Thinking | 17 November 2021
In our spring edition of Public Law magazine, Partner John Gray catches up with NSW Legislative Assembly Speaker Jonathan O’Dea about the inner workings of the People’s house, leadership and adapting to change, Peta Olive, Chair of the Women in Transport Network, speaks to Partner Kathryn Howard about the new Women in Transport Strategy 2021-24 and Victorian Pride Centre Board Chair Hang Vo reflects on the Centre’s opening. Try your hand at Partner Jacqui Barrett’s melting moments and be transported back to 1850s Gundagai in a review of Anita Heiss’s novel, Bila Yarrudhanggalangdhuray, inspired by true events.
By Kathryn Howard
Partner, Head of Hall & Wilcox Public Sector group
and Editor of the Public Law newsletter
I am writing this after another wild weekend of weather, in what is a very wintery spring. In a way, the weather reflects the challenges our society faces as we enter ‘COVID-normal’.
While it is a relief to be coming out of lockdown, there are so many ongoing challenges. From relationships fractured during the pandemic, to children who cry hysterically when they have to say goodbye, thinking it will be another five months before we meet again, to the ‘great resignation’ and the staff shortages across industries, COVID continues to draw on already depleted supplies of resilience.
I smile with irony at the thought that being a grown-up was meant to be easier than this, wasn’t it? But George Bernard Shaw wrote: ‘Life is not meant to be easy, my child; but take courage: it can be delightful.’
How to live life with delight, despite the daily stresses? I have reflected on this a lot and, for me, the key is to live in grateful presence. To enjoy each moment for what it is. To be deliberate about how we spend our time. To treasure the little things, as well as the big things.
My horse is lame and on 24/7 stable rest, and I worry about her. But I take delight in tending to her and hearing her nickers greet me each morning, noon and night. I take delight in hugging my niece, and kissing my goddaughters goodnight, as they visit for the weekend after many months of absence.
And I appreciate the privilege that is my professional life. I am enormously blessed to have found my professional home where I practise a craft I love. To be able to work with loyal colleagues and great clients on interesting work, while living according to one’s values, is a great privilege, isn’t it? The journey to a professional home is often a winding one, but may we each find that place.
And most of all, may we live a deliberate life, bringing our minds back from the stresses of daily life to enjoy the wonders of each day. To feel the presence of the sun behind the clouds, even when we can’t quite see it.
Hang Vo is Board Chair of the Victorian Pride Centre, CEO of Whitelion Youth, and Non-Executive Director of Respect Victoria. Hall & Wilcox Senior Associate Vanessa Murphy is the Company Secretary of the Victorian Pride Centre, which officially opened in July 2021 in Fitzroy Street, St Kilda.
What are you most proud of with the Pride Centre?
At every step of the way we heard the voices of our diverse communities. I say communities because the LGBTIQ+ community is not one community – it’s many, it’s complex, it’s rich, it’s dynamic. And for the Pride Centre to have been inclusive, whether through the Community Reference Group, the Founders’ Fund, through patrons or supporters, every effort has been made to ensure there are different ways you can genuinely contribute. I’m so proud of this because it’s a home for the LGBTIQ+ community that’s been created by us, for us and allies.
Is there a current project you are particularly excited about?
Our rooftop has a spectacular view of the bay and the city, and we plan to create a rooftop pavilion in honour of Ayman Barbaresco and Yvonne Gardner, who passed away recently and have been huge advocates in our community. The whole fundraising for the pavilion is being led by Mama Alto, CEO of Trans Gender Victoria (TGV), a trans woman of colour and brilliant jazz performer.
Is it important having prominent members of the community contribute?
It’s critical. Having people like the Honourable Michael Kirby as our Organisational Patron, and other ambassadors, gives us the visibility and credibility to reach not only to our communities but the wider mainstream audience.
What is one thing you would tell your younger self?
To have courage, stand up and speak up for what’s right. Now I can see what has been achieved by the absolute icons and legends of our community, people like Jude Munro, and Peter McEwan, Founding Chair and Director respectively. In the 1970s, homosexuality was a crime yet they both stood on Flinders Street and handed out pamphlets on equality for gay people. Seeing what they have achieved, I would tell my younger self to be brave, speak up and rally great people around you who also stand for equality.
How do you inspire yourself and others?
