Introduction

Delegates, here is the December 2018 MERC Newsletter. This newsletter has a lot of important information in it for you to read, please circulate this to your fellow Councillors and senior staff, so they can appreciate and understand the excellent work the Association and you are doing on behalf of your Council and community, with regard to mining and energy related matters.

Update on the Joint Voluntary Planning Agreement Working Party (VPAWP)

The working party (Cr Sue Moore, Cr Owen Hasler, Steve Loane and Greg Lamont) and MERC Chair Cr Peter Shinton, met on 22^nd August 2018 in Sydney with the DPE (Alison Frame, Felicity Greenway and Steven Barry and the NSW Minerals Council (Steve Galliee and Claire Doherty) for an hour to discuss areas of agreement and the way forward. The meeting was very constructive.

The aim of the steering committee is to go over the areas not in agreement and determine a path forward to get agreement, so the Guidelines can be finalised and was to be adopted by delegates at our Annual General Meeting in November 2018. NSW Minerals Council are also keen to have these Guidelines finalised as soon as possible but needed agreement of the issues confirmed (DA Schematic, Roads Calculator and need for a dispute resolution provision determined up front) to take back to their Executive on 20^th September 2018 to justify their investment in the project and any further involvement.

Current position is that the DPE have confirmed that Stephen Free will chair the Steering Committee and the working party hoped a meeting would be held before the end of 2018 (depending on Chair) to establish protocols, etc. However now the first meeting is to be held in Sydney on 15^th February 2019 to fit in with the other parties.

Regional Independent Assessment Panel (RIAP) & Resources for Regions (R4R)

The last meeting for RIAP was held on 6^th September 2018 where 35 projects have been received for consideration with $190m value of projects for shortlisting, to allocate $50m against the new criteria. A shortlist has been agreed on and awaiting clarification of some projects by Infrastructure NSW before RIAP is called for a meeting again for the adoption of a final list of approved projects to be considered by Cabinet later in the year.

Those that were good mining related projects but not shortlisted for not meeting the criteria despite the changes to the criteria, are going to be directed towards other funding programs if eligible and there were other projects that were simply not eligible and missed out altogether.The next meeting to be held in Sydney on 24^th January 2019.

Website

There is a new part on website where only delegates can access minutes by a “log in” which has now been set up by CIBIS and those that responded have been registered and have been informed on the process by the CIBIS representative Erin. If others are still to register let the Executive Officer know who and the email address and you will get registered by Erin.

Regional Advisory Forum (RAF)

The last meeting of RAF was held on 18^th October 2018, Clr Hasler provided a comprehensive update to our November meetings, with a copy of his report in the business papers. With the election in March 2019, it is not likely that a further meeting will be held until after the elections as Clr Hasler has reported.

Next Meetings of Association for 2019

The next Executive Committee meeting will be on 7^th February 2019 at Club York, 99 York St up from The Grace and the Ordinary General Meeting next day on 8^th February 2019 in NSW Parliament House in Jubilee Room, now confirmed.

The May meeting is to be held in Forbes who are working on dates, then in the NSW Parliament in August (dates to be confirmed) and awaiting a response from Mid Coast Council who are also working on dates regarding November for 2019 meetings.

Dates will be confirmed by the Executive in due course, but by sticking with the pattern of second Thursday/Friday in the aforementioned months and bookings at Parliament House is what we are working on for your diaries as per the “Claim the Dates” email last week.

Membership Campaign

Queanbeyan – Palerang, Yass Valley and Upper Lachlan Shire Councils attended the wind farming workshop in view of their wind farming developments. They were all going back to report to their Councils on the merits of joining MERC and it is hoped they do. Fantastically, Upper Lachlan have agreed to join MERC, thanks to the good work done by the delegates in talking to the Upper Lachlan Councillors during the recent meetings there. This gives MERC 22 members. Still awaiting Balranald and Narrandera Shire Councils and some of the invited workshop wind farming Councils, to respond.

The Executive Officer has approached Country Mayors Association to present to them in March and has sent the current proposal pro forma to delegates to review and provide input and suggestions to the Executive Officer on the content, to entice further interest. Membership discussions have also re commenced with the Mayor of Muswellbrook by members of the MERC Executive..

The Association at its May meeting in 2018 adopted a Marketing Policy to ensure membership increases by targeting more renewable energy development affected LGA’s in NSW and to formalise and strengthen the membership campaign.

Research Fellowship Update

Dr Juan Castilla – Pho provided a presentation to the Executive Committee meeting and the workshop on 8^th November 2018 and again in full to the delegates at the Ordinary meeting on 9^th November 2018 on how the University of Wollongong can work with MERC on a PhD research fellowship using their Participatory Collaborative Consultation Simulation and Modelling approach.

