Public Law – Issue 11

Onward, to our greatest potential…

By Kathryn Howard

I write this to you early one morning, listening to the birds chirp loudly, the promise of spring on its way. The trees are budding with new life, and the scent and bloom of wattle is in the air. 

We are coming to the end (fingers crossed) of a long winter, another spent largely in isolation from friends and family as we continue to feel the effects of the pandemic.

We have had the treat, though, of being kept company by the inspiration, joy and determination of the Olympic athletes. 

I have learnt so much from hearing their stories. 

From the athletes who miss their fathers who have passed away, I am reminded to treasure the blessing that it is to still have time with my loved ones. 

From the athlete whose coach said, ‘I have been the instrument of her pain every day these past five years’, I am reminded of the personal cost, hard work and trust that it takes to achieve greatness – whichever path it is you travel. 

From the athlete who observed that the measure of a person is not who they are when things are going well but who they are when things aren’t going well, I am reminded that true greatness is in the character of a person.

And from nature blossoming all around me while I marvel at such great sporting achievements, I am reminded that we each bloom to the best of our current ability and that it takes deliberate growth year upon year to fulfil our greatest potential.

Elizabeth Letts perhaps said it best in The Eighty Dollar Champion, when she wrote, ‘Harry’s life had taught him that sometimes courage is needed… the bravery to do what is required of you when the going gets tough.’

And so may we each dare greatly in the arena of life, as Theodore Roosevelt once encouraged.

Five minutes with: Nicholas Proud, CEO Powerhousing Australia

We caught up with Nicholas Proud, CEO of PowerHousing Australia, which facilitates a national network of Community Housing Providers (CHPs).

What is the greatest misconception of community housing you most commonly see?

Some perceive community housing from an economic viewpoint, while others see it through a social lens. But community housing is a continuum from the economic through to the social, with the social and economic benefits completely entwined.

How healthy is the community housing sector in Australia?

Community housing has doubled in the past 10 years, and the PowerHousing membership has doubled the number of homes it manages over the past five years. State governments have become more interested, seen the potential and partnered the delivery of community social and affordable housing. It’s a significant output in providing lower-cost public housing to correct a market failure.

But public housing delivery has almost halted, and housing affordability has worsened. So while community housing is growing and is healthy, it will continue to grow in scale to address huge issues around affordability and long wait lists for social and affordable housing.

Where are the biggest opportunities in community housing right now?

Interestingly, Australian superannuation funds invest in community housing in North America and Europe, where there is a strong affordable housing equity market and returns. But they are only just starting to invest here.

A big opportunity for Australia is to have an asset class here soon. If we can develop similar secondary markets, via tax concessions and government guarantees, we’ll normalise a stable incentive for investment into community housing, which will get more people into more affordable homes.

What is the main community housing issue for governments?

A huge challenge is affordable housing delivery at a price point people can buy or rent – it’s a simple correlation that wages are fixed and that house prices have gone up quickly even since COVID-19 hit.

Community housing is currently a smaller part of the Australian housing landscape, but has the emerging capacity to tackle the affordable housing problem. Our community housing members don’t sell their homes,
they are affordable for good. This has major positive implications on our communities and our economy.

As governments continue to get on board and play a larger role, we will see real progress. Government guarantees make a big difference – for example, the National Housing and Finance Investment Corporation has provided $2 billion across the sector in low-cost, long-term, government-backed loans, and covers in case of default, but we’ve never defaulted, and so this provides long-term safe yield for patient capital.

Who or what inspires you?

Everyone I’ve met in both community housing and the private sector partners that are coming to the table provide influence and affirmation that this is something special to be part of. People who work in social and community housing play a vital role. They are like emergency services workers, they metaphorically take people out of often challenging situations and put them in a safe place.

What are you working on currently which excites you?

Property transfer, where state government hands over property for it to be upgraded and improved for everyone. These property transfers cost the economy less, cost the environment less, and deliver great outcomes for people.

The other big one is creating equity, to allow for investment in community and affordable housing as an asset class. The equity structure has been proven effective overseas, and government plays a key role to support it and give people the confidence to invest. The opportunity in Australia is providing a global market we can tap into, which could bring billions of funding into community housing.

What’s coming up for PowerHousing Australia?

We’re looking forward to hosting recently reappointed Community Housing Minister Michael Sukkar at our Melbourne CEO Roundtable in August, and at our November Canberra Conference.