It’s always having a big goal. Whether it’s the Pride Centre, Whitelion, Red Cross, being deployed to Sri Lanka after the tsunami, it comes back to the big goals around social justice, inclusion, equity, belonging. I try and bring a growth mindset, don’t worry too much about what we can’t control, and concentrate on how we can contribute to the big goal.
How do you relax and look after yourself?
Every day I try to practice gratitude. Even something like being thankful we have fresh coffee beans and I can have a nice coffee every morning, how lucky am I to start the day with something as nice as that? I also make sure I can get out at least half an hour every day rain, shine or hail. And sleep. Lots of sleep.
Anything to add?
It would be a weird conversation if I didn’t say how genuinely grateful we are for Hall & Wilcox, which has been involved with the Pride Centre right from the beginning. The first, purpose-built, LGBTIQ+ centre in Australia, and the first permanent home for LGBTIQ+ people, who have been excluded for so long. To have this iconic building has really changed our lives. And we love having Vanessa as our Company Secretary!
Jonathan O’Dea is the Member for Davidson in NSW, and assumed the role as Speaker of the NSW Legislative Assembly in 2019. Somehow, with all Jonathan has on his plate, he has managed to still rank as the NSW’s Most Responsive MP for the last two terms, according to Fair Go.
John Gray, a partner in Hall & Wilcox’s Sydney office, caught up with Jonathan O’Dea recently over Zoom.
How do you feel when you see a bunch of school kids in the gallery and parliamentarians are not exhibiting the best behaviour?
I started as Speaker in 2019, when I was ‘dragged to the chair’, literally and metaphorically. I then articulated a desire for improvement in three main areas. One of those areas was maintaining order, with greater respect in the House.
I’d like to think in the last couple of years there have been improved standards, and I think that’s been a function of a changing culture in the House. That doesn’t mean you don’t want vigorous and sometimes boisterous debate in the House. But it has to be done respectfully. Humour is one of the best ways to get across a point effectively and some parliamentarians are quite cutting in a humorous way.
As a former Labor premier said, ‘it’s the bear pit, not the teddy bear pit’. But you don’t want undue shouting or name-calling, or untoward behaviour, there is a standard to be met and a duty to behave properly.
Do the people who come to parliament generally have the innate or developed leadership virtues which are desirable for their role?
There’s a danger in being too prescriptive on what type of people you need to have. Parliament needs people from diverse backgrounds. One of my former colleagues, who is no longer in the parliament, could barely read and write as an adult and it’s fantastic that someone like him can be elected to parliament. This member was elected to parliament and re-educated himself, and that’s a fantastic story. But an important virtue is showing due respect for the institution, the processes, to the public, to their colleagues. That’s about fundamental decency and a proper appreciation for the role parliamentarians have.
Does parliament need more of a leadership training school for the role?
We’ve been able to foster leadership through a professional development program which a lot of members have partaken in. We have partnered with organisations like Next25, the McKinnon Institute, Cranlana Centre for Ethical Leadership, and New Democracy, along with having special guest speakers come in and speak to the parliamentarians, to encourage deep thinking as well as skills development.
We’ve also developed educational resources including a mobile phone app, addressing compliance and legal responsibilities around the role, looking at issues like conflicts of interest, pecuniary interest, corruption, privilege, etc. It’s similar to what the Law Society does with its continuing professional development requiring ongoing education, though it’s not compulsory.
What kind of results do they see?
Feedback has been extremely positive to date, and people are appreciative and supportive. Even if you reach only half the members it has a substantial impact and helps build a common culture. One of the fantastic things from this program is people from ‘across the aisle’ have interacted and understood each other better, and developed more of a collaborative perspective, which is a good thing.
Does being Speaker reduce your time to serve the electorate?
The Speaker role is demanding and most days I go into parliament, not into the electoral office. I am fortunate to have a great team around me, both in parliament and in my electoral office. We have a small team but we give the best possible response we can to people when they contact us.
What issues have emerged most among your electorate recently?
Health, education, and transport are staple issues, which never go away. Planning issues are a little more cyclical. However, COVID has been the dominating issue over the last 18 months.
The great challenge for government is striking the right balance. You will always have members of the public who take more extreme positions, and to that extent government will always be criticised by both extremes. With COVID, we need to balance the security around people’s health with the economy’s importance and the ability for people to earn an income.
