The Pulse | Edition 11 by Proximity

pulse THE

Edition 11 August 2022

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A message from our Co-CEO A new Government brings change and change brings opportunity. For Proximity, the change in Government sees us reevaluate how we can best support our clients’ renewed priorities, with a focus on achieving the best outcomes for all Australians. One of the many ways we are adapting to support clients, is via the introduction from 1 July of an operating model which decentralises decision making and empowers our team to be more responsive to the changing needs of clients and their work on individual assignments. Our model has dual focus points: our key client sectors, and the services where we provide outstanding expertise and great value for money. Find out more about this model, and meet the Leads on page 45. The new Labor Government has promised big changes, from stepping up climate action to boosting indigenous rights and cracking down on political corruption. After nine years supporting a Liberal Government, the APS will be called upon to

reflect the language, policies, and directions of their new Government, including doing the heavy lifting to make these changes happen. We understand our clients will have new and complex requirements in responding to the new Government priorities, the economic cycle, and the expanded environment, social, and governance (ESG) agenda. We are accelerating the growth of our capability in areas where we know our clients will require additional support including (but not limited to) policy review and development, program and project management, organisation planning, transformation and governance, procurement, and tendering. On the topic of change, shifting priorities and a new Government, flick to page 7 to read a guidepost to working effectively with a new Government and your new Minister written by Special Advisor, Nicole Elliott and Expert Advisor, Malcolm Thompson. The pair explore the underlying messages that Ministers will want to hear from their new portfolio agencies, and they provide advice on how to manage the transition well to ensure an enduring relationship between APS staff, Ministers, and their offices. If you’re leading or part of the team delivering these changes, or you’re experiencing a machinery of Government (MOG) change (which I can

imagine is the case for many readers), can I suggest that you turn the page to read the article penned by Senior Advisors Lyndel Hopkins and Elisa Meddi on managing change fatigue. Lyndel and Elisa provide you with some practical advice and quick wins on how to continue managing transformation, when everyone is change-fatigued. If you would like to accelerate your change journey, we regularly support agencies in effective organisational transformation, including change management, effective communication, stakeholder engagement and administrative decision making—please reach out via enquiries@proximity.com.au. It’s this type of complex work we love to do, we want to continue to walk with our clients to unveil what’s possible. We’re passionate about providing the collaboration, insights and advice that enables our clients to do extraordinary work. We really do believe our amazing clients provide us with great work, which allows us to develop and bring on extraordinary people, whom our clients love to work with. It’s really a win-win. We very much look forward to working with you to make the most of your opportunities, embrace the change, and to help you to be courageous with ambiguity. Let’s GO FURTHER together. Mike Watson Co-CEO

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C O N S U LT I N G H U B

You want me to do what?

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How to continue managing transformation when everyone is change fatigued.

By Lyndel Hopkins Senior Advisor and Elisa Meddi Senior Advisor

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You may have noticed a unifying factor among your friends, colleagues, bosses, and family in 2022: people are tired. A lot has been asked of us in recent years. The disrupted holidays, radically different work arrangements and very personal concerns around health and wellbeing all come at a cost. Now imagine the following cherry on top— you are being invited to lead or participate in a change program. How will people cope? What will they say? For those facing this challenge, this article is for you. It is written with our shared fatigue in mind, balanced with a cleareyed understanding that 2022 is handing us challenges coupled with transformative opportunities that were impossible to picture a few short years ago. So how do we grab this chance, and how do we get others to see it too?

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People successfully manage change all the time, often without realising it. Confusingly, this capability falls flat when a formal ‘change’ label is applied, and the project takes two steps backwards before it has begun. This resistance is especially pronounced when your audience is already feeling change fatigue. The solution is to commit to doing change well. It’s not magic that sets a change program (big or small) up for success. You need a sound, evidence-based approach that is carefully designed for your people and your business— coupled with a few small things done well. Let’s start with the evidencebased approach. Proximity works with clients to apply a tailored plan that is underpinned by Critical Success Factors. These are dependencies that must be established to successfully embed changes within an organisation and are critical in overcoming change fatigue.

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Clear leadership direction

Accountability for implementation

Regular, clear and consistent communication

Integration, alignment and prioritisation

People— capability and capacity

1. Clear leadership direction Leadership alignment is vital. There are so many moving parts during a transformation. It is therefore essential that leadership teams establish a unified direction and share this vision with the broader organisation. When leadership is not aligned, implementation will not be successful.

2. Accountability for implementation Define everyone’s implementation accountabilities and responsibilities to ensure sustained change. You’ll need clear channels for checking-in and tracking progress.

3. Regular, clear and consistent communication Regular, clear and consistent two-way communication across all levels of the organisation will increase awareness, set expectations and educate stakeholders.

4. Integration, alignment and prioritisation Consider other changes happening within your organisation: then align and prioritise them where possible. Strategic prioritisation helps manage change fatigue, as people know what’s coming and where to focus their time, effort, and budget.

5. People—capability and capacity Your people are central to change. What do they need and want? In the words of Peter Senge, ‘people don’t resist change, they resist being changed’. Take the time to understand how they will be impacted and plan accordingly.

Now, what about those ‘few small things done well’? This is where true expertise is needed: yours, as the experts in your organisation, and ours, as trusted sidekicks and experts in change. We bring bold ideas, genuine people, and deliver helpful outcomes. Working together we can build trust and momentum—and be sure to deliver some quick wins to help overcome change fatigue along the way. At Proximity, we keep things simple, we speak your language, and we come in as both strategists and doers. We understand that people are tired, but changes are (and should be) happening. It’s time to take these opportunities, and to work smart so that our fatigue can get lost along the ride. Get started today, get help if you need it, and get where you need to go.

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C O N S U LT I N G H U B

We have a 31st Prime Minister, and new Ministers A guidepost to working effectively with a new Government and your new Minister.

By Nicole Elliott Special Advisor National Lead—Policy & Programs

On election night, Prime Minister Albanese acknowledged the Australian people had voted for change and this was an opportunity to shape change rather than be shaped by it. His Government, he said, was committed to doing this effectively by taking the community on the “journey of change”.

Responsiveness, a solution mindset and candid advice need to be kept in creative tension in this early period of the relationship with new Ministers.

and Malcolm Thompson Expert Advisor National Lead— Environment, Climate Change & Water GET TO KNOW NICOLE

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In Australia’s democracy, managing transitions well is a critical part of maintaining confidence in our political system and in the Australian Public Service (APS). Following this election, transitions will include a change of Government and its priorities, and a change of Minister and Ministerial staff. We have seen a first wave of change in administrative arrangements for departments, and subsequent changes of leadership at Secretary and agency head level. Managing these many transitions well is the commencement of an enduring relationship between APS staff, Ministers, and their offices. Good relationships are central to effective Government and to delivering on the new Prime Minister’s commitments1. After nine years supporting a Liberal Government, the APS will be called upon by the new Labor Government to reflect the language, policies, and directions of their Government. After delivering their red books to the new Ministry, APS leaders will be looking to build trust and confidence, to ensure Ministers and their offices have confidence that they will receive good advice, and critical pieces of work will continue without disruption for the broader community.

In practice, there are several underlying messages that Ministers will want to hear from their new portfolio agencies to enable an effective transition:

‘We understand that the Government has changed’ This sounds basic, but a major task for APS leadership and staff is to immerse themselves in the new Government’s agenda, language and way of doing things. Ministers have been tasked with a focus on giving effect to policy and legislation on climate change, energy, infrastructure, skills, employment, a national anti-corruption commission, health, aged and child care, and Constitutional recognition called for in the Uluru Statement from the Heart. The Government not only wants to take a very different path to the previous Government, but to be seen to do so by the Australian community. Similarly, they expect the APS to understand this and be seen to understand it.

Knowing the key players who are going to make the policy work A talented, helpful and supportive APS

Strong working relationships and networks within the APS

MINISTER’S FOCUS Processes and systems in place to ensure effective government and continuity

Early, clear communication backed by facts and data Strong understanding of the Government’s priorities

Australian Public Service

Commission—APS Values and Code of Conduct in practice.

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‘We get you’ At a personal working level, Ministers will expect the APS to understand their background, their vision for change, and their ‘style.’ APS leaders will reach out to colleagues who have worked with the Minister before and understand how to be effective from day one. Reading their maiden speech will give great insights into what matters to them, help you to build trust and rapport, and know when and how to raise issues. Remember, your issues are not always the Minister’s issues, and your timing not always their timing.

‘We want to work with you on your agenda’ Ministers will be looking for hard evidence, sound judgement, a clear outline of risks and opportunities, and innovative solutions to help them deliver on the Government’s election commitments. Responsiveness, a solution mindset and candid advice need to be kept in creative tension in this early period of the relationship. Given the pace at which Government operates, this will require early, clear and frequent communication between Ministers and agencies. This in turn will rest on both good relationships and good processes. In particular, the Albanese Ministry’s first 100 days will be a key focus for APS agencies and their leaders. Identifying what key appointments and issues need to be resolved over the next 30, 60 and 100 days, and prioritising information flow will be critical.

‘We want to help you to do Government differently’ The mandate for any new Government typically brings with it an aspiration to do Government differently. The nature of the most recent election result, and the statements from the Prime Minister, indicate that this is even more keenly felt at this point in the life of the new Parliament. There will be a remarkably high premium placed on connecting meaningfully with stakeholders - bringing them on the journey of change that the Government wants to pursue. While Ministers will already have good connections with key players, the APS will have a responsibility to identify the full gamut of additional stakeholders that are important to achieve traction on new policies and help ensure that they endure.

