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It was a bad week as the DACs were passed through Parliament (10 Nov 2009)

"My concern is that a DAC is being treated almost like a court, judging from the answers the minister has given -- that is, somehow one can show contempt towards the DAC and this is referred to as 'detriment'. Clearly the DAC is not a court. I would like the minister to elaborate on this point: what constitutes detriment, who makes this decision and will there be guidelines?" (Mrs PEULICH (South Eastern Metropolitan) [Hansard] )
The Libs may defeat the urban growth boundary legislation in the upper house, but the passing of the Development Assessment Committee (DAC) legislation and the introduction of the "New Residential Zones" and the Review of the Planning Act, and the Transport Bill, are bad news for democracy and our quality of life: The Planning department will have almost total control and there residents or councils will have almost no say or rights.

It seems that the liberals are going to defeat the urban growth boundary legislation in the upper house. However the passing of the Development Assessment Committee (DAC) legislation and the introduction of the "New Residential Zones" and the Review of the Planning Act, and the Transport Bill, will result in much more medium and high density development in our suburbs. At the same time there will be almost total control by Madden or rather his department and there will be almost total loss of any say or power by residents or councils.

The following debate on the DAC's legislation this week is revealing and makes us wonder just how competent the Minister for Planning is. He admitted that he knew nothing about the involvement of his electoral office in the Brimbank scandal and he also admitted he did not know of his department's approval of the beer barn at Docklands.

Read the following and you will learn that he does not know much about how the DAC legislation will work either.

As we have said before, he sees nothing, he hears nothing and he knows nothing, and yet he has been given over-riding powers to do virtually whatever he wants.

Take time to read the following and be astonished, angry and sad.

Mary Drost
Planning Backlash

(Ed. Highlighting and headings have been inserted by the editor.)

Development Assessment Committee Legislation bill approved in the upper house this week -

Committee
Clauses 1 and 2 agreed to.
Clause 3

Mr BARBER (Northern Metropolitan) -- I ask the minister whether any activity centre zones have been gazetted so far.

Hon. J. M. MADDEN (Minister for Planning) -- I would have to check, but I do not believe so. However, I understand a fair amount of work has been done on the first batch. I would have to check but I think there are four or five of them; I think it is five. Basically there has been a process of consultation to delineate the boundary, and that has been to a panel. The panel has considered that and taken submissions in relation to the boundary for each of those activity centres.

The DEPUTY PRESIDENT -- Order! Can the minister check now, because it is a fairly specific question and the gazetting is the particular process?
Have any been gazetted? Yes or no.

Hon. J. M. MADDEN (Minister for Planning) -- I am pretty sure that one of those, which might be Manningham, has either been gazetted or is close to being gazetted -- on either side of the gazettal.

Mr BARBER (Northern Metropolitan) -- I take it from that answer that a number of the zones are more or less on exhibition to the extent that there is a panel which is viewing them. Have there been public submissions via the normal process for that exhibition?

Hon. J. M. MADDEN (Minister for Planning) -- I believe so.

Clause agreed to; clause 4 agreed to.

Clause 5

Mr BARBER (Northern Metropolitan) -- I am just looking at the definition of 'relevant activity area', which is defined as those suburbs listed in the bill. If an activity zone has to be within a relevant activity area, I presume it means that for such a zone to be lawful it must be no bigger than the suburb?

Hon. J. M. MADDEN (Minister for Planning) -- I am not quite sure what the point of the question is, but I will try to assist the member. The general idea is that we nominated the activity centres. There is a zone around each activity centre. There is a delineation of where the zones start and finish -- in a sense boundaries. The zones are not overly large. The activity centres are located in particular suburbs.

Unless you go to the Melway and see there is some sort of subsection of a suburb with an identifiable name, I would expect that a zone would not extend over and beyond a particular activity centre in a broader way than a number of streets either side of the main street around that activity centre. I am speaking very generally in that sense.

Entire suburbs could fall under this regime

Mr BARBER (Northern Metropolitan) -- We have a definition of a relevant activity area which is defined as a suburb. I presume that means the state's standard definition of a suburb. We then have a relevant activity centre zone, which means a contiguous area designated in a planning scheme in respect of a relevant activity area as an activity centre zone.

It is my view that if he wanted to the minister could lawfully advertise an activity centre zone to be as big as but no bigger than an entire suburb.

