Wed 09 2019

Public Law – Issue Five

Getting into the flow Maximising human potential


At our recent annual partners’conference we had the privileged task of thinking about the bigger picture of how we can best perform individually and as a group.

I have been reflecting on that question a lot this winter, both professionally and personally. On a personal level, my young mare and I are learning to show jump. It is a thrill to be so present with her, to not be ahead or behind her movement, and to strive to be in perfect balance with each other. Recently, I saw a great line to a jump but, around the corner, she lost the rhythm of her canter and we didn’t get quite the right distance. She tried her heart out and jumped big – really big – to make up for it, but I wasn’t ready for it and I fell hard – really hard – over her neck. Nursing my sore but fortunately unbroken shoulder, I reflected that we were out of flow: she around the corner with me, and me over the jump with her.

It got me asking the question about how to achieve flow – the maximum state of harmonious performance. As a reader, I naturally turn to books and have read a great one called The Rise of Super Man: decoding the science of ultimate human performance by Steven Kotler. Kotler explores how extreme athletes do the impossible, at risk of death, and looks at the science behind their achievement.

Kotler relates the research of Keith Sawyer, a professor of psychology, education and business at the Washington University in St. Louis. I was struck by how relatable his research is to achieving flow in the professional, group environment – where the whole is greater than the sum of each of its parts.

Sawyer discovered that flow states have 10 social triggers, which we can each seek to emulate in our workplace: serious concentration; shared, clear goals; good communication (with lots of immediate feedback); equal participation; risk (mental, reputational, financial etc); familiarity (ie, we’re all on the same page); blending egos (ie, we’re all thoroughly involved and no one is hogging the limelight); a sense of control (ie, autonomy with competence); close listening (fully present); and say yes (positive not negative).

A light bulb went off for me hearing those factors, because that is precisely what we had experienced on a recent case.  Our client was sued for tens of millions of dollars, which we successfully defended. Our client didn’t pay a dollar. During the case, despite the pressure, I was struck by how harmoniously our legal and client teams worked together and how outstanding the defence was. I realise now that is because we were all in flow, just as the client team had been in flow during the project.

It inspired me to seek to capture that flow state on a daily basis. There’s plenty of science behind the happiness and satisfaction that follows. Here’s to capturing that flow state as we farewell the last days of Winter and herald the new life of Spring.

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

Meet Alison Baker

This month, we introduce Alison Baker, employment partner in our Melbourne office.

What are you reading?

With two young children and very little ‘me’ time to read a book, most of my reading is about fairy tales, fairies and superheroes!

What’s your perfect Saturday morning?

Megabarre Pilates class followed by breakfast with my family at a local café on a warm sunny day.

Have you got any hidden talents?

I’m ok at tennis, having played a lot in my younger years.

Your all-time favourite movie?

Love Actually. The scene where Emma Thompson composes herself in the bedroom is superb acting.

What’s your sporting team of choice?

North Melbourne (Kangaroos) – I converted after marriage!

Holiday of choice

Island getaway – I love sun, warmth and relaxation when holidaying.

What is your career highlight?

Starting as an articled clerk at Hall & Wilcox in 2001 and then being appointed a partner at Hall & Wilcox in 2009.

What is the life lesson that has taken you the longest time to learn?

It’s ok to say ‘no’ (this is a work in progress for me as I am a ‘yes’ person!).

What is your best piece of advice?

Stand for something or you’ll fall for anything.

Stan Kondilios’ perfect barbecued fresh fish

Stan Kondilios, the head of our NSW Local Government, Environment and Planning practice, recently spent time with his family abroad. Here he has shared his perfect recipe for barbecued fresh fish!

Step 1

Having purchased fresh fish (the freshness indicated by the bright red colour of the gills and sharpness in eye dilation), gut and scale the fish and marinate the whole fish, inside and out, with virgin olive oil, pepper, salt and oregano. Cut two slits into the side of the fish with a sharp knife.

Step 2

Refrigerate the fish for 3-4 hours in a dish covered in plastic wrapping.

Step 3

Find a serene locale in the Mediterranean and never disclose the location.

Step 4

Light a flame to smoked wood fired coal until red hot. Burn until fire flames settle to an even warmth across the coals. See picture.

Step 5

Remove the fish from refrigeration for a half-hour before cooking.

Step 6

Place the fish in the sandwich grill and then onto the hot coals for no more than five minutes but always checking the flame does not flare up to burn the fish, owing to the oil. Turn the grill over once, only after gently checking that the underside is lightly cooked to the bone with the flesh closest to the bone still slightly undercooked. This is because once you turn the grill over the heat will cook the remainder to the bone.