‘We are committed’ Importantly, there have also been encouraging signs from the new Government about building the capability of the APS. As stewards of their organisations, this should be an additional focus of leaders at all levels across the Service as they meet the Government’s agenda. Given our deep Government expertise, Proximity regularly supports agencies in effective organisational transformation, including change management, effective communication, stakeholder engagement and administrative decision making. If you would like to accelerate your journey, please contact us on 1800 959 885

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C O N S U LT I N G H U B

Royal Commissions— more on the way? The announcement of a Royal Commission is rarely a surprise and always big news. There is often significant prior discussion about the need for an inquiry (or lack thereof, particularly if other inquiries have taken place), motivation and timing, and what the outcomes might be. By Simon Blake Senior Manager Client Engagement and Anne Ward Senior Advisor

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Royal Commissions have been around for a long time. The first Royal Commission (the Domesday Inquiry) was established by William the Conqueror in 1086 to investigate land ownership and settle legal title in competing property claims (conveniently establishing irrefutable proof of property rights which cemented his position as the ‘true’ King of England). The Royal Commissions Act 1902 (Cth) was enacted by the first Commonwealth Parliament and the list of 138 Federal Royal Commissions1 to date looks likely to be added to soon by a Royal Commission into Robodebt, and (if the Government follows the recommendation of the Senate Select Committee inquiring into COVID-19) a Royal Commission into the national pandemic response. If these two new Royal Commissions are established, it will continue the recent trend to utilise Royal Commissions as a method of public inquiry (there were 8 Royal Commissions in the 20 years to 2012 but 9 since 2013).

Federal Royal Commissions and Commissions of Inquiry appointed under the

provisions of the Royal Commissions Act 1902. For convenience, in this article the term Royal Commission is used to cover both types of inquiry.

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Royal Commission Activity 1900–present

Boom time

Quiet time

1900–1930

69 RCs

The APS was much smaller,

18 RCs

Busy again

34 RCs

Quiet again

17 RCs

1 RC 1 promised 1 likely

1931–1960

1961–1990

1991–2020

2021–

the Federation was new

In its 3 years in power the

they were looking for some

established 13 Royal

so it’s not surprising that extra help.

Whitlam Government Commissions.

An examination of the historical record suggests that we could be at the start of a period of increased Royal Commission activity, which (as noted in the table above) has tended to surge and fall away over periods of roughly 30 years. Whilst this might appear to be some form of cycle, it is more likely a reflection of the operating environment, the issues presenting themselves at the time and the government’s appetite for reform. Royal Commissions have two functions, being investigatory and/or policy/law reform. In practice, many Royal Commissions have both functions. For example, whilst Royal Commissions to investigate Aboriginal Deaths in Custody and the activities of the HIH Insurance Group were both established to examine a particular issue, the recommendations included many policy and reform recommendations in relation to indigenous disadvantage and insurance and corporate governance respectively. Since the turn of the century, Royal Commissions have tended to be investigatory inquiries in response to incidents or long-standing problems. For example, of the 14 Royal Commissions established since 2000, only 3 were policy/law reform focussed (Aged Care, Disability and Defence and Veteran Suicide) with the remaining 11 either examining possible corruption, fraud or wrongdoing (such as HIH, Building and Construction, Oil for Food, Trade Union Governance, Banking) or in response to crisis events (such as Equine Influenza, Home Insulation, NT Child Detention, National Natural Disaster Arrangements).

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Royal Commissions since 2000 7 X INVESTIGATIONS INTO CORRUPTION/FRAUD/WRONGDOING 4 X RESPONSE TO CRISIS EVENT

3 2 1

There were Royal Commissions called in the following years: 2001:

2 (both wrongdoing) HIH and Building and Construction

2004:

1 (wrongdoing) Centenary House Lease

2005:

1 (wrongdoing) Oil for Food

2007:

1 (crisis) Equine Influenza

2013:

2 (both crisis) Institutionalised Child Abuse and HIP

2014:

1 (wrongdoing) Trade Unions

2016:

1 (wrongdoing) NT Detention

2017:

1 (wrongdoing) Banking

2018:

1 (policy) Aged Care

2019:

1 (policy) Disability

2020:

1 (crisis) Natural Disasters

2021:

1 (policy) Defence and Veteran Suicide

2021

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

0 2001

Number of Royal Commissions

3 X POLICY

However, Royal Commissions have a long history of policy/ law reform inquiry across a range of subject matter including navigation, customs and excise, old age pensions, family allowances and child endowment, electoral law, basic wages, several industry sectors, uniform railway gauge, wireless communications and television, taxation, aboriginal land rights and human relationships. So, whilst few would embark on a Royal Commission on a whim (especially given the time and expense involved, and the possibility that Commission lines of enquiry and recommendations are not always predictable), their use as a vehicle for the development of policy is far from unusual.

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Of course, there are several permanent bodies established under legislation to undertake inquiries and advise on policy development and/or law reform (such as the Australian Human Rights Commission, the Australia Law Reform Commission, the Productivity Commission and to some extent, parliamentary inquiries and the ANAO). However, whilst other inquiry bodies can have coercive powers, their powers are not equivalent to those of Royal Commissions, which are the highest form of public inquiry and deploy the broadest range of powers. These powers, in addition to the much higher profile of a Royal Commission, result in significantly increased levels of public engagement in the inquiry process. Further, the use of a Royal Commission to consider a complex area of public policy has some distinct advantages, including transparency, perceived independence and the potential for catharsis or reconciliation. If handled and balanced well, the process of engagement with a range of stakeholders with different views can lead to a broader acceptance of the complexity of the issues, the lack of a perfect solution and, therefore, the reality behind any recommendations. Finally, it is difficult not to ponder whether there is a link between views that there has been a reduction in APS policy capability and the increase in the number of Royal Commissions over the past decade. Perceptions of a decline in APS policy capability over recent years (as identified by the Productivity Commission’s ‘Shifting the Dial’ review in 2017 and the Thodey Review in 2019) may reflect a lack of confidence and authorisation to pursue reform and highlight gaps and deficiencies in key areas of public administration. Regardless of whether APS policy capability has declined (as opposed to recently being under-utilised), the new Government is faced with some complex challenges and has a reform agenda, as articulated in key policies and priorities. As a result, it may see value in having the independent, comprehensive and wide-reaching investigations a Royal Commission can provide, at least while the reality of APS policy capability is being assessed (or is rebuilt). Already two new Royal Commissions are being considered and given the complex operating environment and an appetite for reform, it is likely that the recent increase in the use of Royal Commissions will continue in the short term.

“Proximity proved over the course of the project that they understood our agency’s operating context. They took the time to listen to what we needed, and their insights were on point. Proximity developed solutions that were not only practical but were part of a broader strategy they developed that the agency has been able to move ahead with for the better.” DEPARTMENT OF SOCIAL SERVICES ROYAL COMMISSION TEAM

Proximity personnel have very significant experience in assisting to establish, run and respond to Royal Commissions, having worked on or in response to the Royal Commission into Institutional Responses to Child Sexual Abuse, the Royal Commission into the Protection and Detention of Children in the NT, the Royal Commission into the Prevention of Violence, abuse, neglect and exploitation of people with disability, the Victorian Crown Casino Royal Commission and the Royal Commission into Victoria’s Mental Health System. We can work with you to develop and implement a strategic approach to managing interactions with a Royal Commission across three key areas: Understanding and planning for the impact of a Royal Commission Responding effectively and efficiently to requests and notices from the Royal Commission Proactively responding to the Royal Commission in anticipation of findings and final recommendations enquiries@proximity.com.au or call 1800 959 885

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LEGAL HUB

Jurisdictional error: the elevator summary

By John Yoon Senior Advisor

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As I walked out of my administrative law exam at university, over a decade ago, I knew one thing for certain. If I ever went into law, it wouldn’t be into administrative law—the field of law which relates to Government decision making. Nowadays, it is pretty much all I do. But what was so challenging for my poor little second-year brain? There were many phrases and concepts that I couldn’t comprehend back then, and none were so daunting as “jurisdictional error”.

What is it? You may have heard your legal advisors mention or explain jurisdictional error. I have heard it explained in many ways. For example, an error is jurisdictional if it is infected with ‘an error of law such that it is unlawful’ or is ‘an error of law or procedure which takes the exercise outside jurisdiction’, or ‘exercising a power in such a way that it is now outside power’. In the context of powers granted by statutes (Acts of Parliament and other legislative instruments such as rules and regulations), the High Court has said that jurisdictional error is a matter of interpreting the

statute to determine the limits and scope of the authority given to the decision-maker, and whether it is intended that going outside that scope will result in an invalid decision. Fundamentally, this means that whether an error is jurisdictional will depends on the nature and context of the statutory power you as a decision-maker are exercising. This might explain why jurisdictional error is not easy to define, and often depends on the seriousness of the result of the error rather than a simple definition of its characteristics.