Delegates were extremely impressed and can see its application in all forms of consultation with the community and have resolved that the Executive Committee pursue this concept in consultation with the University, to look at ways to fund and implement it with a view to have the PhD Fellowship in place by the September 2019 intake of PhD students.

Executive Officer has been in touch with Juan who requested the presentations from the wind farming workshop to better understand the consultation needs of delegates and their communities for the project. There are some issues to consider and Juan has indicated that he has already identified a prospective PhD student and that the project could start in March 2019 for their side, however the working party has not been launched as yet and funding options etc., considered. Juan has been requested to provide further details on funding options and how the process may work for both sides before convening the working party. More later.

Project Working Party

The working party is currently reviewing the MERC CSG Policy in relation to the NSW Gas Plan; they have reviewed and shortlisted the existing panel of consultants; prepared a Skills Matrix in member Councils for renewable energy, mining and other specialised skill sets that could be accessed by members to assist with resource sharing, etc. They will be presented to delegates at the February 8th 2019 meeting..

Related Matters of Interest – Mining and Energy Issues in the Press

 “Fly In Fly Out workers distress studied” Industrial Careers reports on 11^th December 2018 the following: “A third of fly-in, fly-out (FIFO) resource workers experience high levels of psychological distress, a survey has found. Experts at Curtin University have studied the mental health and wellbeing of FIFO workers, making 18 recommendations for workers suffering from mental health issues.

The researchers surveyed 3,000 FIFO workers, 400 partners and 300 former FIFO workers, and specifically tracked the experiences of 200 FIFO workers during their work rosters. It found FIFO workers were “clearly at risk” of mental health issues. A total of 33 per cent experienced high or very high levels of psychological distress, compared to just 17 per cent among non-FIFO workers.

The report calls for shorter work rosters, permanent rooms at housing camps, efforts to reduce the stigma of mental health, support programs, training for leaders and providing reliable communications for workers to talk to their loved ones.

The WA Government says the study shows that if the sector does not improve its practices, it could be forced to make a currently voluntary code of conduct mandatory. WA Health Minister Roger Cook said legislation is still possible. “If in the community’s mind they aren’t taking the necessary actions to create safe workplaces, mentally safe workplaces for their workers, well then it will be the requirement for the Government to legislate,” he said.

For further details go to www.industrialcareers.com.au

“Climate shifts counted” The Industrial Careers reported on 4^th December 2018 the following:

“New research suggests workers will have to start before dawn to beat the heat of climate change at the end of the century.

The new study indicates that if society tries to avoid the economic impacts of climate change on outdoor labour by shifting working hours, outdoor workers in many regions will need to start working well before dawn to avoid the effect of excessive heat stress.

Outdoor workers are exposed to excessive heat stress, particularly in hot seasons, a trend that is expected to increase as a result of climate change.

This will reduce the capability of physical labour and eventually cause economic loss.

Shifting working time earlier in the morning, when it is cooler than during midday, can be an effective way to reduce the effect of heat stress. However, the plausibility and efficacy of such an intervention has not been quantitatively assessed on a global scale.

A research team led by Jun’ya Takakura, a researcher at the National Institute for Environmental Studies in Japan, investigated whether shifting work times can offset the economic impacts of labour capacity reduction due to climate change.

The researchers used a new method to estimate the heat exposure index, and calculated the required amount of time shift necessary to keep the current level of labour capacity in the future.

The results showed that although a time shift was effective to reduce the effect of heat stress, the required amount of change in working times was not realistic.

The expected start time for outdoor workers would be well before dawn unless stringent climate-change mitigation was achieved.

Under the highest greenhouse-gas emission scenario, the required shift globally was 5.7 (4.0–6.1) hours on average by the end of this century.

The current social system would not allow such a drastic working time shift to come into practice, according to the study’s authors. It is also known that shifting working time can cause other harmful effects such as circadian rhythm disorders.

The research team also conducted an economic simulation, and found that residual damage due to labour capacity reduction would be 1.6 per cent of global total GDP if the time shift is limited to a realistic range of up to three hours.” Refer www.industrialcareers.com.au for further details.

“Questions about whether much has changed after inquiries into mining processes“- Joanne McCarthy writes in the Newcastle Herald 20^th November 2018 “REBECCA Connor’s allegations against named Department of Planning employees dealing with NSW mining applications are serious and disturbing, particularly in a state and a region that experienced years of tumultuous mining-related corruption inquiries and their consequences. Her allegations are outlined in emails in late 2017 and early 2018 to more senior staff, in a brief reference that forms part of a March investigation report into allegations against her, and in her responses to those allegations.

She was sacked for misconduct, although four of the five initial allegations against her were not sustained, and a further two – including that she failed to report a male friend’s emailed naked photo – were added to the allegations after her department computer was searched following her suspension. On the face of it Ms Connor was sacked for matters considerably less serious than the allegations she had raised against others. The Department of Planning’s speedy resolution of her unfair dismissal case with a settlement that allowed Ms Connor to resign and receive a financial payout headed off a court hearing that at the very least would have aired her allegations in public. This quite probably would have included the naming of department staff.

