The Pulse | Edition 12

pulse

February

A message from our Co-CEO

Another successful year of going further!

As Proximity continues to grow, our team’s commitment to being genuine, bringing bold ideas and delivering helpful outcomes remains strong.

We are passionate about the work we do, and this would not be possible without all our amazing clients. We are so pleased to be your trusted partner and work with you on many meaningful projects.

At Proximity, we pride ourselves on being the people you want to work with. I am therefore thrilled to announce that at the 2022 Australian Law awards, Proximity won Government Team of the Year. This significant achievement is a testament to the hard work and dedication of all our exceptional people and the continual support of our clients.

We look forward to increasing our reach as a trusted government partner, now being listed as a supplier under both phases 2 and 3 of the Australian Government Management Advisory Services Panel. This panel appointment enables us to meet rising client demands for an integrated service offering.

At Proximity, our people come first. We’re proud to be recognised as a 5-Star Employer of Choice by Australian Lawyers. This celebrates our ongoing commitment to creating a positive employee experience. We understand that as we evolve as an organisation, so will the needs of our people. We will continue to build on our employee experience programs and policies to ensure we meet our people’s needs and further enhance our culture.

To develop our people and share experiences with clients, we held our biggest professional development day yet, the Proximity Day Out. Thank you to those who joined us and actively participated in fruitful discussions. It was great to come together in person to discuss and reflect on current, disruptive, and forward-thinking topics in the consulting, legal and commercial sectors.

In this 12th edition of the Pulse, we celebrate all these achievements and more.

With recent incidents of data breaches making headlines across the nation, our Expert Advisors Dwayne Currie and Simon Blake look at the real cost of a data breach and how best to avoid and respond. See page 9 for the full article.

For all those current and accidental Project Managers, I’d recommend checking out page 25. Special Advisor Colin Maher and Advisor Petria Paynter explore the 9 essential elements of project management and explore a real-life project delivery example.

As we head into the new year, it’s a great time to give your agency’s probity a health check. Our Special Advisor Sarah Colman provides insight into some of the key areas to check. Read more at page 29.

We’re proud of all the wonderful achievements in the past 12 months and excited to see what 2023 brings.

Zoe Lynam Co-CEO

The journey of transformation— towards an aged care system founded on care, dignity & respect

By John Dicer Expert Advisor

It brought into sharp focus the fundamental flaws in a critical yet failing sector at a time when increasing demand for its services was coming under extreme pressure—driven by an aging population, declining standards of care and strain on funding as well as the weight of a skills shortage.

In my role as the then Aged Care Pricing Commissioner and Government Representative on the Aged Care Financing Authority, I watched with keen interest as the hearings and submissions played out over the subsequent years before the Final Report.

The Royal Commission into Aged Care Quality and Safety handed down its Final Report in February 2021, containing 148 Recommendations.

Since then, the previous Government responded in the Budget in May 2021 with a $17.7 billion package of reforms to be introduced over 5 years through what are known as the 5 Pillars (page 6). Additionally, legislative reform has also started and has continued under the current Government.

When The Royal Commission into Aged Care Quality and Safety was founded in 2018 it galvanised unprecedented attention on Aged Care and the systemic issues contributing to substandard care for some of the most vulnerable in our community.

CONNECT WITH JOHN

And while these initiatives demonstrate steady progress to the reforms stemming from the Royal Commission, the changes are broad ranging and may take up to 10 years to completely transform the Aged Care system.

As Prime Minister, Anthony Albanese has stated on the passing of the most recent legislative reforms, “The Final Report of the Aged Care Royal Commission was titled ‘Care, Dignity and Respect’. Those three little words are the least we can provide our older Australians who built this country. With today’s passage of the Royal Commission Response Bill the Government has taken a significant step to ensure older Australians receive the care, dignity and respect they deserve.”

But this is just the start of the journey to reform, as noted by the Minister for Aged Care, Anika Wells, “The task to reform aged care will take years but this bill (The Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022) passing is a critical first step.”

But real, incremental progress is being made. Major reform initiatives essential to ensure the Aged Care system and its change agenda must be seen as innovative, technologically adept, financially sustainable and that provides a workforce environment for people to work in and remain in for the long term. These first major changes include:

AN-ACC: this new residential funding model commenced on 1 October 2022 and replaces the Aged Care Funding Instrument. The Australian National—Aged Care Classification (AN-ACC) will initially be administered by the Department of Health and Age Care and will be taken over from 1 July 2023 by the Independent Health and Aged Care Pricing Authority (IHACPA). IHACPA will also take over the costing for home care in the next couple of years. The costs are determined through an activity-based funding model are designed to capture the true costs of providing care.

Care Minutes: as part of the costing studies each aged care resident must be provided with 200 minutes of care which time includes the time of a Registered Nurse (RN). The time can be provided by RNs, Enrolled Nurses, and Personal Care Workers (PCWs). The time must be direct care. This may challenge some Providers who do not adopt a RN model but rely heavily on PCWs to deliver the care, particularly in dementia specific care environments. The issue here is that the measure is a quantitative one and not a measure of quality.

Star Ratings & Quality Indicators: the residential Star Ratings system is designed to support consumers make informed choices about their care needs. The Star Ratings will be based on 4 categories which comprise:

 Consumer Experience;

 Service Compliance and Accreditation;

 Care Minutes; and

 Quality Indicator Program

The Star Rating System commenced in December 2022 and will be an interesting experience for residential providers as they face a new world of on-line comparisons and ratings. One issue is to ensure that the system compares like with like and not homes that are distinctly different; for example, some home specialise in dementia others do not. The system will require refinement over the next few years with a similar rating system to be introduced for Home Care.

New Aged Care Act: the new Aged Care Act will be drafted to “underpin the fundamental and generational reform across aged care.” The new Act will legislate the 5 Pillars; establish mechanisms for eligibility for care, funding arrangements and regulation; support greater choice and transparency; and set out a system of governance and accountability and standards. The aim is to have an aged care system founded on needs, dignity, care, and respect. The Act is due to commence on 1 July 2023 and will be underpinned by a new Regulatory regime..

National Aged Care Advisory Council (NACAC) and Council of Elders (CofE): NACAC provides expert advice to Government on the implementation of the reforms and that the needs and expectations of senior Australians, their families and carers are met. The CofE provides advice from senior Australians to Government on a range of matters including quality and safety; needs of senior Australians and their right to be treated with dignity and respect. Further governance measures recently announced in the October 2022 Budget are the appointment of an Inspector General of Aged Care as well as a new and independent Aged Care Complaints Commissioner.

Workforce & pay: the most crucial issue facing the sector is workforce and pay/conditions. There is a commitment by the Government to fully fund any pay increase handed down by the Fair Work Commission. The workforce is under enormous strain through COVID pressures and workers are leaving the sector for better paid jobs elsewhere. The supply of labour right across the spectrum from domestic entrants to foreign workers must be expanded otherwise issues with quality and safety will continue to occur. The cost to Government of funding any pay increase is estimated at $4b. This issue and others raise the serious question of future funding and sector sustainability and the vexed subject of user contributions which are always a hard political sell.

The 5 Pillars are:

1. Home Care: supporting senior Australians who choose to remain in their home;

2. Residential Aged Care Services and Sustainability: improving and simplifying residential aged care services and access;

In my own close experience in the sector and appreciation for what needs to change, I have a view that as a country, we need to paint a picture of what we want our Aged Care sector to look like—what will it be like for my grand-parents, parents and even myself when we reach that stage of life when we need some help from the Aged Care system.

