Special report from a meeting with the BPB on 27 July

 

(Next month we’ll have some great news on superannuation and the LGS’s astonishing 2009/2010 returns to members while at the same time caring for the planet)

 

But first…

We met again with representatives of the BPB on 27 July. Vice President Jamie Loader, Member of the Committee of Management Darren Greenow and I met with the Chair, CEO and three members of the Board, Graham Huxley, Michael Whelan and Michael Wynn-Jones.

The BPB had met on the previous day in Queanbeyan and, amongst other things, had considered a hostile response from the industry to their proposals on conflict of interest and their view about the inappropriateness of accredited council staff certifying compliance on applications filed by their employing Council.

We were a bit surprised at the response from some parts of the industry (particularly out there in the Lachlan area) where councils were perceiving the requirements to have someone external to the organisation sign off on their own compliance as onerous, unworkable, potentially very expensive or just a bloody nuisance.

In the June issue of depaNews we made it clear that after the ICAC had made a number of findings about 15 years ago on the appropriateness or otherwise of councils certifying their own compliance. It was the view of the ICAC that it was inappropriate and, on any view  notwithstanding the convenience of it all, there are significant conflict of interest issues to be managed.

How does an employee of the Council say no to councillors or management when the project is a high priority and everyone is meant to be doing the right thing?

In many ways the conflict of interest that exists between the applicant and a private certifier - which we have opposed and criticised as a fundamental flaw in the private certifier model – also exists with the Council employees certifying the application of their employer.

The EDAP group of councils has been the focus of the opposition to the BPB's proposals to remove this conflict of interest by prohibiting an employee from certifying an application of their employer.

We discovered also that the same group of councils was reluctant to seek accreditation but no one had told us.

So, when we saw the BPB on 27 July we had a number of issues to address.

 

Progress with accrediting council staff

These figures are changing all the time but at 26 July, the Board had:

• Received 489 applications for accreditation by council employees representing 69% of councils,
• accredited 285 of those and rejected none of them,
• anticipated receiving applications for accreditation this week from another 37 councils,
• had been advised that a further 21 councils were preparing submissions next week for submission to the Board, and
• expected somewhere between 600 and 700 council employees to be accredited before the deadline date of 1 September 2010.

BPB Chair Sue Holliday and CEO Neil Cocks will be travelling to Forbes on 9 August to charm and encourage Lachlan, Forbes, Parkes and Wellington - and probably to Pittwater that week as well.  The only other Council not actively seeking accreditation is Rockdale and this is a simple matter of addressing the delegations to allow this to proceed.

No recommendations by any Council for a particular level of accreditation have been rejected.

 

Conflict of interest issues

The BPB is "sympathetic" to the problems alarming some councils finding it difficult to make arrangements with adjoining councils to carry out the compliance role on their own applications.

Despite this, the BPB remains committed to properly managing this conflict of interest and is having discussions with the Division of Local Government and the ICAC about this issue.

After these discussions, the BPB will consider what to do next but it would appear unlikely that they will step back from their policy position.

Members of the Board claimed that at their meeting in Queanbeyan on 26 July, many employees had expressed relief that they no longer would be involved in this process and the pressure that can be exerted inappropriately upon them by management or councillors.

If you would like to express a view one way or the other, e-mail to ian@depa.net.au .

 

Transitional provisions

 The BPB thought there was no need for transitional arrangements for jobs that are under way on 1 September but they now do. The transitional arrangements are in the process of being drafted.

 

Fines under the BPB Act 2005

The BPB has resolved that until such time as those provisions of the 2005 Act which allow fining accredited certifiers is amended legislatively, they will not issue fines against accredited council employees. We think this is messy.

The Board is seeking an acknowledgement by the Minister for Planning Tony Kelly that the Minister supports this temporary arrangement until the regulatory or legislative changes necessary to establish that the Board won’t be fining Council employees can be scheduled some time in or after October.

This is not a satisfactory arrangement and ideally we would prefer an extension of the deadline date beyond 1 September so that the outstanding imprecision is cleared up before the system operates. But, if that can't happen, a resolution of the BPB not to fine, a commitment by the Minister for Planning that he supports this situation given the legislative backlog and a six-month timeframe in getting around to hearing disciplinary matters by the Board's own Disciplinary Committee anyway, minimises any risk.

I would have thought, private certifiers being what they are, that the real risk to the BPB was from a vexatious private certifier pursuing them for not exercising their statutory responsibilities. Writ of mandamus anyone?

 

The issue of discipline generally

Firstly, while maximum fines have been increased (because the BPB has powers now brought across from the ADT and can fine up to a maximum of $110,000) the Board was keen to establish that they prefer to move away from a punitive regime where appropriate, to one which encourages acquiring additional skills and competency to avoid the behaviour the subject of any complaint in the first place.

This should provide some comfort to those worried about the approach the Board will take in properly managing Council employees who are the subject of complaint.

On the issue of the Board investigating complaints against Council employees, the Board does not need to be notified by councils of complaints which are made about employees. The Board will only have a role when a complaint is made direct to them.

We expressed our concern about the vulnerability of council employees generally in a community of punitive and vexatious complainants and expect that when the local loonies discover they can also complain to the BPB, they will do so.

The Board has already provided undertakings that when they do receive a complaint, their first step would be to seek a briefing from the Council about whether the Council had also received a complaint and, a briefing on the process the Council followed in investigating it and taking any remedial action which may have been necessary.

In summary, knowing local government as we do, it's one thing to have 37 councils saying they will submit recommendations for accreditation and actually getting 37 councils to submit them. Similarly, 21 councils saying that they are preparing submissions next week doesn't always mean that they will prepare submissions next week, nor that they will be submitted within a reasonable timeframe.

We will see.

 

Woo hoo , look at LGS returns

How about this! LGS investment options have been ranked either first or, for one option second, by SuperRatings for 2009/10 returns. SuperRatings is the authoritative ratings agency and they rate all significant Australian superannuation funds – about 50 funds in all.

 

More next month and an explanation of the photo produced below.

 

 

 

 

 

Ian Robertson
Secretary