How do you balance that? Different people will draw the line in different places, but it’s a balancing act. How do we balance personal freedoms and rights, with the interests of the society as a whole? Do we look at individual entitlements, or do we also look at those who are particularly vulnerable in our society and how we consider protecting the society as a whole?
Good government is about striking the right balance, whether it’s on COVID or any other issue.
How did COVID affect the workings of parliament?
We had a number of weeks where we haven’t been able to sit and where we’ve had to adapt, and that’s involved reduced numbers in the chamber, and involved expanding the areas where parliamentarians sit – for the first time in history, parliamentarians have been sitting in the public galleries. In October we also enabled parliamentarians to participate remotely online in a hybrid sitting.
Obviously it’s the people’s House and we want it to be open to the people, but for risk mitigation it was appropriate to temporarily close parliament (although the public can still view NSW parliament online via webcast).
What do you do for fun?
I enjoy seeing my children playing sport, and participating in their debating teams. I love playing tennis. I just had 12 months out because I snapped my Achilles, and I was hobbling around parliament in a moon boot for a while. I’m looking forward to returning to more normality later in the year, both on and off the court.
This recipe has long been a Barrett family favourite and makes an appearance at most of our get togethers. Most recently, I made them for my niece’s christening on a perfect spring day in my parents’ garden. They are a delicious addition to any picnic (or any meal – for that matter!). I hope you enjoy them.
For the biscuit
- 3 passionfruit (tinned or fresh)
- 250g butter, softened (avoid microwaving it)
- 1 tsp vanilla extract
- 1/2 cup (80g) soft icing sugar
- 1 2/3 cup (250g) plain flour
- 1/2 cup (75g) cornflour
For the passionfruit butter cream
- 80g butter, softened
- 2/3 cup (100g) soft icing sugar
- Preheat the oven to moderately low 160°C (140°C fan-forced). Line three baking trays with baking paper.
- Remove pulp from passionfruit, place pulp into a fine sieve, and press down with the back of a spoon. If you can’t find fresh passionfruit, tinned passionfruit is just as good. You will need to set aside one tablespoon of passionfruit juice for the passionfruit butter cream.
- Beat the butter, vanilla and sifted icing sugar with an electric mixer until pale (as in very pale) and showing a thick consistency. Gently stir in combined sifted flours (I have never sifted the flour and it still works!) in two batches, then stir in passionfruit pulp.
- With lightly floured hands, roll two level teaspoons of mixture into balls and place on an oven tray about 3cm apart. Dip a fork into a little extra flour, press biscuits lightly to flatten them slightly.
- Bake in a moderately low oven for about 15 minutes or until the biscuits are a pale straw colour. Once baked, leave the biscuits on the trays for five minutes before transferring them to wire racks to cool.
- To make the passionfruit butter cream, beat the butter and sifted icing sugar mixture in a small bowl with an electric mixer (at top speed) until pale and fluffy. Beat in the reserved passionfruit juice. Once ready, the mixture should still be thick. If runny, add icing sugar as needed to thicken the mixture. You should make extra if you like to ‘taste test’ as part of the baking process (I do!).
- Sandwich the biscuits with a teaspoon of the passionfruit butter cream. Dust with a little extra sifted icing sugar, if desired.
- If you need these delicacies for an event (or just want them to last longer than a day) find a good hiding place!
By Kitty Vo
Co-Lead NSW Government Practice
You may know Independence Day, whether as an alien invasion movie starring Will Smith or the celebration of a real and significant historical event in the United States. Well, in NSW, during 2021, we’ve just had ‘Cessation Day’!
Cessation Day did not inspire flag-waving or unwanted visitors hell-bent on world domination – instead, all certificates of title (CTs) were abolished in NSW, with real impacts on government agencies and departments.
Other States and Territories are not immune to Cessation Day, as VIC and WA also consider abolishing CTs in future.
Prior to Cessation Day, under half of all properties in NSW had a certificate of title issued. CTs were copies of titles registered on the Torrens Title Register when the CT was issued, administered by NSW Land Registry Services (NSW LRS). A CT was a valuable legal document similar to birth certificates, marriage certificates and passports.