An email between department governance managers after Ms Connor reported arrangements for a staff farewell – including invitations to mining industry representatives and requests for them to send money to a department employee’s personal credit card – provides strong proof of what department critics have been saying for too long about NSW Government “regulatory capture” over mining. A manager confirms the credit card issue “is indicative of the conflict of interest and personal relationships that continue to exist between current employees… and the mining industry, especially mining agents, and the lack of understanding of the actual and perceived conflicts”.

In 2013 the Independent Commission Against Corruption concluded the “policy and regulatory environment in NSW for the release and allocation of coal exploration licenses is conducive to corruption”, with “weak processes” and a lack of transparency. Five years later it’s not unreasonable to ask if much has changed.”

“Key snippets from Kaldas Review of Planning System” Warwick Giblin, Oz Environmental has sent these comments in to share with delegates (yellow emphasis is Warwick’s on Kaldas comments). A copy of the full report is on the DPE site www.planning.nsw.gov.au.

“Some of the Recommendations:

10. That the DPE consider undertaking an audit of all infrastructure contributions and spending of same in NSW to enable evidence-based decision-making on the collection and monitoring of those contributions.
11. That the DPE update the Practice Note for Voluntary Planning Agreements to ensure consistency and transparency. To ensure Councils consider the Practice Note when negotiating or preparing a Voluntary Planning Agreement, the Minister consider issuing a Ministerial Direction requiring Councils to have regard to the Practice Note.
12. The updated Voluntary Planning Agreement framework should also include requirements for reporting and auditing where the funds are being allocated. This will further ensure transparency, compliance and accountability.
13. The Chair of the Independent Planning Commission continue to liaise with the Secretary of the Department of Planning and Environment to enshrine and clarify the independence of the Commission and its staff. The Secretary and the Chair should consider a contemporary Memorandum of Understanding to achieve that objective.
14. The DPE establish an Ethics Unit, similar to the United Nations Ethics Divisions, which reports directly to the Secretary of the Department.
15. While noting that some interagency forums exist, that the DPE give consideration to the establishment of a regular quarterly forum for CEOs as a basis for strategic issues and policy discussions of planning related issues.

Commentary in the Document Report:

27. I note that The Minister for Local Government has publicly released the soon to be prescribed 2018 Model Code of Conduct for Local Councils in NSW.58 Once prescribed, the new code and associated procedures will apply to more than 45,000 staff and nearly 1,300 Councillors at 128 local councils across NSW, to provide a robust framework for ethics, accountability and transparency in NSW. The new Model Code of Conduct introduces strict new requirements including:

• Banning Councillors from accepting gifts valued at more than $50;
• Mandatory reporting of all gifts regardless of value in the Council gift register;
• Councillors with a pecuniary interest cannot access Council information about the matter;
• Suspensions for pecuniary interest breaches will count towards the “three strikes and you’re out” scheme introduced in 2015 where Councillors face automatic disqualification when they are suspended three times for misconduct;
• Councillors must declare new interests more regularly in official returns of interest lodged with their council;
• Councillors must declare in official returns of interest if they are a property developer;
• New standards relating to discrimination and harassment, bullying, work health and safety, behavior at meetings, use of social media, access to information and maintenance of Council records.

29. I am advised that a new Regulation will shortly give effect to the updated code. After the new code and procedures are prescribed, councils across NSW will have six months to adopt a Code of Conduct and associated procedures that meet the new requirements.

Independent Planning Commission – secretariat support

38. The Independent Planning Commission (IPC) of NSW was established as a standalone, independent agency on 1 March 2018.
39. The IPC Secretariat provides professional and technical support to the Commission and its members. While the IPC is separate from the Department, the secretariat staff are in fact Department of Planning and Environment employees. This has been raised as an issue that impacts on the independence, both real and perceived, of the IPC.
40. Staff employed by the IPC are employed by the Department and therefore, at some stage, may be expected to return to their home agency. This may create issues for staff, for example, in situations where the Commission is critical of the Department. Part of the role of professional staff at the IPC is to critically review the recommendations and reports prepared by the Department of Planning and Environment. This can put staff at the IPC in a difficult position, as they may not feel completely comfortable in providing frank and fearless advice to a Department which they may not feel they are completely independent from.
41. 41. Stakeholders noted that the IPC does not have its own resources and instead relies heavily on the Department to facilitate numerous key functions, potentially impacting their independence. Although IPC can engage its own experts, stakeholders commented that ‘they rarely do so, and they rely on the Department for summary reports’. Some stakeholders concluded that the community considers the IPC to be somewhat dependent on the Department, creating a culture that facilitates real or perceived conflicts of interest.
42. I am of the view that it is critical to ensure the independence of the IPC, both real and perceived. For this reason, I have recommended that the Chair of the IPC liaise with the Secretary of the Department of Planning and Environment to clarify the independence of the Commission and its staff. The Secretary and the Chair should consider entering into a contemporary Memorandum of Understanding (MOU) to achieve that objective.