It becomes important because we then say in the second definition that not more than one activity centre zone may be designated in a planning scheme in respect of each relevant activity centre other than Preston and not more than two activity centre zones may be designated in a planning scheme in respect of the Preston relevant activity area. My contention is that it does not matter because if he wanted to the minister could lawfully put on exhibition and ultimately gazette a zone that was the same size as a suburb, and therefore I think those latter provisions are fairly irrelevant.

That is all I have on that particular new section. I have other new sections within the clause that I want to move onto as well.

Hon. J. M. MADDEN (Minister for Planning) -- I will respond to that.

There is no doubt that the planning minister has the authority to use very broad and quite strong powers in particular circumstances in a very broad way, but that is not the intent of this bill. I know Mr Barber's scepticism on some of these matters implies that he might expect me to take over whole suburbs in terms of being the planning authority. That is not the intent of this. The intent here is to share the decision making and in a sense not have the minister make the final decision. It is to share that decision making based on local and state policy.

Currently there exist provisions under which the minister could call in or intervene or take up all of the powers in relation to particular elements of any planning scheme or planning matter, but that is not what we have chosen to do here.

We have chosen to try to share that decision-making model through the development assessment committees, and hence it is not our intention to make them broad sweeping or any more extensive than what we have described in the bill and what we have described as activity centres within other policy documents.

Mr BARBER (Northern Metropolitan) -- My question is in relation to new section 97MCA where under subsection (1) it refers to the minister taking advice as to the classes of applications for permits that are to be decided on by the DAC (development assessment committees). I want to get an understanding from the minister as to what we are talking about when we talk about classes. In the planning scheme now we talk about certain uses. We also have overlays that are triggered when there are certain works. What do we actually mean by classes of application?

Hon. J. M. MADDEN (Minister for Planning) -- Could the member refer me to what he is speaking to?

The DEPUTY PRESIDENT -- Order! It is new section 97MCA, being inserted by clause 5 on page 9.

Section 97MCA(1) says:
Before making a recommendation to the Governor in Council under section 97MB or 97MC, the Minister must refer the matter to an Advisory Committee under section 151 for advice as to the classes of applications
...

Mr Barber wants to establish what the minister means by 'classes of applications'.

Hon. J. M. MADDEN (Minister for Planning) -- I will just get some advice from the technicians. The phrase is used in the sense of a category.

The category might be something like a particular class of building, which might be of a certain height, a certain floor space or a particular element of that class of building which is referred to. I suppose in a sense it is a template for other buildings.

Mr BARBER (Northern Metropolitan) -- I suggest that classes could be things we are more familiar with as uses. A billboard is generally viewed as a use; licensed premises are called a use. Is it possible that licensed premises could be a class which may be included or excluded from these particular consultations?

Hon. J. M. MADDEN (Minister for Planning) -- There could be all sorts of classes of buildings or building types under particular classes. It is really a matter of just defining what those classes may or may not be.

Mr BARBER (Northern Metropolitan) -- With respect to the five the government has on exhibition now, what are the classes of application that are proposed to be sent to a development assessment committee?

Hon. J. M. MADDEN (Minister for Planning) -- Just to give the committee a broader perspective on where we are with those other activity centres, in a sense the boundaries of those activity centres have come about before the actual delineation of the controls in those centres. We have been through a process whereby in consultation those local governments have determined the boundary for their activity centre in anticipation of an activity centre zone. There has been a view held by the department and a view by local government and broadly they have been the same.

In a few instances there have been very small additions to or deductions or omissions from that footprint which have been put before a panel for it to take submissions and make recommendations as to whether it is appropriate that there be adjustments to the footprint of the activity centre boundary. I understand that the Manningham council wanted it adopted as quickly as possible; it was enthusiastic about it.

In terms of the absolute controls in those locations I would have to check to see whether the controls have been set. The issue around the way in which the process has taken place to date as opposed to the processes contemplated in this bill is that you can set the boundary and you can set the controls later. The emphasis for the negotiations around this is to do those as almost one amendment as opposed to doing them as separate amendments or separate zonings or separate settings of controls.
That allow the mechanics of that process in this bill to work differently to what might have been the case prior to the introduction of this bill or the adjustments made to it.

Mr BARBER (Northern Metropolitan) -- I appreciate the generic-context-type answer the minister offered me, but I am asking a specific question.

In those zones that are on exhibition, the five of them, has it been determined which classes of application for permits would be included in the controls for that zone, or is that a piece of work still to be done?

