Proximity: The Pulse | Edition Seven

EDITION SEVEN

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

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A message from Director Sean King of our talented team in Melbourne, one of very few businesses to experience an upward trajectory in our southern capital during this incredibly disruptive year.

We also introduce our new Principal Advisor, Kerri Hartland, whose timely article focuses on decision-making in an uncertain environment. The year 2020 has certainly been that.

As we approach the end of a year none of us will ever forget, Proximity sends its heartfelt thanks and gratitude to our valued clients who were on the front-line, working on important decisions that impacted our communities.

It is rare that governments get plaudits for handling an emergency (or multiple emergencies as is the case in 2020) but on the whole, Australian governments (federal, state and territory) and the public service have done a great job in trying circumstances. We can be thankful for the strong democracy and democratic institutions that enabled a response that would be the envy of many overseas.

Last month, Treasurer Josh Frydenberg, described his recordbreaking budget as being all about ‘jobs, jobs, jobs’. We feel privileged at Proximity to have come through COVID-19 in a strong position to do our bit to support the Federal Government’s drive to ‘build back better’ from the pandemic. To that end, we are recruiting right now for a range of specialist roles across our consulting, legal and commercial business streams. You’ll find out more about these vacancies on our website. In this edition of The Pulse we feature the continued growth THE PULSE EDITION SEVEN

In addition to welcoming Kerri, we’re also pleased to announce that Glenys Beauchamp has joined the Proximity team on a part-time basis. Glenys joins us from the Australian Public Service after 10 years at the Secretary level. Given her broad experience across a range of portfolios, Glenys will perform a varied role at Proximity, further increasing our multidisciplinary capabilities and team.

The recent budget zeroes in on big infrastructure projects and our Special Advisor, Geoff Smith, presents an excellent guide to assist those who will be planning for the multi-billion dollar projects about to be rolled out.

At Proximity we have a big commitment to the wellbeing of our staff, inside and outside of work. Mentoring is a key element of that and in this edition, Su-Ann Tan Burke (one of our most committed mentors) steps us through the ins and outs of modern mentoring.

As the year draws to a close, can I wish you all a safe and happy holiday season. Without a doubt everyone has earned the right to take time out to recharge their batteries.

Sean King Director, Proximity

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consulting hub

DECISION MAKING IN AN UNCERTAIN ENVIRONMENT

BY KERRI HARTLAND PRINCIPAL ADVISOR

Having returned to the private sector after almost 30 years in the public sector, the differences in risk appetite, ambiguity and independence are marked.

Decision making can be tough in the public sector with a need not only to ensure value for taxpayer money but also because of an aversion to getting things wrong for fear of reputational and political risk and repercussions. This inevitably has an impact on the way you work. So how do you try to bring certainty into the uncertain environment?

HERE ARE MY TOP 10 TIPS TO HELP BRING CERTAINTY, IN AN UNCERTAIN ENVIRONMENT. 1. Know your legal parameters So often in the APS I found people who had no idea of the legislative base in which they worked.

Government exists to provide the rules and governance under which we operate, it’s our friend in guiding what we can and can’t do.

2. Be clear on expectations Ensure that your manager has clearly articulated what you are there to do and why. This of course, will change, but sitting down on day one and getting a clear understanding of your manager’s expectations will provide some certainty.

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3. Open communication This is important across the board, with staff, managers, and where applicable, ministerial office staff. The ‘no surprises policy’ is important and it helps everyone to understand context.

4. Develop trust Developing a relationship takes time and sometimes you may not have the luxury of time. Learning about the people you work with and work to (not just their work habits) will help you have transparent conversations and develop trust. While it may not always create greater certainty, developing trust does help with ensuring everyone is on the same page and has the same outcomes in mind.

7. Remember that people adopt and adapt to change differently People respond to change in different ways over different timeframes and sometimes not at all.

Whether you are an innovator, pragmatist, or traditionalist, know how you and others around you respond to change. Be respectful of it and work through the strategies you need to make the change happen.

8. Partnerships are all important Partnerships are key in making uncertainty work.

Rarely can things be done without others. At a minimum, having others to bounce ideas off will result in a better outcome.

9. Know your experts and your expertise

5. Be flexible A good idea one day, may not be a good idea the next. You won’t always know the full picture of why a decision is being made, but once it is, as a public servant you need to deliver on that idea rather than re-prosecuting. There’s a time for debate and putting forward the good evidence but then once decided, that time has passed.

6. Know your role You are highly likely to have to implement things in your career that you don’t consider good policy. As above, if you have provided the good advice and evidence and it is well documented, but a different route has been agreed, then so be it. I’ve been in a few situations where public servants have decided that they can’t implement a policy – most notably a situation where ethical issues of embryonic stem cell research were being considered. Having some ethical frameworks to understand and put some certainty around decision making is helpful.

You don’t have to be the expert in everything, just be aware of the areas in which your knowledge is deep. There’s an art in knowing how much information to carry in your head and how much you can rely on others to know. Seek out expertise where you don’t have it and remember that if you can’t add value to the conversation then you aren’t needed.

10. Make the hard calls on uncertain situations When you are in leadership positions, you are being paid to make the hard calls, whether that be staffing, policy or delivery. Nothing destroys morale more than those who are hesitant or won’t act - especially on staffing issues!

Enjoyed this article?

Listen to our recent podcast with Kerri Hartland, where we discuss everything from change management to COVID-19, national security to duck risotto!

Visit our website proximity.com.au/latest to listen-in now.

