October depaNews

It’s always nice to have a wide vocabulary, having just the right word, or words, ready to be plucked out for every circumstance. Serious, business-like, charming, funny, kind, amusing, technical, professional, assertive, aggressive, robust, respectful, disrespectful and colourful words from which to choose the right one. It’s all about appropriateness and place, so you need a good range for all the different places and circumstances you find in life.

In the depa office, we love the concept of evidence-based research, so we also loved Emma Byrne’s book, “Swearing is Good for You: The Amazing Science of Bad Language”, which scientifically and thoroughly demonstrates that bad words, obscene or profane, or generally unacceptable language has many positive virtues - a wide range of benefits from promoting trust and teamwork in the office to increasing our tolerance to pain. Even some great research on not holding back during childbirth. You have to listen to the scientists, don’t you.

So, after vigorously opposing the introduction of private certification from as early as the 1980s and without ever compromising, constantly and consistently for almost three decades, when the NSW Government’s Improving Certifier Independence - Options Paper arrived in our office, we were not lost for words.

Seriously, don’t these people ever look back at history? How could anyone think that an organisation like ours, which has steadfastly criticised private certification for three decades because of the unavoidable underlying conflict of interest of a developer paying their own certifier, think it made sense to ask us?

With proper reverence to Monty Python, our office was the right room for an argument:

Policy Kiddie:  Is this the right room for an argument?

depa:               I told you once.

Policy Kiddie:  No you haven’t!

depa:               Yes I have.

Policy Kiddie:  When?

depa:               Just now.

Policy Kiddie:  No you didn’t!

depa:               Yes I did ...

in the 1990s, among other things, including being briefed by the Commissioner of the Victorian Building Control Commission who said “this sort of half-baked system will involve massive headaches”,

and with an unprecedented group of local government, union and community and environmental activists,

in publishing posters like this as part of our campaigning,

in the 2000s in a succession of enquiries, investigations, the setting up of the Building Professionals Board, the establishment of a process fruitlessly attempting to create independence of private certifiers who could never be independent,

inevitable fine-tuning of that, FOI applications against the Minister for Planning because he was telling us porkies, and the information we received in response proved that Cabinet had adopted lots of things before it went out for consultation but no-one told those involved in consultation that the decision was already made and we made them fess up,

in arguing against the accreditation of council staff from the mid-2000s and continuing, how the BPB wanted to accredit them and, in the famous Neil Cocks white board story, the BPB relishing the prospect of an income stream from 800 more accredited certifiers,

the 2015 Independent Review of the Building Professionals Act 2005,

and this year arguing about the proposed Building and Development Certifiers Bill 2018 …

Policy Kiddie:  Um, I’m not feeling safe ...

It’s an interesting Options Paper. In its early pages it contains concessions like:

“there are community concerns about certifiers, particularly private certifiers, being unduly influenced by the builders and developers they work for, given the certifier as being paid by the same party that they are supposed to be independently overseeing”, and

“the certifier has the potential to be affected by the inherent conflict that exists between maintaining a private certifier’s regulatory responsibilities and fulfilling their own commercial interests”, and

“certifiers can become reliant on the same entities for work, and these financial relationships may, over time, impact on the ability for the certifier to make impartial decisions” and

“this is particularly the case where the decision of the certifier may result in a substantial negative impact on one of the parties involved”, and on and on it goes.

Seriously, FFS. We don’t blame new generations of policy people having a bit of a go at things the previous generations have had a bit of a go at, but one of the costs of downsizing the public sector in the last couple of decades has been that there is no-one left to remember, to know where the files are, to know who was involved in consultation and policy-making in the past, how extensive or superficial considerations may have been, or even to know whether records are kept.

It’s all now in the hands of kiddies in policy without access to the past, compromised further by 30 second news cycles and bloody focus groups driving political decision-making. It’s not their fault, they just assume they are doing it for the first time and don’t give sufficient regard to Mr Garrison’s maxim “there are no stupid questions, just stupid people”.

(If you are interested in this phenomenon and the degradation of the public sector, check out Laura Tingle’s Quarterly Essay issue 60 in 2015 “Political Amnesia: How we Forgot How to Govern” for a superb analysis of the betrayal of the capacity of the public sector to develop policy by a succession of governments.)

In the 1990s an unprecedented group of organisations came together to oppose the NSW Labor Government’s plans, chiefly through Planning Minister Craig Knowles, to introduce the option of a private certifier instead of a proper regulator employed without a financial interest. We were part of that - together with the Australian Consumers Association (publishers of Choice), the Australian Conservation Foundation, the Total Environment Centre, the Nature Conservation Council, the other local government unions, LGNSW, Unions NSW and even the predecessor of the Local Government Managers. It was local government united, without dissent, unprecedented and never has such a broad coalition been assembled since. But it lost.

But the Labor government pushed through, it was waived past by the Coalition Opposition with a few observations expressed about community concern, “flaws but the government has failed to address them in spite of the fact that there’d been many months of consultation” and “the Opposition shares local government and community concerns that private certifiers employed directly by developers could have their capacity for independent decisions compromised.”

The ICAC submitted “private sector consultants to act as inspectors on behalf of local councils could raise new opportunities for corrupt conduct to occur. The ICAC believes these issues need to be addressed in the proposed legislation”. They weren’t, of course.