Some types of error are frequently found to be jurisdictional errors. One of these is a breach of procedural fairness. This can arise when there has been a failure to give an affected person a proper hearing or where your decision is infected by bias (e.g. having already made up your mind before embarking on the decision-making process). Jurisdictional error has also been found because a decision-maker either ignored relevant material or considered irrelevant material. That is especially true where a particular statute either required or forbade

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the consideration of certain matters. In some cases, reaching a faulty conclusion can also be a jurisdictional error. There is a longer list of errors of law which have been found to be jurisdictional. It is not possible, or appropriate, in this context to set them all out. This seems daunting—so many errors can be jurisdictional, and it is so hard to define them with certainty. However, recent case law developments have potentially clarified and reduced the number of errors which are jurisdictional. A significant recent development is the requirement that to be a jurisdictional error, the error must be ‘material’. This is the idea that an error is not jurisdictional if it did not make a difference to the outcome of the decision. This area of law is still under development, but would mean that some errors which previously may have been considered jurisdictional (e.g. a breach of procedural fairness), may no longer be jurisdictional in some cases. What does this mean for you as a decision-maker?—This could place more emphasis on the reasoning processes set out in the documents you consider—such as briefs or recommendations which decision-makers take into account. If an error of law exists in those documents, but the evidence shows that it did not, or could not have, have made a difference to your decision, then your decision may be less likely to be set aside by a court on the grounds of jurisdictional error as it was not material to your decision. However, you should exercise some caution as this area of law is still developing. Courts may find that the requirement of materiality may not apply to all forms of judicial review.

Why does it matter? Jurisdictional error essentially means invalidity. If a decision is invalid, there may be significant impacts on anything done in reliance on that decision in the time until a court determined that there was jurisdictional error. It may cause delays to other decision-making processes and projects and problems for the person affected by the decision. Invalid decisions generally impede the business of Government and its agencies. One principal avenue of judicial review for affected persons, the Administrative Decisions (Judicial Review) Act 1967 (ADJR Act), often presents a simple method of seeking judicial review. The ADJR Act does not always require jurisdictional error to be established (although the ADJR Act can also operate where there is jurisdictional error). Together with a wider range of remedies (including those that operate only prospectively), this can make the ADJR Act a more attractive option for those challenging decisions made under statutes. Jurisdictional error continues to be important because of its central role where Parliament has limited the availability of judicial review under the ADJR Act. For example, the ADJR Act is not available for migration or taxation decisions. In these cases, establishing there is an error that is jurisdictional is still key.

What can you do about it? Tips for decision-makers The best way to avoid any type of error in your decision, and particularly jurisdictional error, is to devote sufficient time and effort to a decision. That means ensuring you provide a fair and unbiased process, address appropriate considerations, and meet other legal requirements. In some cases, assistance from legal advisors may be needed. Advisors can tell you at the outset what is the correct decision-making process and ‘sanity check’ your proposed decision. The reality is that it is not feasible for decision-makers (and those who support them) personally to undertake comprehensive enquiries and seek legal advice on every occasion. Nor would this be a sensible use of resources. In some cases, timeframes imposed by statute may mean seeking legal review would be at the expense of a more careful consideration of the decision, and vice versa. Given these limitations, it is important to have robust decisionmaking processes, good templates, and guidance material, and to make training available for decision-makers and those who support them. While these measures will not prevent all errors, they can provide multiple layers of defence against risk and may raise the flags to trigger the seeking of legal advice in appropriate cases.

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LEGAL HUB

Taking data further—the new scheme for data sharing across Government The Data Availability and Transparency Act 2022 (Cth) (the Act) establishes a new sharing scheme for data held by Commonwealth bodies. The Act, which commenced on 1 April 2022, seeks to realise the benefits of greater data availability and use. It could herald a new dawn for data sharing arrangements across the public sector. But does it live up to its potential?

WHAT IS THE DATA AVAILABILITY AND By Colin McCormack Senior Advisor

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TRANSPARENCY ACT 2022 (CTH)?

The Act seeks to promote better availability and sharing of public sector data with data scheme entities, consistent with existing security safeguards. Public sector data includes data lawfully collected, created, or held by or on behalf of Commonwealth body. Sharing may be with other Commonwealth entities or with state and territory entities.

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WHAT DOES IT MEAN FOR IMPORTANT DATA THE GOVERNMENT HOLDS, INCLUDING MY OWN DATA? A data scheme entity includes: Data custodians: Commonwealth bodies who control public sector data (and are automatically participants in the scheme), and Accredited entities: accredited users and accredited data service providers (who can apply to participate in the scheme). The sharing, collection and use of the data must relate to at least one of three data sharing purposes: 1. delivery of Government services, which includes providing information, services (other than services relating to a payment, entitlement or benefit), and determining eligibility for, or paying a payment, entitlement or benefit 2. informing government policy and programs, and

Under the Act, data scheme entities can enter into data sharing agreements to enable further data sharing, beyond existing mechanisms, for data sharing purposes. This could mean, for example, individuals won’t need to provide the same information on multiple occasions to different agencies across the Commonwealth Government. It could include circumstances where: individuals, families and businesses impacted by a major flood or bushfire event could submit one form, shared across a range of agencies for assistance or relief life event data such as the registration of a birth, could be shared across jurisdictions with relevant health, education and community service agencies, or agencies with vast amounts of data like the Australian Bureau of Statistics could provide this data to accredited research bodies like universities. Data sharing under the Act must be done consistently with the five data sharing principles and a registered data sharing agreement. Data sharing principles Element

Description

Project

Defines the intended use of the shared data, including public interest, consent and ethics requirements.

People

Identifies users accessing the data to ensure they can be trusted and have the right skills for the project.

Settings

Assesses if data is shared in a controlled environment tailored to the data type and sensitivity, subject to security standards.

Data

Requires data to be protected, including taking a ‘data minimisation’ approach so only data that is reasonably necessary to achieve the project is shared.

Outputs

Ensures the results and outcomes of the projects are agreed, including whether they are appropriate for publishing.

3. research and development. All existing mechanisms for data sharing continue to operate as the Act does not replace or change these arrangements.

In entering a data sharing agreement, a data scheme entity must be satisfied that a project is consistent with the data sharing principles. It must apply each principle to the sharing, collection or use of data so that when viewed as a whole, the risks associated with the sharing, collection or use are appropriately mitigated. Penalties exist for unauthorised sharing.

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The Act does not force disclosure of any collected or held data. Other existing obligations for handling Government data continue to apply, including the Australian Privacy Principles in the Privacy Act 1988, records management under the Archives Act 1983, and the Protective Security Policy Framework. The Act precludes the sharing of public sector data for certain enforcement related purposes, such as law enforcement investigations and operations.

WHO IS THE NATIONAL DATA COMMISSIONER?

The Act establishes the National Data Commissioner (Commissioner) as an independent statutory office holder charged with overseeing the data sharing scheme as its regulator and champion. Gayle Milnes was appointed as the first National Data Commissioner in April 2022. The Commissioner will provide advice, advocacy and guidance to ensure the scheme operates as intended. The Commissioner will also report to Parliament annually on the operation of the scheme and will be supported by the National Data Advisory Council.

FINAL

WHAT’S NEXT? Following commencement, the rollout and implementation of the new scheme continues. Data custodians are automatically participants in the scheme. For accredited entities, a staggered implementation is planned: Apply to become accredited data users*

Apply to become accredited data service providers^

Government agencies

From 1 June 2022

From 1 August 2022

Universities

From 1 August 2022

*organisations accredited to obtain and use Australian Government data

^organisations who provide complex data integration, de-identification and secure data access services

To be accredited, entities must be Australian and satisfy the criteria for accreditation, which includes, for example, that the entity has appropriate data management and governance policies and practices. Consultation on other aspects of the framework will also be occurring, including: Ministerial Rules: which will include a register of accredited data users, transition of integrating authorities to accredited data service providers, evidence for accreditation of data users and data service providers, and Data Code: to cover the application of data sharing principles, privacy and data sharing agreements.

THOUGHTS The new scheme seeks to strike the appropriate balance between increased data sharing with necessary safeguards. Success will depend on the benefits outweighing the investments required, particularly for entities where participation is voluntary. There is huge potential for increased sharing of Commonwealth Government data to improve policy making and program design. Time will tell whether the enormous potential of the new scheme can be fully realised.

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LEGAL HUB

Preparing for contract negotiations When asked about contract negotiations, I often think of a quote attributed to Abraham Lincoln:

“Give me six hours to chop down a tree, and I’ll spend the first four sharpening my axe.” By Rob Gibson Senior Advisor

Now, I would recommend against bringing an axe—or any sharp weapon—to a contract negotiation, but Lincoln’s advice about preparation is instructional. The best way to achieve a great result from a negotiation is to properly prepare.

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The benefits of putting in the time ahead of commencing negotiations are numerous. You will feel more confident in the process, and in being in the room. It is likely that it will take less time to reach an agreement. And most important of all, you are much more likely to achieve a great contract—for you, and your contract partner. So what are some key areas to consider when preparing for contract negotiations? Let’s take a look.

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Understand the other party’s commercial position

Understand your commercial position What are your objectives coming into negotiations? What are you trying to achieve? If you don’t know your desired destination, you might get lost on the journey there. Some things you should know before stepping into the negotiating room are: What are your ‘must haves’? The things you cannot live without?

Knowing these answers ahead of time will allow you to confidently address them as they arise in discussions, and will help keep you focussed on what’s important to your organisation.

What is the other party trying to achieve? What do they want? What are the other party’s pressure points?