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consulting hub

FACILITATING QUALITY PROJECT OUTCOMES When pressure from the external and internal environments triggers change, projects are inevitably initiated. A facilitated approach throughout the project lifecycle can drive quality outputs and, in the process, prevent many of the pit falls associated with a lack of stakeholder engagement and communication.

For the best cost/benefit trade off, look at facilitated sessions when the project:

BY ELIZABETH REARDON SENIOR ADVISOR

Learn how through careful planning and clear and continuous communication you can avoid project failure and ultimately set your project and your organisation up for success.

is tied to a critical timeline

is one of the organisation’s top ten strategic initiatives

is greenfIeld

is making another attempt at a previously unsuccessful effort

requires input from experts whose availability is limited

will result in changes that require broad socialisation or group consensus

where there is scope creep or difficulty gaining clearly defined requirements

environment is geographically dispersed

effort crosses multiple lines of business

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When facilitating in the project environment, keep in mind: › The facilitator is an enabler, they do not steer the team or determine business direction › If it is necessary to be both project manager and facilitator, be clear about what function is being performed when and be aware of the intervening effects on the group › Pay attention and intercede if a participant is overbearing and obstructing the free flow of the group

› It is important to have stakeholders who will challenge ideas and not be afraid to pour cold water (respectfully) on an executive’s latest pet project, particularly in the earlier work sessions when feasibility of a project is being assessed › Be aware of stereotypes regarding resistance, sometimes it’s actually a constructive counterbalance to an irrational proposed change

Want more on how to facilitate quality project outcomes? Head to our website now to read, Elizabeth’s Insight article on this exact topic!

The Insight article takes a closer look at the facilitated project approach, and provides a detailed step-bystep guide for how to run a project workshop session.

› Assist groups to identify any groupthink behaviour, accept it and take steps to avert it › It is perfectly reasonable to hold interview sessions with individuals rather than hold a big group workshop especially where there have been contentious issues

We thrive when working on complex projects.

Need help getting your projects across the line?

Contact us on enquiries@proximity.com.au or 1800 959 885.

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legal hub

OPPORTUNITIES FOR LAWYERS IN THE DISRUPTION OF THE LEGAL INDUSTRY

BY INGRID BREMERS SENIOR ADVISOR

Paperless office.

Electronic Discovery.

Time tracking.

Blockchain.

E-conveyancing. Chat bots. X-aas (anything as-a-service). A law firm without lawyers?1

The impact of legal technology and artificial intelligence (AI) is likely to cut across many disciplines in the profession. These emerging legal tools and innovations also provide a glimpse into how the legal industry may change, and what it may mean to be a lawyer in the future. While disruption can be challenging, what if lawyers were well-positioned to take advantage of the opportunities of the future workplace?

During their careers, lawyers develop a range of legal and non-legal skills, along with general managerial and practice management skills. There are also many new contexts in which lawyers can develop these skills.

For example:

The World Economic Forum, The Future of Jobs Report 2018,2 identified the top ten trending skills for 2022. Many of these skills are a core part of the legal skillset, including analytical thinking, critical thinking and analysis, and complex problem-solving, as well as ‘soft skills’ such as leadership and emotional intelligence.

› Lawyers (particularly in-house lawyers) must exercise leadership and influence in setting an organisation’s culture and activities. This is not just from the perspective of what is legally permissible, but also acting as a ‘moral compass’4

The growing importance of nonlegal skills in the lawyer’s toolkit was echoed in the 2020 Association of Corporate Counsel Chief Legal Officer Survey.3 The survey noted that the Chief Legal Officer ‘has a multifaceted profile: lawyer and business leader’, and that they spend on average only one-third of their time providing legal advice.

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› Different project management methodologies are forcing lawyers to work differently and as part of multi-disciplinary teams

› Truly integrated multi-disciplinary practices are bringing together diverse and flexible teams from different backgrounds. Rather than being just ‘the lawyer’, lawyers can explore and provide input into commercial, strategic, technology and business questions

23% of the work of lawyers could be automated 5

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WORLD ECONOMIC FORUM, THE FUTURE OF JOBS REPORT 2018 Top ten trending skills for 2022 1. A nalytical thinking and innovation 2. A ctive learning and learning strategies It appears that not only is the legal industry changing, but also what it means to be a lawyer. It will be interesting to see if the introduction of greater legal technology and AI to the legal industry brings our humanness into sharper focus. It is our skills and experiences, our being so much more than ‘just a lawyer’, which may open up the greatest opportunities for lawyers in the future.

3. Creativity, originality and initiative

Did this article resonate with you? Please share your thoughts and feedback on what it means to be ‘more than a lawyer’ with Ingrid.Bremers@proximity.com.au.

9. Reasoning, problem-solving and ideation

4. Technology design and programming 5. Critical thinking and analysis 6. Complex problem-solving 7. L eadership and social influence 8. Emotional intelligence

10. Systems analysis and evaluation

1 Emma Ryan, ‘Law firm without lawyers opens its doors’, Lawyers Weekly (online), 14 November 2017, <https://www.lawyersweekly.com.au/sme-law/22256-law-firm-without-lawyers-opens-its-doors>

HUMAN VS AI CHALLENGES › Document review – in February 2018, LawGeex conducted a human versus AI challenge to review non-disclosure agreements (NDAs). AI tools finished with an average accuracy rate of 94%, compared with the human lawyers scoring an average of 85%. However, the real kicker is that the human lawyers took an average of 92 minutes to review the NDAs, whilst AI took just 26 seconds.6 › Claim prediction – in October 2017, CaseCruncher was given 776 payment protection insurance claims and had to predict whether the Financial Ombudsman would allow the claim.