Impacts on legislation
Cessation Day abolished all paper CTs in NSW on 11 October 2021. The Real Property Amendment (Certificates of Title) Act 2021 (NSW),
which received assent on 24 May 2021, amended the Real Property Act 1900 (NSW), giving effect to the cancellation of all paper CTs and the concept of the Control of the Right to Deal (CoRD).
This change impacts many other acts that reference CTs, so keep your eye out for flow-on effects.
Cessation Day’s main impacts are that:
- paper CTs will no longer be considered legal documents;
- paper dealings will no longer be accepted for lodgement by NSW LRS;
- CoRD holder consent from mortgagees is no longer required to register dealings; and
- all dealings lodged at NSW LRS must come through a ‘Subscriber’ (eg lawyers and conveyancers) to an electronic lodgement network operator (ELNO). Currently, the two ELNOs available in the market are PEXA and Sympli.
Many transactions will be impacted, as CTs will not be required for several property dealings, including disposal and acquisition of property, registration of leasehold interests and plans of subdivision.
Where a mortgagee’s consent is required to enable registration of a dealing, a separate written consent by a mortgagee must be attached to that dealing (for example, restriction on use, positive covenant and transfers creating easement).
All government agencies and departments should consider whether the abolishment of CTs will impact internal procedures and day-to-day operations.
Please reach out to us if you would like support.
Partner Kathryn Howard caught up with Peta Olive, Chair of the Women in Transport Network, Victorian Department of Transport, to discuss the new and exciting Women in Transport (WIT) Strategy 2021-24, recently unveiled by Parliamentary Secretary for Transport, Vicki Ward. The strategy represents a plan of action to deliver real opportunities for women in the transport sector.
Tell us a bit more about Women in Transport and your role
The WIT network is open to people of all genders and aims to bring together people in the industry who are interested in gender equality and diversity. Essentially, the new WIT initiative is broken up into three aspects: the strategy as a whole; the WiT Network with a steering committee made up of leading executives from across the industry; and a management committee that I chair.
As management committee chair, my role is to manage the WIT network and be the public face of the WIT strategy.
What are the key aims and aspirations of the WIT Network management committee?
We aim to better understand, and ultimately break down, barriers preventing women from entering, staying in, and being promoted in the transport sector. Our philosophy is to avoid making assumptions. We want to find the root causes of gender inequality in the workforce by engaging with women currently involved in the transport industry, and women who have left the industry.
We want to create an open and honest dialogue, a safe space where women can share their insights and experiences so we can make a real change. We are passionate about connecting with women who are interested in transport, or currently working in transport, and supporting them at all stages of their career. Our vision is to attract, promote and retain women in the transport sector.
How is the Department of Transport seeking to attract women into the transport sector?
A key step was launching the new WIT Strategy. As part of the strategy, there are many WIT initiatives being implemented across five key focus areas: social and economic development; leadership and accountability; setting industry standards; changing the culture; and community campaigns.
We have several working groups investing time and effort in attracting women into technical areas of the industry. Programs are being run in different agencies and operators across the sector and include mentoring, training, learning and development. WIT is seeking to connect those opportunities, but most importantly WiT is about building a culture within the transport sector where gender diversity is welcomed and promoted by everyone. To this end we are actively seeking the involvement of men in all our programs, because without the genuine support of men, gender equality will continue to be a women’s only issue.
What are some of the initiatives flowing from the WIT Strategy?
One of the key initiatives is our WIT web-based platform, which will be a ‘one stop shop’ providing everything on offer for women in the transport industry. We also want to promote careers in transport to school and university students, and host events where women can share stories about their journeys in the transport sector.
Different agencies are doing amazing things for gender equality and diversity in the transport space, and we want to bring all the information together at the WIT webpage. There are so many vocations available within the transport industry, but they are not well known. We want to create awareness about the numerous opportunities on offer within transport.
What excites you about the new WIT Strategy?
There has been exciting progress over the past few years. But we know we can and must do more. We are aiming to further boost the participation of women and people of diverse genders in the transport sector through the concrete targets and reporting requirements included in the new strategy.
With the new strategy, we also wanted to ensure that all our energy and efforts across the sector are being driven in the same direction. So this is the first time the whole transport industry has come together to sign up to the same strategy, which is really exciting.