To summarise a long history, the Director-General of the Department of Local Government at the time famously said that the system would collapse within five years. He was wrong, it was collapsing after three and agitated members of the Legislative Council were moving to set up their own investigation where the government wouldn’t have the numbers. This forced the government to pre-empt and control the emerging calamity by setting up the Campbell Enquiry into the Quality of Buildings.

And relentlessly, consistently on message, strident when we needed to be, we hated a system that, regardless of what steps could be taken to manage risks, propriety and independence, the developer still paid the certifier. And nothing has changed.

We’ll lodge a brief submission in response to the Options Paper but really who cares whether it’s Option 1, the wheel of fortune rotation scheme, or Option 2 the cab rank scheme, surely to be joined later by the Uber scheme, or Option 3 the time limit scheme? Why not all of them?

In the end, the fundamental and compromising conflict of interest - the developer paying/paying off their own certifier continues. It was the fundamental problem identified 30 years ago and it continues. It always will.

Put in a submission if you like, there are 27 questions to answer!

Submissions close at 5pm on 30 October to

Unions are collectivist organisations which recognise the value and strength that flows from membership and action. Similarly, unions affiliate to peak bodies like the ACTU federally or, like us, Unions NSW, primarily focused on NSW unions and branches. Some NSW unions, like us, don’t make political donations but many, almost, do.

Everyone will have seen campaigns run by the NSW Nurses, or the Teachers Federation or the PSA about privatisation, staff numbers, beds, class sizes or whatever. All usually damaging television and media campaigns against whichever government may be in charge.

The Electoral Funding Act 2018 was introduced by the NSW Government to restrain unions and other third-party campaigners from participating in election campaigns. Previously, third-party campaigners could spend up to $1 million but the 2018 legislation reduces that limit by half, to $500,000. It also changes arrangements so that if a number of unions combined together, the $500,000 limit still applies. Clearly this is censorship, a political attack against unions participating in an election process and, based upon legal advice, probably unconstitutional and illegal. So it’s off to the High Court.

In 2013 Unions NSW ran a similar case in the High Court securing a declaration that the O’Farrell Liberal Government’s restrictions on political donations by individuals were unconstitutional. Unions NSW has resolved to launch a similar challenge to the 2018 legislation because it squarely targets unions and union members, to gag them and make them less effective in protecting the interests of their members.

The depa Committee of Management resolved unanimously to participate in the funding of the challenge. $5000, to be precise, estimated as our share of the cost of a successful challenge. Or $10,000 if it’s lost. The other local government unions are also supporting the case.

Unions NSW arranged a demonstration of affiliates gagged outside the court when it first came on for directions before the High Court in Sydney on 26 September. The case resumed on 23 October, with the High Court confirming that it will refer the Unions NSW challenge to a full hearing in December, with South Australia the first of several states expected to intervene. Unions NSW has sought an expedited hearing to have the matter resolved before next year’s State election.

You may have already seen media about this important challenge but now you know you have skin in the game.

depa’s dispute with LGNSW on behalf of New South Wales councils about whether or not councils have been including a value for private use of a car in the Superable salary of those in the two closed defined benefit schemes within LGS rolls on but, getting closer to a solution.

This has been a massive research exercise preceded by significant information and assistance to councils earlier this year to ensure that councils did include a figure for private use of a Council car in superannuation calculations. Now that everyone was focused on the question, it was important to get 2018 right.

The dispute will resume in the IRC before Chief Commissioner Kite on 5 November where we will be able to advise the Commission of progress, in particular, with those 153 members of ours who provided an authority for depa to pursue the matter for them and have access to what might be regarded by either LGS or councils as private information.

It’s true to say that LGS, after changes to the Trust Deed in 2003, didn’t pursue councils to ensure that they were calculating a proper value to be included in the salary of employees in these two closed defined benefit schemes. We all make our best decisions with hindsight, and it would have helped for LGS to have been more vigilant to ensure councils were complying with obligations under the Trust Deed, LGNSW should have pursued it to ensure councils were doing the right thing, so should the unions and importantly, members of the defined benefit schemes have learned an important lesson about individual responsibilities.

Everyone else was assuming that it would all be done properly but it would have been a good idea for members of those schemes to pay attention to what was written into their annual superannuation statement and to check for themselves.

What we now know is that a minority of our 153 members (and therefore other relevant employees at those councils) received a positive value in their superable salary calculations for 2018. Ranging from an improbable low of $41 up to a luxurious figure beyond $14,000. We don’t yet know whether those councils did similarly in preceding years, and this is still being pursued.

But because all a council needs to do is to put a figure on the value, most councils which have considered the position have concluded that the value is net zero dollars, the private value to the employee of the car being equivalent to pre-tax leaseback payments made for the use of the car.

We have emailed all our 153 members in this group so they all know where they fit in the three options: namely, a positive dollar value to increase the superable salary, a “net zero dollar” value based upon calculations cancelling out the leaseback fee and sadly, a do-nothing group of councils which didn’t bother to do anything. And because it’s a discretion for the employer to put in a figure, putting in zero counts.

And there’s really no point running a dispute to move members from the category where councils ignored it entirely and concluded it was zero dollars into the category of “net zero dollars”.

The dispute continues, LGS is continuing to pursue whether those councils that did include a positive net value in 2018 have also done it in the past and are moving onto reviewing those who may have left the fund to see if there are implications for them.

(Please note this dispute applies only to members of the defined benefit schemes that have been closed for close to two decades.)