CaseCruncher predicted the outcome with an accuracy rate of 86.6%, which compared with 62.3% for the 100 human lawyers7.

2 World Economic Forum, The Future of Jobs Report 2018 (2018), <http://www3.weforum.org/docs/ WEF_Future_of_Jobs_2018.pdf> (page 12) 3 Association of Corporation Counsel, 2020 ACC Chief Legal Officers Survey Key Findings (2020), <https://www.acc.com/sites/default/files/2020-01/ACC_CLOreport20_Flyer_Final_0.pdf> 4 Jerome Doraisamy, ‘What is the role of legal departments post-banking royal commission?’, Lawyers Weekly (online), 30 October 2018, <https://www.lawyersweekly.com.au/corporatecounsel/24354-what-is-the-role-of-legal-departments-post-banking-royal-commission> 5 McKinsey & Company, Australia’s automation opportunity: Reigniting productivity and inclusive income growth (March 2019), McKinsey & Company, <https://www.mckinsey.com/~/media/McKinsey/Featured%20 Insights/Future%20of%20Organizations/Australias%20automation%20opportunity%20Reigniting%20 productivity%20and%20inclusive%20income%20growth/Australia-automation-opportunity-vF.ashx> 6 LawGeex, Comparing the Performance of Artificial Intelligence to Human Lawyers in the Review of Standard Business Contracts (February 2018), LawGeex, <https://images.law.com/contrib/content/ uploads/documents/397/5408/lawgeex.pdf>. Also reported in 'LawGeex Hits 94% Accuracy in NDA Review vs 85% for Human Lawyers', Artificial Lawyer (online), 26 February 2018, <https://www.artificiallawyer. com/2018/02/26/lawgeex-hits-94-accuracy-in-nda-review-vs-85-for-human-lawyers/> 7 ‘Lawyer Challenge’, Case Crunch, <https://www.case-crunch.com/index.html#progress-bars3-o>

Interested in our multi-disciplinary teams?

Contact enquiries@proximity.com.au THE PULSE EDITION SEVEN

A version of this article first appeared in the ACT Law Society Journal Ethos Issue 256 Winter 2020

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legal hub

MAKING THE CALL FROM INSIDE THE HOUSE ETHICS AND THE IN-HOUSE COUNSEL

BY SARAH (EC) BYRNE PRINCIPAL ADVISOR

Knowing your ethical obligations in theory is all very well, of course – but how to handle these situations in practice? Here are some common scenarios in-house counsel face and some strategies to assist you – if you come across them too.

THE CLIENT IS PRESSURING YOU TO CHANGE YOUR ADVICE! First, you will be under less pressure to change advice if you frame it in terms of risk, rather than in absolutes.

So instead of telling the client not to proceed with the contract, for example, set out the (legal) risks they will carry if they do. Be aware that the client has other risks to consider, especially in government – so if the contract could be made more watertight, but at the risk of not delivering on a commitment from the Minister, it may be a risk your client is willing to take.

Ask the client what they consider to be wrong about the advice. If they can offer something, it may be that they have a point, and you can at least consider it.

If not, offer to get a second opinion.

Changing your advice because of the client’s insistence, rather than because you have reason to revise your opinion, will only damage you professionally in the long run. You will be the first person the client points to when things go wrong.

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A COLLEAGUE IS ASKING YOU TO GIVE THEM PERSONAL ADVICE! It’s very common for in-house counsel to be asked to give minor legal advice to colleagues. A frequent example is when one half of a couple needs a signature to say they have been independently advised in respect of a document their mutual solicitor has prepared. They’re confident they understand the law and don’t see why you can’t just sign the document for them rather than them have to spend several hundred more dollars on another lawyer.

The short answer to this is that your signature won’t satisfy the requirement. Your practising certificate as a government lawyer limits you to providing advice to government. Not only are you breaching it by purporting to have advised a private client, your client won’t actually have received the independent advice they need. And you’re up a very smelly and uninsured creek if things later go wrong for your client and they point at you. If you’re a government lawyer without a practising certificate, your situation is even more precarious. Witness the unfortunate example of Mr Kellahan1, an in-house lawyer who advised a friend even though his employee practising certificate authorised him only to work for his employer, and lost his ticket for three years.

I have a short list of options ready for my colleague after I’ve explained this to them. Community legal centres can be a good point of call for things like employment, criminal or domestic problems. If it’s a non-profit seeking assistance, the ACT Law Society Pro Bono clearing house might be the place to go, or organisations that provide subsidised assistance, such as the Arts-Law Centre.

If you’re feeling particularly helpful, you can help them formulate the questions to ask.

THE CLIENT WANTS ME TO WITNESS A DOCUMENT I DIDN’T SEE THEM SIGN! Yes, you’ve seen their signature before and you know that’s it, but who is it really harming, especially when that very senior and busy executive has already put their pawprint on 200 pages of attachments? I’d like to think your client

will be sympathetic to the explanation that this ethically considered a dishonesty breach and therefore professional misconduct, no matter how benign it may seem2. If not, you can appeal to self-interest by pointing out that if the validity of the document is ever challenged, it will be vulnerable, as will any decisions it purported to authorise.