What areas are less important to you? Are there things you can offer the other party, or concede, if it means obtaining your ‘must haves’? What are the key risks? Can these risks be managed, outside of the contract or through the contract itself?

It is of course impossible to know for sure the position of the other party to a negotiation, but that shouldn’t stop you trying to anticipate it as best you can. This will help guide your approach and make better negotiating decisions.

How do you anticipate the other party might react to you insisting on your ‘must haves’? How do you anticipate them reacting to the items you might be willing to concede? Is there any market research you can do on the other party? What pricing and terms have the other party’s competitors given in similar deals, and can you leverage this? It can also be useful workshopping the above to test your assumptions.

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Understand the deal dynamics Once you have identified your commercial position, and considered the other side’s position, you should be able to understand the deal dynamics. Who has leverage in the negotiation? Who wants the deal more? Do you have alternatives if you can’t reach a satisfactory agreement? Does the other party? Are you under any time constraints? Is the other party?

Read the documents This may seem obvious, but it is crucial that you read and understand the contractual documents you are negotiating ahead of time, or have trusted advisors to do this for you. If you don’t understand the contract, you may not understand the unintentional consequences of a change to a contract term. For example, will agreeing to a change to an intellectual property provision have flow on effects to your liability clauses? If you don’t know how the contract works, you may end up accidentally giving away far more than you intended.

Understanding the dynamics will be crucial to how you approach negotiations and may inform how hard you push for your objectives.

Understand your legal position It is important to know the legal and regulatory framework you are working within, otherwise you may inadvertently agree to terms that put you in breach of the law. This is one of the reasons why having quality legal advisors by your side is critical as part of your negotiations. Speaking of which…

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Assemble the team Nick Fury knew what he was doing when he brought the Avengers together—a great team working in unison is the best way to achieve your goals. This also applies to negotiations, even if the fate of the world doesn’t hang in the balance (although it may feel like it at times!). You need a team with the knowledge and skillsets to give you the assistance and advice you need to successfully negotiate the deal. These include subject matter experts, legal advisors, commercial advisors, and probity advisors. Be sure to ask their advice as needed, and allow them to contribute during negotiations as appropriate. Make sure everybody understands the negotiation strategy and their respective roles. Who is going to be the decision maker? Will they be attending the negotiations? If not, what authority does the lead negotiator have to make decisions during negotiations, and when do they need to go back for approvals? It is invaluable to select the right team to work with you. Once that team has been identified, take the time to meet so that everyone is on the same page.

As trusted advisors in numerous negotiations, the team at Proximity know firsthand how much we can assist our clients during what can be a challenging process, and how our expertise can help achieve great outcomes. If you have any queries about how we might be able to assist you in your next contract negotiation, feel free to reach out to us.

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LEGAL HUB

Legal Secondee Spotlight KYLE WOOD ADVISOR

Proximity has more than ten years’ experience providing on-site legal solutions for our clients. Our contributions range from from specialists providing expert advice to teams of lawyers and paralegals providing surge support for litigation, legislative reform projects, Royal Commissions and other complex projects with multidisciplinary teams. 23

We are very proud of our stellar reputation for providing carefully selected, collegiate Advisors who complement our clients’ teams and can hit the ground running! One of these stellar Advisors is Kyle Wood, who is currently on secondment with the Climate Change Division which was formerly part of the Department of Industry, Science, Energy and Resources.

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We recently sat down with Kyle to find out about his current secondment and our onsite model. What’s your role at Proximity? I’m an Advisor at Proximity, where I’ve been working for three and a half years. My work has primarily been with the Commonwealth Government, including legislation and program work, but I’ve also had some experience with reviews and pro-bono work. Outside of work I enjoy playing and supporting team sport – carn the Uni-Norths Owls! Who did you most recently work with, and what did you work on? For more than 18 months I worked with the Climate Change Division which was formerly part of the Department of Industry, Science, Energy and Resources. In that role I was working on legislation and policy as part of the Emissions Reduction Fund Governance and Policy team.

Is this your first secondment? Or how many secondments have you completed?

Tell us more about the type of work you did on your most recent secondment?

I’ve competed two other secondments; my first was also with the Department of Industry in the Secretariat for the AntiDumping Review Panel, where I was from January 2019 until October 2020.

On my most recent secondment I was fortunate to take on a broad variety of work in the Climate Change space, with a core focus on legislation, policy, and governance for the Emissions Reduction Fund scheme. On any given day the type of work could range from technical, process-driven legislation work to big picture policy brainstorming – and everything in between.

Earlier this year I had the opportunity to complete a three-month part-time secondment with the ACT Law Society’s Pro-Bono Clearing House, as the Operational Secondee. In each secondment I had a great opportunity to gain insight into very different areas of law and policy, working with very dedicated people.

“Kyle is a great fit in the team. He has a wide range of skills and is really versatile so I can ask him to do anything. He has great initiative and applies a creative approach to problem solving. I rely on his in-depth knowledge of our legislative framework and his expertise in our guidelines and procedures, but he is also comfortable with policy work and can write a great brief! Kyle is such a kind person and a supportive team member. He is always willing to go the extra mile and put up his hand to help out with additional tasks. He works seamlessly within and across teams and with our external stakeholders, and always provides a high level of service.” Joanne Nathan Manager, Emissions Reduction Fund Policy and Governance, Department of Industry, Science, Energy and Resources

During my secondment I supported the development of a raft of changes to the subordinate legislation underpinning the Emissions Reduction Fund’s operation, often under significant time pressures. For my part I was involved in policy development, consultation and drafting of legislative instruments, in addition to producing the required briefing and explanatory materials. Drawing on my legal background, I enjoyed pivoting between legal analysis and policy problem-solving. The nature of the subject matter allowed me to work collaboratively with internal and external stakeholders across disciplines, agencies and levels of Government—something I really value.

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What value do you get from being a secondee? What’s the best thing about being a secondee? It’s a bit of a cliché, but as a secondee I’ve enjoyed the best of both worlds – drawing on Proximity’s support and breadth of experience, whilst pushing myself out of my comfort zone. Aside from keeping things interesting, secondments have fast-tracked my development of professional skills, experiences, and client relationships.

In my experience, the best thing about being a secondee is ultimately the relationships I have built with my client colleagues. Being a secondee allows an unparalleled opportunity to get to know your client, and to build trusting professional relationships which can be drawn on long after the secondment ends.

Being a secondee has also given me a valuable opportunity to create solutions which are helpful, bringing together the unique insights I have from being embedded with both Proximity and my client to find innovative solutions and drive change.

As a secondee I’ve been fortunate to collaborate closely with a range of people from very different backgrounds and professional disciplines. It has been satisfying to have learned a lot from my secondments, but also to have had the opportunity to build the client’s capacity and knowledge as well.

We are driven to make a difference. We share our knowledge and work with you to meet complex challenges together. enquiries@proximity.com.au or call 1800 959 885

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COMMERCIAL HUB

Unconscious bias in procurement—and how to reduce its impact

By Twoey Jones Advisor

GET TO KNOW TWOEY

CONNECT WITH TWOEY

When we think about bias in procurement, we often associate it with conflicts of interest or preferential treatment, usually at the supplier selection stage. This is conscious bias. It occurs when a person is improperly influenced in a direct and known way, such as a decision-maker having a personal interest in a procurement outcome. Unconscious bias, however, occurs when a person is improperly influenced in an indirect or unknown way. It generally happens unintentionally and without malice, but it can still lead to poor decisions and suboptimal outcomes. To illustrate unconscious bias, let’s look at two examples:

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Anchoring bias

Availability bias

Anchoring bias occurs when we give too much weight to an initial estimate of a particular value. In doing so, we allow this initial estimate (the ‘anchor’) to improperly influence our perception of what a reasonable value might be. This can happen even if the initial estimate was not reasonable at all, and even if we don’t realise that we have accepted the ‘anchor’.

Availability bias occurs when we estimate the frequency of a particular event based on how easily occurrences of it come to mind. In other words, it happens when we are improperly influenced by how easily we can remember something occurring—which may not correlate to how often it actually happens.

Anchoring bias often impacts negotiations, because the first price put forward becomes a default position from which any deviations must be justified. It can also occur when deciding how many suppliers to approach for a limited tender, or when estimating the value of a procurement. In fact, any decision where an initial estimate is put forward can be prone to anchoring bias, because of the improper influence caused by the initial estimate.

In a procurement context, availability bias can cause us to overestimate the likelihood of commercial risks, because we can easily remember a few instances where they eventuated—even if those instances are unrepresentative. This can lead to the implementation of excessive risk controls, such as conservative and onerous contract conditions or excessive warranty terms, which drive up price and decrease value for money. There are countless more types of unconscious bias. But what can we do to guard against them? How can we stop ourselves from being improperly influenced—especially if we might not even realise it’s happening? Here are some simple steps that will help minimise the impact of unconscious bias on procurement decisions: 1. Establish decision-making criteria in advance. Just as you wouldn’t start evaluating a tender without evaluation criteria, you can take the same approach to other decisions in your procurement process. 2. Use reliable data to inform your decisions. Overreliance on personal experiences can cause us to be improperly influenced by events or outcomes that may not be representative of likely scenarios. Rational real-world data is generally much more representative. 3. Seek external review of your decision-making processes. Focus on how your decisions are being made – ensuring that relevant factors, and only relevant factors, are being considered. 4. Use standard tools to support consistent decision-making. Templates, checklists, and standard operating procedures all help to focus decision-making on relevant factors. 5. Document decisions individually before coming together for group decision-making. This prevents people from being improperly influenced by the decisions of others before they reach their own positions. Achieving value for money in procurement relies on good decisionmaking without improper influence. Being aware of unconscious bias, and being proactive in mitigating against it, will enhance the quality of both your procurement decisions and procurement outcomes.

