Proximity: The Pulse | Edition Three

EDITION THREE

innovative genuine helpful

THE INFORMATION IN THE PULSE IS PROVIDED FOR INFORMATION ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FORMAL LEGAL ADVICE SHOULD BE SOUGHT IN RELATION TO SPECIFIC CIRCUMSTANCES.

proximity.com.au enquiries@proximity.com.au 1800 959 885

3

Welcome to our latest edition of The Pulse.

WELCOME TO PROXIMITY Welcome to our latest edition of The Pulse which includes our big news about being successful with the Commonwealth Legal Services Panel.

With the federal election now behind us, it feels like life is returning to normal in the national capital.

For Proximity, the new financial year is off to a great start with news that our tender to be included on the Commonwealth Legal Services Panel has been successful. Developing the tender was an enormous organisation-wide undertaking and you’ll find more information about exactly what it what it means for us and our clients on page five of this edition. Having been successful through this tender process, our team looks forward to being able to continue to support many government departments and hopefully expand our advisory services to even more agencies.

The 2018-19 financial year was big in terms of achievements, and we have captured some of the many highlights in this edition. It has certainly been a year of considerable growth with our staff numbers increasing from 50 to 70 in the past 12 months. It has been great to welcome so many new members to the team.

Inside this edition of The Pulse we have a strong focus on technology and the way it impacts on our lives. We also delve into the world of information law, and share some insights about our graduate program, which attracted a record number of applications this year.

Thanks for all the positive feedback from our first two editions of The Pulse. To receive a copy of The Pulse quarterly by email, contact news@proximity.com.au.

Sean King Director, Proximity

THE PULSE EDITION THREE

4

recognition

PROXIMITY AMONGST BEST LAWYERS IN AUSTRALIA

There was great cause for celebration at Proximity with five members of our legal team listed in Best Lawyers® in Australia 2020 edition.

In the Government Practice category, Sean King, James Dunn, Tara Munro-Mobbs and Bruce Brown were all recognised for their exemplary work.

James Dunn was also listed for his work in the Commercial Law category, and Robin Creyke AO has been listed in the Public Law category.

Since it was first published in 1983, Best Lawyers® has become

universally regarded as the definitive guide to legal excellence and those recognised are based on an exhaustive peer-review evaluation.

‘This is another very proud moment for the team at Proximity,’ said Client Services Manager Simon Blake.

‘It reinforces our ability to punch well above our weight with further recognition that our legal team is amongst the best in the government sector.’

(LEFT TO RIGHT) SEAN KING, JAMES DUNN, TARA MUNRO-MOBBS, BRUCE BROWN AND ROBIN CREYKE AO

Law Award Nominations

Proximity is excited to have been selected as a finalist for two awards at the 2019 Australian Law Awards: ›› Government Team of the Year ›› NewLaw Firm of the Year Proximity Director, James Dunn, said the nominations were a testament to the great work the whole team was doing and recognition of the innovative approach to service delivery.

THE PULSE EDITION THREE

‘A key focus in our submissions for both awards was our multidisciplinary teams approach with both lawyers and non-lawyers working together to provide practical solutions for clients,’ James said.

The award ceremony will take place in Sydney on 9 August.

5

tender success

PROXIMITY APPOINTED TO NEW COMMONWEALTH LEGAL SERVICES PANEL Proximity has been appointed to the Panel in the following Practice Areas:

AREA OF LAW

PRACTICE AREA

Corporate and Commercial

General Contract Law Procurement and Tendering Governance and Probity Media Information and Communications Technology

Proximity is proud to be appointed to the Whole of Australian Government Legal Services Panel.

With a strong history of providing legal services to Australian Government, and with the growth of our legal advisory practice, we look forward to supporting the Australian Government with their legal advisory needs.

Public Law

Administrative Law

Legal Support Services

Legal Support Services (secondments)

Proximity also has expertise in other categories including Property, Workplace and Industrial Relations and Dispute Resolution and Litigation.

In addition to providing legal advisory services, we work closely with clients to develop solutions to known and common challenges, such as our Delegations, Authorisations and Appointments Health Check, and Government Procurement (Judicial Review) Act Readiness Solution.

To hear more about our full service offering, please contact enquiries@proximity.com.au

THE PULSE EDITION THREE

6

setting goals

GETTING COMFORTABLE WITH DISCOMFORT

BY SU-ANN TAN BURKE, SENIOR ADVISOR No one enjoys that feeling of failure, but it can happen to anyone. Despite your best attempts to work towards career and life goals, unexpected challenges can throw you way off course. For example, I failed to get any graduate jobs after working solidly towards it in seven years of university and part-time work as a paralegal. I wasn’t to know that the 2008 global financial crisis would hit just as I graduated. As a result, most businesses put a freeze on hiring and training graduates. Training was an expense they didn’t want to incur in the depressed economic environment. While it was crushing at the time as a job seeker, I survived and learned how to adjust my sails and my expectations.