YES, YES, I’VE TRIED ALL THAT BUT THE CLIENT’S STILL ANNOYED I WON’T DO WHAT THEY WANT. HOW DO I PROTECT MYSELF FROM CAREER RUIN? First, remind yourself that real career ruin is getting yourself struck off or otherwise limited from practice.

That’s not something you’ll readily bounce back from.

Next, take file notes. File notes have saved my substantial posterior on more than one occasion over the past 30 years. Email them to yourself so they’re (a) on the internal system, and (b) time stamped.

Third, work out how you can ethically disclose the situation you are in so that you will have some external verification if it comes down to it. Your boss is the first and most important place to go, but if you aren’t getting support there, other options are an ACTLS Senior Counsellor, and the APS Ethics Advisor.

Most in-house lawyers will find that these situations can be readily resolved and arise from well-meaning internal clients not understanding the parameters of legal professional ethics. A good pre-emptive approach may be to offer your clients guidance on what is and is not reasonable to ask (and why), by way of a service-level agreement or service charter.

1 Legal Services Commissioner v Kellahan [2012] QCAT 263 2 Legal Services Commissioner v Huggett [2017] NSWCATOD 67

A version of this article first appeared in the ACT Law Society Journal Ethos Issue 257 Spring 2020

Would you like to join an information session on how to work effectively with in-house lawyers?

Contact enquiries@proximity.com.au

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commercial hub

INDIGENOUS PROCUREMENT POLICY

BY ANDREW GIBSON SENIOR ADVISOR

Harness purchasing power to achieve real change for Indigenous Australians.

The Commonwealth Indigenous Procurement Policy was established in 2015 with the remit of increasing opportunities for Indigenous Australians to develop business and growing economic participation.

› The goods or services are being delivered in a remote area, and/or

The Indigenous Procurement Policy is constructed of three concepts:

The requirement to demonstrate value for money remains.

COMMONWEALTH AND PORTFOLIO TARGETS

MANDATORY MINIMUM INDIGENOUS PARTICIPATION REQUIREMENTS

While presenting the 2020 Closing the Gap Report, the Prime Minister announced a target of 3% of all Commonwealth procurement expenditure to be contracted to Indigenous owned providers by 2027. The 2020-21 target is for 1.25% of all Commonwealth procurement contracts to be awarded to Indigenous-owned businesses. The target will increase by 0.25% annually until 2027-28 when the 3% goal will be met.

MANDATORY SET-ASIDE Commonly referred to as MSA, the Mandatory set-aside requires the consideration of contracting with an Indigenous-owned business prior to any other contracting method, where:

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› The contract is valued between $80,000 and $200,000 and the goods or services are being wholly-delivered in Australia

The Mandatory Minimum Indigenous Participation Requirements, referred to as the MMRs, apply to all procurements that are valued over $7.5 million across 19 prescribed industries.

The MMRs require contracted organisations to implement a plan, under the contract to either: › Meet a contract-based target of 4% Indigenous employment and/ or supply chain, or › Meet an organisation-based target of 3% Indigenous employment and/or supply chain.

Under exemption 16 of the Commonwealth Procurement Rules (CPRs), procurement of goods and services from an SME with at least 50% Indigenous ownership, is exempt from Division 2 of the CPRs.

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WHY SHOULD YOU CONSIDER INDIGENOUS PROCUREMENT IN YOUR PROCUREMENT PLAN? › Procurement from Indigenous providers directly contributes to Australian industry participation › You are contributing to your agency’s Indigenous procurement targets › It can simplify your procurement approach and the resources required by applying exemption 16 or the MSA › Benefit to the wider Indigenous community through opportunities for employment To learn more about Indigenous businesses visit supplynation.org.au.

PROXIMITY TRIVIA

NAIDOC WEEK To coincide with the COVID delayed 2020 NAIDOC Week, our 10 question Trivia Corner this edition focuses on important events and dates for our First Peoples. Turn to page 21 for the answers – and no cheating!

1. What does the acronym NAIDOC stand for?

2. When did NAIDOC Week commence?

3. What significant event occurred in 1967 which changed the lives of Indigenous Australians forever?

4. In what year was the Department of Aboriginal Affairs first created?

5. When was the Aboriginal and Torres Strait Islander Commission (ATSIC) created and abandoned?

6. When and what is Mabo Day? 7. How many Indigenous people have been elected to the 10 Australian parliaments?

8. When was the Aboriginal flag created and what does it represent?

9. Who and when was the first Aboriginal Australian named Australian of the Year?

10. Who is the Aboriginal man featured on Australia’s $50 note which was first released in 1995?

Need help with your procurement plan?

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

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commercial hub

ROLLING WAVE PLANNING FOR COMMONWEALTH GOVERNMENT PROGRAMS Why use Rolling Wave Planning?

The Commonwealth Government is resolute in its efforts to… › Facilitate Australian industry capability by maturing Industry growth, developing collaborative relationships, and minimising government control while maximising government support › Stimulate the Australian economy through deriving economic benefits, developing export opportunities, and stimulating spending

BY GEOFF SMITH SPECIAL ADVISOR

› Deliver secure program outcomes

If you aren’t familiar with Rolling Wave planning, it’s the process of project planning in waves, where near term work effort is planned in detail and future work effort is planned at a high level. In short, it allows you to plan a project while the project is evolving.

Accordingly, complexities around procurement, program management, performance frameworks, and contract management must be simplified to enable the success of these endeavours How can Rolling Wave Planning help?