Also exciting is having the new strategy governed by the steering committee, chaired by Vicki Ward as Parliamentary Secretary for Transport. The steering committee oversees all actions and initiatives flowing from the WIT Strategy. The committee comprises senior decision makers across all transport agencies and operators, enabling real leadership and accountability on gender equality and diversity.
You mentioned that there are concrete targets built in to the new strategy. Can you share some examples?
Our targets include 30% women working across the sector, 50% women in senior roles in public sector agencies, and 30% women in senior roles in private operators, by the end of 2024. These are ambitious targets, but reflect our commitment to improving gender representation in the sector.
Find out more about the WIT program.
By Julian Hammond
Special Counsel, Litigation & Dispute Resolution
From Christine Holgate’s much-vaunted appearance to Kevin Rudd’s criticisms of NewsCorp, the unique inquisitorial powers of the parliaments in Australia have been on full display in 2021 to help break up the tedium of life lived inside.
The executive government’s accountability to the parliament is a fundamental principle of Australia’s parliamentary government system. Hence parliamentary committee inquiries, where Ministers and senior public servants are held accountable to the parliament for their powers and decision-making.
In ‘slug gate’, Victorian Chief Health Officer Brett Sutton was called before a parliamentary inquiry regarding his decision to shut down a food manufacturing business after a slug was allegedly planted. In NSW, the Health Minister made plain his objections to having to appear with the NSW Chief Health Officer, Kerry Chant, before an ongoing parliamentary inquiry into managing the COVID-19 pandemic as NSW cases were spiking. Both appearances made front-page news.
Inquiries may also raise issues for the private sector: the Commonwealth inquiry into Australia Post called three senior Boston Consulting Group partners to give evidence.
The compulsory powers available to inquiries at State and Federal levels include:
- powers to call for production of relevant documents; and
- powers to summons witnesses.
Inquiries generally seek confidential information from individuals, departments and agencies. Failure to produce documents and failure to attend without a relevant objection are offences which may be punishable for contempt by the judicial function of the parliament.
Objections to production of documents may be available on a number of grounds, including:
- public interest immunity;
- legal professional privilege;
- privilege against self-incrimination; and
- statutory secrecy provisions.
If an inquiry is commenced, there are immediate steps you can take to prepare for the inquiry and identify and manage risk.
Our top tips for responding to inquiries are to:
- review any guidelines issued by the central agency authorising the approach to responding to, and appearing at, inquiries. If you are invited to appear, or to produce documents, an immediate first step is to familiarise yourself with these guidelines and notify central agency staff.
- develop a clear strategic plan for engagement with the inquiry. Obtain legal support to assist in:
- understanding the relevant terms of reference for any inquiry and any objections on the basis of relevance that may be available;
- the development of a document production plan (including understanding any grounds of objection available);
- preparing for written and oral evidence; and
- managing complex stakeholder engagement – both internal and external – to Government.
- monitor evidence as the inquiry progresses. This will assist in refining your strategic plan and identifying reputational, policy or whole-of-government risks as and when they arise.
By Melinda Woledge
Marketing & Communications Manager
One of Australia’s worst natural disasters was the great flood that wiped out Gundagai in June 1852, killing dozens of people. A lesser-known story involves two local Wiradyuri men who spent days and nights ferrying people to safety in their bark canoes.
Anita Heiss’s novel is inspired by these true events. She tells a story both joyful and heartbreaking, which celebrates the Wiradyuri language, and captures the mismatch between the Indigenous and colonial approaches to land and life.
Teenager Wagadhaany is a housemaid to the Bradley family. Although she is saved from the flood, Wagadhaany is not free. She has no voice and no power. When James and David Bradley and James’s new wife, Louisa, move to Wagga Wagga, she is forced to go with them. Louisa is a Quaker, who believes in equality and is incensed by laws controlling Black people and their freedom.
Wagadhaany and Louisa forge an unlikely friendship. But as well-meaning as Louisa is, her good intentions are rooted in her own experience. Louisa cannot see that she and Wagadhaany want different things. Meanwhile, there is tension between Louisa and husband James, who is dismissive and intolerant of the Wiradyuri, while David has more sinister motives regarding Wagadhaany.
Torn from her Country and miyagan (family, kin), Wagadhaany is heartsick and homesick. When she meets Wiradyuri stockman Yindyamarra, her heart begins to heal. But can she ever forge her own life?
