Information Technology: Cloud computing – What’s in a name?

Cloud computing is the latest hot topic in IT Outsourcing. It has been making headlines all over the world, including in the UK, where the Ministry of Justice is publishing a Cloud Computing Strategy in October and here in Australia where the Department of Finance and Deregulation issued a Cloud Computing Strategic Direction Paper in April. The thing is, everyone’s idea of what constitutes cloud computing is different, which makes discussions on the topic difficult. It makes structuring deals even more challenging if projects are established based on different norms of cloud computing than what exists in the market.

What is cloud computing?

Cloud computing is an umbrella term which could refer to any number of arrangements in relation to Information and Communication Technology which utilise off-site infrastructure (usually via the internet) to provide an ICT solution to a client. Examples range from the provision of off-site data storage all the way through to the provision of thin client solutions and desktop virtualisation.

There are categories of cloud computing which are often referred to. These are Platform as a Service (PaaS), Infrastructure as a Service (IaaS) and Software as a Service (SaaS). As the names suggest, these all relate to making the provision of ICT solutions more akin to service provision than hardware or software related as has been the case in the past. Whereas it used to be the case that you could only obtain software by purchasing a licence, now you can pay to access software online (for example in a webmail service). Another common example is the provision of off-site storage (such as website hosting or data backup), which is a form of IaaS.

Considerations when negotiating cloud contracts

Local government is increasingly considering implementing solutions in the cloud, so what should they be thinking about? A few of the big issues are set out below, but they are not the only ones, and the issues that are relevant in any given situation will depend on the project objectives and the proposed solution.

Data storage

Although Councils are not bound by the Privacy Act 1988 (Cth), the majority of Councils have implemented privacy policies which comply with the National Privacy Principles, and take the handling of personal information seriously. Most cloud computing solutions will involve the storage of some data at the provider’s site. As a result, Councils need to be sure that the storage of data by the provider complies with their self imposed restrictions on the handling of personal information and otherwise meet levels of security which the Councils want from their service providers.

Transition

Although it is always desirable for commercial relationships to be long-term, they are rarely forever. As a result, it is important, and even more so in a cloud contract, to know what will happen at the end of the relationship. What will happen to the data, and in what format will it be returned to the Council? Will the provider help the Council to transition to a new provider? Who will pay? Discussion of these issues at the commencement of a contract may seem distasteful, but it will help the Council to better understand the whole of life cost of the contract, and also will hopefully minimise problems at the end of the relationship. It will also help the parties to understand each other’s requirements, and assist in the initial transition into the solution.

What are you getting?

It may seem obvious, but Councils need to understand what rights they are getting in relation to a solution. As an example, with the purchase of software in a traditional sense, you will obtain a licence to install and run the software on your own hardware. In a cloud solution you may obtain a licence to access the provider’s licensed software. To the end user, the differences are hopefully negligible, but Councils need to be aware of what rights they have and don’t have.

Support

What support is included? Is it part of the price, or on a consultancy basis? Cloud solutions may reduce the need for in-house support, but support will be required and it is important to know who is responsible. This is especially the case where the provider is using sub-contractors for various parts of their service.

Responsibilities

The contract needs to be clear on who is responsible for what. This is true for all contracts obviously, but because of the different ideas that people have about cloud contracts and what they entail, it is more important than normal to fully flesh out these issues.

Councils also need to consider whether their existing infrastructure and resources are capable of using the cloud solution. Cloud solutions, because of their structure, may require different types or levels of infrastructure (such as an improved internet connection or WAN) and therefore have a higher setup cost.

If you have any questions about any of the issues raised in this Briefly, or are considering entering into a cloud computing contract, please contact Mark Henderson on mhenderson@normans.com.au or 8210 1220.

Local Government Governance and Regulatory Services: Food business receives heavy fine for sale of unsuitable food

In the recent Magistrates Court of South Australia decision of Eastern Health Authority v Khodair the Eastern Health Authority (a regional subsidiary of the City of Burnside, Campbelltown City Council, the City of Norwood Payneham St Peters, the City of Prospect and the Corporation of the Town of Walkerville) (Authority) secured convictions, fines and costs totalling $25,000 against a food business and its owner for serious breaches of the Food Act 2001 (Act).

In July 2010, officers of the Authority conducted a series of inspections at Suzette’s Gourmet Café on Glynburn Road, Burnside (business).  During the inspections officers of the Authority observed a number of serious breaches of the Act including:

• unsuitable food displayed or in possession of the business for sale, including mouldy cheese, capocolo and dates, as well as spoilt salmon, fetta, antipasto, mayonnaise and pesto;
• food displayed or in possession of the business for sale which had passed its used-by date, including cacciatore and garlic butter four years’ past its use by date, as well as ham, cream and capocollo with use-by dates between three months and three years in the past; and
• food stored on the premises in such a way that it was not protected from contamination.