Modification of consents

46. After a development application has been granted, the consent authority may consider a modification to the original development approval.85 minor error, mis-description or miscalculation,”Some stakeholders suggested that all minor modifications, such as those involving “86 or with minimal environmental impact,87 should be considered by Council (or the equivalent consent authority). They suggest that more complex modifications which significantly differ from the original application should be considered by the IHAP.  
47. To approve a modification to a DA, the legislation requires that the consent authority (or the Court on appeal) must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all).88  
48. Many of the stakeholders I met with raised the issue of modifications as a corruption risk. Conversely, others raised the issue of obtaining modifications as being too difficult. Some suggested there should be a “presumption against approval if significant modifications are applied for.”

 Ethics Unit

8. I can see the benefit of a similar structure within the NSW planning system. Unlike the role of the Manager, Ethics and Integrity, the Ethics Unit would not take or investigate specific complaints against the conduct of Department staff. Rather, the unit’s aim would be to provide pre-emptive advice on corruption risks within the system. The unit could also consider issues of perceived or actual conflicts of interest and provide advice or recommendations on whether a conflict exists and give advice to mitigate or manage conflicts. The unit would systematically and regularly inspect codes of practice and existing frameworks to ensure compliance. It would also provide an opportunity to ensure the Department is aligned with the NSW Public Service Ethical Framework which suggests that “Agencies need to assess their current systems, policies, work practices, procedures and employee behaviours to ensure they align with the objective, values and principles of the Ethical Framework”.91 
9. I have considered whether this unit should be located within the Department, or with an external body. My experience with the UN, has illustrated that an Ethics Division can form a strong educative role and provide invaluable advice and guidance to those involved in the system. However, it is also important that there the unit has an appropriate level of independence. I note that under sections 25 and 30 of the Government Sector Employment Act 2013, Department Secretaries and Agency Heads are appropriately responsible for the general conduct and management of their Department or Agency in accordance with the core values of the Ethical Framework. I am therefore of the view that it is appropriate for the Ethics Unit to be established within the Office of the Secretary within the Department of Planning and Environment, reporting directly to the Secretary. To ensure Department cooperation with the unit, it is recommended that the unit be led by an appropriately senior person, for example, at the Executive Director level. It would be, in essence, an evolution of the recent initiative establishing the position of Manager of Ethics.

Planning System Cooperation

10. My Terms of Reference require me to “consider the interactions between the NSW planning system’s governance and agencies, other government agencies, and other levels of government”. It has become clear from my consultation with several stakeholders and industry groups that engagement is lacking between the DPE and other critical departments. There does not appear to be a regular systematic forum for agencies to meet and share ideas and learnings. While noting that some interagency forums exist, I am of the view that there could be regular quarterly forums between senior representatives from the Department and related government agencies at both a state and local level.
11. Such regular engagement between agencies would assist in streamlining the concurrence approvals, as mentioned in the previous chapter, as well as contributing significantly in knowledge sharing and cooperation between all sectors of the NSW planning System.

Creating a positive planning culture

22. I note there has been a significant effort led by the Secretary in relation to enhancing the culture and accessibility of the Department, and I recommend that these efforts are continued and supported.  
23. A key focus of the proposed 2013 reforms was to make the planning system in NSW “simpler, more certain, more strategic and performance based, working within a positive planning culture. Decision making under the new system will be transparent and accessible, with people, businesses and organisations having the choice to be fully engaged in the decisions  

The White Paper made several recommendations to improve the culture with the planning system, including “monitoring and reporting on the actions for culture change and lessons learnt on an annual basis, to provide a report card on the health of the culture of the NSW planning system”. I consider this to be an excellent idea. I am of the view it could be a function undertaken by the new Ethics Unit that I have recommended above, if established”.

 We wish you all a Happy & Prosperous New Year to you from the Executive of MERC.

Contact

If you have any queries in relation to this newsletter please do not hesitate to contact the Chair or the Executive Officer to see how we can assist you in your busy role as a Council delegate to the Association of Mining & Energy Related Councils.

Our contacts are:- Chair, Clr Peter Shinton, by email peter.shinton@warrumbungle.nsw.gov.au or phone at Council on 02 68492000 or the Executive Officer, Greg Lamont, by email greg@yourexecutiveservice.com.au or info@miningrelatedCouncils.asn.au or phone on 0407937636.

 

Greg Lamont                                                                                     Clr Peter Shinton

Executive Officer                                                                               Chair