We need to constantly have that picture in mind, but equally importantly be clear as to how we will get there, what are the policy and program decisions that we need to make, how will the system be funded and financed and how do we have a workforce and governance structure that is vibrant and sustainable. In short as the Prime Minister has said—a sector built on the values of Care, Dignity and Respect!

3. Residential Aged Care Quality and Safety: improving residential aged care quality and safety;

4. Workforce: supporting a growing and better skilled workforce; and

5. Governance: new legislation and stronger governance underpinned by a new consumer focussed Aged Care Act.

How Proximity can help

Proximity is aware of the huge task facing the Government and the sector as it seeks to implement the reform initiatives coming out of the Royal Commission. Proximity has significant expertise and experience in providing advice and assistance in the Aged Care sector and has the benefit of being able to call on Glenys Beauchamp, former Secretary of the Department of Health and John Dicer, former Aged Care Pricing Commissioner and Government Representative on the Aged Care Financing Authority.

Across our team of 100 plus advisors, we can provide intergovernmental engagement support, assist with regulatory and legislative reform; policy and program design, delivery and evaluation; stakeholder engagement; strategic communication; project management, and organisational transformation.

Enquiries@proximity.com.au or call 1800 959 885

What we are striving to create is an Aged Care system that is built on care and safety, is truly consumer directed and promotes a wellness and reablement philosophy.

Collaboration—like your life depends upon it!

One of my favourite movies of all time is Apollo 13.

Every time I watch the movie, and that’s been more times than I care to count, I’m on the edge of my seat convinced that the astronauts are doomed with no hope of them returning to earth safe and sound. Each time, I hold my breath during the excruciating wait as they reenter earth’s orbit during communication black-out.

By Michelle Scully Special Advisor

Even though I know the ultimate outcome, there always remains an intense and agonising anxiety about whether catastrophe is avoided, and that the astronaut’s lives are saved. But maybe it’s not just the suspense induced by the life and death situation that draws me in every time I watch.

One of the movie’s most memorable lines “Failure is not an option.” (a close second to Jim Lovell’s “Houston, we have a problem.”) is pronounced by the mission director Gene Kranz when it’s clear that things are dire and radical solutions are needed. A scene in the movie that follows sees the ground crew tip a box of household odds and sods onto a table to devise a contraption to prevent carbon dioxide from poisoning the astronauts onboard. The solution must not only be co-developed with the astronauts orbiting more than 380,000kms above but using precisely the same materials at hand and in real, quick time.

It’s the part of the movie I enjoy the most. I can feel the positive energy and the collective, determined sense of purpose. There’s an absence of obvious hierarchy around the table, and in the spacecraft. No standing on ceremony. No contribution ignored or scorned. Calm amongst the mayhem. With clear direction, a talented team is left to get on with the job.

What transpires, both in the movie and in reality, is lauded as one of the greatest examples of collaboration and innovation. Collaboration done well is awesome, it can overcome all manner of obstacles, and everyone feels like a winner.

So what reminders can we take from the Apollo 13 experience and apply to today’s collaboration challenges. The conditions for successful collaboration were created at the outset:

 There was a clear vision for and precise direction on what success would look like.

 There were no instructions on how to achieve success, the team was given the autonomy and the confidence to trial and test solutions.

 The multi-disciplinary team lived and breathed the ‘can do’ NASA culture and they possessed a mix of the right skills, experience and knowledge to overcome the challenge.

 While every individual contribution was valued, the real value was derived from the collective.

 And geographic dispersion in its most extreme form was no barrier to the collaborative effort or finding a successful solution. Imagine the possibilities with today’s suite of collaboration tools, the sky’s the limit!

For us at Proximity, our approach to collaboration draws on these same attributes demonstrated throughout the Apollo 13 experience to overcome challenges and achieve excellent outcomes. By creating an exceptional workplace culture, we equip our people with the confidence and knowledge to find the ‘right fit’ solution for your needs.

“I will stand behind every decision you make. We came into the room as a team and we’ll go out as a team.”

Gene Kranz, Apollo 13 NASA Flight Director.

Time and money— the real cost of data breach, how best

By Dwayne Currie Expert Advisor and Simon Blake Expert Advisor—Public Law & Litigation

As leaked information includes dates of birth, names, phone numbers, addresses and driver licence, passport and Medicare numbers, the prospect of identity theft and other fraud is very real, meaning victims may spend significant time dealing with potential exposure.

How much time? This depends on the extent of misuse. Some, such as those involving fraudulent bank transactions may only result in only minimal inconvenience and financial impost if raised quickly.

However, serious cases, such as a complete takeover of a victim’s identity, take a lot longer. In 2017, Australian Institute of Criminology surveys found victims of misuse of personal information spend an average of 35 hours responding to the victimisation. Of those cases, around half were resolved in under 3 hours1 meaning the average time for the other half must have been close to 70 hours (nearly 2 full working weeks).

to avoid a breach and how to respond

As I write this article, around 11 million Australians are dealing with the consequences of Optus IT and Medibank systems being hacked.

In 2018-19, the estimated direct cost of identity crime to individuals in Australia was $500 million and the total cost, including direct and indirect costs of prevention and policing, was $3.1 billion.

According to Scamwatch (managed by the ACCC) in 2020 there were 20,939 reported incidents (about 57 per day). That was before the Optus and Medibank hack information was available, so a significant increase in these numbers is likely.

A data breach also impacts an entity’s reputation, and is likely to damage their commercial interests. In 2020, the top two concerns identified by respondents to the OAIC National Community Attitudes to Privacy Survey were identity theft (76% of respondents) and data security and data breaches (61%).2

One can only imagine that these concerns will be even higher post-Optus and Medibank. So, protecting consumer data is going to be even more in focus.

Best practice to avoid a data breach

The protections in the Privacy Act alone can’t prevent a data breach occurring. Entities must take active steps to manage personal information and guard against a data breach occurring.

Having a Privacy Management Plan (PMP) is one of the most effective risk management strategies. A PMP describes the measures an entity will take to ensure compliance with privacy obligations and identifies specific, measurable goals and targets.

The privacy maturity of the entity should be assessed in the PMP. This can then be used to establish a scalable, risk-based approach and set benchmarks that are assessed on a regular (generally annual) basis. The maturity assessment assists an entity determine how well it has implemented its privacy program to date and will flag any gaps or opportunities. Privacy maturity gaps are red flags for potential compliance issues and whether the entity’s privacy policy and notices are adequate.

The next steps in the PMP typically involve setting compliance actions to address compliance gaps and actions to improve privacy maturity. These actions should be reviewed once the PMP has been implemented to see how well the entity has delivered against its PMP.

To manage privacy risks on an ongoing basis, privacy threshold assessments (PTA) should be conducted for all projects involving personal information to determine the potential privacy impacts.

A PTA will indicate if there is a high privacy risk. In these cases, entities should conduct a Privacy Impact Assessment (PIA) for the project. A PIA is a systematic assessment of the project with reference to the Australian Privacy Principles that:

 describes the personal information flows in a proposal

 analyses the possible privacy impacts of those flows

 assesses the impact the project may have on the privacy of individuals

 explains how those impacts will be eliminated or minimised.

2. Australian Community Attitudes to Privacy Survey 2020, Office of the Australian Information Commissioner website

If a data breach occurs, what happens next?