That feeling of ‘failure’ is unexpected and often has aspects you can’t control. But it also has things you can control, like your mindset, how you respond to the challenges thrown at you, and what learnings you take away from significant setbacks.

To overcome my jobless situation as a graduate, I had to change my expectations and create my own opportunities. Instead of looking for jobs that didn’t exist, or applying for the few jobs that every other graduate was applying for, I looked for good alternatives.

help build your resilience, and to deal with all kinds of unexpected events in life. If you can get more comfortable dealing with life’s setbacks, those unexpected events should take less of a toll. You might even see it as a great opportunity to change course and try something different!

I was successful in securing a 12-month role at Cadbury as a paralegal and administrative assistant. In that role I learned what an in-house legal team does and how it engages with different business areas. In processing invoices for the legal team, I got to know the external lawyers that supported Cadbury. One of them specialised in the area I wanted to work in – intellectual property.

I made a pitch to them: I would complete and pay for my own legal traineeship with an external institution if the firm agreed to hire me as a paralegal, with the opportunity to keep me as a lawyer after completing my traineeship.

The firm agreed and hired me after my Cadbury contract ended. I had rewarding work at that firm for several years as a junior lawyer.

Proximity is planning a CPD program for early careers lawyers in the 2019/20 financial year. We will publish details shortly, so follow us on social media and stay tuned.

Opportunities can be self-created if you make the outcome a win-win for all involved. Sometimes, not getting what you expect is more valuable than getting exactly what you expected. It forces you to think differently about how to achieve your goals. Dealing with that very personal sense of failure is never comfortable. But overcoming these professional setbacks is important to THE PULSE EDITION THREE

SOME HELPFUL TIPS ›› Self-reflect when things go wrong. ›› Understand what caused or contributed to your setback. ›› In responding to failure, prioritise the things you can control over things, or people, you can merely influence. ›› Don’t get distracted by things you can’t control. ›› Be prepared to change your approach and expectations – change may be needed to find the route to success. ›› Success comes incrementally. Be patient with yourself. Stay calm.

7

commercial hub

TECH ISSUES IN GOVERNMENT

BY SEAN KING AND COLLEEN CHEN Big data, artificial intelligence, agile methodology, cloud computing, distributed ledger technology and cyber security offer new ways to collect, use, share, store and protect information, creating many exciting opportunities for public sector innovation.

Machine learning, a form of artificial intelligence, is turning 2,000 pages of legislation (containing over 9,700 different rules) into a simple dynamic form for veterans online. Distributed ledger technology is helping to create a Trusted Digital Identity so that Australians won’t have to use up to 30 different log-ins to access government services online.

Science fiction writer, Isaac Asimov once predicted that in 2019, society will seem to be ‘running itself’ more and more because the growing complexity of society will make it impossible to do without computerisation.

Reforms and new arrangements are underway to realise the promise of improved government accountability and greater efficiencies ushered in by the emerging technology. A Cloud Services Panel has been established to facilitate the procurement of cloud services, and the upcoming Data Sharing and Release Bill will allow government to share data without being encumbered by the 500 legislative provisions governing public sector data.

These technologies will continue to develop and constant attention will be required to ensure that they are fit for purpose. As innovation always carries both benefits and risk, Proximity is staying at the forefront of these technology trends to help you carefully weigh its limits against its unique benefits, so that you can focus on the problems that need solving.

FIND OUT MORE As long-term technology forecasts go, Asimov’s comments in 1984 have stood the test of time.

The federal government is committed to delivering all government services online by 2025 and is embracing the full spectrum of emerging technologies to achieve its vision.

The team at Proximity has significant experience delivering advice on ICT projects for the Commonwealth.

To get a copy of our Tech Issues in Government White Paper or to learn more, contact us on enquiries@proximity.com.au or 1800 959 885.

THE PULSE EDITION THREE

8

governance hub

ATO BUSINESS REVIEW The LD&P Group is made up of around 1,200 ATO employees that assist taxpayers to confidently and voluntarily comply with their obligations by: ›› providing expert advice on the most significant and complex technical tax issues;

BY BEN SHAW, SENIOR ADVISOR

Earlier this year, Proximity completed a major milestone, delivering our final report for the Australian Tax Office (ATO) Law Design and Practice (LD&P) Review.

The ATO engaged Proximity to perform a comprehensive review of the effectiveness of LD&P’s business operations over a threemonth period. Our report provided recommendations to support the achievement of operational excellence and efficiencies to assist LD&P to move ‘from good to great’.