Given a lengthy history of non-compliance by the business with the Act and the Australia and New Zealand Food Standards Code (Code), the Authority determined to prosecute the business and its owner for breaches of Section 17 (sale of unsuitable food) and Section 21 (failure to comply with a provision of the Code) of the Act, in relation to this conduct. 

Where prosecuted in the summary jurisdiction, these offences carry maximum penalties of $10,000.

Norman Waterhouse represented the Authority at all stages of the prosecution.  The matter was heard in the Adelaide Magistrates Court, before Magistrate Grasso SM, with the defendants’ ultimately each pleading guilty to one count of selling unsuitable food and two counts of failing to comply with the Code.

In sentencing the defendants, the Magistrate noted that compliance with the requirements of the Act is necessary to ensure that consumers pay for quality products that are not hazardous to health and safety.  The Magistrate was concerned to deter not only these defendants from offending again, but also others who might also be likely to breach the Act.

Paul Kelly and Dale Mazzachi of Norman Waterhouse regularly provide advice to councils on the administration and enforcement of the Act.  Together with this prosecution, Norman Waterhouse has recently conducted other successful prosecution on behalf of the City of Playford (where a supermarket was fined $10,000 for selling food past its use-by date), and the Light Regional Council (where another supermarket was penalised over $1,800 for selling a lesser quantity out-of-date food).

The significant penalties imposed by the Court in these cases demonstrate the importance of councils exercising their responsibilities to enforce the provisions of the Act relating to:

• handling and sale of unsafe food;
• handling and sale of unsuitable food; and
• compliance with the Code.

There is a significant public benefit to be gained by councils in ensuring food businesses in their communities do not expose their residents and visitors to risks of serious illness and injury resulting from the consumption of unsuitable or unsafe food or food prepared in unsatisfactory conditions.

Please contact Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au or Paul Kelly on 8210 12248 or pkelly@normans.com.au to discuss the matters raised in this briefly or any other issues related to the enforcement and administration of the Food Act 2001.

Environment and Planning: Design Reviews by the Integrated Design Commission

At present the Integrated Design Commission (IDC) has no formal relationship with development assessment under the Development Act 1993 and this is not intended to change in the near future.  However, the IDC does intend to submit each report arising from a design review to the relevant planning authority (usually the local council).

The IDC now invites proponents to submit their project for a free-of-charge design review.  It does this both actively, by contacting proponents of projects, and passively via its website.  If a proponent wishes to take advantage of a design review for their project, the Government Architect considers whether it is worthwhile to conduct a design review, and if so the project is considered by a design review panel.  Projects from across SA will be considered (not just metro or central Adelaide).

Design review panels meet monthly and comprise up to six members drawn from a pool of 24 design professionals.  Panels are project-specific and comprise members with relevant expertise.  Panel meetings are not open to the public, and reports will not ordinarily be published (although matters of particular importance may be).

Prior to each panel meeting, a case officer will request all plans and details of the project from the proponent.  In addition the officer will send information to the proponent so as to ensure they come prepared to the panel meeting.

At a panel meeting, each project is given one hour for consideration.  The case officer provides a 1-2 minute introduction and outlines the key issues for discussion.  The proponent and their representatives then enter the room and give a presentation for up to 15 minutes.  30 minutes is then allocated for a critique by the panel with the proponent and their representatives, after which the proponents leave.  The panel then debriefs for 10-15 minutes in the absence of the proponent to clarify recommendations for inclusion in the report.

Design review panels consider projects against site-specific design vision statements and design principles prepared as part of community engagement sessions (anticipated to be carried out by the proponent or State or local government).  Where such does not exist, the panel will refer to relevant best practice documents and design guidelines.  Somewhat curiously, the IDC’s website suggests that the 30 Year Plan and the SA Strategic Plan are “best practice documents”.  I doubt these are documents which will provide much design inspiration!

The result of a design review by a design review panel is a report that documents the key aspects of the project discussed by the panel and what issues or opportunities the panel has identified.  The report will be provided to the proponent and, as noted above, the relevant planning authority.  The scenario where a project already has planning consent when the design review is conducted does not appear to be specifically addressed.