Rolling Wave represents an enabler to effective program performance management. It is employed in program planning as a staged or phased planning process aligned to the life cycle of a program. Rolling Wave program planning can provide greater flexibility, adaptability, and responsiveness throughout the program life cycle. It works best for programs with changing scope, research & development focus, high-tech, invention, and engineering programs.

Rolling Wave program planning is best utilised to assist benefits realisation tracking and early management implementation, enable early intervention and corrections, encourage adaptability and more robust planning, facilitate rapid project initiation and provide incentivisation.

Additionally, quick wins are evident and generate buy-in, stakeholder engagement is focused on stages or phases where they add the most value, and prioritisation and reprioritisation of resources are supported.

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Rolling Wave Award Terms

Key Commercial Principles

Rolling Wave can also be applied to the Award Term in a contract where ‘efficiency is rewarded by contract extensions, ensuring a longer rolling contractual and planning envelope’1 . Rolling Wave can be represented as the Initial Term2 of a contract plus multiple oneyear Award Terms (for example, Initial Term + 1 + 1 + 1 + 1 + 1). However, it is generally accepted in contract and program management that the Award Terms can be greater than 1 year. The Award Terms will be successively increasing in length (for example, Initial Term + 2 + 3) and, if they can be directly linked to the Performance Management Framework, will produce a greater incentive to contractor performance.

This reward or incentive methodology is based on progressively increasing the length of the contract term to Industry and is especially useful for larger infrastructure/capability projects.

A very important initial step in program and contract management is understanding the basis for the key commercial principles associated with the program and reasons for the use of Rolling Wave in the contract structuring options.

A common response to employing Rolling Wave award terms is ‘why not just award the Maximum Term of the contract so that Industry has surety over the entire life of the engagement and can, more efficiently and effectively, plan deliverables and cash flow?’… a good question. Government needs to monitor and incentivise performance, while maintaining some flexibility in its approach. Additionally, government will need to reduce the demand on data and reporting requirements that must be formally delivered by Industry, to ease the burden on industry. Best practice would be to move from a quantitative to a more qualitative performance measurement regime, with measurements based on constructive feedback derived from within the performance management framework. Government will need to focus on collaborative relationship management and building trust relationships. This will provide an added incentive to industry by reducing cost and performance reporting requirements during the execution of the contract.

› Program or project interface ensure a programmatic approach and methodologies are reflected in contract clauses and rules

› Performance and incentive framework where each contract entered should develop a Performance Framework with a suite of Strategic Performance Measures directly linked to Key Result Areas › Procurement to support implementation and innovation, ensuring alignment of procurement policies, clauses and rules › Incentivise parties to develop management and technical knowledge and skills, include incentives in contracts to develop individual skills, and optimise management and technical knowledge

› Inclusion of a Business Case to plan and demonstrate ongoing performance and optimisation of resources

1 “How Australia’s Department of Defence harnessed the power of the relationship”, IACCM Journal, 16 August 2018, Posted by Dr. Bruce McLennan, Director, Maritime Lifecycle Support, Australian Department of Defence.

2 MAXIMUM TERM = INITIAL TERM + AWARD TERMS

We thrive when working on complex projects.

Need help getting your projects across the line?

Contacts us on enquiries@proximity.com.au or 1800 959 885.

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commercial hub

PERFORMANCE BASED CONTRACTING

BY ELISA MEDDI ADVISOR AND ANDREW GIBSON SENIOR ADVISOR

OUR TOP TIPS When developing your PBC, we recommend the following: 1. Clearly define your scope of work prior to setting your PBC performance measures. This will allow you to identify what is measurable and define what success looks like.

TOP TIPS FOR PERFORMANCE BASED CONTRACTING What is Performance Based Contracting?

Performance Based Contracting (PBC) is an outcome oriented contracting method. The customerâ&#x20AC;&#x2122;s outcomes are achieved by contractually incentivising the contractor to deliver against them.

Commonly used in major construction and Defence projects throughout Australia, PBC is becoming increasingly popular across other Government agencies.

This methodology seeks to manage contractor performance and ensure Government objectives are met.

PBC can be beneficial for both the customer and contractor. It promotes innovation, collaboration and encourages contractors to find cost effective solutions, resulting in better value for money.

2. Invite various stakeholder groups to help design your performance measures. This may include engineers, technical advisors, logisticians, users, finance, and commercial teams.

3. Allow the contractor to have input into the final performance measures. Contractors will often bring new ideas to the table that can be favourable to both parties.

4. Establish specific and achievable performance measures that drive the outcomes most important to you. Specific measures create clear and shared objectives and achievable measures set your program up to succeed.

5. Ensure the outcomes are bound to performance indicators.

6. Include a range of incentives to drive performance, for example profit, contract term and opportunities for additional work.

7. Consider the work and cost of measuring each performance measure. The effort of measuring your performance measures should not outweigh the benefits.

8. Performance measures drive contractor focus and behaviour, so choose them wisely.

Need help with creating and managing a PBC? Contact enquiries@proximity.com.au or 1800 959 885

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news

WHAT’S NEW IN VICTORIA MEET OUR MELBOURNE TEAM As our work in Victoria continues to grow and the needs of clients and staff increase, so too has the Proximity team! We are very pleased to introduce the new look VIC team, which includes some stellar additions!

Su-Ann Tan Burke Special Advisor Su-Ann joined Proximity in 2017 to launch our Victorian operations.

