all key terms?
• If you intend to be bound immediately, but nonetheless intend to have a written agreement, state what happens if the agreement is not signed.
• Beware that without prejudice privilege will not protect you from disclosure if a dispute arises about whether an agreement is alleged to have arisen.
• Take careful notes of communications, as these will inform any determination if a dispute about the agreement arises.
• Act consistently with any concluded agreement, as seeking to renegotiate terms or add new terms may indicate no agreement was ever reached.

Lauren Separovich, Special Counsel

Steve Patrick has joined Hall & Wilcox as a Senior Commercial Counsel in our expanding Commonwealth Government team. Steve leads our Defence Industry legal practice, adding depth to an already talented team.

James Morvell sat down with Steve to hear about his appointment. 

What inspired you to pursue a career in law? 

In uniform, I saw the operational end of policy and legislation, both in Australia and regionally. Working directly on policy, Budget, Cabinet, and legislative processes was probably the determinative factor though. Those years at PM&C and as a ministerial adviser were priceless training on the machinery of government. It opened my eyes to a complex, contradictory, but fascinating process.

Your career has been diverse. What led you to work at a law firm and join Hall & Wilcox?

I started in criminal law; in both defence and prosecution. These were the fast-track versions of learning practical law: court every day, clients or research in the afternoon, preparation at night. It was exhilarating, but often exhausting.

My portfolio background led me to an in-house role as General Counsel in late-stage R&D for the national security community. It was a great firm doing extraordinary things, but the role was more of a legal GP rather  than legal specialist. 

When Hall & Wilcox was appointed to the WoAG Legal Panel, we spoke about how important this time was for Defence and it is a great opportunity to combine my background with the broader, national capability of HW.

As lead for Hall & Wilcox’s Commonwealth defence practice, what are the challenges you foresee for the sector?

The reforms and this time in the Defence community generally are significant. I don’t think that’s news to anyone. 

AUKUS adds a layer of complexity for policy implementation, regulatory ratification and compliance – particularly in trade and export controls – and in cross-jurisdictional capability acquisition and sustainment generally. 

Tech always moves but I’m not sure we as a Defence community have our heads around the impact of AI, and it’s not being reflected in any meaningful way in government or industry engagement – yet. Defence and industry have always had to work with shifting strategic environments and domestic policies, but this time does feel trickier than in the past. 

What we’re trying to do is to smooth the bumps – the legal issues and imperatives that are critical but can slow the machine – so the core work can be done, efficiently and effectively, by the departments, industry, and ultimately our operational forces. 

What habits do you implement to help you unwind?

I make a point to go to the gym every morning. It's a quiet time where you can give your brain a break and give the rest of the carbon a shake-up.

Do you enjoy traveling? Are there any places on your bucket list?

Anywhere with a swim-up bar really… 

Can you recommend a book that you've recently enjoyed?

One that is relevant is Phillip Bobbit’s Shield of Achilles. It’s a military history/strategy book (surprise, surprise…) but one that puts the State back into examination. After two decades of asymmetric and non-state conflict being central to our thinking and looking at where we are in 2025, it feels particularly pertinent. 

Remember when Covid-19 brought the world to a halt and disrupted the global supply chain? In this 

book, Peter S. Goodman, the global economics correspondent for the New York Times, traces the roots that led to disruption and explores its consequences.

His story opens in October 2021, with a picture of what he describes as the global economy ‘shuddering to a halt’: more than 50 enormous ships, loaded with $25 billion worth of goods, marooned offshore at Southern California, waiting to unload cargo. 

Goodman unravels how the pandemic upended everything we thought we knew about globalisation and the global economy, showing that the supply chain, previously seen as separate from commercial interests and the economy, is inextricably linked. In chapters exploring global shipping, US railroads, trucking firms, warehouses, farmers and the offshoring of everything to China, he outlines how Covid-19 dramatically exposed the vulnerabilities in capitalist economic systems, which led to the chaos of empty shelves and frustrated consumers. We can dismiss the lack of new TVs or gym equipment as ‘first world problems’ but vital supplies, such as medical equipment or PPE, were equally affected. 

Many of his observations are applicable specifically to the US economy and employment market, but there are wider lessons for all. The book is divided into three parts: global manufacturing and the evolution of the supply chain; how the industries that are involved in transporting goods failed during the pandemic; and how the global crisis offers an opportunity to reinvent the supply chain. 

As Goodman highlights, if we don’t take this chance for improvement, the world remains vulnerable to the next shock, whether it is a pandemic or a climate crisis.

Melinda Woledge, Marketing & Communications Manager

We are excited to announce we have moved into our new Melbourne office at Queens & Collins Tower. At our official opening, Meg Lee, Melbourne Office partner in charge, spoke about the Wurrundjeri smoking ceremony that welcomed us to the new site and how our new fitout reflects our collaborative and innovative approach. We welcome our clients to visit us, pop in for a coffee, and explore our new office space. We also look forward to hosting you at our various training events this year and supporting your needs.

Lindsay Stevens, an associate in our Property & Projects team, recently undertook a reverse secondment as a Legal Officer at the NSW Department of Planning, Housing and Infrastructure (DPHI). She was placed in the Public Spaces and Parklands legal team, and worked with various NSW Government place-making agencies, including Place Management NSW, Greater Sydney Parklands, and the Royal Botanic Gardens and Domain Trust. 

Motivation and benefits

My motivation for secondment was that I wanted to take on a new challenge and deepen my professional connections within DPHI. I said yes to as many opportunities as I could, allowing me to take on a wide variety of matters and adding value to the DPHI legal team. The experience has strengthened our ongoing collaboration and opened doors for future opportunities.

Diverse responsibilities

I advised on a wide array of issues, from retail and commercial leasing to procurement, development agreements and design and construction contracts. I also advised on events agreements for iconic events, intellectual property agreements and other general commercial contracts. It was an incredibly rewarding whirlwind of activity.

Overcoming initial challenges

I found switching from acting as an external advisor to an in-house role was a challenge. I had to adapt to giving instructions and managing internal government clients. There was a lot of learning, particularly navigating internal government processes, an area that was new to me. 

Professional growth

Secondments offer fantastic learning opportunities. I gained a deeper understanding of government processes and requirements, which is invaluable for my professional development. Advising with an in-house lens, as opposed to being an external adviser, gave me a fresh perspective and broadened my skill set.

Building relationships and networking

One of the highlights was building professional relationships within DPHI. I had the chance to work with everyone in the DPHI Public Spaces and Parklands legal team, as well as colleagues in other teams such Property and Development, Litigation, and Procurement. I attended team-building and training days, which provided excellent networking opportunities and helped make personal connections with colleagues.

Why do a secondment?

Secondments offer a fantastic opportunity to meet learn new subjects, diversify skills, gain new experiences and broaden your network. If you're considering a secondment, go for it!

Hall & Wilcox welcomes and supports reverse secondments and are always looking for opportunities to broaden the experiences of our clients and our people.