›› resolving disputes early and efficiently; and ›› driving policy and legislation change to address systemic and emerging tax risks and issues.

Particularly important to the review was bringing ATO staff along on the journey – a challenge which is common in a review of this nature. With support from a dedicated project team in the ATO, Proximity ensured continued active engagement through the participation of a variety of stakeholders and through various stakeholder engagement methodologies, by travelling to other capital cities and through project governance that ensured the project team and executive were always informed of our next steps as early as possible.

Proximity showcased our collaborative and evidence-based approach to deliver the review, by basing all recommendations on quantitative and qualitative data collected and analysed using the following methods: ›› an executive ‘Red Wine Test’ to determine the strategic vision and implementable roadmap of the LD&P Executive;

THE PULSE EDITION THREE

›› interviews with key internal and external stakeholders (32 interviews); ›› focus groups with a sample of LD&P staff (9 focus groups held, 121 attendees from 16 locations); ›› written survey distributed to all LD&P staff (296 responses received); and ›› process mapping workshops (19 half-day workshops).

Proximity’s report and recommendations have been accepted by the ATO, and implementation is currently underway with Proximity as a trusted advisor, providing subject matter expertise and guidance.

The recommendations provide the ATO with the opportunity to: ›› engage with its partners in a more effective manner; ›› provide a higher and more consistent level of service to taxpayers and internal clients; ›› optimise current and future business processes to increase efficiency, while increasing client service levels and satisfaction; and ›› ensure sustainable and continuous improvement over its business processes.

9

legal hub

AUTOMATED DECISIONMAKING: BOON OR CURSE?

BY ROBIN CREYKE, EXPERT CONSULTANT Use of automated systems – applying for jobs, completing tax returns, ordering tickets – is widespread, particularly by government agencies. For information gathering and routine administrative functions, there are undoubted benefits. But when decisions are made by an automated or expert system, there are lurking administrative law dangers.

Traditionally decision-making has been undertaken by humans. Challenging decisions by government is predicated on that belief. Our administrative law institutions are also built on that expectation.

These expectations need adaptation to navigate the artificial intelligence (AI) landscape.

RISKS Algorithmic systems: ›› do not easily translate complex legislation or principles from cases; ›› may not be programmed to include rules from different parts of an Act, generic legislation (e.g. interpretation Acts, FOI Acts, or competition laws), or capture courts/tribunals interpretation of legislation; ›› may fail to take account of unwritten common law such as statutory presumptions, or context such as beneficial intent; and ›› the business rules may unlawfully fetter discretionary powers.

RISKS MAY TRIGGER ADMINISTRATIVE LAW GROUNDS Issues which have arisen include: ›› Is it a ‘decision’ if not made by Secretary/delegate/ agent: ‘black box problem’? ›› Has there been a breach of procedural fairness if there is no explicit mental engagement by the decision-maker, or if the citizen is not given an opportunity to explain discrepancies (e.g. Robodebt). ›› Has the system identified the correct question?

Applied the correct principle of law? Unnecessarily fettered a discretionary power to comply with policy?

Breached reasons requirements?

STRATEGIES TO MITIGATE RISKS Ways to avoid adverse consequences are listed in the ARC’s Automated Assistance in Administrative Decision Making: Better Practice Guide (2007).

The guide recommends: ›› expert systems should not automate the exercise of discretion; ›› pre-testing of systems on users; ›› ensure provisions in agency specific legislation deem decisions by expert systems to be lawful; ›› teams designing expert systems should comprise those with expertise in systems, as well as legal and policy experience; ›› train officers to explain automated decisions and to make decisions manually when systems malfunction; ›› regular system reviews and updates, periodic maintenance; ›› build in reasons provisions; ›› ensure systems are FOI/Privacy-compliant; and ›› Is it legible? (EU General Data Protection Regulation).

OUTCOME? Following these tips will protect the system against administrative law challenges and ensure the advantages of the automated system as a useful tool of government are realised.

THE PULSE EDITION THREE

10

food for thought

DINING OUT ON AN INCREDIBLE CAREER OF SERVICE For our latest Food for Thought dinner event, Proximity was privileged to welcome Ian McPhee AO PSM as our special guest.

After a decade serving as Australia’s Auditor-General (2005-2015), Ian is now the independent ACT Public Service Standards Commissioner.

Leading a wide-ranging discussion, Ian reflected on the strength and value of Australia’s democratic processes; how the APS has evolved during his time and the continuing challenges, the importance of getting relationships right at work (a recurring theme at our Food for Thought events), and the benefits of keeping advice and organisational values clear and comprehensible. This led to a discussion on how the quality of everything from performance management to the findings of audit reports are improved if the right people are consulted (preferably in person) as early as possible. How often do we forget to sit down and have that chat over a coffee?

