Can the NSW government learn from past mistakes?

The recent news that Urban Growth and GPT have submitted a new development proposal to replace their controversial high-rise tower proposal for their strategically important Newcastle CBD site fulfilled a commitment by the NSW Planning Minister, Rob Stokes, to look at the proposal “with fresh eyes”.

By all accounts, the new proposal is now within the height limits that applied to the site before the changes imposed earlier this year by the state government to accommodate the high-rise towers.

It made a refreshing change in a city where political commitments are routinely broken.

However, the imposed planning controls are still in place, and still available to any future developer who might be interested in exploiting them.

So far, the current Planning Minister appears to be serious about preserving the human scale and heritage character of Newcastle’s eastern precinct. To confirm this, the state government needs to remove the imposed planning controls.

However, on another front, Macquarie St looks set to break an election commitment in order to impose yet another unwanted decision on the Hunter community.

Despite promises by the NSW Coalition government that they wouldn’t force NSW councils to amalgamate, they’re now threatening to amalgamate councils across the state, including Newcastle and Lake Macquarie.

The Independent Pricing and Regulatory Tribunal (IPART) recently recommended the two councils merge, after declaring both councils “unfit for the future” on the grounds of their “scale and capacity”.

The IPART “Fit for the Future” report containing this recommendation does not define “scale and capacity”, nor explain how various councils (including Newcastle and Lake Macquarie) failed on these grounds.

When I asked IPART what they meant by “scale and capacity”, I was referred to a list of ten factors published in previous reports, including highly subjective considerations such as “knowledge, creativity and innovation, credibility for more effective advocacy, and high quality political and managerial leadership”.

IPART told me that they had undertaken a “comprehensive and in-depth” assessment of each council using these factors.

When I requested a copy of that assessment, I was told it was “internal information” and could not be released.

Without access to the assessment that found them supposedly wanting in “scale and capacity”, the councils can’t scrutinise and critique IPART’s recommendation.

Newcastle hasn’t polled its community to find out how they feel about amalgamating with Lake Macquarie, but when Lake Macquarie surveyed its residents it found 87% of them opposed such a merger.

So, the councils and their communities are now expected to respond by November 18 to an IPART recommendation that is not supported by either of the councils or their communities, and that is based on a secret assessment using highly subjective criteria.

In an even more recent move, the NSW Transport Minister, Andrew Constance, shocked the city by announcing that the state government intended to privatise Newcastle’s public bus, ferry and (future) light rail services.

The Minister’s announcement was framed as a positive response to the region’s long held demand for more local control over planning and operating local transport services.

While the Minister’s media release referred vaguely to the government starting “a market sounding process”, it astutely avoided any mention of “privatisation”, and it took some time for the penny to drop in local media reporting that this is what he was talking about.

At the time of writing, some still appear to be caught in the spin.

The Greens Transport Spokesperson, Mehreen Faruqui, said it was “unacceptable that the system has been run into the ground to justify the privatisation of the network”.

“The Baird government have themselves created the problem they now say they are trying to fix,” she said.

While the announcement caught the local community by surprise, media reports speculated that the state government has been discussing the matter with at least one private transport operator, Keolis Downer.

To its credit, the state government has effectively admitted it made a big mistake in the matter of the proposed Newcastle CBD high-rise towers, when it privileged the views of vested private interests and imposed their agenda on a hostile community.

But, given the recent signals about what it intends to do with local council amalgamations and local transport privatisation, you have to wonder about its ability to learn from past mistakes.

McCloy's brazen “money for preferential access” argument rejected by High Court

Earlier this month the Australian High Court found against a challenge to NSW laws limiting donations from property developers to political parties by property developer and former Newcastle Lord Mayor, Jeff McCloy.

Mr McCloy had previously admitted to the NSW Independent Commission Against Corruption (ICAC) that he had made such donations to local state Liberal Party members of parliament, leading to his resignation as Newcastle’s Lord Mayor last year.

The High Court judgement (which can be found at: http://eresources.hcourt.gov.au/showCase/2015/HCA/34) emphatically rejected Mr McCloy’s challenge and endorsed the constitutional validity of the NSW laws.

While the court acknowledged that the impugned laws did place a burden on the freedom of political communication implied in the Australian constitution, it found that this was justified, because the laws had been “enacted for legitimate purposes” and assisted that purpose “by rational means which not only do not impede the system of representative government provided for by the Constitution, but enhance it”.

