NSW Government Bulletin: Operational overload to strategic value – the world of contracts and commercial management

The World Commerce and Contracting Association’s (WorldCC) APAC Summit in Melbourne this week focused on “from operational overload to strategic value” and was well attended by both public and private organisations from across the region, including NSW Treasury.

Our key takeaways from the conference were:

• campaign, not an event – contracts and commercial professionals (including legal) drive strategic value for organisations and deliver outcomes in a world connected by contracts. As professionals, we can decide how we use our skills and experience in a positive or a negative way and we know what works and what doesn’t in delivering effective contracts. We can also choose to attend a conference once a year or choose to be proactive and seek to influence every day
• operational overload – commercial and procurement teams have faced challenges over recent years that has tested their resilience and creativity as individuals and teams. Simultaneously, it has shone a light on their critical importance to business outcomes
• strategic value – the meaning of strategic value varies amongst people. ChatGPT had a definition. At its heart, supporting a business to deliver strategic value involves understanding the organisation’s purpose, mission and goals, collaborating across disciplines and with internal clients and bringing the benefit of your experience and knowledge to the fore to shape better outcomes. To deliver strategic value, commercial and legal professionals need to value their knowledge and experience, be visible, build trust and relationships and regularly reinforce their credentials
• psychological safety – empowering people to manage contracts and relationships effectively is critical to contracting success. The concept of psychological safety goes beyond the practical tools of empowerment like delegation and positional responsibility – it looks at how safe and supported decision-makers feel to solve problems creatively. Safety in decision-making means knowing the organisation will support you regardless of how the decision plays out
• generative AI and its impact – from workplace displacement to opportunities unlocked for faster data analysis and new insights, AI is here to bring change. A “big debate” on the motion “AI powered negotiation will be more effective than human powered negotiation” secured a strong vote in favour of “human powered negotiation”. However, it was clear from both sides of the debate that AI will be a tool that delivers benefits for human negotiators and decision-makers. As the affirmative team put it: “AI is an ‘and’ not an ‘or’”.

In their research experiment, WorldCC brought together negotiators from across their community to negotiate on a set scenario, with a control team conducting a traditional human negotiation, and others using AI in different ways. We heard from participants in the experiment about what the use of AI meant for them in terms of planning for the negotiation and the questions they chose to ask. The AI tool came up with potential solutions the human negotiators hadn’t thought of themselves, so it certainly opened up their thinking.

The affirmative team in the “big debate” raised the spectre of a negotiation conducted by two never-sleeping robots programmed to “win at all costs”. In contrast, it turns out from the WorldCC research that ChatGPT has a distinct bias against adversarial approaches.

• technology tools – as ever, the technology supporting contracts and commercial management continues to become more effective and sophisticated. After looking closely at  these tools and hearing case studies of their implementation, we were reminded that these tools are readily available to us to make valuable changes in efficiency and productivity without significant cost.

It was pleasing to see more enterprises tackling the challenge of creating a reliable, central repository of contracts. Aside from all its legal uses, centralising contract data creates a rich pool of information and knowledge about the enterprise, its operations, its relations with suppliers and where it can improve

• reducing “the risk of uncertainty” in contracting – collaboration, relational contracting, multi-party RASCI matrices and building contracts to align with the motivational drivers of contract participants all contribute to reducing the risk of uncertainty
• lifecycle and circular economy – participants talked about the challenges of asset disposal and the need for changes in the way we approach procurement. We need to go beyond whole of life costing and think more broadly about what actually happens to components at the end of their lifecycle. Can we repurpose them? Where do they fit in the circular economy?
• regulatory burden – it is clear that enterprises are having to adapt to increasing regulatory burdens and the question of whether the regulatory focus on reporting and documentation really delivers the outcomes and accountability being sought was raised. We heard examples from the energy sector where regulatory compliance requirements go right down to the smallest component
• supply chain challenges – supply chain challenges continue to be critical. We heard about the government’s Buy Australia initiative, which is looking at ways of increasing local manufacture and broadening participation opportunities for SMEs. This was replicated across the board, with other buyer entities sharing examples of their own challenges and how they have had to innovate and think more broadly to solve supply challenges in their industries. One Chief Procurement Officer observed there is no longer “just in time” procurement. Another lamented rigid specification that limits the options available for purchase. Others shared their experiences of working in multi-participant projects where mechanisms to support collaboration and openly sharing risk and reward drove collective effort towards agreed outcomes
• capability challenges – a commercial manager wears mulitple hats and is expected to be across all aspects of the business. Constant change and the ability to adapt and learn new skills are critical to the capability of the profession
• innovation and curiosity – in their closing remarks, Tim Cummins and Sally Guyer (WorldCC President and CEO respectively), reminded us to innovate, imitate and exercise our curiosity super-power. To “become a forethought, not an afterthought” in the contributions we bring.