Connecting you: Sheree Rubenstein

Jasmine Koh, who heads up Hall & Wilcox’s Frank Startup Practice, caught up with Sheree Rubenstein who founded One Roof, a supportive community providing female businesses and startups with a network and everything they need to survive and thrive in business.

What drew you towards the startup space after a career in corporate law?

I grew up in a home with seven secretaries in the living room from 8am to 6pm! There was always that entrepreneurial spirit in my family and in my life.

I wasn’t so much drawn to the startup world as solving a problem, driven by a vision and a mission which guided me, and I became very passionate about closing the gender gap in the business world and removing barriers that exist for women. I eventually started running networking events for women, and that led to One Roof.

Are female startups getting the attention they deserve?

I think there’s more attention on female businesses, which is great. But there’s still a massive gender gap and as time goes on those gaps and those problems become much more subtle and underlying rather than the more overt discrimination that’s very obvious and easy for us to call out.

The issue is there’s attention and there’s talk – for example, every organisation runs an international women’s day because it’s a no brainer – but how does that convert into action?

What are some common barriers faced by female startups?

Funding is a massive barrier. Only about 3% of global venture capital funding goes to female businesses and it’s a very slow burn trying to increase that number. Yet we already know through research that women-led businesses have a higher return on investment. So we know that investing in women is financially viable and is a good commercial decision but we’re still not seeing that play out in the numbers. Part of that problem is we don’t have enough female investors.

There’s still this undercurrent, this unconscious bias, that we don’t actually feel comfortable with women in leadership yet. A founder once said to me the default for a man is: ‘What kind of an entrepreneur is he going to be?’ While, for a woman when she walks into a room, it’s more like: ‘Can she be an entrepreneur?’ You know, is she going to have kids and family, and is she going to take this idea global, and does she have the capacity to be a good leader.

What do you think of the common term ‘mumpreneur’?

It’s more a hindrance than a help. Unless we start saying dadpreneur we shouldn’t be using the term mumpreneur.

What are some common traits for success you see among female startups?

Successful female entrepreneurs are laser-focused. They need to have courage and need to be vulnerable. The journey for women ends up being that we’re the underdogs, we’re going to need to prove ourselves, we’re going to be pitching to raise capital and facing people in a room who don’t like our ideas. We’re going to face rejections, we’re going to probably face comments that are directed to us as a woman, and we’ve really got to push through that and put ourselves out there and just sit through that immense discomfort.

I think the most successful people literally don’t give up. But you also need to be curious and able to take a step back, observe, listen, see what’s happening and be able to act from a place of awareness and curiosity around what the problem is.

It’s really important to have a support network, particularly if you’re a mum. You need a great partner who believes in what you’re doing, or you need a great network, because the reality is sacrifices are going to be made and, whether you are a mum or not, you have to forge that support network in order to be successful.

Any interesting mentors/role models?

I think about my grandma who’s not alive anymore but she raised five children, was the person who had all the domestic duties, and then worked full time until she was 85. Even then she was very social, always raising money, always volunteering, always having dinners with her family and just somehow made it all work. She was just amazing.

I admire women like Catriona Wallace, who’s a mentor of mine, who has built a successful artificial intelligence ASX-listed company. She is a single mum of five kids, building a business in an industry where there are no women, always in a room with men, always pitching to men, really paving a way for other women to come through, and it’s a hard journey but she’s very honest. The best thing is when women tell it like it is and share what’s really going on.

Also Sarah Agboola, who has also been through the Frank Lab program. Sarah runs mtime and is building such a great business which solves problems for women. Also people like Melanie Perkins, Founder of Canva, Sarah Blakely, Founder of Spanx, Whitney Wolfe, Founder of Bumble and so many more!

What’s an exciting project you are working on and want to tell the world about?

We partner with Startup Victoria every year and run a big pitch night for female founders. We usually attract about 300-400 attendees and that’s on in November. That’s a great annual event to watch and we see some fantastic businesses come out of that.

The Frank team at Hall & Wilcox has now chosen the 10 outstanding businesses for our female-led Frank Lab 2021 program. To find out more, read our media release. Stay tuned for profiles of all our cohort members with videos and articles on the Frank Lab page of our website and across all our social media channels.

John Gray’s chicken with tarragon

By John Gray

For the first night of Sydney’s lockdown I cooked something familiar and comforting, taken from Elizabeth David’s classic cookbook French Provincial Cooking (first published in 1960); her recipe for chicken with tarragon is a family favourite.