The court found that “there are no obvious and compelling alternative, reasonably practicable means of achieving the same purpose” and that “the provisions are adequate in their balance”. 

The court judgement rejected the argument put by Mr McCloy that “the ability to pay money to secure access to a politician” was protected by the freedom of political communication implied in the constitution.

“To the contrary,” the judgement said, “guaranteeing the ability of a few to make large political donations in order to secure access to those in power would seem to be antithetical to the great underlying principle of the constitution [i.e., that the rights of individuals are sufficiently secured by ensuring, as far as possible, an equal share in political power]."

The judgement noted that Mr McCloy’s challenge argued that the NSW laws “restrict political communication by removing the preferential access to candidates and political parties which would otherwise come to those who have the capacity and incentive to make large political donations”.

The court branded this argument “as perceptive as it is brazen”, and said that it “goes to the heart of the mischief to which the provisions are directed”.

Tellingly, the judgement says that the reason for limiting campaign funding in the case of the NSW laws “surely extends to the elimination of what has there been labelled ‘clientelism’:  "the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder".

The judgement referred to the recognition in countries such as Canada and the United Kingdom “that preventing wealthy voices from dominating political discourse so that other voices may be heard ‘is necessary for meaningful participation in the electoral process and ultimately enhances the right to vote’".

The High Court also found that targeting corporate property developers was justified due to both “the nature of the business in which they are engaged” (i.e. a profit-making business dependent on the exercise of statutory discretions by public officials that gives them “a particular incentive to exploit such avenues of influence as are available to them”, irrespective of how limited those avenues of influence might be) and “the unfortunate experience in New South Wales … of exploitation of influence leading too readily to the corruption of official conduct”.

All fascinating enough in itself, but even more interesting (and disturbing) in context of controversial state government decisions such as closing the Newcastle rail line, or the route of the proposed replacement tram.

At the same time as the Baird government was declaring its support for the High Court decision, it was moving full steam ahead with the very decisions that were the most strongly advocated causes of the practitioners of what the High Court had identified as “clientelism”.

"Making it Happen", Baird style

The Baird government’s newly released state plan, titled “Making It Happen”, is at least as significant for what’s missing from it as for what it contains.

The new plan replaces the state government’s former “NSW 2021:A Plan to Make NSW Number One”, released in September 2011, after Barry O’Farrell’s election as NSW Premier.

The original plan contained general goals and hundreds of specific targets, grouped under the key policy areas of Economy, Transport, Health, Family and Community Services, Education, Police and Justice, Infrastructure, Environment and Communities, and Accountability.

The new Baird plan significantly reduces the number of goals and targets and entirely scraps a number of these categories, and their associated goals and targets.

For Newcastle, one of the most significant changes is the scrapping of the “transport” category, and the previous plan’s specific target (under Goal 8) to “increase the share of commuter trips made by public transport to and from Newcastle CBD during peak hours to 20% by 2016.”

Before the Baird government cut the Newcastle rail line on Boxing Day last year, the evidence suggests that they were on track to achieve this relatively modest target, with official figures indicating that increased use of rail services were providing a steady increase in commuter trips to and from the Newcastle CBD.

Since the rail cut, the numbers are trending decisively the other way. 

It’s difficult to be exact about the specific extent of the decline, because the state government hasn’t yet provided data that would allow a direct comparison of what we now have with what we’ve lost. However, the downward trend is clear.

The NSW Minister for Transport, Andrew Constance, recently confirmed to a parliamentary estimates committee that the replacement bus service between Hamilton and Newcastle Stations is providing around 65,000 trips per month, which works out to an average of 2,167 per day on a 30 day month. 

Other official figures indicate that the rail services that these buses replaced were providing 4,668 trips per weekday, or around 140,000 on a 30 day month. 

That’s more than twice the figure given by the Minister for the replacement bus service.

Because the Minister’s daily rate figures include weekend days and the others don’t, they can’t be directly compared. But Newcastle and Civic rail stations were known to be strong weekend performers, so the difference that factor would make is likely to be negligible.

That means that it’s almost certain that public transport patronage to and from the Newcastle CBD has been more than halved since the government cut rail services to Wickham, Civic and Newcastle stations.

The figures for bus use offer no glimmer of light. 

Patronage and fare-box revenue figures for Newcastle Buses have been headed downwards for many years, and the current year figures show that they still are.

It’s hard not to conclude that the reason the Baird government’s new plan hasn’t retained the Newcastle transport target from the previous plan is that they’ve realised that their decision to cut the Newcastle rail line makes it unachievable.