Step 7

Once the fish has been turned over, then baste the upper side with a mixture of oil, salt, pepper and oregano until underside is cooked through and you can see that the whole fish is cooked through.

Step 8

Remove from grill and plate up with a cold salad of choice; preferably tomato and cucumber with some light feta cheese.

Step 9

Drink with an accompaniment of white wine or beer of choice.

Mentors can learn from mentees too


We have been involved with the Australian Business and Community Network (ABCN) for more than 10 years. ABCN is a not-for-profit organisation that connects business with disadvantaged education through mentoring and partnership programs. Our managing partner Tony Macvean is Chair of ABCN and he spoke at ABCN’s Annual Leadership Dinner last month about how privileged he feels to be part of an organisation that makes a real difference to the lives of both students and their professional mentors.

Partner and Chairman Mark Dunphy and his mentee, 2018 ABCN Scholar Yusus Arpaci, spoke to the guests about their experience and what they have learned from each other.

‘One of the main things I learned from Mark is that I often had an excuse for not attending something or procrastinating,’ Yusuf told the 120 guests at the dinner. ‘Mark told me not to dwell on what has happened but to focus on the future.’

‘One thing that surprised me about Yusuf is he’s challenged me from time to time,’ Mark said. ‘Once he asked me what I would change if I could. I told him I wondered if I should be spending more time with my family. He looked me in the eye and said: “We can’t make time but we can find time.” It was just like the advice I had given him: don’t make excuses, just do it.’

For information about how to get involved with the work ABCN do, please contact Carolyn Bruce – Head of Partnerships.
E: carolyn.bruce@abcn.com.au
T: 0413 419 330

‘we can’t make time but we can find time.’


Mark Dunphy, Chairman and Partner, Employment, and his mentee, 2018 ABCN Scholar Yusus Arpaci

A client’s perspective

We work with many fascinating people within the public sector industry. This month, we chat with Daniel Simms, CEO of the City of Wanneroo in Perth, which is one of the largest growing local governments in Australia.

My career snapshot

I love working for and with communities and I have been fortunate to have worked in regional, rural and metropolitan local governments. Communities throughout Western Australia are very different and the variety and depth of experiences I’ve gained through these roles has provided a valuable foundation.

My current role

As CEO, I have two main roles. First, working in collaboration with the City’s Mayor and Councillors to support Council in setting the strategic vision, strategies and policies of Council. Second, I have the privilege of recruiting and leading an amazing team of talented people who deliver a wide range of services and products that either improve or maintain the quality of lifestyle enjoyed by over 200,000 residents in our City.

Being one of the largest growing local governments in Australia, growth management and operating in a high-growth environment requires the City’s leadership team to be agile and have an ability to balance operational and strategic pressures so that we can continue to add value to our community and, at the same time, plan new communities to be built within our natural environment.

My typical day

When you have a passion for what you do and have a great team to work with, every day offers new challenges and opportunities. My typical day is more about making sure I create an environment for my team that provides autonomy and positive direction to ensure we all work to the same goal and vision.

What I love most about working in the public sector

Being a leader is both a privilege and an honour, so being part of a Council that is committed to improving the quality of lifestyle of our residents, and being the CEO of a team of very skilled and knowledgeable professionals who are committed to making a positive impact for the community, is absolutely the best part of my role.

Leading one of the largest growing local governments in Australia also provides an opportunity to work with key industry leaders and state and federal government to plan for transformational projects that will unlock the enormous potential that the City of Wanneroo holds. For example, the City will soon have three new activity centres connected to a new rail system, including the future new Yanchep City.

Key trends for local government

Local government is the tier of government that is most connected to the community. In a world that is ever changing, and with an increase in global uncertainty, the importance of community has never been more vital.

It is so critical, in my view, that communities value the important role local governments play in creating communities, through infrastructure and services and also through creating a strong sense of belonging and ownership. The City of Wanneroo has recently, after extensive engagement with our local communities, adopted a new Place Framework that is starting to have some real success. As an example, in our suburbs of Girrawheen and Koondoola, we are celebrating the multi-cultural diversity of this area through the establishment
of the Girrawheen Community Hub.

Local governments are so much more than roads, rates and rubbish and are more about improving the quality of life for its residents. For the City of Wanneroo, this includes a commitment to economic development to grow the number of local jobs to support the rapidly growing population, to advocating on behalf of the community for key pieces of infrastructure and facilities, as well as providing a series of simple but important policies and legislation that will maintain or improve the lifestyle and amenities that our communities currently value.