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COMMERCIAL HUB

It’s time to upgrade your supply management systems We can help you understand the best way to approach the market: 1. You need to understand the opportunities for productivity 2. How you will use analytics to maximise growth By Gordon Labourne Senior Advisor

3. What is the business transition plan and how will you migrate your valuable data

GET TO KNOW GORDON

4. Advising on vendors that are relevant both now and into the future

CONNECT WITH GORDON

What is the future and what will it look like?

Has your software support reached end of life? Have you exhausted every work around and is it impacting operational efficiency?

It is important that you look for more than just a refresh of what the business already has. Being agile is now essential as technology drives innovation and growth. The future is integration The days of just one major system doing everything are long gone. There is now the opportunity to have best practice ICT that is integrated with your related system architecture. This will ensure a single point of truth for all your valuable data.

Analytics This allows you to understand process and to forecast demand and ensure supply for the future. You can now extract data from your multiple systems to provide understanding of or development of opportunities for improvement. Automation and robotics Today you need to think about automation and robotics working around key elements of your operations. These can be micro applications that reduce process cost by eliminating touch. An example is management processes that decide Yes or No or Go / Stop can and should be automated. A lot of management activity is not value adding to your operations. Mobility Your ICT needs to be accessible from any location on any modern device. This includes phones, tablets, computers irrespective of each device operating system. This will allow complete flexibility for the effective use of corporate resources.

If you’re thinking about going to market for your supply management system, please contact Proximity, enquiries@proximity.com.au or 1800 959 885

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COMMERCIAL HUB

Smart buyers and industry partnering in Defence procurement

By Dougal Pidgeon Special Advisor

GET TO KNOW DOUGAL

The First Principles Review of Defence brought about tremendous reform in the Department and advocated expanding the role of industry in the capability lifecycle. In current policies(i) and via the Smart Buyer framework, the Department is calling for improved procurement models and partnerships between Defence and industry. And yet, all too often, the actual interface between the Commonwealth and the supplier is the transactional, arms-length contract.

CONNECT WITH DOUGAL

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Limitations of Transactional Contracts What is a ‘transactional contract’? Put simply, it is a contract that concentrates on and emphasises the transactions between the buyer and the seller. Typical features include: Risk is transferred almost entirely to the Seller The Buyer’s requirements are completely defined prior to contract execution Liability is almost exclusively imposed on the Seller Contract oversight mechanisms that rely on formal reports from the Seller to the Buyer. Put even more simply, transactional contracts can be reduced to two foundations: Price and Power(ii). Both can be sources of direct competition between the Buyer and the Seller. As can be imagined, such a basis does not encourage the parties to align their goals, and this is precisely the primary limitation of this type of contract.

Transactional contracts are best suited to procurements where the: Full extent of requirements can be defined up-front; and the Quality of the relationship between the parties is comparatively unimportant. This aligns with relatively simple, one-off procurements involving lower levels of risk or reasonably generic products or services. The 2018-2019 audit of Defence Major Projects(iii), conducted by the Australian National Audit Office, confirmed technical risk as the major cause of schedule slippage and cost escalation. Incurring high technical risk within the construct of a transactional contract is a roadmap to an adversarial relationship with your contractor, schedule delays, and budget management issues. A better alternative, that is supported within Government, is the development of collaborative contracts.

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Meet Complexity with Collaboration Collaborative contracts and collaborative contracting are defined by Defence as business relationships where parties work together to achieve common outcomes(iv). A collaborative contract enables parties to combine their efforts to address complexity and treat risks. The concept is not new, and, for many years, it has been common practice in the infrastructure and construction sectors. It is important to note that a suite of collaborative contract templates can be used to facilitate buyers and sellers working towards common outcomes. Common features of collaborative contracts, as identified in the Collaborative Contracting Better Practice Guide(v), are: Joint decision making Partnering charters Target cost or gainshare/painshare remuneration No blame/no liability frameworks Jointly managed program risk Transparency and open book financial reporting Fair and timely dispute resolution processes Shared financial, configuration management, and decision support systems Agility and flexibility Senior executive participation

The primary benefit of this approach is that the contractor is elevated from being a Supplier concerned with delivering, often, the minimum viable product which meets the statement of work to a Partner in the delivery and support of the required capability. For complex and high-risk projects, this is a far better approach and produces far superior outcomes.

How to collaborate? Collaborative contracts demand detailed planning, development of dependable risk-adjusted project schedules, and employing reliable costing and budgeting practices. While the specifics of procurement planning will of course vary case by case, the first step should always be a Feasibility Assessment. A Feasibility Assessment determines the need for, and ability of both the Commonwealth and potential suppliers to participate in, collaborative contracting arrangements. The outputs are likely to affect project acquisition, execution, and support strategies. Therefore, an objective and detailed assessment is essential. Independent advice may be sought to provide additional assurance. Following a Feasibility Assessment, two equally important and related activities can occur: Relationship Design and Contract Design, which includes the Approach to Market.

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Designing the relationship Early engagement

potential suppliers.

methodologies together.

Engage with Industry early and regularly. Potential suppliers must be alerted to the intended market approach as they will need time to become acquainted with the draft contract, secure potential resources, and prepare to operate within the contract requirements.

Address barriers to collaboration

Jointly develop skills

As project plans develop, communicate relevant details (within information security and probity constraints) to allow Industry to adjust and update their preparations. Engaging with Industry to share information establishes the Commonwealth’s clear intention to build a contract and trust relationship based on a Collaborative Partnership Model. Seek input from industry “Partners to a relationship deserve input into its creation.” Feedback from Industry on procurement models and draft contracts may result in more effective and fairer risk sharing arrangements. Various techniques may be used to solicit Industry input, such as, Requests for Information, Requests for Proposal, Request for Quotes, Competitive Dialogue, and even release of exposure drafts of contract documents. Interactive Tendering techniques may also be used as part of a staged approach to market that progressively downselects

Any part of the procurement model or draft contract that operates to diminish or prevent collaboration should be reviewed for potential improvement. Serious consideration should always be given to Industry feedback. Perhaps there is a perception that milestone payments permit the Commonwealth to coerce a contractor by threatening its cash flow. Maybe potential suppliers feel that Key Persons clauses allow the Commonwealth to remove contractor personnel without cause. Work collaboratively to review and amend where necessary. The aim here is to secure and protect appropriate legal rights for the Commonwealth while also promoting collaborative behaviours. Jointly develop incentives Incentives are a powerful tool for aligning the interests of both parties. Performance Based Contracting and various remuneration models align payment to successful project outcomes. Always review the remuneration regime and linkages to milestone performance. Equally important are nonmonetary incentives such as reputation, growth of skills in the contractor’s organisation, and the satisfaction derived from collaborative partnering arrangements. To maximise the effectiveness of incentives, the parties to the agreement should develop incentivisation

The ability of the Commonwealth and potential suppliers to participate in collaborative contracting arrangements may depend on the collective and individual skills of their workforce. Some development is likely to be required by all parties. Where possible, again within information security and probity constraints, joint training may offer the dual advantages of increasing skills and facilitating team building in advance of contract execution.

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Designing the contract Iterative development cycles Consider an agile approach to developing the contract. Break the task into several development cycles scheduled to complement the Industry Engagement Program. This will allow outputs of completed planning cycles to be passed to Industry, and input to be sought for the next cycle. Initial cycles should concentrate on the procurement and contract models, with subsequent ones addressing the contents of the contract in progressively greater detail. Consider all collaborative measures The features in the Collaborative Contracting Better Practice Guide, and other literature on the subject, should be considered for inclusion in the contract. Examine how these may operate in practice and whether they are mutually supporting or mutually exclusive. Scenario analyses may assist here. Consider staging, phasing, and rolling waves

i. 2016 Defence White Paper,

p10; 2016 Defence Industry Policy Statement, p6.

ii. David Frydlinger, Tim Cummins,

Kate Vitasek, Jum Bergman,

Unpacking Relational Contracts: The Practioner’s Go-to Guide for

Understanding Relational

Contracts, Thaslam College of

Business, University of Tennessee Knoxville, p6

iii. Australian National Audit

Office, Auditor-General Report No.19 2019–20: 2018–19 Major Projects Report, p 52.

iv. Department of Defence,

Collaborative Contracting Better Practice Guide Version 1.0 28 September 2017, p 4.

v. Department of Defence,

Collaborative Contracting Better Practice Guide Version 1.0 28 September 2017, p 11.

vi. Department of Defence,

Breaking the contract into stages may be necessary where the collaborative relationship will require further time to develop. This creates an incremental approach whereby collaborative features may be expanded to suit the growth of ability in either or both parties. The approach to market may also be broken into stages to create a more efficient process and reduce collective tendering costs by excluding non-competitive bids early in the process. Determine exit arrangements Collaborative arrangements are typically associated with long-term contracts. This does not mean that exit arrangements should be overlooked. Dissolving a partnership will present different challenges to terminating a supplier agreement, and the Commonwealth must consider its legal commitments both to the outgoing partner, and their replacement. Phase-out/Transition-out and enabling the Phase-in/Transition-in of the new partner is essential to ensuring continuity of service. The contract must be clear on what is required in this situation. Consult widely All Defence programs will have a wide group of stakeholders. Successful delivery and support of capability may require the contract to address their needs. Consult with all stakeholders to familiarise them with the approach, identify their requirements from and interfaces to the procurement, prioritise needs and essential outcomes, and determine the best way forward.