In response to a data breach, an entity should follow these four key steps:

 Contain the breach— immediately

 Assess the breach to identify and mitigate risk—as a priority

 Notify affected individuals—as soon as possible

 Review and adapt to learn and improve practices—as soon as the dust has settled.

Notification considerations

The main objective of the Notifiable Data Breach Scheme in the Privacy Act is to ensure that individuals (and the Information Commissioner) are notified of serious data breaches.

If the Scheme applies, an entity must notify affected individuals of the breach and identify mechanisms that they can take to manage the consequences of the data breach. This may include advice about:

 Mechanisms to limit the possible consequences, such as applying for a Commonwealth Victim’s Certificate (used to re-establish the person’s credentials or help explain fraudulent transactions)

 Support organisations such as IDCARE (a not-for-profit support service for victims of identity crime which provides support in the form of counselling and assistance in recovering lost funds and identity credentials)

 Sources of information that will provide information on how the consequences of a data breach might be managed, such as the eSafety Commission, the OAIC and so on.

However, there may be circumstances where it may not be in the best interest of the individual to be informed of the breach (such as where notification could cause undue stress or harm to the affected individual). In such circumstances, entities should seek the advice of the Information Commissioner, as it is the Commissioner who must decide if individuals should not be advised of the breach.

The widespread and critical commentary about a perceived failure on the part of Optus and Medibank to keep individuals informed demonstrates the potential pitfalls for communications about data breach. This also demonstrates the importance of ongoing communication and the need to adapt the communication strategy as the matter evolves.

How Proximity can help

Proximity personnel have very significant experience in providing advice and assistance in managing privacy issues, including in the having assisted with the development of privacy management plans, PTAs, PIAs and data breach response plans.

We can work with you to develop and implement a strategic approach to managing privacy for your organisation, including by:

 providing advice and assistance with day to day privacy issues

 developing key strategic documentation such as privacy management plans, and

 providing advice on management significant issues such as identification of potential data or privacy breaches and implementing mitigation or management strategies.

Enquiries@proximity.com.au or call 1800 959 885

By James Lavery Principal Advisor National Sector Lead—State & Local Government and Sarah Colman Special Advisor Team Lead—Probity

This bill has been long anticipated. But what exactly does the National Anti-Corruption Commission (NACC) look like?

The NACC has a similar mandate to the existing Australian Law Enforcement Integrity Commission (ACLEI). The NACC establishment modernises and future proofs the underpinning legislation. This is extremely important, as the Law Enforcement Integrity Commissioner Act 2006, which established ACLEI, had not kept pace with the evolving law enforcement environment. The NACC will have an appointed Commissioner and up to three Deputy Commissioners, and a CEO. Oversight will be undertaken by an independent Inspector and Joint Parliamentary Committee.

The Bill has been well received by the public and is supported by both parties. However, the contentious issues we expect to be raised in the House of Representatives and the Senate are:

 Whether hearings should be public or private: Under the Bill, hearings are private by default but can be public in exceptional circumstances. The “exceptional circumstances” test is similar to test used by the Victorian Independent Broad-based AntiCorruption Commission. The NSW Independent Commission Against Corruption, however, does not have the “exceptional circumstances” test and frequently conducts public hearings. Public hearings are likely to be seen as a mechanism for promoting integrity and exposing corruption.

 Whether the budget and appointments should be independent: An Oversight Parliamentary Committee will deal with appointments and review the NACC’s budget. The Chair of this Committee must be a member of the Government, giving the government control of the appointments and funding of the NACC.

JURISDICTION OF THE NACC

NACC will have broad jurisdiction to investigate Commonwealth Ministers, Parliamentarians, persons engaged under the Members of Parliament (Staff) Act 1984, the heads and employees of Commonwealth agencies, government contractors and their employees, members of the ADF, statutory office holders and appointees, officers and directors of Commonwealth companies, and people or bodies providing services, exercising powers or performing functions on behalf of the Commonwealth—this includes secondees and employees of contracted service providers to an agency.

SERIOUS OR SYSTEMIC CORRUPT CONDUCT

The Commissioner can commence an investigation (following a public complaint, agency referral or on their own initiative) in relation to a corruption issue that in the Commissioner’s opinion could involve serious or systemic corrupt conduct. Corrupt conduct is defined to include any conduct of a person (including a public official) that adversely affects, or could adversely affect, the honest or impartial exercise or performance of any public official’s powers, functions or duties. Corrupt conduct would also include any conduct of a public official that:

 constitutes or involves a breach of public trust;

 constitutes, involves, or is engaged in for the purpose of abuse of the person’s office as a public official;

 constitutes or involves the misuse of information acquired in the person’s capacity as a public official; or

 constitutes, involves, or is engaged in for the purpose of corruption of any other kind.

RETROSPECTIVE APPLICATION

The Commissioner can investigate serious or systemic corrupt conduct that occurred prior to the NACC’s establishment, the conduct of former public officials while they were public officials, and the misuse of information by a former public official that was acquired by the former public official in the course of their functions or duties as a public official. Although the issue of retrospectivity has been frequently raised, in reality this is no different from the police who can investigate retrospectively and would, at present, be the default investigative agency for the conduct which will be the jurisdiction of the NACC.

NACC’S POWERS

The NACC will have extensive powers which include, but surpass, accepted policing powers including execution of search warrants, controlled operations, integrity operations and use of surveillance in accordance with the legislative requirements.

 Hearings: The Commissioner will be able to hold hearings which under the Bill are private by default, but can be public in exceptional circumstances. At these coercive hearings the Commissioner can compel witness testimony (even when doing so may self-incriminate, though any self-incriminating testimony will be inadmissible in proceedings against that witness).

 Search powers: The NACC’s search powers are broad and include entering any premises of a Commonwealth agency to inspect, copy, or take any extracts of documents relevant to the corruption investigation; or seize documents or anything that the NACC believes on reasonable grounds is relevant to an indictable offence and the seizure of the document is necessary to prevent its concealment, loss, or destruction. Warrants can be executed on non-government premises. Whether or not the NACC chooses to use these powers, or to revert to court issued search warrants to maintain judicial scrutiny and accompanying protections, remains to be seen.

 Investigations: The Commissioner can also direct other Commonwealth agencies to investigate a matter where the Commissioner believes serious or systemic corrupt conduct may be involved. The Commissioner may oversee investigations of Commonwealth agencies, require a Commonwealth agency to join an investigation, make comments on the agency’s reports and require follow-up measures be taken.

 Findings: The Commissioner may make findings of fact in reports, including findings of corrupt conduct in investigation reports, but cannot make determinations regarding criminal liability. The Commissioner may refer briefs of evidence to the Commonwealth Director of Public Prosecutions for consideration of criminal prosecutions.

WHISTLE BLOWER PROTECTIONS

The Bill provides protections for persons who refer allegations or information raising corruption issues and includes criminal offences for taking, or threatening to take, reprisal action that causes detriment to whistle blowers who provide information to the NACC, and immunity from criminal, administrative and civil liability. These protections complement existing protections under the Public Interest Disclosure Act 2013 (Cth) for public officials making disclosures.

How Proximity can help

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

Execution of agreements— recent changes to the Corporations Act

The Corporations Amendment (Meetings and Documents) Act 2022 (Cth) commenced on 1 April 2022.

This Act permanently amends the Corporations Act 2001 (Cth) to do the following:

By David Mahony Expert Advisor

 introduce substantial reforms to facilitate the electronic execution of documents (including deeds);

 allow for company meetings to be held either at a physical venue or via virtual meeting technology, or a hybrid combination of the two in select circumstances; and

 enable the electronic distribution of meeting-related documents and other documents.