The best advice given to me is…

You should never stop learning and be inquisitive in your decisions. As a relatively young leader, I’ve been fortunate to have developed a great group of colleagues who are committed to sharing ideas and are also comfortable providing advice and a different point of view that can be valuable in resolving complex problems.

Outside of work, you’ll find me…

I love spending time with my family, eating out with friends and travelling. I love bush walks and golf. Fortunately my golf skills mean that a round of golf is more of a bush walk than a sport.

Daniel Simms, CEO of the City of Wanneroo in Perth

Homelessness: duty to assist?

The theme of Homelessness Week in Victoria this year was ‘Housing Ends Homelessness’.

Hall & Wilcox attended a ‘Homelessness Preventation’ seminar by Professor Peter Mackie from Cardiff University, where he shared the experience in Wales. He highlighted the need to shift policy and procedure from crises response to homelessness prevention and talked about the ‘duty to assist’. This is a legislative provision requiring local authorities in Wales to take ‘reasonable steps’ to prevent and relieve homelessness. It makes access to prevention a universal right for all, enforceable through the courts. Interventions are tailored to individual needs and homelessness is classified as ‘prevented’ if accommodation is available for at least a six-month period.

He cited an example of a family in private rental accommodation with a broken heating system that the landlord was unable to repair. Faced with incurring significant resources re-housing the family and disruption to the children’s schooling, the local authority paid for repairs, taking the required ‘reasonable steps’.

Dr Mackie acknowledged there was room to further improve the scheme, to ensure more people are identified earlier and assisted earlier; however, the scheme has been so successful it is being adopted in England.

While Wales is pushing the boundaries in this space, could such a scheme ever be adopted in Australia? It would require access to suitable, social and affordable housing.

The Anglicare Australia Rental Affordability Snapshot 2019 surveyed over 69,000 rental listings across Australia and found a chronic shortage of affordable rentals across Australia. The Australian Housing Urban Research Institute recently released a report making the case for social housing as infrastructure, which will hopefully spur increased investment.

Hall & Wilcox is leading the way in supporting development of and investment in the social and affordable housing sector. We’ve been involved in a number of major social housing and National Disability Insurance Scheme projects across Australia. We act for public and private companies
and not-for-profit organisations nationally.

Social media minefield: public servants warned as high court rules on twitter free speech case

By Fay Calderone, Partner, EmploymentFay Calderone

 


‘…freedom of political communication is not a personal right of free speech, but rather, operates to protect political communication as a whole.’


The High Court has ruled that the constitutional freedom of political communication did not protect a public servant, Michaela Banerji, who had breached her contractual employment obligations, in a landmark judgment handed down this month. Ms Banerji had made anonymous tweets using the handle ‘LaLegale’ that criticised the Government’s immigration policy.

On 7 August 2019, the High Court unanimously overturned the Administrative Appeal Tribunal’s (AAT) decision in Comcare v Banerji [2019] HCA 23, ruling on issues surrounding free speech and the extent to which an employer can control what their employees say on social media in their own time.

Drawing parallels with the Israel Folau case involving tweets condemning homosexuals and transsexuals, the High Court confirmed that anonymous tweets by Ms Banerji had contravened the Australian Public Service Commission’s Code of Conduct (APS Code) in the Public Service Act 1999 (Cth) and social media guidelines, justifying the termination of her employment by the former Department of Immigration and Citizenship (Department) as a reasonable administrative action.

The High Court considered the constitutionality of limitations on the political expression of public servants and determined the Act did not impose an unjustified burden on political expression. This is because the High Court held that freedom of political communication is not a personal right of free speech, but rather, operates to protect political communication as a whole. Unlike the AAT, the High Court did not focus on Ms Banerji’s implied freedom of political communication. Rather, the Court held that restrictions placed on public servants are necessary to ensure an apolitical and professional public service consistent with the APS Code. Even comments made anonymously – due to the risk of such comments becoming identifiable – were held to jeopardise the integrity and reputation of public service.

This is a salutary warning for public servants to be aware of and act in accordance with their employment obligations.

What’s happening

NSW council corruption inquiry

Stan Kondilios, Partner, NSW Local Government, Environment and Planning represented a NSW Council in one of the longest-running Public Inquiries held by the Independent Commission Against Corruption, which is expected to deliver landmark findings and recommendations.

The inquiry investigated the actions of two former public officials/elected representatives and two former senior staff members at the Council, concerning allegations of dishonestly or partially exercising their official functions in respect of planning proposals/applications. The ICAC also examined whether there was dishonesty and/or partiality in relation to the recruitment of a senior staff member.