Collaborative Contracting Better Practice Guide Version 1.0 28 September 2017, p .11.

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In conclusion Lessons and achievements Collaborative contracts provide the means to meet Defence’s goals of forming partnerships with Industry. Detailed and careful preparation of the partnering relationship and the contractual vehicle is necessary, but effort spent prior to contract execution will be richly rewarded in the delivery and support of capability.

We take the time to understand your vision, and craft robust commercial frameworks to deliver it. enquiries@proximity.com.au or call 1800 959 885

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NEWS HUB

Proximity recognised as a top Australian consulting firm

ConsultancyAU recently launched its inaugural edition of the “Top consulting firms in Australia” ranking.

Service areas

Level

Industries

Level

Procurement

Platinum

Public Sector

Gold

Risk & Compliance

Gold

Defence

Gold

Project Management

Silver

Aerospace

Silver

Public Services

Silver

Healthcare

Silver

Change Management Silver

Local Government

Silver

Data Science

Silver

Public Safety

Silver

Digital

Silver

Management

Silver

Close to 1,000 consulting firms active in Australia were assessed with the 2022 rankings showcasing consultancies who have built a reputation as the most trusted, expert, and influential providers in the nation.

The ranking presents the leading consultancies across 40 sectors and 40 areas of expertise. Focusing on the leaders in helping corporations, governments, entrepreneurs, and other types of organisations with solving their most pressing problems.

We are delighted to be recognised as a leading provider across several sectors and areas of expertise.

Process Management Bronze

The ranking was compiled through the region’s largest database of stakeholder views and firm capabilities, with scores based on the views of executives, consultants, and graduates, as well as on assessments of firm capabilities, reputation, analyst benchmarks, industry recognitions, thought leadership and more. “Australia is home to hundreds of consulting firms—large, midsized, boutique and niche consultancies, we are so proud to be part of the select group of firms that can claim to be a leader in the market segment and within several solution areas and industries.” Zoe Lynam, Proximity Co-CEO

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NEWS HUB

An update on Proximity’s rapidly expanding Victorian team Proximity’s Victorian team continues to grow, and now comprises of 10 people, a 44% increase in team size from FY 21/22. 36

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Commercial and procurement Complex Defence procurement work based out of Victoria Barracks Large scale Victorian Government procurement projects.

Major policy reform and implementation Leading the policy development and implementation of Victoria’s new pandemic legislation Leading the development of policy and legislation for Victoria’s new mental health and wellbeing legislation.

Organisational transformation and reform The Victorian team is headed up by Mike Watson, James Lavery, John Pisani and Elizabeth Langdon. Mike is Proximity’s CoCEO and splits his time between Melbourne and Canberra. James heads up the Victorian Government client function, John is our National Lead for Commercial and Procurement, and Elizabeth is our National Client Lead for Health portfolio departments and agencies (see “2 minutes with Elizabeth” on page 50). Our new Advisory Board member, David Rennick, is also Melbourne-based. The Victorian team continues to work on some of the most highprofile and complex projects for Victorian Government and Commonwealth Government departments and agencies located in Victoria and nationally. These include assisting with:

Developing strategic plans, operating, risk and governance models and frameworks for a number of state and federal departments, agencies and regulators Leading a large workforce planning project for Victorian Government.

Royal Commissions Royal Commission into Victoria’s Mental Health System Victorian Crown Casino Royal Commission. Proximity’s Victorian team is senior and experienced—our senior people will work closely with you. We can also bring forward extensive experience from our national team. We can work with you onsite, remotely or on a consulting or advisory basis. We often work with our clients using a mixture of these methods. Please don’t hesitate to get in touch with any member of our team to discuss any assistance you might need.

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Meet the Melbourne team James Lavery Principal Advisor Client Lead—State & Local Government

David Rennick Advisory Board David has extensive experience as a CEO, Director and Non-Executive Director in an ASX listed company, an international and national professional services firm and not for profit organisations. He is a skilled and respected leader and coach having developed businesses and teams by the creation of dynamic and trusted environments. Contact David: 1800 959 885 david.rennick@proximity.com.au Get to know David Mike Watson Co-CEO Mike is Co-CEO of Proximity after serving five years on the Proximity Advisory Board and two years consulting on a range of people, client services and organisational transformation projects. Mike brings a wealth of experience in business management, growth and leadership including through his roles as a former global Director in M&A and alliances for PwC (London, USA and Australia) and as CEO of two large eastern seaboard law firms. Contact Mike: 0418 514 766 mike.watson@proximity.com.au Get to know Mike

James is an experienced Government management consultant and lawyer specialising in government, public and commercial law. James has significant experience working as a public sector senior executive, and leading large groups of people in times of change. He has worked within, and for, the public sector nationally and at a State level for over two decades. Contact James: 0423 603 655 james.lavery@proximity.com.au Get to know James Elizabeth Langdon Expert Advisor Client Lead—Health & Aged Care Elizabeth is a highly experienced public sector leader, helping clients by drawing on her expertise across public policy, program delivery, governance and reform. Elizabeth brings 30 years’ experience at international, national and state levels, having successfully led complex and high-profile public sector initiatives and agencies in Australia and overseas through collaboration, advocacy, strong planning acumen, proven stakeholder skills and a focus on delivery and building high performing, diverse team. Contact Elizabeth: 0439 765 792 elizabeth.langdon@proximity.com.au Get to know Elizabeth

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Ian Shepherd Expert Advisor

Bora Sumer Senior Advisor

Ian is an experienced leader, manager and team member who specialises in policy and legislation projects. Ian is highly regarded by clients as a strategic leader and advisor in national, state and territory and private sector projects. Ian has led the design, development and roll out of many policy and legislative initiatives, including complex and sensitive portfolio, industry and sector based reforms.

Bora is an experienced procurement professional who utilises welldeveloped procurement and commercial skills to manage and deliver a range of business outcomes. His strong strategic skills are supported by detailed planning and communication capabilities. Bora’s experience has been gained in management positions across manufacturing, defence and Victorian Government Public sectors.

Contact Ian: 0438 372 812 ian.shepherd@proximity.com.au Get to know Ian

Contact Bora: 0448 844 894 bora.sumer@proximity.com.au Get to know Bora

Dougal Pidgeon Special Advisor

Elisa Meddi Senior Advisor

Dougal is a project manager and procurement specialist with extensive experience gained working in the Department of Defence, state Government and the Defence industry. Dougal has worked with clients to deliver and advise on projects at every stage of the capability lifecycle.

Elisa works as a Senior Advisor in Proximity’s commercial and consulting teams and has experience in program management, organisational planning, stakeholder engagement and communications. She is strategic, results focused and thrives in a highly fluid environment. Elisa has worked with both state and Federal Government clients including the Department of Defence, Victorian Health Building Authority and Melbourne Water.

Contact Dougal: 0418 458 900 dougal.pidgeon@proximity.com.au Get to know Dougal John Pisani Special Advisor National Lead—Procurement & Contracts John is a strategic sourcing and contract management specialist with over 15 years’ experience in complex Information and Communications Technology (ICT) commercial environments. John has significant experience and success in leading large scale procurement activities, and a flair for innovative solutions, business acumen and contract management. John has significant experience in all parts of the ICT procurement lifecycle, specifically within the health and emergency, justice and education sectors of the Victorian Government.

Contact Elisa: 02 6201 8672 elisa.meddi@proximity.com.au Get to know Elisa Stuart Brown Group Manager—Finance & Risk Stuart is an experienced commercial finance leader with a diverse background, including private equity, non-profit, NYSE and ASX listed organisations. Stuart has held finance leadership roles in multinational organisations across Asia and Europe, and has gained a reputation for implementing a sound, practical finance function that is tailored to the needs of the organisation. Contact Stuart: 0410 201 876 stuart.brown@proximity.com.au Get to know Stuart

Contact John: 0412 435 536 john.pisani@proximity.com.au Get to know John

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NEWS HUB

W E B I N A R

Sharing our insights generously We have a great range of free online professional development sessions for you to watch.

W E B I N A R

This session focuses on how the pandemic has required a new way of working and as a result, exposed governance weaknesses at an international, national and local level.

Sovereign Capability and Supply Chains This session explores the renewed focus on sovereign capability. As a case study, the panel looks at the defence area of restarting shipbuilding in the context of “the recent Government decisions for investment in carbon neutral technologies and nuclear submarines construction and support requires a strategic rethink on technology and manufacturing in Australia”. The panel also examine experience in handling supply chain disruptions in the context of the pandemic, and what it took to ensure we had adequate supplies of personal protective equipment in the early days of COVID-19.

The new high-performance organisation: resetting your organisation post-pandemic We partnered with the Institute of Public Administration Australia (IPAA) ACT and contentgroup to record a discussion with Proximity Principal Advisor Kerri Hartland and Expert Advisor Glenys Beauchamp alongside contentgroup Founder and CEO David Pembroke.