She brings significant legal and commercial experience from both private and public sectors. Her inhouse experience includes working at Toyota/Lexus Australia, Cadbury, Department of Defence and the Grains Research & Development Corporation. Su-Ann speaks Mandarin and Cantonese, and basic Japanese!

Dougal Pidgeon Senior Advisor Dougal recently joined the Proximity team as a Senior Advisor. He brings project management and procurement skills, with extensive experience in the Department of Defence, State Government, and in Defence industry. In his free-time, Dougal enjoys walking his dog around the green hills of the Yarra Ranges.

James Lavery Principal Advisor

Elisa Meddi Advisor

James is an experienced government management consultant and lawyer specialising in public, commercial and government law. His role is to focus on developing Proximity’s Victorian team. James is a lapsed golfer (having once played off a single figure handicap in his youth), but still tees off for the occasional round.

Elisa started with us in July in our commercial and consulting team.

Elisa has experience in program management, communications and stakeholder engagement. She shares a love of languages and majored in both French and Italian at the University of Melbourne. She is currently enrolled in Portuguese classes in the hope to continue her travels overseas (when possible).

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APPOINTED TO THE VICTORIAN PROFESSIONAL ADVISORY SERVICES PANEL Proximity has been successful in bidding to be part of the Victorian Professional Advisory Services (PAS) Panel. The PAS Panel is the main vehicle used by Victorian Government departments and agencies to procure consulting and advisory services.

Proximity was successful in being appointed to every category we applied for – those are: › Strategic Policy Review and Reform Project Development › Business Case Preparation and Development › Market Engagement and Implementation › Commercial Contract Management › Project, Program, Business Review, Evaluation, Assurance › Economic Advisory Services › General Commercial Advice › Financial Adhoc Specialised Assessment › Probity Advisory Services › Probity Auditing Services This is a huge step forward for Proximity and our Melbourne team.

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training

REIMAGINING MENTORING

BY SU-ANN TAN BURKE SPECIAL ADVISOR

The reasons why mentoring sometimes fails to meet expectations may have less to do with the individuals, but the approach taken. Here are my top tips on modern mentoring!

Have you ever participated in rigid or time-consuming mentoring programs that failed to spark excitement or achieve the hopedfor outcomes? The reasons why mentoring sometimes fails is often due to the approach taken. While mentoring isn’t a new concept, the communication channels available today offer vastly greater options to develop breadth and depth of capability within your team, organisation or industry.

TOP TIPS FOR MODERN MENTORING: 1. Know your ‘why’ and each others’ ‘why’ Mentoring shouldn’t be done for the sake of mentoring. Mentors and mentees both need clear aims and commitment to the relationship.

Both should state their aims and understand each other’s aims.

A mentor’s aim could be to help the mentee see the ‘bigger picture’ and work out what steps they should take to reach their career goals. A mentee’s aim could be to connect with a wider network of people and tap into the life experience of the mentor. But given that learnings can flow both ways, both mentor and mentee should adopt mindsets of learner and teacher.

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2. Agree on how to communicate This includes how often, in what way and whether mentoring conversations are confidential.

Mentoring need not be faceto-face or one-on-one. Apps such as Microsoft Teams or GovTEAMS (for Government entities) enable not only audio and video conferencing but group chats between multiple participants. This turns one-on-one communication into a one-tomany opportunity, if preferred by participants. Group or messaging chats can also help moderate and balance extroverted and introverted voices by allowing simultaneous communication. Rather than hope and wait for extroverted ‘talkers’ to stop talking (potentially at length), more introverted or verbally reserved participants can contribute ideas in a group chat at any time.

3. Participant driven Like any relationship, the success of a mentoring arrangement depends on the commitment of its participants. Whether you’re a mentee or mentor, you need to have a genuine interest in the arrangement, respect the commitment being made by the other person(s), commit to agreed meetings, come prepared at meetings with relevant questions and content, and provide your full attention at meetings.

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WIN-WIN MENTORING OPPORTUNITIES 4. Goal setting If participants set goals, the ‘SMART’ principle is a helpful guide. Goals should be: Specific – not ambiguous or open to interpretation Measurable – in terms of time, effort or other quantifier (depending on whether the goal is qualitative or quantitative) Attainable – achievable in the goal-setter’s circumstances for the degree of control they have over the outcome Relevant – to the desired outcome Timely – within a helpful timeframe.

Mentors can offer

Opportunities

Mentees can offer

› Depth and breadth of experience

› Reimagine and improve the status quo

› Curiosity and thought-provoking questions

› Failures and lessons learned

› Crossintroductions

› Future focus

› Networks and connections

› Analyse and debate news and ideas from different angles

› Lack of inhibition to question the status quo

› Collaborate on solutions and innovations

5. More than meetings Share relevant or interesting content with your mentor or mentee such as articles, podcasts, social media posts and event invitations. The media you consume or discover can help broaden the thinking of your mentor or mentee.

Su-Ann is involved in designing Proximity’s Early Career Professional learning and development (L&D) products.

She was also a Mentor in The Legal Forecast’s TLF Connect virtual mentoring program in 2020. It connects futurefocused law students with leaders in legal innovation, design and technology.

Would you like some ‘train the trainer’ coaching to help you mentor and develop your team?

Contact enquires@proximity.com.au or 1800 959 885 THE PULSE EDITION SEVEN

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staff profile

TWO MINUTES WITH...

Each edition we profile a staff member who is an integral part of the Proximity story. Today we meet, Special Advisor, Simon Taylor.

Tell us how you came to join Proximity?