The public hearing ran for just over a year, and the findings are currently reserved while submissions are being drafted on behalf of both the ICAC and the relevant parties to the inquiry. We act for the Council as a new entity following its amalgamation with another council, representing Council’s Public Interests and 14 of Council’s staff who gave evidence to the inquiry. We worked with Council to attend and make submissions at the hearing, reviewed hundreds of volumes of evidence, and advised Council, including with producing relevant materials to the ICAC. We are currently preparing written submissions to the ICAC, including recommendations about the findings which may be made by the ICAC on the evidence presented.

We recognise that these issues, of public interest disclosures, conflicts of interest and governance matters generally involving the planning processes in NSW, are of broad concern and we have participated in submissions crafted for legislative reform to help clarify our clients’ obligations.

Who is portrayed better in film and television – lawyers or public servants?

In August, Melinda Bell, Special Counsel, Employment, had the pleasure of participating in ‘The Great Debate – ‘Who is Portrayed Better in Film and Television – (Government) Lawyers or Public Servants?’ as part of IPAA Victoria’s Public Sector Week 2019.

As part of ‘Team Lawyer’ and led by the Hon Justice Rita Zammit, Melinda joined colleagues from other firms and the Victorian Bar to argue that lawyers were in fact better portrayed in film and television than public servants.

With a wealth of material before them, ‘Team Lawyer’ advanced their case using examples from such classics as The Simpsons, Blackadder and The Castle. The Hon Justice Zammit advanced a compelling case for Justice Ruth Bader Ginsburg, while Melinda Bell portrayed Mel Horowitz (Cher’s Dad from Clueless) as a flexible working single dad ahead of his time.

Team Public Servant highlighted the many ways in which the public service was in fact better (and perhaps more accurately) portrayed in film and television than lawyers. Using characters such as ‘M’ from James Bond, Tony Woodford (Utopia) and the cast of Parks and Recreation, Team Public Servant highlighted the essential role of the public service while providing lots of laughs.

However, there could only be one winner. On the audience vote, Team Lawyer won the day and the very tasteful 3D printed trophy.

The evening was thoroughly entertaining, not least of all due to the comedic wit of facilitator Katie Miller (Deputy Commissioner, IBAC) and all the work put in by VGSO Chief Operating Officer, Nick Field.

Wildlife wonders

Wildlife Wonders is a unique ecotourism project being developed outside Apollo Bay on Victoria’s iconic Great Ocean Road. The project is being developed by our long-term pro bono client Conservation Ecology Centre (CEC). It will feature a guided nature walk led by qualified ecologists through a stunning hillside property showcasing the flora and fauna of the Otway region. The project designer is Brian Massey, the renowned art director of The Hobbit films and designer of the popular Hobbiton tourist attraction in New Zealand.

Wildlife Wonders will be operated as a social enterprise with all profits being returned to CEC to support its leading conservation and research work in the Otway region. The attraction is scheduled to be open to the public by mid-2020. The project is supported by the Commonwealth Department of Infrastructure Regional Development & Cities (through the Regional Jobs and Infrastructure Program). Other key stakeholders include Regional Development Victoria, Colac Otway Shire Council and Great Ocean Road Regional Tourism. In addition, the project has attracted strong interest and support from the philanthropic community, as well as significant pro bono support from leading firms such as Tanarra Philanthropic. Matthew Bridges, Special Counsel, Corporate and commercialFrank Hinoporos, Partner, Tax, and our Corporate and Commercial team have provided substantial pro bono legal and in-kind support to the project in recent years.

Contact

Alison has close to 18 years’ experience in a wide-ranging employment practice, advising private sector and public sector clients on all aspects of employment, industrial relations and human resources law, and work health and safety law...

More about Alison

Fay has acted for employers for over 17 years across a range of industries including professional services, recruitment, finance, entertainment, FMCG & general manufacturing, sport, health, aged care, community services and local councils focused always on the purpose and imperatives of the organisations she is servicing.

More about Fay

Frank advises his clients on direct taxes, international structuring and taxation, business transactions, corporate restructuring, taxation disputes and the not-for-profit sector...

More about Frank

Kathryn specialises in resolving disputes, and works collaboratively with her clients to provide the legal and strategic advice that best achieves their preferred outcome...

More about Kathryn

Stan has been providing legal services to Local Government in NSW since 1996 and practices primarily in the areas of Environment, Local Government and Planning Law, and is a leading trusted adviser to Local Government.

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Melinda provides strategic and practical advice on a range of employment and industrial relations law issues...

More about Melinda

Matthew is a general commercial lawyer with more than 18 years’ experience covering a range of areas of practice including private M&A, general commercial and corporate transactions, projects and advisory work, family succession arrangements, non-contentious employment matters, property, contracts and governanc

More about Matthew

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