Taking a cue from the obsessive list-making character Rob Gordon, played by John Cusack in High Fidelity, Ian reminded us of the importance of making a ‘top five’. Without necessarily recommending that we apply the top five approach to our personal life, as occurred in the movie, settle on five (or fewer) organisational values, goals or objectives. Similarly, distil five (or fewer) main points in a complex report. Take the same approach to identifying organisation functions and strengths, and generally try to avoid complexity.

The discussion ranged across a range of topics, but here are Ian’s top five: 1. Risk management in the digital age.

2. Relationships between coordinating and specialist departments.

3. The art of giving frank but polite advice.

4. The increasing responsibilities of public sector agency heads and what that means for the responsibility of the next layer down.

5. The benefits of an agency and auditor working together proactively during the audit process.

Guests, who included senior officials from the Commonwealth tackled big issues including: ›› How do we ensure the rigour that goes into initial procurement is retained? ›› How can we avoid the ‘nice to have’ add-ons’ adding to project risk? ›› How to strike the balance between an agency’s interest and the whole APS? While the answers may not be clear now, the overall message from Ian’s fascinating talk was that cautious optimism can be justified.

THE PULSE EDITION THREE

11

getting a start

PROXIMITY GRADUATE LAWYER PROGRAM

BY BILAL HUSSAIN, ADVISOR AND FORMER PROXIMITY GRADUATE

COMPLEX WORK Proximity’s graduates are trusted to take on challenging work and are exposed to some of Government’s largest and most complex projects and issues, including: ›› Assisting the Royal Commission into the Protection and Detention of Children in the Northern Territory in preparing its final report. ›› Advising the Department of Defence on contracts worth over $1 billion. ›› Advising on major infrastructure projects. ›› Advising on amendments to corporate crimes legislation. ›› Assisting in the ATO Law Design and Practice Group Review. ›› Practice Group Review.

PRO BONO Proximity’s Graduate Lawyer Program is a 12-month program designed to give selected law graduates the opportunity to apply their studies in practice.

In early 2020, we are excited to be welcoming two new grads to our team, Radhika Bhatia and Aurora Crain.

Our law graduates gain skills and experience across a broad range of government legal practice areas including: ›› Public Law and General Advice; ›› Commercial Law; ›› Employment and Industrial Relations; ›› Litigation and Dispute Resolution; and

Our graduates provide services to Proximity’s clients using all of Proximity’s service delivery modes: ›› secondments; ›› advisory; ›› product development; and ›› consultancy.

They gain experience in: ›› non-legal service areas, including commercial advisory services; and ›› legal business management, including marketing and business administration.

Our graduates complete their Legal Practice Certificate while working in a high performing, innovative and supportive law firm environment.

›› Regulatory and Enforcement.

THE PULSE EDITION THREE

Our graduates also have the opportunity to undertake pro bono work with a number of Proximity’s pro bono partners. In the past our graduates have been exposed to a range of legal issues, including commercial and consumer matters, children’s rights and assisting community legal centres.

MORE INFORMATION For more information visit our website www.proximity.com.au and our Fit Finder www.proximity.com.au/careers

PROXIMITY’S BILAL HUSSAN SPEAKING TO STUDENTS AT THE 2019 CANBERRA LAW STUDENTS’ SOCIETY LAW AND JUSTICE CAREER FAIR.

12

staff profile

TWO MINUTES WITH...

Each edition, we profile a staff member who is an integral part of the Proximity story. Today we meet, Principal Advisor, Bronwyn Fagan.

Tell us how you came to join the Proximity team?

What is your proudest moment (in a professional context)?

What advice do you give to someone starting out in a career?

I’ve been observing the business that Sean and James have created for many years, and have always been very impressed. The time was finally right for me to join at the beginning of 2018, and I have loved it.

Being able to show my two young daughters what I do in my various roles – at Proximity and on charitable, sporting and community boards, and in the media. I love to be able to share my experiences with them and let them see the rewards that hard work can bring.

Nothing is a mistake – you will learn from everything you do.

Keep moving onwards, keep observing and learning, and always do your best; and then the results and satisfaction will come.

What is the best advice you’ve ever been given?

Keep it simple! My fabulous uncle Barrie Webb gave me that piece of advice when I was quite young. People often feel the need to overcomplicate advice or processes in order to justify their involvement. Keeping things as simple as possible is the way to go in my view.

What is the best thing about working in the national capital?