P O D C A S T

Mandatory vaccination: to jab or not to jab (and lose your job) Tara Munro-Mobbs, Principal Advisor and Michael Stone, Expert Advisor look at the State and Territory Public Health orders that introduced mandatory vaccination for aged care workers in 2021 and the Commonwealth’s legislative role under the Aged Care Act 1997. They discuss the challenges to these vaccination requirements and how they have been interpreted in the courts.

Procurement bombs and lessons learnt What has past scrutiny told us about procurement processes and what policies have changed since? Hear from Expert Advisor, Glenys Beauchamp (previous Secretary of the Department of Health), Expert Advisor, Warren King (former CEO of Australia’s Defence Materiel Organisation) and Teresa Scott (Executive Director—APCC) about their experiences and lessons learnt. The panel explores the role you can play to ensure robust procurement processes within your own organisation. W E B I N A R

Hypo-ethical III: ethical problems across government Dealing with ethical challenges in Government can be tricky, but it’s manageable. Follow along as our expert panel (Simon Blake—Senior Manager, Client Engagement, Malcolm Thompson—Expert Advisor, Briony Martin—Special Advisor and Lyndel Hopkins—Senior Advisor) discusses several ethical challenge scenarios in the Government context and provides pragmatic and realistic advice about how you can respond if you find yourself in such a situation. W E B I N A R

Construction ahead: administrative law in an age of statutes Robin Creyke, Expert Advisor and John Yoon, Senior Advisor explore some of the more recent administrative law examples and explain how the courts and tribunals have approached the issues.

Watch and listen to the above sessions and more via our website: proximity.com.au/thought-leadership/ 40

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COMMUNITY HUB

PROXIMITY DAY OUT! You’re invited to Proximity’s inaugural Day Out! We’ve revamped our Government In-House Counsel Day to include presentations across all our solution areas: consulting, legal, and commercial.

The Proximity Day Out centres around topics that are current, disruptive, and forward thinking in the consulting, legal and commercial space. You will hear from our team of experts who will share their career experiences and will offer you practical content to take back to your workplace and put into action. All presenters are experienced Government professionals, which means the presentations will be delivered in a holistic and pragmatic way.   Plus, we’ve thrown in the ability to fully customise your day, added extra entertainment, and provided a stack of networking opportunities. Best of all, despite the revamp and added extras, this event remains free!

When: Monday 31 October, 2022 Time: 9am–5.15pm Where: Hotel Realm Canberra Cost: It’s free!

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Line up

Headline Act 9:10–10:00am Going public with outside views: ideas for the APS from those who have seen both sides Renée Leon PSM Vice Chancellor, Charles Sturt University Kerri Hartland Principal Advisor, National Lead— Transformation Malcolm Thompson Expert Advisor National Lead— Environment, Climate Change & Water

Morning Tea 10:10–10:45am 10:50–11:30am Reputation matters: exploring the relationship between strategy, risk and reputation Cait Tynan Principal Advisor Cassandra Koch Senior Advisor Preparing for Contract Negotiations Rachael Griffin Expert Advisor Rob Gibson Senior Advisor

11:35am–12:20pm Environmental, social and corporate governance: in the Government context Andrew Roden Special Advisor Declan Norrie Senior Advisor Different projects, same fundamentals: lessons learned around successful project delivery Jody Blinco Principal Advisor, National Lead—Project Management & Performance Greg Divall Expert Advisor

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Networking lunch 12:20–1:20pm 1:25–1:55pm The impact of cognitive biases on procurement: how to minimise errors and achieve better procurement outcomes Sean King Co-Founder Twoey Jones Advisor Royal Commission preparation and response: lessons from the coalface James Lavery Principal Advisor, National Lead— State & Local Government Elizabeth Langdon Expert Advisor, National Lead— Health & Aged Care Anne Ward Senior Advisor

2:00–3:00pm Hypo-ethical IV: A panel examination of ethical problems across Government Simon Blake Senior Manager, Client Engagement (moderator) Briony Martin Special Advisor, National Lead— National Security and Home Affairs Michael Stone Expert Advisor Malcolm Thompson Expert Advisor, National Lead— Environment, Climate Change & Water

Effective stakeholder for decision-makers Elizabeth Langdon Expert Advisor, Client Lead— Health & Aged Care Russell Buzby Senior Advisor Maintaining and preserving your integrity in grants and procurement programs Bruce Brown Expert Advisor Nicole Elliott Special Advisor, National Lead— Policy & Programs

3:05–3:50pm Administrative law ahoy: post-COVID 19 landfall Robin Creyke Expert Advisor John Yoon Senior Advisor Australian sovereign industrial capability II Greg Divall Expert Advisor (moderator) Warren King Expert Advisor Glenys Beauchamp Expert Advisor Kristin Tilley First Assistant Secretary, Office of Supply Chain Resilience Michael Brennan Chair, Productivity Commission

Afternoon tea 3:50–4:20pm Closing Act 4:25–5:15pm The brilliant, the crazy and the absolutely scary: working with the Hill Kerri Hartland Principal Advisor, National Lead —Transformation Greg Divall Expert Advisor Lyndel Hopkins Senior Advisor

Networking drinks and canapés 5:15–6:00pm

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NEWS HUB

Seven Proximity lawyers recognised on the 2023 Best Lawyers List We are delighted to announce that seven Proximity lawyers have been included in the 2023 Edition of The Best Lawyers in Australia. We would like to congratulate the following team members for making the highly regarded list: Bruce Brown Government Practice Robin Creyke Alternative Dispute Resolution Government Practice Public Law James Dunn Commercial Law Government Practice Information Technology Law Julie Fox Public Law Sean King Commercial Law Government Practice Tara Munro-Mobbs Government Practice Sarah Colman Commercial Law

A special mention to Sarah Colman for being recognised for the first time in 2023 edition of Best Lawyers. Lawyers on The Best Lawyers in Australia list are reviewed by their peers and their ranking is based on professional expertise and an authentication process to ensure they are in current practice and in good standing. A listing in Best Lawyers is widely regarded by clients and legal professionals as a significant honour, bestowed on a lawyer by his or her peers. “This is the first time we have had seven Proximity team members recognised on the Best Lawyers List. This achievement speaks volumes to the quality and expertise held in our team.” Zoe Lynam, Proximity Co-CEO

PEOPLE

Meet the leads

As Proximity continues to grow and the scale of our operation increases, we identified a need to provide our clients with greater clarity about our service offering and to have stronger coordination and focus on our clients’ immediate and evolving needs. We see this as essential to remaining innovative and helpful for our clients. From this, the Client and Service Leadership Program was created, with the goal to help nurture relationships and empower our people. This program enables Proximity to better help our clients, better utilise our breadth of talent, and give those with an interest in these roles the opportunity and responsibility to develop their skills in non-technical areas. The Program includes the following talented people across our business, who have the skill and passion in their dedicated fields to support our clients, drive growth and strengthen relationships.

National Service Leads Litigation Jessica Bristol, Expert Advisor Jessica is a highly regarded litigation and dispute resolution lawyer who assists clients with some of their most complex and novel disputes. She is sought after for her ability to manage and co-ordinate large litigation teams, strategise creatively, and persuasively negotiate at all stages of a matter. Jessica has worked on and held key roles in several large, high-profile matters and reviews including Review of Allegations of Sexual and Other Abuse in Defence. Contact Jessica: 0408 020 799 jessica.bristol@proximity.com.au Get to know Jessica

Public Law & Litigation Tara Munro-Mobbs, Principal Advisor Tara is highly regarded by clients as an expert Government lawyer and was recognised in the 2022 Edition of the Best Lawyers in Australia for Government Practice. She has over two decades of experience advising the Australian Government on complex and emerging legal issues. Tara works with a client’s team to ensure they understand complex legislation and regulatory regimes. Her approach enables agencies to run their programs smoothly, through a combination of good governance and practical legal advice. Contact Tara: 0411 518 998 tara.munro-mobbs@proximity.com.au Get to know Tara

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Transformation Kerri Hartland, Principal Advisor

Policy & Programs Nicole Elliott, Special Advisor

Kerri is one of Australia’s most experienced senior public servants. Kerri was Secretary of the Department of Employment, Skills, Small and Family Business (20172020) and has held numerous senior executive roles across the Australian Public Service, including as Deputy Director-General with ASIO (2011-2017), Prime Minister and Cabinet, Finance, Industry, Resources and Energy, Human Services, Immigration and Employment.

Nicole is an experienced policy and program specialist who is highly regarded for her strategic thinking and innovative approach. Over the past 15 years, Nicole has led the development, assessment and successful delivery of many large Australian Government grant programs, infrastructure projects and industry research collaboration programs, including the Australian Government’s Cooperative Research Centres program, a $4 billion flagship industry science collaboration program.

The common thread in Kerri’s career has been leading large transformation initiatives of people and systems, and championing diversity. It’s these passions and expertise that led to Kerri being appointed as the expert, independent Chair of the Jenkins Review TaskForce in 2022. Contact Kerri:1800 959 885 kerri.hartland@proximity.com.au

Nicole provides robust, proactive, innovative advice and direction on complex matters including on significant water infrastructure projects across Australia. Contact Nicole: 0422 225 094 nicole.elliott@proximity.com.au Get to know Nicole

Get to know Kerri

Probity Sarah Colman, Special Advisor

Project Management & Performance Jody Blinco , Principal Advisor

Sarah has extensive experience in commercial law, complex technology contracts, procurement and probity. She currently assists and advises our clients on a broad range of commercial legal issues, complex procurements and probity, as well as commercial strategy.