If you have any questions regarding this article or would like to discuss the key takeaways above, please get in touch with partner Christine Lithgow.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Author: Christine Lithgow

In the media

Law Council of Australia supports amendments to the tax secrecy provisions to uphold legal professional and ethical standards
The Law Council welcomes the Australian Government’s consideration of reforms with the broad objective of strengthening the integrity of the tax system, having regard to the views of the legal profession. The Law Council supports amendments to the tax secrecy provisions to ensure that if the Australian Tax Office or Tax Practitioners Board have concerns about the professional conduct of legal practitioners those agencies will be able to raise those matters directly with state and territory legal profession regulators (6 August 2023).  Read the Law Council’s media release here.

Multi-million dollar penalties for confidentiality breaches introduced to NSW Parliamentz
The Minns Labor Government will today introduce to Parliament the ‘Revenue, Fines and Other Legislation Amendment Bill 2023’, a series of amendments which promote integrity and help protect government from confidentiality breaches (1 August 2023).  Read more here.

New law banning religious vilification passes NSW Parliament
The amendment to the NSW Anti-Discrimination Act 1977 makes it unlawful to, “by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons, because of their religious belief, affiliation or activity” (3 August 2023).  Read more here.

Practice and courts

Decisions Reserved
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved (4 August 2023). Read more here.

AAT Bulletin Issue No. 15/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. The Bulletin also regularly includes a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. It occasionally includes information on legislative changes that affect the AAT (31 July 2023). Read more here.

Supreme Court of NSW – Uncontested Probate Applications move online
As of 1 August 2023, Amendment No 434 to the Supreme Court Rules 1970 came into effect. The amendment requires that, with limited exceptions, non-contentious applications for a grant of probate or administration or for the resealing of a foreign grant are made and filed with the Supreme Court electronically. To assist with this transition, the registry will continue to accept paper-based applications up to and including 1 September 2023 (17 July 2023). You can view the key changes here and view the update here.

Cases

Ward v Port Stephens Council [2023] NSWLEC 1423
Development application – Council delays assessment of development application – refusal – s 34AA conciliation conference – no agreement – proposed construction of single storey 4 bedroom dwelling – proposed development is permissible with consent and subject to conditions under RU1 zoning – land is flood prone – agricultural use of land – flood mounds – Flood Certificate applicable when development application made was not current – second Flood Certificate issued shortly before hearing –change to characterisation of land to High Hazard Floodway from High Hazard Flood Storage – amendment to application to include flood refuge in attic of proposed dwelling above Probable Maximum Flood (PMF) level – Port Stephens Local Environmental Plan 2013 cl 7.3 repealed without savings provision – cl 5.21 does not apply to application – Port Stephens Development Control Plan (PSDCP) provisions apply – PSDCP to be applied with flexibility – performance based conditions can be applied – risk management – risk minimisation – access road has low point which becomes unpassable by vehicles when flood depth exceeds about 2.5m AHD – consequences for evacuation – Flood Emergency Response Plan (FERP) – occupants of proposed dwelling will be required to follow FERP – FERP requires that occupants evacuate when flood warning issued – is sufficient warning given – role of State Emergency Service (SES) – Evacuation Orders could be made – flash flooding – flooding from Hunter River – flood events immediately following hearing – conditions.
Conveyancing Act 1919 – Environmental Planning and Assessment Act 1979, ss 4.14, 4.15 – Land and Environment Court Act 1979, s 34AA – Local Government Act 1993, s 68 – Port Stephens Local Environmental Plan 2013, cll 2.1, 4.2B, 4.3, 5.10, 7.1, 7.2, 7.3, 7.6; Pt 7 – Roads Act 1993, s 138 – Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 – Standard Instrument (Local Environmental Plans) Order 2006, cl 8 – State Emergency Service Act 1989, ss 22, 22A – State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3 – State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 – State Environmental Planning Policy (Coastal Management) 2018 (repealed) – State Environmental Planning Policy (Koala Habitat Protection) 2019 (repealed) – State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4 – State Environmental Planning Policy Amendment (Flood Planning) 2021, Sch 1 – State Environmental Planning Policy No 55 – Remediation of Land (repealed).