We have so many opportunities to see and do things right here in Canberra. It’s also an easy place to travel from so getting to the coast, snow, interstate or overseas is not difficult. There is so much diversity right here, and we have a generous and caring community that always seems to get behind good causes.

I also love that Canberra has four clear seasons.

THE PULSE EDITION THREE

If you had your time again what would you have done differently?

Nothing – you can always learn from experiences, develop resilience and meet new people, regardless of how good or bad the experience is.

What keeps you awake at night?

Ideas and unfinished work!

13

in review

2018-19 IN REVIEW It has been an incredibly busy year at Proximity with staff numbers increasing by 30 per cent to the end of the financial year.

This growth came both in our service delivery and business support teams. While Canberra remains our home base, we have enjoyed growth in our Melbourne based team and additional work coming from Adelaide.

While continuing to strengthen our relationship with significant clients such as Defence, ATO, DHS, Home Affairs, Agriculture and Industry, we have been privileged to work with a number of new clients, including Airservices, Austrade, DVA, Environment, Defence Community Organisation and Primary Health Networks.

This past 12 months we received close to 200 tender requests.

We bid for approximately 150 of them with a phenomenal strike rate of more than 60 per cent. One of the biggest changes this year has been the growth in our non-legal work with the split of legal to non-legal work now close to 50/50.

With an eye to the future, what does success look like for you?

A happy client. Given we are in the service industry, it’s always a good thing when our client is happy and comes back for repeat business, or refers a friend or client to us!

A good reputation says it all.

Away from work, what is your passion?

My two daughters, my horse Sun Bear and of course, the Canberra Raiders! Giving back to the community, mentoring young professionals, and showing my girls how rewarding it can be to give your time and help people.

We were pleased to enter into a teaming agreement with national law firm Hall & Wilcox, which offers an integrated approach to legal solutions, and is already delivering great value to clients.

New initiatives to help connect more with clients have included a CPD program delivered at client sites, a breakfast seminar series at the Proximity Office, Food for Thought leadership dinners, our first high-profile marketing campaign and being the only law firm with an innovation booth at the Public Sector Innovation Show.

Our Proximity Advisory Board has been bolstered with the addition of two new members: Kerrie-Anne Luscombe and Andrew Cappie-Wood, who bring to Proximity an incredible breadth of experience, particularly in very senior public sector roles in both Commonwealth and State Government.

We remain committed to being a model corporate citizen, and to that end, we significantly exceed the annual pro bono target in 2018-19 averaging 55.98 hours per lawyer, including commencing a new pro bono relationship with The Farm in Galong (which supports women who have completed rehabilitation from alcohol and other drug misuse and wish to consolidate their recovery).

We also continued our sponsorship of the Proximity Canberra Triathlon Festival, which attracts many hundreds of entrants every summer in Canberra.

We are looking to build on what was a very successful 12 months, and very excited and optimistic about what the future holds, including further growth in our legal advisory practice and nonlegal consulting practice.

THE PULSE EDITION THREE

14

technology

FEET ON THE GROUND AND HEAD IN THE CLOUDS EIGHT KEY CONTRACT TERMS TO REDUCE RISK IN CLOUD CONTRACTS There are many potential benefits of the cloud model including: ›› Device and location independence – users can access from anywhere. ›› On-demand self-service – users can unilaterally obtain and deploy resources. ›› Scalability and elasticity – no need for users to engineer for peak loads. ›› Cost – reduced cost of acquisition and ownership.

BY JAMES DUNN, DIRECTOR

Cloud computing can also bring risks including: ›› Data security - giving supplier control over security.

Cloud computing is essentially access over the internet to business software or user data stored on servers at a remote location or locations. Although not a new concept, cloud computing is still a relatively unfamiliar and complex area of ICT that many people find challenging.

›› Privacy - ensuring personal information is not accessed without authority. ›› FOI and archives – ensuring access to data for FOI and archives compliance. ›› Data ownership and access – customer needs to own and access data when needed.

Although some procurement advisors might secretly hope cloud computing goes the same way as the dinosaurs, the substantial benefits it offers means it is here to stay, and procurement and legal advisors need to try and help their clients manage the risks. Some examples of terms that reduce risk are: 1. Responsibility for services – clearly allocate responsibility for the services between the customer and the supplier.

2. Data location, access and ownership – make it clear where the data can be stored, from where and by whom it can be accessed, and that the customer always owns the data.

THE PULSE EDITION THREE

15

life at the office

3. Data privacy and protection – ensure the supplier has to comply with relevant privacy laws, and be aware of the European Union’s General Data Protection Regime (GDPR). Ensure the supplier has to protect customer data from unauthorised access by a third party (including its other customers), comply with the customer’s security requirements (including security accreditation requirements), and follow a clear process for data return.

