Frank's office confesses - Cabinet resolved planning reform on 31 October
FOI application flushes out hoax of "public consultation"
Previous issues of the Bulletin reported on depa’s application under the Freedom of Information Act for access to all documentation associated with draft legislation arising from the Discussion Paper "IMPROVING the NSW planning system".
The application was filed in the Administrative Decisions Tribunal with the Office of the Minister for Planning as the respondent. The Minister's office rejected the application claiming that the material sought was protected under exemption provisions for Cabinet documents.
depa appealed this decision and the Crown Solicitor has now filed submissions and a Statement of Evidence from the Minister’s FOI Officer and advisor. The submissions and evidence make three things clear:
- There was a Cabinet meeting on 31 October 2007 - Statement of Evidence paragraph 13.
- At that meeting, the Cabinet deliberated upon and approved instructions to Parliamentary Counsel to draft bills and/or legislation and/or explanatory memoranda arising from, leading to or incorporating any of the proposals set out in the discussion paper - Statement of Evidence paragraph 14, Submissions paragraph 16.
- There was also a more detailed set of instructions for Parliamentary Counsel from the Cabinet Meeting - Statement of Evidence paragraph 15.
Well, isn't that interesting? Anyone who attended any of the information sessions conducted by functionaries from the Department of Planning and the Minister’s office could not help coming away with the distinct impression that the Government's mind was already made up. Rumours from within the Department were all consistent - the thing had been decided and no one should even assume that any submissions would be read.
The claimed commitment to consultation with the community, local government and other interests, sounded too much like window-dressing and a hoax.
Cabinet had already decided what was going to happen. And that can only mean trouble.
Hiding behind the allowable defence of Cabinet confidentiality, our appeal is destined to fail. At our first skirmish with representatives of the Minister’s Office and the Crown Solicitor, we put to them that while Cabinet confidentiality was an allowable defence if they didn't want to disclose what Cabinet had decided, if they really had nothing to hide, there was discretion to provide access to the documents we sought regardless.
But clearly neither the Minister nor the Crown Solicitor want us to know what Cabinet decided on 31 October. It's inconceivable that they would want to deny access to information that demonstrates a commitment to the public process of consultation, feedback and a draft exposure bill for further consultation. That would allow the Government to look like it was doing the right thing.
Clearly Cabinet has already decided what's going to happen -and that will mean cutting communities out of a say in development, side-lining the participation of elected councillors in development decisions, the establishment of faux “independent” review panels (as if!), continued pandering to developers (despite recent revelations about the vast contributions made by developers and big builders to the election slush funds of the New South Wales Branch of the ALP and the expectations that come with those donations) and an expansion of the already-discredited system of private certification.
Shame on them all.
And the winner is … Part I (back)
Despite the astonishing number of opportunities available for people to sneer at Council development control and planning staff arising from the Wollongong "funny business" development scandal, we were underwhelmed with entries in the competition announced last month.
How unimaginative must be those who would make merry at our expense - Jody and I were able to amuse ourselves for hours with our own suggestions.
But the winner is Heidi Naylor from Clarence Valley with this exchange between an applicant (wanting a referral) and a helpful development professional.
Applicant: Come on, I know you can get it done, you're so good at it.
Helpful Development Professional: Do you think flattery will get you everywhere?
Applicant: Yep, you're a Town Planner.
Congratulations, Heidi. You are the winner of another magnificent depa prize.
And the winner is … Part II(back)
The State Electoral Office has advised that the following candidates have been declared elected to the depa Committee of Management for 2008/2009.
President:
Kerry Hunt, Leichhardt
Vice President:
Steven Parisotto, Leichhardt
Members of the Committee:
Nicole Ashton, Sutherland
Glenn Ford, Ryde
Les Green, Bankstown
David Lemcke, Wyong
Paul O’Brien, Blayney
Welcome Paul, and congratulations to Steven on his election to the position of Vice President. Stephen had been a member of the Committee of Management for the past two years.