In this article we will only discuss the changes regarding execution of documents by a company.

These are new standalone permanent provisions. The temporary Corporations Act measures introduced to deal with execution of company documents during the Covid pandemic have expired and no longer apply.

1. Technology neutral signing—Section 110A

This applies to a document (including a deed) to be signed in the circumstances described in sections 2 & 3 below.

The new provisions do not mandate the use of any particular technology. As well as technologies already in use such as online platforms and use of stylus tools to sign PDFs, the legislation is flexible enough to allow for use of new technologies.

It is now provided that a person may sign a document (including a deed) by:

a. signing a physical form of the document by hand; or

b. signing an electronic form of the document using electronic means:

if the method of signing:

A. identifies a person and indicates the person’s intention in respect of the information recorded in the document; and

B. the method was either:

ii. as reliable as appropriate for the purpose for which the information was recorded, in light of all the circumstances, including any relevant agreement; or

iii. proven in fact to have fulfilled the functions described in paragraph (A), by itself or together with further evidence.

This means that to be able to rely on an electronic signature, there must be an appropriate and reliable method to verify that the person who is named as the signatory did, in fact, sign the document. This may require a review of the types of technology as well as the processes and procedures underpinning its use.

The following circumstances are now provided for under Section 110A(4):

 a document can be signed in different forms, that is, one person can sign a physical document by hand and another person can sign an electronic form by electronic means

 split execution of documents is allowed, namely, there is no requirement that a person sign the same page of a document as another person;

 a person is not required to use the same method to sign the document as another person; and

 all the information recorded in the document is not required to be included in the form of the document signed by a person under (a) or (b)—in other words, execution will be valid where a signatory signs a stand-alone execution page, without having the entire contents of the document attached.

The last point represents a departure from the previous practice, particularly under the temporary provisions during the Covid pandemic, that all of the contents of the document should be included in an electronic signed version. Although the language is quite categoric (‘To avoid doubt, this section does not require…’), we recommend that a degree of caution should still be exercised in utilising this provision:

1. note the requirement that the method of signing ‘identifies a person and indicates the person’s intention in respect of the information recorded in the document’

2. the absence of the complete contents of a document leaves open the possibility that a person may subsequently seek to challenge or question that it fully indicated their intention.

This may be a useful mechanism where there is a very urgent need for a signature to be returned and it can only be done in time by means of an extracted execution page. However it would be prudent (as would have been previous practice) to obtain a full copy of the executed document as soon as possible, or to attach or link it to the signature by some means (such as an online document execution platform) to ensure the content is clearly identified.

2. Agent exercising company’s power to make contracts and execute documents (including deeds)—Section 126

Section 126 has been amended to extend the ability of agents to execute documents on behalf of companies. This means that the signing process for company agents under Section 126 is materially simpler than previously.

Under the important new changes:

 a company’s power to execute a document (including a deed) may be exercised by an individual acting with the company’s express or implied authority—Section 126(1)

 the individual referred to in section 126(1) need not be appointed by deed—this displaces the common law rule that a person must be appointed by deed to execute a deed (no more Powers of Attorney!)

 the new provisions override any other (State or Federal) legislation to the extent of any inconsistency—a significant reform

 the individual may execute a document as a deed in accordance with section 126(1) without the need for a witness and regardless whether the document is in physical or electronic form—this displaces any other rule that a deed must be on ‘paper, parchment or vellum’.

3. Execution of documents (including deeds) by the company—Section 127

In practical terms, the changes to Section 127 do not substantially alter the position existing under the temporary reforms. There are a few minor improvements but electronic execution continues to be permitted in more or less the same way it has been for the past few months.

It is clarified that signing under Section 127 may be satisfied electronically in accordance with the technology neutral signing provisions i.e., it may be signed electronically.

Also a company may execute a document as a deed under Section 127 without the need for a witness and whether the document is in physical or electronic form—again this displaces any common law rule that a deed must be on ‘paper, parchment or vellum’.

4. What does this mean for me?

If you are in a corporate entity then the requirements for the electronic execution of your entity’s documents have been considerably simplified and clarified.

Even if you are in a Government department or agency and do not have a direct requirement to execute documents under the Corporations Act, if you are dealing with contractual counterparties who are corporate entities then your ability to rely on their electronic execution of documents (particularly deeds) has been considerably simplified and clarified.

This is only an overview of these important new provisions. For further information please contact Rachael Griffin or David Mahony.

Rachael Griffin

Expert Advisor

0428 991 872

rachael.griffin@proximity.com.au

David Mahony

Expert Advisor

0414 413 469

david.mahony@proximity.com.au

Legal secondee spotlight

RAKIC SPECIAL ADVISOR

We recently sat down with Paulina to find out about her current secondment and our onsite model.

Where are you currently on secondment?

I am currently on secondment at the Department of Veteran’s Affairs, Corporate and Commercial Law team. I have been at the Department since March 2021 and in the Corporate team since June of that year.

PAULINA

What’s the best thing about being a secondee? What value do you get? What value does the client get?

The best thing about being a secondee for me is the variety of work and people I get exposed to.

Having been in the legal profession for more than 20 years, I find that this exposure keeps me fresh and still excited about the work I do. I believe that I learn something new from every secondment and every person I come across.

Whilst we are all experienced and proficient lawyers, being embedded in another legal team exposes you to the particular legal needs and workings of that Department. Depending on the length of the secondment, we can potentially experience the inner workings of numerous departments in the one year—a benefit we could not get elsewhere. Each Department has differing needs depending on their legislative purpose— for example, in one Department many of the proposed programs lacked authority so the focus commercially was ensuring that each proposed contract had the requisite constitutional and legislative authority, whereas in another department, authority was not generally an issue, the focus was more on ensuring that business areas understood and followed procurement rules. As a secondee, the exposure to these differing problems, provides us with a more intricate experience across the Commonwealth as a whole.

As a result, the client gets the benefit of this experience. Secondees bring that knowledge to the Department’s legal team and their knowledge base grows. In addition, the client builds a network where even after the secondment ends, they have a contact they are comfortable with that knows their particular requirements and they can draw on for bespoke issues.

Tell us more about the type of work you are currently doing on your secondment?

As I am currently in the Corporate and Commercial team at DVA, I am primarily working on commercial matters. The work the team does is really varied, one day we could be assisting with the contracts for a major procurement, the next we could be drafting bespoke contracts for overseas memorials and the next day we could be trying to navigate commercially how we can best meet the needs of a particular veteran. I never know what the day will bring, but I love that everything has the underlying people focus—how best can the needs of the veterans be met.

What has been the most interesting piece of work you’ve been involved in?

There has been so many interesting pieces of work. One that stands out is what seemed a simple question—what was the legal status of an international museum? The issue arose from a tax issue. Besides learning about the museum, the architecture and its purpose— the analysis involved a dive into parliamentary records, historical documents and liaising with the Department of Foreign Affairs and international lawyers. The matter, whilst taking a significant amount of time, was really interesting as I got to work with lawyers in different fields, I got to do some ‘oldfashioned’ research given historical documents were not on-line and I learnt about the practical issues that those on the ground experience from what would normally be a simple legal question.

In addition, there have been many interesting matters that are specific to particular veterans. Given the size of the Department and the numerous veterans they aim to assist, there have been two instances

where a significant amount of work was done to ensure an individual veteran received the support and assistance they needed—even when that support was so particular that a bespoke arrangement had to be established involving lawyers across various legal teams.