Cahalan v Lane Cove Council [2023] NSWCATAD 209
ADMINISTRATIVE LAW – administrative review – Government information – whether overriding public interest against disclosure – confidential information – information provided in confidence – prejudice to court proceedings – competitive commercial – legitimate business, commercial, professional or financial interests – conclusive presumption – legal professional privilege.
Administrative Appeals Tribunal Act 1975 (Cth) – Civil and Administrative Tribunal Act 2013 (NSW) – Evidence Act 1995 (NSW) – Freedom of Information Act 1989 (NSW) – Government Information (Public Access) Act 2009 (NSW) – Information Act 2002 (NT) – Local Government Act 1993 (NSW) – State Records Act 1998 (NSW) – Uniform Civil Procedure Rules 2005 (NSW) – State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Outdoor Events) 2020.

Vogel v Department of Education [2023] NSWCATAD 208
ADMINISTRATIVE LAW – administrative review – extension of time – government information – refusal to deal with application – whether substantial and unreasonable diversion of agency’s resources – consideration of s 60(3A) and (3B) factors – onus of proof.
Administrative Decisions Review Act 1987 (NSW) s 9, s 63 – Civil and Administrative Tribunal Act 2013 (NSW) s 36, 38, 41 – Freedom of Information Act 1987 (NSW) (Repealed) – Government Information (Public Access) Act 2009 (NSW), s 3, 4, 9,12, 13, 14, 60, 80, 100, 105 – Government Information (Public Access) Amendment Act 2018 (NSW) (Repealed).

Agardy v Commissioner of Police, NSW Police Force [2023] NSWCATAD 201
Administrative Law – access to government information – whether overriding public interest against disclosure of communications to police and personal information.
Administrative Decisions Review Act 1997; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998.

Captain Developments Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1409
DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – whether adequate provision for disposal of stormwater.
Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Biodiversity and Conservation) 2021; Wingecarribee Local Environmental Plan 2010.

Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 206
GOVERNMENT INFORMATION – freedom of information – Government Information (Public Access) Act 2009 (NSW).
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act (2013) (NSW); Government Information (Public) Access Act 2009 (NSW); Government Sector Employment Act 2013 (NSW).

Heness v Commissioner of Police, NSW Police Force [2023] NSWCATAD 206
ADMINISTRATIVE REVIEW – firearms – threatening behaviour – AVOs – passage of time – character references – fit and proper person – public interest.
Administrative Decisions Review Act 1997; Firearms Act 1996.

Atkinson v Department of Premier and Cabinet [2023] NSWCATAD 205
INTERLOCUTORY ORDER – administrative review – Government Information – application by Information Commissioner to be provided with respondent’s confidential material and to appear at confidential hearing – role of Information Commissioner – cabinet information.
Administrative Decisions Review Act 1997 – Government Information (Public Access) Act 2009.

Wolf v Secretary, Department of Education [2023] NSWCATAD 202
HUMAN RIGHTS – discrimination – racial vilification – public act – incite serious contempt and severe ridicule – teacher – classroom – indirect discrimination – causation – remedies – apology – public statement.
Anti-Discrimination Act 1977 – Inclosed Lands Protection Act 1901.

FXM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 200
ADMINISTRATIVE LAW – firearms – licensing – public interest – Fit and Proper Person.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW).

Lakeside Forster Pty Ltd v Midcoast Council [2023] NSWCATAD 198
ADMINISTRATIVELAW – government information – third party objection to release of certain information – whether overriding public interest against disclosure – diminish the competitive commercial value of the information – prejudice any person’s legitimate business, commercial, professional or financial interests – lack of evidence to establish an overriding public interest against disclosure.
Administrative Decisions Review Act 1997 – Civil and Administrative Tribunal Act 2013 – Government Information (Public Access) Act 2009.

Zhang v Chief Commissioner of State Revenue [2023] NSWCATAD 207
Administrative Law – land tax – whether principal place of residence exemption applied – whether clause 6 of Schedule 1A to the Land Tax Management Act 1956 applied – whether clause 8 of Schedule 1A applied – whether Tribunal has power to exempt land from land tax or reduce amount of tax payable.
Land Tax Management Act 1956; Taxation Administration Act 1996.

Paul v Commissioner of Police, NSW Police Force [2023] NSWCATAD 196
ADMINISTRATIVE REVIEW – refusal of application for licence – breach of safe storage requirements – whether fit and proper – public interest.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Firearms Act 1996.