We also thank retiring members of the previous Committee, Vice Presidents Jim Nichols and Andrew Spooner, and Leon Rodwell. All had been valuable contributors to depa over a long period of time.
There remains one vacancy in the position of Vice President and one vacant position for a member of the Committee of Management. Under our rules, we can either hold another election for these two vacant positions or co-opt someone to fill those positions after six months have elapsed of the two-year terms. The Committee, when it first meets in May, will determine which.
Hornsby gets gung ho on random drug and alcohol testing (back)
If hashish is rumoured to be the drug of choice of Turkish assassins (something we've all regarded as an urban myth) then vast amounts of the stuff must have been smoked at Hornsby over the past few weeks. When the dispute filed by depa (and supported by the USU, the LGEA and UnionsNSW) returned to the Industrial Relations Commission this week, Hornsby was not interested in anything other than going for the throat.
Since the last occasion the dispute was in the Commission, depa and UnionsNSW had met twice with representatives of the Council to try and convince them that (apart from issues about invading the privacy of employees and what they do out of hours) the Council really couldn't establish that they had any good reason at all to introduce a random testing regime.
As a quick summary, we think Hornsby is doing the wrong thing for the following reasons:
- They have no evidence of drugs or alcohol being a problem at work. In fact, the best they could do when we met on 27 February was to assert that there were "a number of incidents where they had strong reason to believe drugs and alcohol were involved".
- While they claim it to be an occupational health and safety issue, they are not targeting the safety critical areas of work, nor are they relating the testing to incidents where problems might be seen to exist because they believe this will discourage reporting!
- The Australian Safety and Compensation Council has found that there is "a little clear evidence on the links between drug use and absenteeism, low productivity, poor performance and accidents at work."
- There is confusion about what is being looked for and why. A company selling testing services and advocating more random testing at work (as they would) was quoted in the Daily Telegraph on 24 March as saying: "they do it for sports, so why not do it for workplaces - there is a much bigger problem in the wider community." But in sport they test for performance enhancement - something that sometimes wouldn't go astray in local government.
- Other industries have only introduced random testing in safety critical areas and after identifying clear evidence – for example, the transport industry and State Rail. In State Rail, random testing was introduced by legislation rather than by agreement.
- This response requires supervisors and managers to report suspicious behaviour of employees and if this is not happening, then this needs to be addressed by the Council. Then again, we can understand why supervisors might feel uncomfortable informing on their staff if they believe that the only response of the Council is punitive.
- There are legal doubts about whether an employer has a common law right to test employees who are not showing signs of impairment.
- There are privacy issues arising from the applicability of the Privacy and Personal Information Protection Act which applies to local government.
- There are many industrial relations and human resources issues that need to be resolved - for example, what if an exemplary employee with a perfect employment history tests positive where they would not have been tested if testing relied solely on "reasonable suspicion"?
We think this is an important issue. We have no problem with testing targeting those who appear drug or alcohol affected at work but there are far too many questions unanswered to allow any employer to crash into this sensitive area in Hornsby's clumsy and dawdling manner. And UnionsNSW, representing the entire union movement, has a well-researched policy of opposition to random testing.
The Council itself is also creating a significant liability. It claims that it perceived there to be an occupational health and safety risk in February 2004 but, despite having started the process to introduce a drug and alcohol policy at that time, now more than four years later and the Council has produced nothing. If there was a risk, then the failure to address it by using testing for employees where there is "reasonable suspicion" of impairment, over the past four years is embarrassing, at least, and a breach of the Occupational Health and Safety Act, at worst.
We know that other councils are contemplating this and members are being extremely reliable in alerting us. Many councils are watching what will happen. This will be the issue for HR zealots this year.
The easiest solution now, if we can't reach some agreement, would be to the unions and UnionsNSW to campaign in the workplace and have individual employees simply refuse to participate. What would Hornsby do then?
Ian Robertson
Secretary