In theory, a design review should benefit a project by leading to improved designs.  I suspect this will work well for public sector projects where those projects have the luxury of time and are not required to generate profit.  I will be interested to see what the attitude of the private sector will be to an optional process which has potential to add delay, generate criticism and then funnel that criticism to the body responsible for granting planning consent.  It will also be interesting to see what planning authorities make of design review panel reports in the context of a development plan assessment.  It is difficult to see what legal status such reports would have.

For further information on any of the material contained in this article please contact David Billington on 8210 1263 or dbillington@normans.com.au.

Environment and Planning: Retrospective Approvals and Punishment

The media has recently devoted some attention to illegal development and retrospective approvals.  This extract is from the Sunday Mail editorial column on 10 September 2011:

There are clearly growing numbers of people who want to build or extend and follow the philosophy that it is easier to get permission afterwards. They're helped by the fact that most councils are willing to provide retrospective approval for these projects. Is this good enough?

Their planning authority is one of the main reasons our councils exist; to ensure new development is done properly and in accordance with rules known to all.

Existing ratepayers adversely affected by such post-approvals have a right to feel annoyed with their councils - they pay their rates, obey the rules, then if a neighbour puts up an unapproved development it seems all the sympathy is with the unplanned work which gains retrospective approval.

If planning laws were more black and white, and enforced, ratepayers would have much more faith in their councils.

Such comments belie a perception that a “build first, approve later” culture appears to be developing in this State.

What Can Be Done?

As this State’s leading development enforcement lawyers, we see that many councils are turning to prosecution to punish such developers, particularly for the more egregious offences.  Such prosecutions, when properly prepared, are invariably successful and generate “success stories” which set their own local precedents.

Prosecutions can occur regardless of whether other action is taken, and regardless of whether the development is “regularised” by retrospective approval.

Amongst the Councils who have taken criminal proceedings in the last 18 months are Port Adelaide Enfield, Campbelltown, Charles Sturt, Salisbury, Unley and West Torrens.  Highlights include the prosecution of the unrepentant tree lopper, Mr Carlin, who was fined over $20,000 for the removal of one tree, and the prosecution of a trio of builders including the Ahrens Group for commencing construction of a large industrial building prior to obtaining building rules consent were each fined an average of $9,000 each.

The laws in relation to illegal development are, generally, black and white and can be enforced.  We take pride in assisting councils to undertake both civil and criminal enforcement in a realistic and practical manner.

What Can’t Be Done?

Treating retrospective applications differently to prospective applications.  Although the media seem concerned councils are “willing” to grant retrospective approvals (or that such is possible at all), the correct legal position is that retrospective applications should be treated as if the unlawful development had not occurred.

Issues do however arise where applications seek to regularise part only of an existing illegal development.  We regularly find that legal advice is necessary in such circumstances and we welcome enquiries. 

For further information on any of the material contained in this article please contact Claire Ryan on 8210 1294 or cryan@normans.com.au.

Employment and Industrial Relations: Adverse Action Claim Headed to the High Court

The landmark decision of the Full Court of the Federal Court, which extended the concept of adverse action beyond anything seen in the provision’s short history, will now be subject to the scrutiny of the High Court.

Earlier this month, the High Court offered a potential lifeline to employers by opening up the decision in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education to further review.  With adverse action claims under the Fair Work Act 2009 (Cth) arguably applicable to employers in the State, as well as the Federal industrial relations systems, the High Court’s deliberations will be of relevance to local government and private sector employers alike.

In Barclay, the employee, unbeknownst to his employer, used his work email account to send an accusatory email regarding misconduct in the workplace.  The proceedings arose because, in that email, the employee identified his position as the Union President as the basis for sending the email.

After being notified by fellow employees, the employer required the employee to show cause as to why he should not be disciplined.  The employee was suspended on full pay, and blocked from the employer’s internet connection.  These actions were the subject of the employee’s adverse action claim.

At first instance, the trial judge found that, although the conduct of the employer equated to adverse action, the employer’s intention for taking that adverse action was not for a prohibited reason.  As such, because it found that the employer took the action for legitimate business reasons, the employee’s action failed.

On appeal, the Full Court (in a 2-1 majority) overturned this decision.  In reaching their conclusion, the majority looked beyond the employer’s intention and, rather, examined the ‘real reason or reasons’ for the employer’s action.  Therefore, the Full Court broadened the test for adverse action to one that is based on the Court’s objective analysis of the action.

In the opinion of the majority, the appropriate test is whether, from an objective viewpoint, the employer’s adverse action was taken as a consequence of the employee’s union membership (i.e. a prohibited reason).  This, an employer’s good, subjective, intention may not be sufficient to disprove an adverse action claim.