Better to remove the target itself than face the embarrassment of inevitable failure.

It corresponds with the Baird government’s whole approach to the rail issue in Newcastle, including its recent steadfast refusal to include any discussion of re-establishing train services on the rail corridor land in their recent “Community Engagement” process on the city’s revitalisation. 

Refuse to provide information or evidence to support the policy, attempt to circumvent legal requirements, ignore their self-declared “referendum” on the issue, refuse to discuss it, and remove relevant targets to disguise policy failure.

That's “Making it happen”, Mike Baird style.

Liberal allegation drags local debate to low level

Sometimes, you have to despair at the standard of political debate in this city. 

Readers may have noticed that a recent change to Newcastle Council’s investment policy has made waves in the local and national media.

The change added a preference for “environmentally and socially responsible investments” where any such investment complies with legal requirements and policy objectives, and offers a favourable rate of return compared to alternatives.

Essentially, it means that the council should go for more environmentally and socially responsible investment options, all other things being equal.

By any reasonable measure, it’s a pretty moderate and sensible change. How else would a reasonable ratepayer expect our council to invest our money?

The change was initiated by Labor’s Ward 3 councillor, Declan Clausen, and was carried by a combined vote of Labor and Greens councillors. Liberal and Independent councillors voted against it.

The initial local newspaper coverage of the change followed the stock-standard pattern of a tabloid media beat-up that didn’t let facts stand in the way of setting up a good old fashioned barney between well-known mouthpieces of the coal industry (Tony Abbott, Bob Baldwin, Joel Fitzgibbon, the Hunter Business Chamber) and Labor’s relatively new Ward 3 councillor and Lord Mayor.

Clearly, the coal industry advocates were worried that the industry might not brush up too well on “environmental and social responsibility” criteria, and that the council’s policy might send a signal to this effect. 

Wow! Hold the front page on that scoop.

Under obviously intense media and internal party pressure, the Labor councillors gave the unfortunate appearance of backing away from aspects of the policy in the days following the change.

Spurred by the smell of political blood, the Liberal Party (and its key media supporter, the Australian newspaper) even criticised the council for entering into an agreement with Port Waratah Coal Services (PWCS) for $12million in development levies to cover its proposed Terminal 4 development.

The Australian reported Newcastle Liberal councillor and Lord Mayoral hopeful Brad Luke as branding this move “hypocritical”, on the grounds that it was somehow inconsistent with the decision to change to the investment policy.

Really? 

Could anyone seriously suggest that a council should forgo development levies designed to compensate for the impact of a development on a community on the grounds that the same council might want its investments to be used to support socially and environmentally responsible industries?

The $12million agreement with PWCS was adopted by a combined Labor, Liberal and Independent vote (including Clr Luke).

Greens councillors Therese Doyle and Michael Osborne opposed the deal on the grounds that the amount fell too far short of the $48million levy that would be owed if the council’s adopted 1% of value policy was applied to the $4.8billion development proposal.

For this they were accused of “having a price”.

What nadir of the political discourse have we reached when councillors can be subjected to such an allegation for fighting to get a better deal for the city from a major industrial development that they think is not paying its way?

Vision needed on cultural and eco-tourism

If you’ve ever watched Game of Thrones you’ll know how isolating it can feel to be called “Walls End”, especially when winter comes.

One great spin-off of the local Wallsend Winter Fair is that it drags some of those who think that Newcastle ends at Hamilton out to the city’s “frontier” – where they’re often pleasantly surprised with what they see and experience.

But how much easier that discovery could be with just a little more creativity, integration and marketing.

I’ve always felt that Newcastle as a whole has never sufficiently capitalised on its tourism potential in the way that other less well-endowed cities have managed to do. 

Look, for example, at how much more successfully Fremantle, Western Australia’s port city (now pretty much a suburb of Perth) has managed to pitch its heritage and history to tourists, despite Newcastle’s clearly superior collection of heritage and natural assets.

In saying this, I’m not just talking about the Newcastle CBD – Wallsend and its near neighbours suffer the same malaise.

The area is a treasure trove of built and natural heritage and other attractions, just waiting for a strategy and the requisite leadership and resources to package them for a receptive tourism market, from young backpackers to grey nomads.

Modern tourists crave experiences that are rich in cultural narrative, and the area offers these aplenty.

For a quick sample, check out the historical photos all around the Wallsend business district, and if that whets your appetite, try the Historic Wallsend Town Centre Walk, which will take you to twelve local heritage sites all within easy casual walking distance of the main shopping strip.