Do you have any advice for clients looking for onsite specialist lawyers such as yourself?

Clients looking for onsite specialist lawyers should see the secondment model as an opportunity to not only benefit from an additional resource in peak times, but also as an opportunity for their team to build their knowledge. My advice to clients is to absorb as much knowledge from the secondee as possible, ask lots of questions —if they have a skill that your team is lacking, draw on that to upskill your team..

What’s happening in tribunals?

Did you know the major tribunals in this country hear nearly 300,000 claims a year under some 1,300 pieces of legislation?

By Robin Creyke Expert Advisor

That makes them a key avenue for Australians to challenge decisions. And in the states, over 90 per cent of their caseload involves minor civil, not administrative matters, a change to have a major impact on their operations.

Warnings from the combination of civil and administrative jurisdictions means greater care is needed by governments when adding new caseloads or restructuring. Adding jurisdictions can be problematic for all tribunals, as indicated in the recent Senate report on the AAT.

Despite their output tribunals’ roles face threats. Constitututional barriers to their jurisdiction in recent years have inhibited state tribunals hearing many residential tenancy and guardianship claims. Equally, the Citta case held they cannot hear matters, such as discrimination, colorably arising under the Constitution (s 76(i)), or under Commonwealth concurrent laws (s 76(ii)).

The good news is their well-known procedural flexibility expedited use of communication technology during COVID. These included document lodgement, online hearings of interlocutory and other matters and saw technology hubs established in regional areas. These steps have reduced burdens on parties and practitioners and are likely to continue.

Appointments have also been newsworthy. Greater transparency and more independent processes have been promised by the national government. Trust in these important institutions is eroded by political appointments. Schemes to minimise/avoid such practices would do much to restore confidence in this important element of the adjudicative process.

By Phil Cholewick Special Advisor

Without the parties being clear on what is required, by whom, by when and under what terms etc, the risk of a poor contracting outcome is elevated. Supplier uncertainty and ambiguity of requirements often attract the loading of higher risk premiums. Poor value for money is frequently an unintended outcome for both parties.

One tried and trusted method to help manage this type of risk is to build an interactive segment into the procurement process that negates the need for a prescriptive specification. A dialogue process allows the supplier to develop a solution to the high-level business requirement and to clearly articulate and demonstrate how those requirements will be met. If undertaken correctly, the authority can engage in a constructive dialogue with a small number of shortlisted suppliers over a managed period. Utilising a structured two-way exchange of information provides an opportunity for the suppliers to better understand the environmental context and the business need(s) together with any constraints—which may be real and/or perceived. On the flip side, the authority can better

understand the range of drivers that impact supply. Following a successful dialogue (and whatever tendering process is deployed), the authority can usually expect a broader set of solutions in return, possibly including options that may not have been apparent from any initial research. Encouraging and enabling the market to innovate has benefits far beyond the immediate procurement activity and can add value to all parties. Likewise, the reduction of supplier assumptions in any response lays the foundations for a better overall value proposition and eventually, contractual risk.

Variants of interactive dialogue procurement processes are widely accepted by both the public and private sectors. Over time the Federal Government’s Commonwealth procurement rules (CPR’s) have been updated to accommodate the principles of interactive tendering and the procurement manuals of many public sector bodies outline the use of such techniques.

For many procurement professionals it can often be difficult, when undertaking an acquisition activity for a solution to a complex business challenge, to establish a market ready specification that facilitates a comprehensive response from the market.

When preparing a procurement strategy or playbook for a complex requirement, any consideration of a procurement dialogue process requires careful planning and often the support of the Executive as it is far more costly a process for all parties in terms of resourcing, time and costs than more traditional approaches to market. Care is therefore needed to ensure that the circumstances and the type of dialogue process used are fit for purpose. By way of an example, use of a dialogue process to procure requirements from commodity and/or mature services markets is unlikely to achieve the desired benefits. Whereas the rapid paced technology market, however, is where these types of dialogue activities have been used successfully in the past. Particularly when more innovative solutions from the market are needed.

Should it be determined that a procurement dialogue is the right method, there are many different components therein to consider when building the actual approach. Such things include: when in the procurement process lifecycle is it best to dialogue; whether the dialogue process should be evaluated or not evaluated; and how open and transparent should the organisation leading the dialogue be? Dialogue can also be used to refine supplier proposals in relation to solution/ technical designs along with other things like implementation and transition plans. These examples have different merits, strengths and weakness and it is important to assess these with your business approach to risk. Whilst the interaction between parties through the dialogue is often most fruitful when it is frank and transparent, the dialogue process is not a negotiation. If an element of negotiation is required, this could be built into the procurement but once

the dialogue component has been completed. Being clear with parties of the intent of the dialogue at the outset of the process is a ‘must do’ activity.

Regardless of the type of dialogue pursued, of critical importance to the process is the need for fairness, transparency and an effective governance overlay. Particular attention must also be paid to such issues as ownership, treatment and use of any intellectual property and confidentiality of proprietary information. To guide all parties involved there is a requirement to fully document the process and share what will happen and when. The development and use an overarching governance framework are critical as these serve to provide all parties with a high degree of confidence that the appropriate safeguards are in place whilst maintaining an effective decision making and audit trail for the authority.

When administering an effective dialogue process, it is important to ensure the maintenance of effective competitive tension— regardless of the number of suppliers involved. This is an essential lever for the authority that will help drive the right behaviours from those involved and contribute to achieving a value for money outcome. These considerations all have a material impact on the overall success of the procurement activity. Last, but certainly not least, it is vital to plan for an appropriate probity regime and to ensure that the right measures are in place and conducted diligently. The overarching probity regime will vary depending on your organisations approach to risk and specialist advice should be sought at the onset of any procurement.

Whilst the use of a dialogue process can result in many risk reductions and contractual

benefits, deciding which one is right for you and then undertaking such a process can be a challenge for many organisations, especially where the necessary skills or experience may not be available in-house. We are fortunate however that Australia does have access to sufficient knowledge and resources to make these useful processes a success. The Pulse has previously provided guidance1 on some of the interactive options out there, of which probably the most widely known about is the Competitive Dialogue (CD) process. The CD process originated in Europe around 2004 and has been used for Commonwealth Procurements for the last decade or so. Other CD type variants deployed more recently by a variety of organisations include the Solution and Commercial Dialogue process, Collaborative Dialogue and the Offer Definition and Improvement Activities process. Whilst they all differ in their respective application, all retain an interactive dialogue between parties as a core part of the process. It is the intrinsic role of the dialogue element that has directly contributed to many successful procurement and contracting outcomes.

Should you be interested in knowing more about interactive procurement and the types of options for dialogue available, please contact me at phil. cholewick@proximity.com.au

1. The Pulse, Issue 2 - “Competitive Dialogue” by Peter Degraaff and The Pulse, Issue 11- “Smart buyers and Industry Partnering in Defence Procurement” by Dougal Pidgeon.

Did someone say project management?

By Colin Maher Special Advisor and Petria Paynter Advisor

When exploring project management, we emphasise the need for planning, processes, and skillsets required to successfully deliver project goals and uncover what is possible.

We examine the 9 essential elements of project management, the knowledge and experience we utilise unconsciously every day and how they reflect core project management principles. We conclude with a real-life project delivery example which demonstrates the importance of preparation, collaboration, and consistent cadence as some of the critical factors, to support successful project delivery outcomes.