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

I had a background in commercial, financial sector and government law, and found myself working with teams that had members from all sorts of backgrounds and disciplines, on a series of large projects. I discovered that I really liked that way of working, where people with different perspectives fire off each other. Also, I think at some level everyone likes building or creating things. Proximity advertised for a role in 2016 and I knew that they were in sync with that approach so I touched base.

I was in the middle of a project at the time and it took another year before I could move over ... someone said it was the longest ever job interview!

“Try to talk to people face to face when you can, rather than via letter or email” (not so easy in 2020).

Then there are two pieces of advice that you had to keep in balance: “be careful” and “don’t let the perfect be the enemy of the good”.

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What is your proudest moment in a professional context?

I’ve been providing legal assistance on a number of construction jobs and tech procurements that have a lot of moving parts. Throw COVID into the mix and things have become quite complicated for the managers who have to make the decisions.

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If you can lift some of the weight off their shoulders, and they know that you’re actually trying to simplify things for them and make their lives easier, then that feeling is hard to beat.

I’ve also been lucky to have worked on some big financial sector reforms - the creation of MySuper, new capital adequacy standards for banks, a large suite of postGFC crisis management legislation for the financial sector and a changes to private health insurance regulation. They took years to finish and there were some long hours and great technical challenges to deal with. I was working with some very good people.

How do the Proximity values, innovative, genuine and helpful underpin your work ethic?

Well, I would like to think I am in alignment because in the end I am here to help people achieve their business or personal goals.

Away from work, what is your passion?

Not sure I have a single ‘passion’ but family and friends are important (probably not the most original answer) and I love getting outside, whether it be bushwalking, or going for a run or a sail. OK, I will admit it, I also like geocaching.

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

Remember it’s not all about work.

Secondly, don’t worry if the things you find yourself doing early in your career are not exactly what you planned. Just try to do whatever it is as well as you can then follow your intuition and move on to other things when the opportunities come up.

Proximity Trivia Answers 1. National Aboriginal Day Observance Committee 2. F rom 1940 to 1955, a Day of Mourning was held annually on the Sunday before Australia Day and was known as Aborigines Day. In 1955, the day was moved to the first Sunday in July when it was decided the occasion should be more than a protest day but also a celebration of Aboriginal culture.

3. The 1967 referendum saw more than 90 per cent of Australians vote to recognise Aboriginal and Torres Strait Islanders in the Census for the first time.

4. 1972, as a major outcome of the 1967 referendum.

5. ATSIC was established by the Hawke government in 1990 and it was later abolished by the Howard government in 2005 following several years of controversy.

6. On 3 June 1992, the High Court delivered its landmark Mabo decision which legally recognised that Aboriginal and Torres Strait Islander peoples have a special relationship to the land that existed prior to colonisation, and still exists today.

7. There have been 41 Indigenous members of parliament in Australia, beginning when Neville Bonner entered the Australian Senate in August 1971. Of these, 22 have been elected to the NT Assembly, eight to the Australian Federal Parliament and four to the parliaments of Qld and WA. 8. The Aboriginal flag was created in 1971

by Aboriginal artist Harold Thomas. The black represents the Aboriginal people, the yellow circle represents the sun and the red represents the earth.

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

9. In 1968, world champion bantamweight boxer, Lionel Rose, became the first Indigenous Australian to be named Australian of the Year.

I would say success is about adaptation. You never know what kinds of challenging circumstances or new kinds of work fate will throw up (look at 2020) so the critical thing is to be flexible.

10. David Unaipon (1872-1967) was a Ngarrindjeri man, a preacher, inventor and writer.

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career

MOVING FROM PUBLIC TO PRIVATE How long had you been thinking about making the move from public to private? When did you know it was the right time?

I was looking around and thinking about it for over two years, but considered it really seriously for about six months before making the move. I think I had looked at my long-term objectives and options in the APS, and wasn’t sure that it was the path for me. My mentor at the time suggested I consider consulting, because I had a transferable skillset and due to the way that I worked with people. I knew it was that right time to move to the private sector when it wasn’t just a thought in my head, but that others thought the same.

Proximity’s Ingrid Bremers, sat down with her fellow Senior Advisor, Andrew Gibson to find out why he made the switch from the public sector into the private sector.

How did you find out about Proximity?

Why did you choose Proximity?

What is your APS experience and background?

I started in the APS as an APS5 in the Australian Customs Service in 2007. I think I was lucky enough to win one of the best jobs in the public service at the time: a logistics officer for the Customs Marine Unit. I loved that team, and remained in roles supporting the Marine Unit for over a decade. Within a couple of years of starting out in logistics, I developed a keen interest in procurement and contract management. It appealed to me because it gave me exposure to lots of different government agencies, including Defence, Agriculture and many more. I ended up leading procurement and contract management for enforcement technologies and logistics at the Department of Home Affairs. After three machinery of government changes, I finished up with the Department of Home Affairs and in early 2020 I made the move to Proximity.

I had a little bit to do with Proximity at Home Affairs, but when I made the decision to move I asked my network about what organisations were good to work for. In that feedback, Proximity came up quite often as having a good team, great culture, and doing lots of interesting work. It was the people in Proximity that really stood out in the end. Dealing with people like Simon Taylor at Home Affairs really affirmed how helpful and genuine Proximity people are.