Supporting our own

4. Business continuity and disaster recovery – include clauses covering data loss, corruption and back-ups and requiring the supplier to develop and maintain a detailed and robust business continuity and disaster recovery plan (and ensure the supplier can’t rely on force majeure provisions unless all business continuity and disaster recovery obligations have been complied with).

5. Flexibility and scalability – ensure the customer can easily ramp up/ramp down its use of the service based on pre-agreed pricing and within reasonable time periods.

6. Performance requirements – ensure there are performance standards for critical service requirements, including availability/uptime, response and processing time for key functions, security, data access and portability, and customer support response and resolution times.

7. Supplier suspension and termination – ensure any right for the supplier to terminate for late payment only occurs if payment is 60+ days late, and two late notices are received from the supplier.

Also ensure the supplier can’t suspend services if there is a dispute under the contract.

8. Liability and indemnities – try not to have force majeure provisions and any exclusions to the supplier’s liability should be specifically listed (e.g. loss of profit). Make sure any limit on liability doesn’t apply to IP infringement, breaches of privacy, confidentiality, security or data loss and ensure you get an indemnity for third party IP infringement claims against the customer.

When our office manager, Liz Pickworth was diagnosed with an extremely rare grade four cancer our team rallied to support her with a major fundraising drive. Liz has undergone a marathon 18-hour operation and thankfully she is now at home recovering.

Through a Go Fund Me campaign and a very successful trivia night we have been able to raise more than $67,000 which has helped Liz and her family get their life back on track. We hope to welcome Liz back to work in September and we thank everyone who has generously supported this campaign.

The team at Proximity has significant experience assisting government sector clients procure cloud services.

To learn more about how we can assist you, contact us on enquiries@proximity.com.au or 1800 959 885

THE PULSE EDITION THREE

16

sound advice

IS IT A PROCUREMENT OR A GRANT?

BY DAVID SMITH, SPECIAL ADVISOR The CPRs (2.7, 2.9), the CGRGs The most common (2.3, 2.6) and RMG 411 provide types of arrangements detailed guidance on this issue. that agencies enter with THE BASIC DIFFERENCE other organisations A procurement is an agency are procurements and acquiring (typically buying) goods or services to meet a need grants. This guide will the agency has. A procurement contract is usually a commercial help you determine deal with a business enterprise. what your arrangement A grant is an arrangement (typically should be. a legally binding agreement) for

an agency to provide financial assistance to another party, which is intended to help address one or more Australian Government policy outcomes, and also help the grantee achieve its objectives. See CGRG 2.3.

THE PULSE EDITION THREE

HOW TO TELL THEM APART The assessment is case by case.

The table (right) includes typical features that tend to indicate one or the other.

Some features are usually consistent between the two.

In both procurements and grants: ›› the agreement is usually legally binding; and ›› the agreement can extend over more than one financial year (subject to financial approval).

The team at Proximity has significant experience assisting government sector clients with both procurement and grants.

To learn more about how we can assist you, contact us on enquiries@proximity.com.au or 1800 959 885.

17

1. Purpose

Procurement

Grant

The agency buys goods or services to meet a need it has.

To provide financial assistance to the recipient, for the recipient to undertake activities.

The activities help the recipient meet their objectives, and also help the agency achieve a policy outcome.

2. Outputs

Goods or services, including specified Usually activities, not specific deliverables, for the agency’s future use. deliverables.

3. Beneficiaries

The direct beneficiary of the goods or services provided is the agency.

4. Recipient of money

The recipient is usually a private sector The recipient could be a private for-profit business. sector business, another government organisation or a third sector (not-forprofit) organisation.

5. Profit

The agreement is a commercial deal, so the amount paid includes a profit margin.

The amount paid is intended to meet the partial or full costs of the recipient, but not include a profit margin.

6. Timing

The transaction usually occurs once.

Some grants are one-off. However, the grant opportunity may be open continuously or in application rounds.

7. Payment structure

The agreement usually has specified payments based on achieving specified milestones.

The agreement often requires the recipient to follow a budget.

It usually does not matter whether those payments represent the cost of achieving the particular milestone.

The beneficiaries of the activities are the recipient, and a broader group (e.g. an industry or community sector).

Payments are often periodic, and usually intended to contribute to the recipient’s general running costs, or pay for specific activities.

8. Reporting requirements

Usually less extensive than for a grant. Usually more extensive than for a procurement, to show the agency that the funds have been spent properly on the activities.

9. Supplier public acknowledgement of funds

Usually no requirement.

THE PULSE EDITION THREE

Usually the grantee is required to acknowledge the agency funding in specified ways.

18

overview

INFORMATION LAW AND POLICY THINGS ARE MOVING!