You take a plump roasting chicken and insert into the cavity one tablespoon of unsalted butter kneaded with fresh tarragon leaves, a crushed clove of garlic, and some salt and pepper. Rub the chicken with olive oil, then bake it on its side in an oven pre-heated to 220° Celsius. After 20 minutes, turn it over to the other side and bake for another 20 minutes. Next, reduce the oven to 180°, lay the chicken the right way up and bake it until the juices run clear when the thigh is pricked with a fork (say, another 40 minutes).

Remove the chicken from the oven. At this point, the recipe gets interesting – and a little dangerous. Heat a small glass of brandy in a small saucepan and set fire to it, then pour the flaming brandy over the chicken. When the flames die out, return the chicken to the hot oven.

After 10 minutes, take out the chicken and rest it on a separate plate. Tip as much fat as possible from the pan that the chicken has been cooking in, then add a few spoons of thick cream to the pan and stir over medium heat. Season to taste, and you’ll have an amazing sauce to go with the chicken.

This goes best with plain boiled rice and a simple green salad. For the best ever salad dressings, check The Complete Robuchon by Joel Robuchon. Here’s a recipe based on one of his: mix one tablespoon champagne vinegar, one teaspoon Dijon mustard, two tablespoons walnut oil, and two-to-three tablespoons chopped walnuts, then season with salt and pepper.

Reconciliation Week and NAIDOC Week

By Nathan Kennedy

Where are we, 30 years on from the 1991 Royal Commission into Aboriginal Deaths in Custody? This was the topic of an important panel event we hosted as part of Reconciliation Week.

We heard from Paul Silva, nephew of David Dungay Jr who died in Long Bay prison hospital in December 2015; Keenan Mundine, Co-Founder of Deadly Connections Community & Justice Services; and Sarah Crellin, Principal Solicitor of the Aboriginal Legal Service.

As part of our NAIDOC Week program, we held a ‘Yarn with Red Dust’, which explored Aboriginal culture and Australian identity through storytelling.

CEO Scott Stirling and Cultural Advisor Jonathan Lindsay-Tjapaltjarri Hermawan discussed ancient protocols and a current-day approach to how and why they are used. They also spoke about the impact of colonisation, and explored what walking side by side means for all Australians.

We also held an Acknowledgement of Country (AoC) and cultural awareness training session. We learnt how to avoid some common misconceptions, including that elders are ‘our’ elders (for all Australians) not ‘their’ elders if you are a non-Indigenous Australian; and that only those speakers within the same forum who genuinely want to do an AoC should do one, otherwise it can come across as empty and just ‘ticking the box’.

Kitty’s know how: what’s in a lease ‘make good’ clause?

By Kitty Vo

‘Make good’ provisions are among the most contentious and costly clauses in a lease. When negotiating a new lease, landlords and tenants should ensure the make good provisions are afforded proper attention. Otherwise, someone will be left making good a hefty, unexpected bill at the end of the lease!

What is a make good clause in a lease?

A ‘make good’ clause or ‘yielding up’ clause sets out the tenant’s obligations at lease’s end when the tenant vacates the premises.

There are no restrictions on what a make good provision should contain. Some common provisions require the tenant to return the premises to:

• a specific condition, for example back-to-base building configuration
• the condition as at the commencement date or as shown in a condition report;
• a condition consistent with the tenant’s obligations to repair and maintain the premises during the term; or
• removal of furniture and personal items only (ie detachable items that are not fixed to the premises).

What landlords must know

If the lease provisions are unclear and the tenant successfully argues it is only obliged to undertake limited make good obligations, the landlord may incur substantial costs to remove the tenant’s fixtures and fittings before it can re-let the premises.

This is particularly relevant where premises cannot easily be re-let without prior removal/reinstatement of things like shopfronts, installations or wiring specific to a particular tenant or premises use.

The landlord might consider proposing the tenant pay a lump sum in lieu of performing make good works. This option enables the tenant to vacate expeditiously and gives the landlord flexibility to determine how it wishes to use the tenant’s fitout.

What tenants must know

The tenant may consider negotiating an exemption from making good areas where they have improved the premises, for example installing new toilets or a kitchen area which can be re-used by future tenants.

Tenants should be mindful of provisions requiring them to inherit a previous tenant’s fitout. This would mean they are obliged to remove the previous tenant’s property at their own expense.