Jody is an award-winning strategic consultant with proven success across business and technical transformations. He loves nothing more than a good innovation challenge. An experienced project leader, Jody has led successful business and ICT transformations across large Australian and global private sector firms.

Sarah has wide experience advising on Government bid responses for vendors and understands the common concerns large technology companies often seek to address when negotiating. Sarah takes a pragmatic and practical approach to legal issues, while ensuring risk is managed appropriately. Contact Sarah: 0477 370 200 sarah.colman@proximity.com.au Get to know Sarah

Jody has been successful in delivering these projects using his highly developed project management skills and his ability to blend business and organisational strategies with innovative technology and process solutions. Jody has been recognised for his innovative solutions, receiving the Chairman’s award for Service at United Technologies for implementing pioneering solutions that helped progress the organisation. Contact Jody: 0432 753 166 jody.blinco@proximity.com.au Get to know Jody

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Procurement & Contracts—Federal Government Lead Peter Bell, Expert Advisor

Procurement & Contracts—National Lead John Pisani, Special Advisor

Peter is a Certified Management Consultant with more than 25 years’ experience providing services to public sector organisations including for Commonwealth, State and Local Government in Australia and in New Zealand.

John is a strategic sourcing and contract management specialist with over 15 years’ experience in complex Information and Communications Technology (ICT) commercial environments.

He has worked on major transformation programs leading to improved Government services on a local, national and global basis.

John has significant experience and success in leading large scale procurement activities, and a flair for innovative solutions, business acumen and contract management.

Peter is an experienced consultant, facilitator and negotiator and has extensive experience in complex procurement, contract negotiations and mediations, contract management and service delivery management. He has also worked with a number of organisations in service delivery reform, strategic and operational planning, process modelling and analysis, business process improvement, business continuity and disaster recovery planning and governance.

John has significant experience in all parts of the ICT procurement lifecycle, specifically within the health and emergency, justice and education sectors of the Victorian Government. Contact John: 0412 435 536 john.pisani@proximity.com.au Get to know John

Contact Peter: 0413 580 005 peter.bell@proximity.com.au Get to know Peter

Commercial Law Irene Ghobreal, Expert Advisor Irene is an experienced Australian Government lawyer with extensive experience in both Government and private practice’. Irene has advised Commonwealth agencies across a broad range of high value and significant projects and transactions. Irene’s key areas of practise are commercial law, contracting, procurement and probity, with extensive experience advising clients on all stages of the procurement life cycle, from the early planning phase to contract execution. Irene is adaptable and her easy-going nature enables her to build trust and confidence with her clients. Contact Irene: 0417 455 325 irene.ghobreal@proximity.com.au Get to know Irene

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National Sector Leads National Lead—State & Local Government James Lavery, Principal Advisor

National Lead—Health & Aged Care Elizabeth Langdon, Expert Advisor

James is an experienced Government management consultant and lawyer specialising in Government, public and commercial law. James has significant experience working as a public sector senior executive, and leading large groups of people in times of change. He has worked within, and for, the public sector nationally and at a State level in Victoria for over two decades.

Elizabeth is a highly experienced public sector leader, helping clients by drawing on her expertise across public policy, program delivery, governance and reform. Elizabeth brings 30 years’ experience at international, national and state levels, having successfully led complex and high-profile public sector initiatives and agencies in Australia and overseas through collaboration, advocacy, strong planning acumen, proven stakeholder skills and a focus on delivery and building high performing, diverse teams. Elizabeth’s roles have included CEO of the Royal Commission in the Casino Operator and Licence (Crown Melbourne Ltd), acting Victorian Health Complaints Commissioner, acting Victorian Public Sector Commissioner, and Deputy Secretary at the Victorian Department of Premier Cabinet (DPC) and the Department of Health and Human Services (DHHS).

James was a senior executive in the Victorian infrastructure and transport portfolios for over 10 years. For the final 6 years of this period, he was an Executive Director at the Victorian Department of Transport reporting direct to the Secretary. James was also the Department’s General Counsel and a member of its senior executive board and audit and risk committees. James has regularly assisted governments and agencies, nationally and internationally, with key regulatory, strategic, Governance, policy reform, organisational, institutional and commercial issues. James was also seconded to act in senior executive roles in government, including a longterm secondment to the Victorian Department of Health & Human Services as Deputy Secretary, Corporate Services, responsible for a diverse departmental division of over 1,000 staff.

Contact Elizabeth: 0439 765 792 elizabeth.langdon@proximity.com.au Get to know Elizabeth

Contact James: 0423 603 655 james.lavery@proximity.com.au Get to know James

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Defence Ron Fisher, Principal Advisor

National Security & Home Affairs Briony Martin, Special Advisor

Following a career in the ADF, Ron has had a very successful senior executive career including as Managing Director and CEO of many large businesses including as MD of Raytheon Australia between 1998 and 2009 and as President and CEO of Raytheon Canada. He has also supported many businesses in developing growth strategies and professional development, leadership, executive development and career management programs. Most recently Ron has been an external member of the Defence CASG Independent Assurance Review Board helping to review dozens of Defence procurement projects. This has helped him to be across the current issues facing Defence procurement projects and maintain a very strong Defence client network. We are very excited about the benefits Ron’s experience, network, skills and energy can bring to our Defence capability.

Briony has over 20 years of experience working for the Australian Government in national security, international security, defence, and transnational crime. Briony delivers valued legal advice and general advisory work on sensitive and high-profile matters and has led successful policy and capability initiatives. Briony has strong representational and negotiation skills, having worked, or presented in various international fora and committees. Briony is skilled in analysing information from a strategic viewpoint, identifying all risks, challenges and limiting barriers. Contact Briony: 0404 347 162 briony.martin@proximity.com.au Get to know Briony

Contact Ron: 0409 003 002 ron.fisher@proximity.com.au Get to know Ron

Environment, Climate Change & Water Malcolm Thompson, Expert Advisor After stints in the Department of the Prime Minister and Cabinet, Treasury and Infrastructure and as a Ministerial adviser, Malcolm spent around 17 years in and around the environment, water and agriculture portfolios. From 2009 he was a Deputy Secretary in the Environment and Agriculture departments. From April 2020 to April 2021, he led the team in support of the National COVID-19 Commission. His diverse career across 8 departments and agencies has provided him with deep experience in strategic policy, regulatory practice, CommonwealthState work, corporate management, program delivery, and operational challenges ranging from Antarctica to National Parks. Contact Malcolm: 1800 959 885 malcolm.thompson@proximity.com.au Get to know Malcolm

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TWO MINUTES WITH

Elizabeth Langdon EXPERT ADVISOR N AT I O N A L L E A D — H E A LT H & AGED CARE

Tell us how you came to join Proximity? In 2021, James Lavery joined my team where I was CEO of the Royal Commission in the Casino Operator and Licence (Crown Melbourne Ltd). I was impressed by the flexibility, expertise and approach that James took, as a senior executive seconded to the Commission. It seemed like a great model which met my needs as a client, and I became curious about joining Proximity myself! What’s the best advice you have ever been given? Early in my career, I worked with a highly skilled diplomat, who told me ‘not to worry about decisions that you make, only worry about indecision’.

What is your proudest moment in a professional context? That’s a tough question – the international dignitary program that I led at the Sydney Olympics was complex, challenging and rewarding because so many world leaders saw Sydney sparkle. More recently in 2019 I set up the Jobs and Skills Exchange in the Victorian Public Service, the Government’s initiative to make it easier for public servants to find internal opportunities and for hiring managers to find talent within the VPS. Some of the stories of individual career success as a result of the JSE were very moving to hear.

What advice do you give to someone starting out in a career? Take time to build diverse experience in well-regarded workplaces where you can observe and work with highly skilled people. Don’t stay in a job where poor workplace behaviour is tolerated, and having generous mentors can be invaluable. With an eye on the future, what does success look like for you? I am excited by the possibility of Commonwealth work and seeing Proximity’s continued growth. I would also like to get seriously fit again, if it’s not too late!

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We are genuinely different.

Our philosophy follows two simple ideas

At Proximity we’re passionate about the work we achieve together. We’re known for breaking the mould and walking alongside our clients to unveil what is possible. We achieve maximum impact by working closely with our clients in multidisciplinary teams and customising our service delivery for each project.

1. We recognise high performance teams are collaborative, generous and transparent so we cultivate an exceptional workplace culture. 2. Through our culture we attract a team of highly accomplished professionals who enjoy their work and have the experience and autonomy to succeed.

Values Bold

ne nui e G

Delivery

site On

Advisory

Help ful Prod uc ts

Solutions

Organisational Planning & Transformation

Procurement &Tendering

Governance

Consulting

Reviews, Investigations & Inquiries

mercial Com

Digital, Data & Cybersecurity

Contract & Vendor Management Probity Business Cases & Cost Models Project & Program Management

Risk Management & Compliance

Negotiation

Policy, Programs, Grants & Regulation

Le g al

Corporate & Commercial Law

Litigation & Dispute Resolution

Workplace Compensation Law

Onsite Legal Services

Public Law

Property & Environment Law

P RO XIMIT Y.COM.AU