If a bit of nature and adventure is more your thing, there’s the Hexham wetlands and its amazing history from ancient Aboriginal occupation through to today’s massive wetland rehabilitation project, and encompassing the stories of Smithy’s Airport, the Ironbark Creek Floodgates, the Hunter Wetlands Centre and the exciting Richmond Vale Rail Trail project. 

A little further north, there’s the still little-known treasure of the Blue Gum Hills Regional Park, with its own heritage walk through abandoned mining sites, its picnic areas and its Tree Top Adventure Park, where kids and parents can walk and swing their way through the trees.

South from Wallsend, you can ride the Wallsend - Glendale cycleway, which follows an old tramway route toward Lake Macquarie. It may not yet be as well-known or used as the Fernleigh Track, but it’s destined for similar popularity.

For a more sedate experience, you could stroll around the beautiful Wallsend Park, or catch a movie at the Regal, Newcastle’s most unique cinema, just up the road in Birmingham Gardens. 

The problem is that unless you know that all these treasures are there, it’s hard to find out about them, because no one has pulled it all together and marketed it as a package of potential experiences for tourists or locals.

I hasten to add that this isn’t for want of trying by the local business and residential community. Wallsend has always been fortunate to have one of Newcastle’s most dynamic and creative business groups (the Wallsend Town Business Association), and an active and dedicated heritage group. 

They do what they can, but the task of bringing all this together and presenting it as integrated set of experiences is beyond the modest resources of such organisations. 

It’s really a matter for a council with a sense of vision and a commitment to facilitating forms of economic development that don’t rely on big business and big buildings.

Properly packaged and promoted, it could provide valuable jobs for local workers and a significant boost to the income of local businesses, especially in conjunction with local festive events, such as the Wallsend Winter Fair.

Will state government be court out again on rail line?

If you didn’t know that the state government had tabled its response to the NSW parliamentary Inquiry into planning in Newcastle and the broader Hunter Region, you’re certainly not alone.

In accordance with legal requirements, the Premier, Mike Baird, provided his government’s response to the two previously issued Inquiry reports on 18 June. 

The ensuing silence has been deafening.

You may recall that, after a comprehensive consultation process late last year and earlier this year involving written submissions and hearings, two NSW Legislative Council Inquiry reports recommended – among other things – that the state government abandon its plans to cut the Newcastle rail line and the planning controls it imposed on Newcastle to accommodate its joint public/private high rise development in the east of Newcastle’s CBD.

The content of last month’s government response to these reports was clearly aimed at saying as little as possible and lodging it with a minimum of fanfare, hoping that no one would take any real notice and that it would quickly disappear.

It achieved a significant public relations victory when subdued coverage of its response was buried in local media reports, and faded quickly from the local news agenda.

This lack of serious media attention on the government’s response to such a significant parliamentary inquiry is a disturbing reflection on the current state of local media coverage of Newcastle matters.

In response to the more than 180 substantive pages of the two parliamentary Inquiry reports, the government’s response – stripped of its peripheral elements - weighed in at a mere two and a half pages.

In fact, the bulk of the Baird government’s response document was an attached copy of the Memorandum of Understanding (MOU) between Urban Growth (the state government’s property development arm) and Newcastle City Council, which – as discussed in my previous column – will ensure that further information and discussion of the state government’s development plans for Newcastle is kept behind closed doors and away from media and community scrutiny.

By any reasonable measure, the government’s response to the parliamentary Inquiry was a desultory and contemptuously dismissive effort.

It demonstrates that the state government has learnt nothing from the two parliamentary Inquiry reports, or from the results of the spate of local elections and by-elections late last year and earlier this year, or from detrimental court findings on the legality of its development proposals for the future of the Newcastle rail corridor and King Edward Park.

In the face of all this, the Baird government has opted for business as usual.

The government response indicates:

- No preparedness to release key documents requested by the community and the parliamentary Inquiry Committee.

- No willingness to reconsider planning controls imposed by the state government on Newcastle to accommodate its proposed high rise development in Newcastle East.

- No intended changes to the process for assessing and determining proposed developments in Newcastle, or to governance arrangements between the state government’s planning and development arms.

The response simply ignored all the other matters addressed by the Inquiry (e.g., King Edward Park, the Newcastle Art Gallery development and the Whitebridge residential development).