Tenants should also ensure sufficient funds have been accrued during the lease term to meet any make good obligations upon vacating the premises.

Save yourself the trouble later

Make good provisions can be complex and multi-faceted. Mitigate future risk and costs by properly dealing with the make good provisions now.

Mudlarking: lost and found on the River Thames by Lara Maiklem

By Melinda Woledge

Lara Maiklem is a ‘mudlark’, a lovely way to describe scavenging for treasure in the mud and debris of riverbanks. For nearly 20 years, Maiklem has mudlarked along the Thames in all weather, guided always by the tides. This book is a love letter to the river and a fascinating exploration of London’s history through the treasures Maiklem has unearthed.

‘I learned so much through reading this book.’

Maiklem divides mudlarks into hunters and gatherers. She is the latter, someone who enjoys the peaceful, contemplative pastime of finding objects with her eyes, in contrast to the more aggressive hunters who use metal detectors and tools to cut into the mud and foreshore.

In this book, Maiklem leads us west to east, from Teddington to Tilbury. Each chapter focuses on a specific spot along the Thames, covering topics as broad and meandering as the river itself. The found objects reflect the social, cultural and geographic history of London and its people.

Under UK law, ‘treasure’ is a find more than 300 years’ old containing at least 10% precious metal by weight. While Maiklem has found some treasure (tiny pieces of gold, a 14th century posy ring), she is more interested in the everyday objects that bring human stories to life: hairpins, clay pipes, jewellery, coins, bottles, religious tokens, buttons and spoons. One of her most treasured finds is a Tudor child’s shoe.

Mudlarking is about the hunt for the object and the journey afterwards to identify them and learn more. No matter how obscure the object, there is an expert with knowledge to share. Maiklem tunes into the voices of the past, and shares her research and stories with us. I learned so much through reading this book. Maiklem’s evocative writing has you there on the river with her, wading through the mud, watching the fog uncurl across the water and sharing in the excitement of a find While international holidays are off-limits for now, there are never any restrictions on armchair travel and this book is a perfect escape.

NSW Government Legal Services panel

Hall & Wilcox is delighted to have been appointed to the NSW Government Legal Services Panel. Partner Kitty Vo, Co-Lead – NSW Government, said, ‘We are honoured with this appointment as it will enable our team to continue to build our relationship with the NSW Government, and to support our government clients in achieving their objectives.’

Defamation in public office: a risky road to vindication

By Hamish McNair

The defamation proceedings brought by Commonwealth Minister Christian Porter against the Commonwealth-funded ABC followed a long line of defamation proceedings brought by those in public office and highlighted the tangible risks involved.

Previous and current defamation plaintiffs include Bob Hawke, John Gorton, Joe Hockey, Peter Costello, Tony Abbott, Sarah Hanson-Young, Peter Dutton, Anne Webster, Andrew Laming and John Barilaro. While each plaintiff’s motives vary, they share a common objective: to obtain vindication through court that a publication concerning them was false and defamatory.

‘All parties should consider the potential risk of further harm from contesting defamation claims through court proceedings…’

Defamation’s key risk is in taking on a defendant publisher, which has a very public stage to broadcast further matters and allegations in support of their truth or justification defence. This risk is often amplified for those in the public eye, as it was for Minister Porter.

Minister Porter successfully sought and obtained orders from the Court to redact the particulars to the truth/justification and substantial truth defences of the ABC, and to redact his reply from the public record.

Following mediation of the proceeding, Minister Porter and the ABC reached agreement on confidential settlement terms. This included consent orders to effectively remove the redacted sections of the ABC’s defence and Minister Porter’s reply from the Court file.

Justice Jagot sought further submissions from the parties (and the various media outlets) about the material’s removal from the public record, and set the matter down for hearing on 9 July 2021. Counsel for media outlets Nine and News Corp argued at the hearing that the consent orders would involve giving ‘special treatment’ to this particular proceeding, while Counsel for Minister Porter argued that it simply reflects the agreement of the parties.

In her judgment delivered on 30 July 2021, Justice Jagot ruled to uphold the terms of settlement to remove the unredacted defence and reply from public access. The media outlets have not yet indicated whether they will appeal. Separate orders were made permitting disclosure to the South Australian Coroner who is conducting a parallel investigation.

