Duties of care owed by public authorities
Monday 19 July
12:00pm – 1:00pm
Using technology for better legal outcomes
Monday 19 July
1:30pm – 2:30pm
A pound of flesh – penalties in government contracts
Tuesday 20 July
12:00pm – 1:00pm
1 Substantive Law CPD Point
Both courts and legislatures have long been cautious in imposing affirmative duties of care on public agencies, raising fundamental issues at the intersection of public and private law.
Although charged with broad responsibilities supported by an array of powers to accomplish them, public agencies perform functions with limited resources within a public interest framework, making some private law remedies inappropriate. But they are not above the law.
Against the backdrop of recent decisions, this session examines the nuanced obligations of public authorities to individuals, as opposed to the public at large, adversely affected by their acts and omissions.
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Presenters:
Guy Edgecombe
Partner, Gadens
Jim Demack
Partner, Gadens
1 CORE (Practice Management & Business Skills) CPD Point
Technology aids for lawyers have moved from generic applications to targeted solutions that maximise the utility of sheer processing power. Government can benefit from the efficiency and accountability dividends potentially generated by these applications. In this session, a panel of experts regularly applying a variety of innovative solutions will discuss how public sector lawyers can better use technology, proactively and reactively, to improve compliance, decision-making and enforcement.
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Presenters:
Sacha Kirk
Co-Founder, Lawcadia
Stan Gallo
Partner, BDO
Liam Hennessy
Partner, Gadens
1 Substantive Law CPD Point
Both the law and equity have an aversion to the exaction of penalties in private transactions.
Although of some antiquity, the penalties doctrine has repeatedly defied attempts to be rationalised in clear terms. In recent years, the legal principles have been reformulated by apex courts in Australia and England, with different results.
Government contracts are not immune from application of the doctrine. Indeed, many agreements entered into by governments seek to exact a pound of flesh in the public interest. This session will navigate the modern operation of the penalties doctrine and how contracts can be challenged for breach or drafted to maximise compliance.
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Presenter:
Lionel Hogg
Partner, Gadens
Witness preparation
Tuesday 20 July
1:30pm – 2:30pm
1 Substantive Law CPD Point
With public sector accountability always in the spotlight and inquiries and reviews increasingly commonplace, government lawyers may find themselves assisting their agencies or colleagues to prepare for the intense scrutiny of formal examination.
This session examines some of the practicalities and challenges of preparing public sector witnesses to give evidence before courts, royal commissions, and integrity bodies.
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Presenters:
Kathy Merrick
Partner, Gadens
Pouyan Afshar
Barrister, Sixth Floor Selborne Wentworth Chambers
A rose by any other name – regulation by general concept
Wednesday 21 July
12:00pm – 1:00pm
1 Substantive Law CPD Point
Modern regulatory theory favours principles-based legislation, in which broad principles articulate desired outcomes to be achieved by regulated entities.
This has morphed into including broad, undefined concepts such as fairness, integrity and unconscionability in a plethora of new laws. Unsurprising, this can make compliance challenging.
This panel session brings together a key regulator, a leading legal academic and a critical law reformer to discuss what these concepts might mean and how best industry and regulators can practically approach the challenges.
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Presenters:
Professor Bryan Horrigan
Dean, Faculty of Law, Monash University
Associate Professor Andrew Godwin
Special Counsel, Australian Law Reform Commission, University of Melbourne
Liam Hennessy
Partner, Gadens
Continuing the pro-bono tradition in 2021 and beyond
Wednesday 21 July
1:30pm – 2:30pm
1 CORE (Professional Skills) CPD Point
The session will consider the conduct of pro bono legal work by public sector lawyers, including:
- challenges in the conduct of international pro bono work – a case study
- ‘new’ areas of work for pro bono lawyers and partnering with the private sector
- strategies for the successful conduct of a pro bono matter and practice
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Presenter:
Kathleen Conroy
Partner and Pro Bono Director, Gadens
Risky business – using public land to achieve government objectives
Thursday 22 July
12:00pm – 1:00pm
1 Substantive Law CPD Point
Public agencies encounter unique risks and opportunities when transacting in land or utilising their land assets, particularly if private counterparties are involved.
This session will consider the key commercial, legal and process risks in common government land transactions, strategies to mitigate, minimise or share risks, and how to positively utilise land assets even when they are affected by legacy problems, adverse site conditions or community expectations.
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Presenters:
Liam Chambers
Partner, Gadens
Gail Black
Partner, Gadens
The practice and ethics of nudging
Thursday 22 July
1:30pm – 2:30pm
1 CORE (Practical Legal Ethics) CPD Point
Governments are increasingly using research into behavioural economics and psychology to influence the community’s choices in decision-making. Done well, nudging can promote positive welfare and policy outcomes.
But an era of increasingly contested policy choices can potentially scar some nudging as unacceptably manipulative or illegitimate. When government action is confined by the powers it has, to what extent is nudging desirable and ethical and what is the legal and ethical role of public sector lawyers in its implementation?
In this session, a leading behavioural economist with deep experience working with government joins with us to examine the science and practice of nudging interventions through the prism of the lawyer’s view on power, transparency, accountability, and ethics.
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Presenters:
Professor Robert Slonim
Chair, Academic Advisory Panel, Behavioural Economics Team of Australia, PM&C, University of Sydney
Lionel Hogg
Partner, Gadens
A refresher on boilerplates
Friday 23 July
12:00pm – 1:00pm
1 CORE (Professional Skills) CPD Point
The contract is the basic tool for many public sector lawyers and this basic tool often springs from the standard precedent incorporating the standard boilerplates.
Although boilerplate clauses are designed for broad use and generally reflect a considered base risk profile, like any other clause in the agreement they have substantive, and occasionally significant, import. And many lawyers rarely consider (or understand) their true effect.
This session unpacks the role and importance of typical boilerplate clauses, including those unique to government contracts.
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Presenter:
Professor Sharon Christensen
Gadens Professor of Property Law, Queensland University of Technology
The ten cases
Friday 23 July
1:30pm – 3:00pm
1.5 Substantive Law CPD Points
A survey of 10 important cases over the last year, covering constitutional, administrative, private law, governance and enforcement issues, and what they mean for government.
Government Lawyers Legal Update 2021 