The only changes to the pre-Inquiry status quo canvassed in the response were minor improvements to the system of managing conflicts of interests by employees of the Hunter Development Corporation, and the reference to the Newcastle Council/Urban Growth MOU.

Around the same time this response was tabled, The Greens released figures obtained from the government indicating that patronage of the new bus service between Hamilton and Newcastle Stations had dropped by around half of the previous rail service it was meant to replace.

The state government disputed the extent of the patronage decline, but again refused to substantiate this with any information.

The next insight into the ongoing saga of secrecy and mismanagement in Newcastle planning and development may well occur at a court hearing later this month to consider the state government’s appeal against the previous NSW Supreme Court finding that dismissed the government’s attempt to side-step the law requiring parliamentary approval to close a railway line.

The original court hearing (in December last year) uncovered a previously secret state government stratagem to transfer ownership of the Newcastle rail corridor land between government agencies.

Given the constantly shifting government rhetoric about its intentions for the rail corridor and the continued secrecy of the planning process surrounding it, the forthcoming court hearing may again provide a crucial channel of information about exactly what is being contemplated for our city behind closed doors by the state government.

Liberal and Labor combine to keep doors shut on city renewal

When it became law in 1998, the Government Information (Public Access) Act (or GIPA) was touted as heralding a new dawn of open and accountable government that would shine a light on the decision-making processes of state government agencies for ordinary citizens acting in the public interest.

I’m yet to meet an "ordinary citizen" who has engaged with the GIPA system who would agree that it has gone even close to living up to that promise.

The Act contains many fine words, not least its fundamental premise of a legal “presumption in favour of disclosure”… unless - and there’s the rub - there is an “overriding public interest against disclosure”.

In plain English, this means that a government agency must release information … unless it thinks it would be better for the public not to. 

As outs go, that’s a doozy. 

Anyone who has tried to extract information from a government department that they’d rather you didn’t have will know that most government officials think that the public is usually better served by government agencies keeping information to themselves.

Sure, the GIPA means that they have to tick a few boxes to formally “justify” such a decision, but the Act provides a long list of acceptable qualifications and exemptions (commercial-in-confidence, legal privilege, cabinet-in-confidence, individual privacy, to name just a few). 

Since the heady days of its introduction, the GIPA system has become a veritable road train of trucks driven with increasing determination through these gaping holes by state bureaucrats and in-house lawyers.

And if these information gatekeepers think they might not get away with applying one of the many available qualifications and exemptions, they’re ready with a maze of procedural roadblocks that only the most ornery citizen will have the skill or time to negotiate.

By 2011, the deficiencies of the GIPA system had become sufficiently obvious to motivate the then aspiring NSW Opposition led by Barry O’Farrell to promise (in the Coalition’s “NSW 2021 Plan”) reforms that would “improve government transparency by increasing access to government information”, noting that “providing people with access to information leads to improved community decision making and greater trust in public institutions”.

More fine words, but how well has the NSW Coalition government delivered on this commitment? Is access to government information getting better, or worse?

Judging by their recent refusal of requests for information, the NSW government apparently thinks we’re better off not knowing a whole host of things to do with key local issues.

Even in the face of a formal call for papers by the NSW Legislative Council late last year, the state government is still refusing to release key documents associated with its decision to cut the Newcastle rail line (including the cost-benefit analysis and patronage loss study) and various documents related to its preferred Hunter St light rail route (including the options identification and initial feasibility study, the final business case, and traffic modelling).

Requests for these documents made under the GIPA system have been similarly refused.

More recently, the government has refused to release documents related to its proposed joint high rise development with GPT in the Newcastle CBD.

It’s hardly surprising that locals were concerned about a proposed Memorandum of Understanding (MOU) between Newcastle Council and the state government about how they might work together on what is now being called the “Newcastle Urban Transformation and Transport Program” at a recent Newcastle Council meeting.

While referring to “transparency” and “accountability”, much of the content of the MOU is about ensuring the confidentiality of information about the future of public land in the Newcastle CBD, including the now disused city rail corridor and the east-end high-rise towers site.

The proposed MOU was accepted by the council with minor changes (none affecting the crucial confidentiality provisions), on the votes of four Labor and one Liberal councillor (only nine councillors were in attendance).

Labor’s Nuatali Nelmes and Declan Clausen won their Lord Mayoral and Ward positions on a platform of open government reform.

The adoption of the MOU was the first significant Newcastle Council decision to be carried by a combined Labor and Liberal vote since the Ward 3 by-election in February this year, which set the council’s current composition.

Here’s betting that it won’t be the last.