Davis v NSW Minister for Health [2023] NSWCATAP 211
APPEALS – appeal from summary dismissal of administrative review application – interlocutory decision of Tribunal requiring leave to appeal – consideration of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) – “lacking in substance” – leave refused.
ADMINISTRATIVE LAW – application for administrative review of directions contained in a public health order – where all four relevant public health orders had been repealed or expired prior to the hearing – whether proceedings “futile”, “of no practical effect” or “lacking in utility”.
Administrative Appeals Tribunal Act 1975 (Cth), s 42B – Administrative Decisions Review Act 1997 (NSW), s 55(2) – Administrative Decisions Tribunal Act 1997 (NSW), ss 73(5)(g)(ii), 73(5)(h) – Anti-Discrimination Act 1977 (NSW) – Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a) – Civil and Administrative Tribunal Act 2013 (NSW), ss 28(2), 36(2), 55(1)(b), 80 – Courts Legislation Further Amendment Act 1997 (NSW), Sch 1.1[8] – Equal Opportunity Act 1984 (Vic), s 44C – Health Services Act 1997 (NSW), s 116A(1) – Public Health Act 2010 (NSW), s 7 – Racial Discrimination Act 1975 (Cth) – Strata Schemes Management Act 1996 (NSW), s 185(4).

John v Health Secretary in respect of the Ambulance Service of NSW [2023] NSWIRComm 1073
EMPLOYMENT AND INDUSTRIAL LAW – termination – statutory rights – unfair dismissal – paramedic attended anti-lockdown protest – livestreamed event and made commentary critical of lockdown, NSW Police, members of the public and COVID-19 vaccines – whether dismissal for that conduct was harsh, unreasonable or unjust.
Industrial Relations Act 1996 ss 84, 88 – Public Health Act 2010 s 10.

Styles v Wollondilly Shire Council [2023] NSWCATAD 193
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information is held by the agency.
Administrative Decisions Review Act 1997 (NSW); Government Information (Public Access) 2009 (NSW).

Legislation

Proclamations commencing Acts
Residential Tenancies Amendment (Rental Fairness) Act 2023 No 9 – published LW 28 July 2023.

Regulations and other miscellaneous instruments
Final Determination [Biodiversity Conservation Act 2016] – published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] – published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] – published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] – published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] – published LW 4 August 2023.
Road Transport Legislation Amendment (Visiting Drivers) Regulation 2023 – published LW 4 August 2023.
Subordinate Legislation (Postponement of Repeal) Order 2023 – published LW 28 July 2023.

Environmental Planning Instruments
Bega Valley Local Environmental Plan 2013 (Map Amendment No 1) – published LW 4 August 2023.
Bellingen Local Environmental Plan 2010 (Amendment No 17) – published LW 28 July 2023.
Byron Local Environmental Plan 2014 (Amendment No 39) – published LW 4 August 2023
Canada Bay Local Environmental Plan 2013 (Amendment No 26) – published LW 4 August 2023.
Canterbury-Bankstown Local Environmental Plan 2023 (Amendment No 1) – published LW 28 July 2023.
Cessnock Local Environmental Plan 2011 (Amendment No 41) – published LW 4 August 2023
Coffs Harbour Local Environmental Plan 2013 (Amendment No 29) – published LW 4 August 2023.
Coolamon Local Environmental Plan 2011 (Amendment No 5) – published LW 28 July 2023.
Fairfield Local Environmental Plan 2013 (Amendment No 47) – published LW 28 July 2023.
Great Lakes Local Environmental Plan 2014 (Map Amendment No 6) – published LW 28 July 2023.
Inner West Local Environmental Plan 2022 (Amendment No 5) – published LW 28 July 2023.
Lake Macquarie Local Environmental Plan 2014 (Amendment No 49) – published LW 28 July 2023.
Lismore Local Environmental Plan 2012 (Amendment No 53) – published LW 28 July 2023.
Murray Local Environmental Plan 2011 (Amendment No 16) – published LW 4 August 2023.
Nambucca Local Environmental Plan 2010 (Amendment No 31) – published LW 28 July 2023.
Parramatta Local Environmental Plan 2023 (Map Amendment No 2) – published LW 28 July 2023.
State Environmental Planning Policy (Precincts – Regional) Amendment (Activation Precincts) (No 2) 2023 – published LW 4 August 2023
Sydney Local Environmental Plan Amendment (Sustainable Buildings) 2023 – published LW 28 July 2023.
Waverley Local Environmental Plan 2012 (Map Amendment No 2) – published LW 28 July 2023.
Wollondilly Local Environmental Plan 2011 (Map Amendment No 8) – published LW 28 July 2023. 
Woollahra Local Environmental Plan 2014 (Amendment No 29) – published LW 28 July 2023.

Commonwealth

Act compilation
Corporations Act 2021 31/07/2023 – Act No. 50 of 2001 as amended
National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 31/07/2023 – Act No. 13 of 2011 as amended
Environment Protection and Biodiversity Conservation Act 1999 27/07/2023 – Act No. 91 of 1999 as amended
Excise Tariff Act 1921 27/07/2023 – Act No. 26 of 1921 as amended
Australian Securities and Investments Commission Act 2001 27/07/2023 – Act No. 51 of 2001 as amended

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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