When we reflect on our daily lives, we tend to focus on the desired outcomes and not the process or actions we must complete.

Greatness starts with a process!

At the core, project management is a framework of knowledge and understanding, which is categorised into 9 essential elements. If managed and measured effectively throughout a project’s lifecycle, it delivers a proven framework for success. t.

In harnessing these 9 essential elements through managing their complexities, dependencies and implementing controls, will create a structured pathway to successfully manage any project.

Project Integration Management

Project integration management is considered the heart of project delivery, coordinating, and managing every element throughout the project lifecycle. This is not unlike the process we utilise to navigate and manage our daily workplace activities, ensuring each deliverable is completed on time and within budget.

Scope

Scope management is one of the most imperative elements during the initiation phase of a project. The scope informs the items required for delivery, as distinct from those excluded or not within the current scope.

Stakeholder Communication

Establishing clear communication channels are extremely important and promote effective stakeholder engagement within each stage of the project phase. In today’s environment this element has never been more relevant to the success of any project and delivery manager.

Time/ Cost

Time and cost management are elements that impact and underpin our daily lives, and we can all appreciate the importance of getting it right! The delivery timeframe is often a matter of considerable debate as we leverage our knowledge, skills, and experience to determine if the project schedule is achievable while cognisant of the cost implications associated with any proposed deviation.

Are you an accidental Project Manager?

We challenge you to consider any task you have performed today, including the process to complete. You are already performing a form of project delivery management in your home and workplace, without consciously considering the steps or process you undertake.

We all demonstrate what is referred to as ‘unconscious consciousness’, which according to Freud (1915),

“the unconscious mind is the primary source of human behaviour. Like an iceberg, the most important part of the mind is the part you cannot see”.

Project management is the conscious practice of implementing structure, methodologies, and controls to harness our ‘unconscious consciousness’, leveraging our skills and experience. Furthermore, our workplaces are evolving, and project delivery is one of many skills we must possess. Whether leading or supporting the successful execution of a project, empowering each team member to contribute and collaborate creates a dynamic organisational culture.

What next?

Our expert team possess significant experience leading and supporting project brilliance and delivery outcomes across the public and private sector. Our team welcomes the opportunity to impart knowledge, skills, and experience to strengthen your team and achieve positive constituent outcomes.

Always begin with the end in mind

Project delivery can be challenging and the more complex the deliverable the more considered the approach must be. In the context of todays project performance, engagement with external stakeholders is critical to the overall success of the project. We encourage early engagement with stakeholders to develop rapport, set expectations, and obtain consensus on the project schedule and outcomes.

Our team mantra is the adaptation of a quote from the great Benjamin Franklin who said,

“by failing to plan, you are preparing to fail”.

The project to support Brisbane City Council (BCC) Wi-Fi enablement of all city precincts, parks, and areas where people come together embodies this mantra. The project outcomes were clear and included the delivery of a network capable of supporting internet connectivity, community specific content, and ultimately bring people together to collaborate and bridge the technology divide.

There are many factors to consider when delivering services in the public domain, which include:

 access to city planning documents

 access technology feasibilities

 site inspections for validation

 bill of materials (BOM)

 equipment to support delivery

 road closures

 work approvals and permits

 dedicated and skilled delivery workforce.

One of the key constraints was an immovable launch date, which coincided with the Council re-election campaign, and therefore planning, communication, and execution were essential. A comprehensive project plan, including robust risk assessment and mitigations helped to inform the appropriate plan (b) and in some cases plan (c) options required to facilitate a success delivery outcome, and reinforcing the importance of the 9 essential elements of project management.

The application of the nine essential elements provided clarity and structure for the information required to develop a comprehensive project delivery plan. By beginning with the end in mind, a timeline was developed to ensure that key milestones could be delivered on time and within budget. These included the provision of network appliances, mounting hardware, access to power, network connectivity, signage, branding, end user experience, access disclaimers and much more.

Overall, this project was a success story with the Wi-Fi capability delivered on time and within budget. We achieved this outcome through effective planning, implementation, management, and controls which directly align to the 9 essential elements of project management.

Probity health check

Some of the recent ANAO findings in relation to probity have been:

 Conflict of interest registers were not regularly maintained.

By Sarah Colman Special Advisor Team Lead—Probity

Is your agency’s probity in good health?

Probity in procurement and grants processes has become a key focus of the Australian National Audit Office (ANAO) as it continues to scrutinise fairness, transparency, and accountability in its audit work of Commonwealth government agencies and Parliament.

 Declared conflicts of interest were not followed up or managed, and where management plans were in place, they were not followed.

 Failure to set and follow protocols for industry engagement in large projects.

 Inconsistency in the application of evaluation criteria to tender responses.

 Agencies not being able to demonstrate achievement of value for money.

Given the ANAO’s current focus, it is important to ensure your agency has robust and up-to-date documentation and procedures in place to withstand an ANAO audit. Probity templates and processes are often not reviewed or updated regularly to incorporate emerging probity issues. Updating your agency’s probity templates and processes could save significant embarrassment down the track.

Some of the key areas to check are:

 Agency’s probity plan and other templates (such as conflict of interest declarations, confidentiality undertakings, probity register, tender evaluation plans) are up to date on emerging probity issues.

 Whether clear and robust processes are in place for probity management including guidance around when to engage external probity advisors, probity checkpoints throughout a project, requirements for documenting decisions and agency policies around conflicts.

 Staff in procurement and other relevant areas are upskilled in probity and understand the emerging probity risks.

It’s important to remember that fulfilling probity obligations is not just a ‘tick-box’ process. It’s about using probity principles to guide projects and ensuring the end to end process is defensible and robust and agency templates and processes should reflect this.

We have unique insights and experience identifying recurring patterns and common gaps in probity documentation and processes, so please come and speak to us if you think your agency needs a probity health check.

CONNECT WITH SARAH

Changes to CPR

It has been over 6 months since the new Commonwealth Procurement Rules (CPRs) commenced on 1 July 2022.

By Ron Fisher National Sector Lead Defence

Compliance with the CPRs is a must, for Officials from noncorporate Commonwealth entities and prescribed corporate Commonwealth entities listed in section 30 of the Public Governance, Performance and Accountability Rules 2014. Hopefully the relevant officials, conducting procurement daily, are aware of the changes and have incorporated them into their processes, procedures, and templates.

For those that only dabble in procurement and are yet to undertake one this financial year, it is important that you are introduced to the changes as adherence to the CPS’s are mandatory.

It could be suggested there are three primary goals for the changes the CPR.

1. Encouraging competition through better support for Small and Medium Enterprises (SMEs) and panel members,

2. Supporting “value for money” considerations through requiring adherence to the procurement-connected policies and widening sustainable procurement considerations; and

3. Clarifying the CPR’s legislative environment and application to the Commonwealth Superannuation Corporation.

The CPR webpage1 details the specific changes

From a practical perspective officials should check that their entity has updated their procurement, risk management, liability and evaluation policies and processes to align with the CPRs changes.

From our wealth of experience these updates should include at a minimum:

1. A greater focus sourcing from SMEs and gaining multiple quotes off panels. Considerations including:

a. Gaining greater value for money through encouraging competition

b. Supporting growth in the relevant industry, increasing the security of supply

c. Potentially extending the procurement timeframe with the evaluation of multiple quotes

1. “The Table of changes – CPRs – 1 July 2022” found on the Finance website at https://www.finance. gov.au/government/procurement/ commonwealth-procurement-rules.