From my first meeting with Sean King I knew I wanted to work for Proximity. Proximity was not the only organisation I talked to when choosing the right company to work for. Every organisation I spoke to I asked two questions: Can you describe your culture to me? And, how will you help me transition from being a public servant to a consultant? Sean spoke so passionately about the people he works with, about choosing the right people to fit Proximity and making sure that Proximity people fit the roles we are filling to support Government. Sean also spoke about all of the support available to staff through training, mentoring and assistance and was clearly passionate about the Proximity culture.

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What are you enjoying about being in the private sector?

I think what I am enjoying the most is the opportunity to work with a really diverse group of people - I’m working onsite with clients at Defence, doing advisory work for DSS, interacting with other Proximity people on different secondments, as well as working really closely with highly qualified professionals: lawyers (across a range of disciplines), probity specialists, procurement advisers, business analysts, as well as the fantastic support team at Proximity. I’m really getting exposed to so many interesting people and opportunities.

What has been the biggest surprise in transitioning from the public to private sector?

The biggest surprise has been that I am the same person, with the same skills and experiences, but I am received in a different way and I have to use my skills in a different way. It is a bit hard to put my finger on it, but as a consultant I feel like my advice is held in high regard and that people really take me seriously.

It is great to see that my hard work and experiences over the past 10 years are really valued. On the other hand, it has been interesting coming to a project without having any decision-making power. When I am advising on something now, I have to look at how I can bring my expertise and advice to best influence the project and support the APS decision makers.

Interested in making the switch?

Head to our careers page proximity.com.au/careers/ and take our simple fit finder to find out if you are the right fit for our team! Or email recruitment@proximity.com.au to have a chat about career opportunities.

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highlights

A YEAR IN REVIEW Played our part in measures that

have benefited

AUSTRALIANS Provided legal advice to government to enable its response to the COVID-19 pandemic

Partnering with DSS TO DELIVER A KEY

recommendation for the Child Abuse Royal Commission

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Celebrating the wins, milestones, and growth of FY 19/20

37 45 Working with a diverse range of clients including...

ACTEWAGL

DEPARTMENT OF DEFENCE

NATIONAL BLOOD AUTHORITY VICTORIAN DEPARTMENT OF TRANSPORT DEPARTMENT OF SOCIAL SERVICES

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community

OUR NEWEST COMMUNITY PARTNER – FEARLESS WOMEN INC.

Mirroring our growth in staff in the past three years, we have entered partnerships with a range of not for profit organisations positively impacting the communities in which we operate

We’re excited to announce our newest Community Partner, Fearless Women Inc., a dynamic, Canberra-based not for profit that will be providing appropriate and professional support services with outreach activities to empower all girls and young women to reach their full potential and develop into responsible adults who contribute to society.

Fearless Women will be spearheaded by an all-star Board of Directors, chaired by Gai Brodtmann, former Federal Member of Parliament. Our connection to Fearless Women originated from Martin Fisk, CEO of Menslink, who will also sit on the Board of Directors. Martin put us in touch with Gai earlier this year, and days later we were rolling up our sleeves with Gai creating a roadmap for operationalising what had previously been an idea dreamed up by an enthusiastic group of people.

Similarly, to our other Community Partners, Fearless Women has Proximity’s full suite of services at its disposal to maximise its impact while maintaining compliance.

Already to date we have provided Fearless Women with: Oct ‘20 : Fealess Women partnership commenced

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4 # OF PARTNERSHIPS

BY DECLAN NORRIE MANAGER – COMMUNITY

Over the past 12 months we have seen an extraordinary growth in our business, with ongoing active recruitment in both our client-facing and business services teams. That growth has seen more Proximity employees engaging with our Community Practice and contributing to positive outcomes for our Community Partners.

3 2

1

0 FY 11-12

FY 12-13

FY 13-14

FY 14-15

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FY 15-16

FY 16-17

FY 17-18

FY 18-19

FY 19-20

FY 20-21

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community

R U ok? Day

› legal advice on the appropriate legal structure, pathway to incorporation and charity registration requirements; › legal advice on the Fearless Women Rules, the constitution that governs Fearless Women’s board and activities; › not for profit governance advice on the skills mix required for a best practice management committee and associated governance processes; › process mapping for proposed next steps, including upcoming projects such as the drafting of template employment contracts, and the development of vital policies and procedures including those relating to children.

We’re really excited by the prospect of vital support services and outreach activities being provided to all girls and young women in the Canberra region, and look forward to working with Fearless Women to maximise their positive impact on our community.

We recognised R U OK? Day on Thursday 10 September, by encouraging everyone at Proximity to meet-up with a colleague and share a coffee*… on us! Our team met over virtual coffees, out and about at local cafés and some even opted for a takeaway order.

The purpose was to encourage our people to have a chat and connect, as we recognise that now more than ever our people need a safe and supportive workplace. *for those non-coffee drinkers amongst us, we also provided vouchers for chai lattes, teas, milkshakes, juices… whatever the order, it was on us!

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PROXIMITY ON A PAGE Itâ&#x20AC;&#x2122;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 VE ATI V NO IN E SIT N O

Organisational Planning & Transformation

GENUINE

HEL PF UL

DELIVERY

ADVISORY

S

PRO DU CT S O LU T I ONS

Procurement & Tendering

COM

Risk Management & Compliance

S U LTI N G

Reviews, Investigations & Inquiries

CON

Digital, Data & Cybersecurity

M E R CIAL

Governance

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

Policy, Programs, Grants & Regulation

Negotiation

LEGAL

Corporate & Commercial Law Workplace Compensation Law

Public Law

Legal Support Services Property & Environment Law

Litigation & Dispute Resolution