Despite the ruling by Justice Jagot, the media coverage of this case highlights the risks associated with of seeking reputational vindication in a judicial forum. All parties should consider the potential risk of further harm from contesting defamation claims through court proceedings, whether or not they are in public office.

Pro bono updated – Marrickville Legal Centre

By Andrew Banks (Lawyer, Pro Bono)

Marrickville Legal Centre (MLC) is a community legal centre based in the Inner-West of Sydney, which provides accessible legal services to people experiencing social and economic disadvantage across much of NSW.

MLC covers many legal areas including employment, debt, discrimination and victims’ compensation, along with support for young people and those experiencing, or at risk of, domestic violence and homelessness.

Hall & Wilcox supports MLC by providing our lawyers and expertise, accepting referrals of clients, having lawyers attend the evening advice clinic run by the centre, and using our national resources to develop new precedents and template legal documents for MLC.

Dan Poole and I are seconded to the Employment and Tenancy teams, respectively. Nathan Kennedy, Partner and head of Pro Bono & Community at Hall & Wilcox, has been a volunteer solicitor with MLC for over 10 years.

Hall & Wilcox has been running a Motor Vehicle Accident Clinic with MLC for uninsured and disadvantaged clients in motor vehicle accidents involving property damage, either to pursue or defend claims. This practice is headed by Leigh Parker, Partner in our General Insurance section.

MLC also collaborates with other organisations, such as the Migrant Employment Legal Service. Its recent ‘Train the Trainer’ program of community legal education seminars trains community leaders to recognise common legal issues in their communities, and where they should direct their community members to seek assistance. Hall & Wilcox was thrilled to host and facilitate one of these seminars at our Sydney office

We value our relationship with MLC and look forward to supporting them further in the future!

Victorian Pride Centre officially opens

We are delighted to continue our five year pro bono partnership with the Victorian Pride Centre, which was officially opened on 11 July. Australia’s first purpose-built hub for the LGBTIQ+ community, the Victorian Pride Centre is located in Fitzroy St in St Kilda, Melbourne. It is home to a range of community organisations and also provides dedicated spaces for art, culture, events and collaboration.

We have been the Pride Centre’s primary pro bono legal provider since 2016, having worked with the team from the inception of the concept, throughout the design and build process, and on an ongoing basis. Over that period, we have provided over $1.15 million in pro bono legal services to the Centre.

‘We are excited to see such an iconic project come to life, and congratulate all involved,’ said Partner James Morvell, who leads the team who advised the Pride Centre and is also co-chair of our Diversity & Inclusion Committee.

‘The words spoken by all dignitaries at the official opening left everyone in awe of what has been achieved and the personal commitment of so many people. It’s certainly the most satisfying project in which I’ve been
involved, and I couldn’t be more proud of all my colleagues at Hall & Wilcox who have provided their support and assistance in many ways over this five e year journey.’

We look forward to continuing our strong relationship with the Centre in the years to come.

Are they really OK?

How well do we know how our friends, family and colleagues are really doing? With the challenges of life amidst lockdowns and continuing uncertainty across the country, it’s never been more important to ask those close to us: ‘Are you really OK?’

Partner and R U OK? Day director Kathryn Howard reflects that often in the busyness of life we put on a brave face and don’t really see or hear those around us. The power of the campaign this R U OK? Day is to encourage us to pause and ask how those around us are really doing.

‘I know from personal experience that a genuine question which sees the individual makes a big difference in that person’s life. So let’s be encouraged to really see those around us, ask and listen, on R U OK? Day and every day.’

What’s on

Upcoming public law webinar series

Hall & Wilcox will deliver several webinars to offer practical insights on key issues facing the public sector.

Developments in property
Thursday 26 August, 12.30pm -1.30pm AEST 
Emily Kyriacou, Partner

IT procurement & cyber security in the public sector 
Thursday 16 September, 12.30pm -1.30pm AEST 
James Deady & John Gray, Partners

A look at ethics and corruption 
Wednesday 13 October, 12.30pm -1.30pm AEDT 
Stan Kondilios, Partner

Workplace investigations in the public sector 
Thursday 11 November, 12.30pm -1.30pm AEDT 
Alison Baker, Partner

Where: Zoom webinar. Register for any webinars you are interested in here.

Recent on-demand webinars

Environmental law overhaul 2021
Meg Lee, Partner 
Watch here

Sexual harassment in the workplace
Fay Calderone, Partner 
Watch here

To view the full list of on-demand webinars visit our website.