BY DAVID SMITH, SPECIAL ADVISOR

INFORMATION POLICY As the graphic opposite shows, The Office of the Australian Information Commissioner Australian information law is not (OAIC) does its best to bring this together, but the a coherent scheme. It’s a mix of open government approach of Australian Government information policy has out-run the law. The OAIC’s statutes (mostly from the preprinciples on open public sector information include: Internet age) with gaps filled by ›› default open access, as a valuable national economic and social resource; old common law, full of overlaps ›› ensuring information can be easily discovered, and policy tensions. FOI for used and enhanced; and example, wants information to ›› clear reuse rights (default Creative Commons be free (apologies to Stewart BY licence).

Brand), but privacy, secrecy and PUBLIC DATA confidentiality laws keep it hidden. Since the 2015 Public Data Policy Statement, the Government (led by Prime Minister and Cabinet and Australian Bureau of Statistics (ABS)) has moved fast. The 2018 Government response to the Productivity Commission Inquiry into Data Availability and Use includes a proposed Data Sharing and Release Act (DSR Act), to streamline process and improve returns from public sector data through a paradigm shift – from restricting access to identifiable data, to authorising release with safeguards.

This would be the biggest information law reform since the Privacy Act extension to the private sector in 2000, and allow the override of secrecy provisions. The very different secrecy law reforms recommended by the Australian Law Reform Commission in 2010 have clearly been shelved.

THE PULSE EDITION THREE

19

Some personal info is also confidential, and exempt from FOI

APP 1 privacy policy requirement is an accountability/openness mechanism, as is FOI

FOI Confidential info is exempt under FOI

Personal info is exempt under FOI Access to own personal info can be had under FOI of APP 12 Amendment/annotation/correction of own personal info can be done under FOI or APP 13

COMMON LAW CONFIDENTIALITY

PRIVACY

Some info is protected by all 4 regimes

SECRECY

Some secrecy provisions protect confidential info Some secrecy provisions (but not all) are FOI exemptions

Some personal info is protected by secrecy provisions and is FOI exempt A secrecy provision can be authorised by law for Privacy Act Some secrecy provisions protect personal information

The Data Sharing Principles, aka the “5 safes”, are: 1. Project – data is shared for an appropriate purpose that delivers a public benefit.

2. People – the user has appropriate authority to access the data.

3. Settings – the environment in which the data is shared minimises risks of unauthorised use or disclosure.

4. Data – appropriate and proportionate protections are applied to the data.

5. Output – the output of the data sharing is appropriately safeguarded before further sharing or release.

This will be managed by the new Office of the National Data Commissioner and OAIC. But ABS and Australian Institute of Health and Welfare are already producing integrated de-identified datasets, through the Data Integration Partnership for Australia.

OPEN AND SHUT? Looks like a new era for government data (about other people, organisations and things).

Policy deliberations (what government is thinking) will stay close – government isn’t going Free Culture or open source!

For help with privacy, IP or data governance, so you can board this data train, contact us on enquiries@proximity.com.au or 1800 959 885.

THE PULSE EDITION THREE

20

diversity

PROXIMITY IN BALANCE

BY SU-ANN TAN BURKE, SENIOR ADVISOR

Here’s a snapshot of who we are and how we value and foster diversity: ›› Our team includes those who actively juggle roles as parents, carers or students. We offer flexible working arrangements to allow individuals to opt for meaningful part-time work or, where needed, work outside of the traditional ‘9 to 5’. This allows our staff, irrespective of gender or age, to fulfil other life commitments. Many of our staff manage professional and family commitments such as school drop-offs and pick-ups. This includes Proximity’s co-founders, James and Sean, who lead by example.

Proximity is strongly committed to supporting diversity and it employs a talented group of individuals who come from a wide range of backgrounds.

›› Over the years we have developed a reputation as an employer that genuinely promotes and supports gender equality. Proximity has maintained its staff gender balance over the past five years – check out how we’ve been tracking below. Notably, we have more women than men in senior roles: 26 women and 20 men.1

PROXIMITY OFFICE MANAGER, ANA MAKA AND ADVISOR, JASON RILEY

THE PULSE EDITION THREE

21

community

›› We have an open and non-discriminatory approach to recruitment and are committed to providing equal employment opportunities for Indigenous Australians and people with disabilities. ›› We embrace diversity in our workforce and support constructive differences in voice and opinion. We use this to generate fresh ideas and see things from multiple perspectives. Our staff are not only culturally diverse (with many speaking more than one language) but also diverse in their career and life experience. We value the decades of experience and knowledge that our most senior staff offer, as well as the future orientation and energy of our early career professionals. ›› As a group, we’re a truly mixed bag. We have the expected – former General Counsel and in-house lawyers – as well as the unexpected – ex-Olympians, chefs, jazz singers and television reporters and script writers. Our staff also combine their work with their other passions including volunteering, the performing arts, music, radio broadcasting, and endurance and competitive sport.