Heiss transports us to a different time and place, seeing settlement through Indigenous eyes, inspiring empathy and a fresh way to understand our past scars. The mismatch between the settlers and original inhabitants ranges from the trivial – wanting to remove cockatoos due to their screeching noise – to the devastatingly final, pushing Black people off their land. This book invites us to explore our shared history. I would love to see it on the high school curriculum.
By Andrew Banks
Lawyer, Pro Bono
The tragic deterioration of the situation in Afghanistan has caught the attention of the world. Stories of those fleeing across borders and those left behind have been shared widely, with many wondering what they can do to help.
We provide legal advice to assist them in understanding Australia’s humanitarian visa options and work to help them complete their applications. A large team of lawyers and graduates from across the firm has joined in the project which has allowed us to provide daily assistance for almost two months so far.
Hall & Wilcox is proud to have exceeded the National Pro Bono Target of 35 hours per lawyer over the last financial year. Our purpose is to enable our clients, people and communities to thrive, and meeting this milestone is a reflection of the commitment our people make to achieve this. As a firm, we were pleased to complete over 15,400 hours of pro bono work, an average of 38.6 hours per lawyer and more than we have ever done before. Some of the other activities we have been involved in over the last year are detailed in our latest Pro Bono report.
Our Smarter Lawcast is now available. In the first season, hosted by Partner Mark Dunphy, this podcast covers four major issues confronting employers including: workplace vaccinations; flexible work and the ‘new normal’; how closed borders impact migration and employment; and underpayments.
Hall & Wilcox appointed to Queensland Local Government pre-qualified suppliers list
Hall & Wilcox was recently appointed to the Queensland Local Buy panel to provide legal services for Queensland and Northern Territory Councils. Partner Scott Butler will be the Client Relationship Partner, supported by Partner Michelle Eastwell and a team experienced across several government law practice areas.
Event reminder: Engaging high-performing teams in hybrid working environments – 12.30pm, 25 November
When lockdowns disrupted the in-person working environment, leaders were presented with the challenge of how to facilitate high-performing teams without the benefit of face-to-face interaction. With many workplaces implementing permanent flexible working arrangements post-COVID, leaders are seeking to understand the legal and behavioural approaches to engaging high-performing individuals, teams and organisations in a hybrid environment.
Please join Partner Fay Calderone, in conversation with Associate Professor Dr John Hopkins, where they will provide practical advice for leaders and aspiring leaders who are looking to build and maintain a culture of effectiveness and efficiency within a flexible-working organisation.
Event reminder: R U OK? Or will you be...? – 1pm, 9 December
Acknowledging that the Christmas and New Year holiday period is a difficult time for many, how can we support family and friends who aren’t ‘going OK’?
Please join Partner Kathryn Howard, an Executive Director of R U OK?, in conversation with CEO Katherine Newton. They will discuss strategies and tips as to what we can do if we struggle, or those that we love are struggling at this time of year.
Please email Jacob Lewis to receive a copy of the invitation.
Ethics and corruption: a look at parallel worlds
Partner Stan Kondilios discussed the obligation of public officials to act in an honest, impartial and transparent manner in the execution of their public duties, and the role of a Probity Referee.
Workplace investigations in the public sector
Partner Alison Baker and Special Counsel Iona Goodwin provided a practical discussion about running a procedurally fair workplace investigation and how to run the investigation from briefing the investigator to finalising the report.
Victory for Head, Transport for Victoria
Hall & Wilcox is delighted to have advised the Head, Transport for Victoria (TfV) in its successful defence of a $35 million claim for alleged financial loss on sale under s 106 under the Planning and Environment Act.
The Head, TfV denied the claim on the basis that the owners had demonstrated no financial loss, given that the owners had effectively sold the land on an ‘unaffected’ basis to the buyer. The owners of the land sought compensation having regard to hypothetical valuations, disregarding the circumstances of the sale.
At first instance and on appeal, the Court held that an owner must demonstrate actual loss as a consequence of the reservation. Brompton Lodge is now the leading authority in Victoria on s 106, and serves as a cautionary tale to owners of land seeking to create hypothetical claims. The owners have received no award of compensation from the Court, and are obliged to pay the Head, TfV’s costs.
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