CONNECT WITH RON

2. Investigating whether it’s appropriate and beneficial for the disaggregation of large projects into smaller packages. Considerations including:

a. The approval level of the entire project will not be decreased to the level of the individual smaller packages.

b. Breaking the project into packages that are still large enough to be attractive to suppliers with some ability to gain leveraging.

c. Potentially extending the procurement timeframe with the evaluation of multiple quotes.

d. Balancing the increased internal resources to:

i. evaluate

ii. manage resulting contracts

iii. co-ordinate contractors inter-dependent work outcomes and relationships

e. Gaining greater value for money through encouraging competition

f. Supporting growth in the relevant industry increasing the security of supply:

3. Requiring Insurance levels to be appropriate to the contract risk and not requiring the suppliers to gain insurance prior entering the contract. Considerations could be:

a. Developing a robust risk assessment that closely evaluates levels and sharing of risk.

b. Engaging appropriate internal stakeholders regarding current insurance coverage held by the organisation.

c. Potentially extending the procurement timeframe through insurance levels becoming point of negotiations.

d. Gaining greater value for money through reducing excessive insurance cost placed on the contractor and appropriate sharing of risk.

4. Updated payment provisions that comply with the Supplier Pay on Time or Pay Interest Policy, in particular the removal of the $1 million threshold for contract value. Considerations including:

a. Routine invoicing on resulting contracts needs to be checked against payment runs to ensure interest payments do not become a standard cost to your organisation.

b. Increase confidence in cash flow for the SME.

5. Exclusively for the Department of Defence, the exemption threshold for the SMEs has been lifted to $500,000. Considerations including:

a. Greater number of direct sourcing activities.

b. Potential faster turnover of procurements

c. Decrease in competition, so value for money will need to be closely monitored.

If your entity is needing assistance in either understanding the application of the Commonwealth Procurement Rules or needing legal expertise to update your contract and templates do not hesitate to give Proximity a call.

Proximity appointed to both Commercial Management Advisory Services Panel and Corporate Management Advisory Services Panel

Accessing Proximity’s services has never been easier following our recent appointment to two whole-of-government panels— the Commercial Management Advisory Services Panel and the Corporate Management Advisory Services Panel. This follows our appointment to the Commonwealth Legal Services Panel in 2019.

Our strong representation across these three key Commonwealth panels reflects our position as a leading provider of integrated consulting, legal and commercial services to government, the broad range of work we do, and the trust our client’s place in us to advise on some of the nation’s most challenging projects.

Together anything is possible.

Proximity and the Commercial Management Advisory Services

Panel

Policy Development and Analysis

Privacy advice and Assurance (non-legal)

Legislation (non-legal)

Proximity and the Corporate Management Advisory Services Panel

Program/ Project Development and Design

Program/Project Evaluation

Strategic Procurement Advice

Probity Advisory Services

Strategic Risk Management

Probity Auditing Services

1. Organisational planning and development

 Change Management

 Business continuity

2. Human Resources

 Workforce management

3. Corporate Governance

 Governance structures and performance

 Compliance and fraud

Proximity Day Out 2022

Proximity’s inaugural Day Out was held on Monday 31 October and drew a big attendance at the Hotel Realm, Canberra for a full day’s program centred around professional development topics in the consulting, legal and commercial sectors.

More than 150 participants attended the Day Out from across more than 20 Commonwealth Government departments and agencies, including Defence, Health, Home Affairs, Social Services, Industry, the Australian Tax Office and Services Australia.

Delegates were treated to 13 complimentary sessions presented by over 30 Proximity team members and special guests including some of Australia’s most experienced senior public servants, and several top government officials and former departmental heads. Presenters shared their career experiences generously and offered up practical advice and resources for delegates to take back to their workplace and put into action.

The Day Out opened with a panel discussion on “Going public with outside views: ideas for the APS from those who have seen both sides”. Delivered by Renée Leon, Vice Chancellor, Charles Sturt University, Kerri Hartland, Proximity Principal Advisor and National Lead—Transformation, Malcolm Thompson, Proximity Expert Advisor and National Sector Lead—Environment, Climate Change & Water and moderated by Proximity Principal Advisor—Andrew JohnstoneBurt. This experienced panel had a combined 100 years of involvement in senior positions in the public sector and is a session we strongly recommend you watch via our free website webinars if you were not in attendance at the Day Out (see page 36 for details).

Other sessions Proximity’s experienced team also presented on included;

 Different projects, same fundamentals: lessons learned around successful project delivery

 The impact of cognitive biases on procurement

 Environmental, social and corporate governance: in the government context

 The brilliant, the crazy and the absolutely scary—working with the Hill

In addition to professional development the Day Out provided delegates with a chance to reconnect and networking with industry peers. Outside of sessions delegated enjoyed a dedicated recharge lounge, which featured work and device charging stations, complimentary snack bar and barista made coffee, complimentary catering including canapes and networking drinks.

The feedback from attendees was overwhelmingly positive and planning is already underway for the 2023 Day Out! To ensure you don’t miss out on securing a ticket to the next Day Out, be sure to sign up to our newsletter at proximity.com.au to be the first to know when tickets go live.

Proximity Day Out webinars

Couldn’t make the Day Out? Catch up on all the Day Out content via our complimentary thought leadership hub at proximity.com.au/webinars/.

 Going public with outside views: ideas for the APS from those who have seen both sides

 Reputation matters: exploring the relationship between strategy, risk and reputation

 Preparing for contract negotiations

 Environmental, social and corporate governance: in the government context

 Different projects, same fundamentals: lessons learned around successful project delivery

 Royal Commission preparation and response— lessons from the coalface

 The impact of cognitive biases on procurement: how to minimise errors and achieve better procurement outcomes

 Hypo-ethical IV: A panel examination of ethical problems across government

 Effective stakeholder engagement for decisionmakers

 Maintaining and preserving your integrity in grants and procurement programs

 Administrative law ahoy: postCOVID 19 landfall

 Australian sovereign industrial capability II

 The brilliant, the crazy and the absolutely scary—working with the Hill

Proximity wins Government Team of the Year at the 2022 Australian Law Awards

We are thrilled to announce Proximity has been named the winner of the Government Team of the Year at the Australian Law Awards.

The 2022 Australian Law Awards returned for its 22nd year on Friday, 12 August 2022, at the Australian Turf Club, Royal Randwick Racecourse at an in-person ceremony. Proximity attended this celebration as a finalist in two categories— Government Team of the Year and Employer of Choice.

The criteria for Government Team of the Year focused on teams that collaborate effectively, actively participate in thought leadership, and focus on the achievements of government teams. To be shortlisted and named the winner of this award alongside fellow finalist’s ranging from top tier and international firms is a huge honour.

“We are extremely proud of our efforts to be recognised against this criterion as one of the highest performing Government teams in the country”, stated Simon Blake, National Lead— Public Law and Litigation.

“We are known as bold thinkers and effective collaborators in the government space. Our clients value our advisors’ extensive government experience and broad understanding of the laws, policies, politics, and culture of the government sector. To receive industry recognition of our approach is a testament to our unique methods and outstanding team”.

Proximity has previously been recognised for excellence in Government, being named Government Team of the Year at the 2017 Australian Law Awards. Since that win we have continued to increase our government-dedicated team, from 64 to 118 across ACT, VIC, and NSW, significantly growing our legal capability and fully integrated consulting practice.