The majority further highlighted that the adverse action provisions are protective in nature, and must be construed broadly.

This case highlights the need for employers to be vigilant when dealing with employees, particularly union members, when considering any form of action taken against an employee.  On the Full Court’s approach, good intentions do not necessarily protect employers.

Decisions are now flowing thick and fast in this jurisdiction, and adverse action claims have being taken and upheld against employers in a variety of circumstances including:

• employer conduct during the negotiation of enterprise agreements;
• hurt and humiliation caused by the dismissal of an employee; and
• an employee’s suspension from employment, with pay, during the course of an investigation for misconduct.

The High Court’s decision will, therefore, provide much needed clarity on the true breadth of adverse action claims.

For further information on any of the material contained in this article please contact Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au.

A brave New World, but where and what are the tools- Christine Umapathysivam

Like any human venture, government can be full of error, fallibility and hubris. But the bigger danger for governments to day is not excessive hubris but rather that they might succumb to the myth – often propagated by a skeptical media – that they are powerless, condemned to mistrust and futility. If they do succumb, they will fail to rise to the great challenges, from climate change to inequality that they alone can tackle.

Geoff Mulgan, Director Young Foundation

Abstract

Local Government faces new and exciting challenges driven by unprecedented government and community expectations. Whilst this involves creating solutions to new and wicked problems, success also depends on examining the administrative tools and approaches that can support this brave new world.

Article

I read with interest the wise words of Jeff Tate in the August edition of Briefly outlining his insights into the challenges that face Local Government into the future and whilst I agree with his view about needing to develop institutions and political structures that bring Local Government into the 21st century, I also reflected on the need to address some of the outdated workplace practices that act as a barrier to success.

I recently heard Local Government referred to as the “risk manager of last resort” i.e. the body that manages the high risk, high consequence issues for which there is no competition – the floods, the fires, the infrastructure. These are the community issues that are complex, unique balancing as they do competing resource pressures and individual interests.  These are the wicked problems found deep in the DNA of Local Government and the sort of problem solving that it has shown itself to be adept at solving when no other sector of the economy or government wants to tackle. It is Local Government that continues to deliver the benefits for its community stakeholders, and it generally does this with the most rudimentary and outdated of tools and processes. It seems to me that as the issues facing Local Government become more complex and demanding that some review  of the way in which these services are delivered is needed,  Local Government should give serious thought not just to the WHAT but also to the HOW this can be done and I make the following suggestions;

Streamline the administrative processes to build productivity by

• Exploiting technology
• Training staff
• Removing duplication
• Centralizing systems
• Understanding the value of shared services either as a regional hub or sharing of expertise

Thinking clearly about what are the core and quintessentially local services ie are the support (corporate) services really core services or, is it the strategy, local representation and service delivery that most benefit from a local approach. 

Developing Enterprise Agreements that deliver two way flexibility

• to staff seeking work life balance options
• to employers seeking to deliver affordable services beyond the 9 to 5 working day
• to staff who want access to training and development
• to employers who need to respond to demand for services that will depend on new skills and a different sized workforce
• recognizing the employers need for organizational agility
• recognizing different needs for employees at different life stages
• developing adult relationships that recognize joint responsibility for career development

Encouraging Innovation that recognizes the opportunities that change brings

• To offer new services
• To develop new approaches
• To develop more interesting careers
• For productivity gains that create “space” for new services and better community outcomes

Invest in Elected Member development

Find new way to engage with the community that exploit Local Government’s immediacy and community connections

Local Government as a sector is recognized by the community and  by other governments for its huge potential as the mechanism most able to deliver some of the projects that are will drive a successful response to the big community challenges.  Its own challenge however, is to adopt new approaches and to develop innovative tools that build its capacity to respond and this will require leadership and managerial and political courage.  Trying new things always does.

Biography

Christine Umapathysivam is the Acting Chief Executive Officer of the City of Unley, a medium sized Council located on the southern boundary of the City of Adelaide. The City of Unley has a population of 36 000 and covers an area of 14 m2. Over the last 25 years, Christine has worked for a number of local authorities in SA and interstate. She has also worked as a private management and strategy development consultant working with small business and the metal manufacturing industry.

She holds a Bachelor of Arts and a Graduate Diploma in Business Management. She is currently completing a Bachelor of Laws at Deakin University. Christine is a member of Local Government Managers Australia and has recently completed the Excellence in Local Government Leadership Program conducted by the Australian Centre for Excellence in Local Government. Christine is the chair of the Eastern Regional Alliance shared services portfolio.

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