80s Menslink fundraiser The Proximity team are proud supporters of Menslink and we certainly looked the part for the 80s-themed fundraiser, raising money to support the important programs supporting boys and young men in the Canberra region. menslink.org.au

You’ll never have a dry conversation with Proximity. Our people are bound to have something in common with you.

GENDER BREAKDOWN (ALL STAFF)

44%

56%

2015 Women 1

48%

52%

2016

46%

54%

2017

49%

51%

2018

48%

52%

2019

Men

t July 2019, Proximity has 26 women and 20 men respectively in senior roles comprising A Senior Advisors, Special Advisors, Expert Consultants, Principal Advisors and Senior Operations Managers, including having five women and four men at the Partner or Executive Management level.

THE PULSE EDITION THREE

Harmony Day Proximity staff dressed in orange and feasted on a multicultural lunch for Harmony Day to show our support for cultural diversity and a more inclusive Australia.

22

community

Charity bike ride We are very proud to be supporting our Principal Advisor, Tara Munro-Mobbs, who in January will travel to Thailand for an epic fundraising adventure.

With her friends, Lyn Murphy and Valerie Kirk, Tara will ride 800km in eight days in support of the Hands Across The Water charity, which is supporting children orphaned in the 2004 tsunami.

Proximity hosted a leadership fundraising breakfast with special guest, Hands Across The Water founder, Peter Baines OAM who is pictured with (from left) Valerie, Tara and Lyn.

Innovation Show Our team was out in force at the 2019 Public Sector Innovation Show at Canberra’s National Convention Centre, sharing information about Proximity’s award-winning service and innovative solutions for the public sector with the 800 delegates in attendance.

Billboard campaign They say it pays to advertise. We have certainly received great feedback about our recent high-profile marketing campaign.

Huge thanks to our photogenic advisors Su-Ann Tan Burke and Declan Norrie for being the ‘face’ of our campaign.

THE PULSE EDITION THREE

23

life at the office

Government Law Drinks More than 100 people attended the ACT Law Society’s Government Drinks event which included a spirited panel discussion on ‘How the role of in-house lawyers has changed – the good, the bad and what the future holds’.

The panellists were Alice Linacre, General Counsel from the

Department of Agriculture, Adrian D’Amico, Head Defence Legal from Department of Defence, facilitator Kerrie-Anne Luscombe, a Proximity Advisory Board member, and Lisa Keeling, Assistant Secretary Legal Division from the Department of Home Affairs.

(LEFT TO RIGHT) ALICE LINACRE, ADRIAN D’AMICO, KERRIE-ANNE LUSCOMBE AND LISA KEELING

Breakfast seminars We’ve had great a great response to our breakfast seminar series.

Pictured are Prof Robin Creyke, talking about the challenges Commonwealth agencies need to be aware of in relation to automated decision-making processes, and David Snell and Caitlin Morgan, speaking about delegations, appointments and authorisations.

NAIDOC Week Proximity is a strong supporter of Australia’s journey towards reconciliation and so was pleased to sponsor the recent NAIDOC Week lunch event hosted by the Women Lawyers Association of the ACT. Attendees heard from the ACT’s first Aboriginal judicial officer, Magistrate Louise Taylor, the former chair of the Women’s Legal Centre ACT and the ACT Ministerial Advisory Council on Women.

MAGISTRATE TAYLOR (CENTRE) IS PICTURED WITH MEMBERS OF THE PROXIMITY TEAM AT THE NAIDOC WEEK LUNCH.

THE PULSE EDITION THREE

PROXIMITY ON A PAGE It’s not easy to capture the breadth of what we do, and how we do it, but kudos to our design team on this effort.

VALUES GENUINE

IVE AT V NO IN E SIT N O

Corporate & Commercial

HE LP FU L

DELIVERY ADVISORY

PRO DU CT S SO LU T I ONS

Organisational Governance Probity

CO

Legal Support Services

GOV

ESS

SIN

BU R

Y

Litigation & Dispute Resolution

ND LA A LEGA

Property & Environment

LE GAL

Workplace & Industrial Relations

ERNANCE

Public Law

MM

E R CIA L A D

COM

O VI S

M E R CIAL

Procurement & Contracting

Procurement-as -a-service Optix™

Work Health and Safety Reviews, Investigations & Assurance

Program Evaluation & Benefits Realisation

Project Control & Cost Modelling

Business Cases & Feasibility Studies

Process Improvement