“Winning this category for the second time is validation that we are the leading innovative whole-solution alternative for clients beyond the traditional national law firms” stated Simon.

The annual Australian Law Awards is, undoubtedly, the biggest celebration of legal talent across the country, with Lawyers Weekly reporting a record high of 370 finalists at the 2022 awards. A well-respected panel of judges determined the winners and Lawyers Weekly editor Jerome Doraisamy emphasised “that finalists and winners are the industry leaders of today and tomorrow.” We congratulate our fellow finalists (including our client Department of Home Affairs) and winners, and we want to thank our amazing clients for their support and our extraordinary people for their hard work and dedication

5 Star Employer of Choice

Proximity graces the 2022 5-Star Employer of Choice list as the only Australian Capital Territory (ACT) firm alongside a select group of law firms across the country.

The annual Australasian Lawyer 5 Star Employer listing spotlights firms across Australia that have introduced the most effective employee-centred programs. The selection process requires reporting on factors critical to a positive employee experience, including; remuneration, training and professional development, career progression, diversity and inclusion, access to technology and resources, communication, leadership, work-life balance, health and wellbeing, reward and recognition, and recruitment.

To be considered as a 5 Star Employer of Choice, we were asked to state our achievements against each of these critical areas and provide quantitative and qualitative data to confirm how we are leading a progressive workplace culture. In total, only 31 firms proved that they met the above criteria to be named 5-Star Employers of Choice and we are extremely proud to make this distinguished list, representing the ACT legal industry as the only ranked ACT based firm.

Making this list is recognition that our employee experience really is at the centre of everything we do. We have continued to build on our employee experience programs and adapt to the evolving needs of our people, evidenced through our individualised work packages,

Career and Wellbeing Manager program, Health and Wellbeing allowance, and our internal and external professional development programs.

From inception, we have always put our people first and we are proud to have implemented policies to ensure that this mantra stays true as we continue to grow in size, location, and service offering.

“We are all about balance, we want our people to work on complex and high-profile projects but also have that flexibility to enjoy the other parts of their life. We’ve got a flexible model where people can enjoy time with their family, personal activities, or going on holidays, and because of that, when they come to work, they’re really switched on collaborate and support each other, and we deliver a much better service to our clients as a result”, said Melissa Crampton, Group Manager—People.

“Looking to the future, our goal is to continue to innovate and build on our policies, programs, and technologies that will create value, empower our teams, and support growth”.

To learn more about our people-first culture, reach out to our recruitment lead Melissa Crampton to discuss career opportunities.

Melissa Crampton Group Manager—People

0437 899 557

melissa.crampton @proximity.com.au

Proximity has been selected as a 5-Star Employer of Choice, by Australasian Lawyer!

Proximity’s Melissa Crampton wins Manager of the Year— Excellence in People and Culture at the ALPMA Awards!

The ALPMA: Australasian Legal Practice Management Association Awards shine a light on the outstanding achievement and service of allied legal professionals in management or leadership roles. Our very own Group Manager—People, Melissa Crampton, took out the trophy for Manager of the Year— Excellence in People and Culture in September this year.

The Manager of the Year— Excellence in People and Culture category recognises excellence and outstanding achievement of a leader in people and culture, and is presented to an outstanding leader who has made a real difference to both the people & culture programs and operation in their workplace in terms of impact and effectiveness and is seen as a leader among their peers in people and culture.

This award recognises the positive impact for our people and Proximity that the transformative people and culture initiatives Mel has implemented has had on the development and wellbeing of our people.

Thank you ALPMA and award sponsors Lawyers Weekly for recognising Mel’s contribution!

How do you think Proximity sets itself apart from other professional services firms?

Proximity genuinely wants to be helpful (rather than just thinking about business and revenue), and are dedicated to making working for and with Proximity a good experience. They approach problems as a holistic exercise with real collaboration with the client and within Proximity.

What are you most excited about with taking on the National Lead role?

To be able to work on big-picture strategy and to collaborate with our clients and our people in a way that adds real value.

Simon Blake

Tell us how you came to join Proximity?

I’d been in the Government legal and management space for about 20 years and was having a bit of a ‘what next’ moment when I ran into Irene Ghobreal in the latter part of 2015. I had worked with Irene before and knew she was a great operator. We talked about Proximity, and I really liked their different approach to professional services—the rest is history.

What’s the best advice you have ever been given?

Everyone is doing their best, so if they react in ways you don’t expect, try to understand where they are coming from before being critical.

What is your proudest moment in a professional context?

A long time ago I was the instructing solicitor on a matter before the Full Federal Court. On the Friday night before the hearing on Monday our Counsel had to pull out, and I was the only practical option to appear. I had done a bit of appearance work but not at this level, so it was daunting (the other side had Senior and Junior Counsel).

I’d like to say I pulled off an epic victory, but we went down 2-1, which was a better result than expected given previous advice that our prospects were very slim. Being able to convince one of the Bench that our client was in the right was something of an achievement!

TWO MINUTES WITH EXPERT ADVISOR PUBLIC LAW & LITIGATION

Giving the gift of good at Christmas

Proximity is always grateful for the support and trust of our clients, partners and friends. To show our thanks to you, in the spirit of Christmas, we’ve donated $1,000 to each of our community partners:

Menslink The Farm in Galong

Inclusive Australia

Fearless Women

Tjillari Justice

Aboriginal Corporation

Women’s Legal Centre ACT

Thank you for making this donation possible and for your ongoing support and partnership with Proximity.

We can’t wait to continue to work alongside you and unveil what’s possible in 2023!

How will your donation make a difference?

Hear from our community partners about how they plan to put the donation to good use!

Women’s Legal Centre ACT

“ Big thanks to our pro bono partner Proximity for their $1,000 Christmas donation! The Centre will put these funds towards our legal disbursements budget which supports the Centre’s litigation practice—whether it is paying for superannuation valuations in financial abuse cases, paying process servers, and helping women in abusive marriages get divorced. We are proud to be a Proximity community partner, and look forward to working with Proximity in the new year.”

The Farm in Galong

“To our dear partners in the work of caring for vulnerable mothers and children. Thank you for this kind donation which will be put towards the costs of delivering a parenting program to our women at the Farm to help them gain confidence and skills in mothering. Warm regards and wishes for a happy Christmas.”

Menslink

“Over seventy young boys and men will receive a mental health presentation from Menslink for $1,000.”

Fearless Women

“Fearless Women appreciates Proximity’s support and this will help make our mentoring program for young women aged 12 to 25 become a reality in 2023.”

Inclusive Australia

“Inclusive Australia would like to thank the team at Proximity for its ongoing support and contribution to building a society where differences are not tolerated, they are celebrated. Donations are critical in helping us to deliver the public campaigns, research, and organisational capabilities that reduce prejudice and discrimination in workplaces and across the Australian community. From the team at Inclusive Australia, we wish you a safe and happy holiday.”

Nurture

Society

Options

We

with amazing clients

We are genuinely different.

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.

Our philosophy follows two simple ideas

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.

Organisational Planning & Transformation Governance

Digital, Data & Cybersecurity

Reviews, Investigations & Inquiries

Risk Management & Compliance

Policy, Programs, Grants & Regulation

Procurement &Tendering

Contract & Vendor Management

Probity

Business Cases & Cost Models

Project & Program Management

Negotiation Corporate

Litigation & Dispute Resolution

Workplace Compensation Law

Onsite Legal Services

Public Law Property & Environment Law