Hon. J. M. MADDEN (Minister for Planning) -- My understanding is that that is still a piece of work that needs to be done.

Just as background again, what I have said to local government in these circumstances is that I am very eager to work with councils to come up with what the thresholds, in terms of particular classes of building, might be.

An example I have often used is of there being some controversial issues in terms of local sensitivities around the height of some buildings in an activity centre. Let us say the council is happy with 5 or 6 metres, but there might be sensitivity about going above 5 or 6 metres. The council might also prescribe that nothing goes beyond a particular height, such as 12 metres. Then buildings or classes of buildings that are between 6 and 12 metres high could be the sorts of buildings that might be referred to a DAC.

However, we have not yet worked through that with local government because we are eager to see this bill pass before we progress the work around what the controls over particular classes of buildings might be and at what stage the threshold might be where a DAC would consider matters relating to particular classes of building. The emphasis on classes and buildings here is particularly around either density or height within some of those locations.

Mr BARBER (Northern Metropolitan) -- I find it interesting that this whole group of clauses refer to class or classes of applications. The orders that establish the DACs themselves have to describe the class or classes of applications that will be decided by the DAC; in fact the very function of the DAC is determined in terms of these classes of application. Also the minister is proposing an advisory committee where the question of what the classes are will be looked at. According to section 97MCA(2), the minister has to consult owners and occupiers of land that may be materially affected by the proposal -- that is, the proposal to determine the classes -- and as far as we can tell we are talking about 28 different suburbs, possibly leading to 29 activity centre zones.

I can understand the minister's interest in issues such as height and density, which may be a combination of floor area, but I am surprised that the house is prepared to pass a piece of legislation that refers to classes of applications when those classes could be almost anything under the sun. I refer in particular to applications for licensed premises which could be a class of applications. All types of planning permit applications, big or small -- an application for a toilet block to appear in a main street -- that could potentially trigger a permit are potentially a class of application that might get referred off to a DAC. I could say good luck to the minister, who does not have any clear view now of what classes he is interested in but will be consulting with owners and occupiers of land and public authorities across 28 different areas about what they think would be a useful discussion around the types of applications that might go to a DAC rather than an old-fashioned council planning meeting.

I do not want to belabour that any more, but I am interested in asking some more questions about proposed section 97MJ.

Hon. J. M. MADDEN (Minister for Planning) -- In relation to those last comments, unless Mr Barber has been somewhere else for a long period of time in relation to many of these matters, he would know that the issue around development assessment committees, activity centres and boundaries is really about concentrating activity, and that activity is basically around business, retail services and housing, particularly multi-residential developments in these locations.

"Making the community feel confident" (Madden)

There is no secret that what the government is trying to do is highlight where it believes communities will feel confident and comfortable about having higher densities of dwellings in these activity centres to take pressure off the suburbs, particularly the green leafy suburbs where people are very conscious of their amenity, the housing type, the housing style and the setting of those dwellings.

We know we will need a greater number of dwellings across Melbourne into the future, and that is for the existing population, let alone any growth in population, just because of the ageing demographic. It is important to provide those housing options. We also know that the average household size is coming down, so there will be a need for a greater number of smaller dwellings in existing suburbs. The government does not want those dwellings to happen just anywhere in any suburb.

[Ed. Note that above Mr Madden appears to be having a bet both ways by excusing growth on supposed trends to smaller houses and catering to the aging population, presumably in case of a failure of the population growth scenario - upon which all this coercion is been based]

We are trying to locate them in the activity centres, and we are trying to give people confidence that these developments will occur in those activity centres zones. The emphasis is to make sure that these sorts of dwellings can be located with confidence in these areas so that people can access services such as retailing and even work in these locations without having necessarily to get in a car and drive some distance.

It is in a sense a slightly different lifestyle change to the traditional quarter-acre block. The government is trying to provide the mechanisms to locate these dwellings in these locations. To cut a long story short, the class of buildings is predominantly about dwellings and associated business activities, but the vast majority of them will be dwellings in multi-residential developments.

Mr BARBER (Northern Metropolitan) -- With licensed premises on the ground floor of those buildings! The minister asked where I have been in recent years. Where I have been is right here in this place, and before that I was a councillor and mayor of the City of Yarra, which has five activity centres -- in fact they are all one big activity centre. My simple point is that while these sorts of ideas look fantastic from the umpteenth floor of Nauru House, when you have experience in implementing these sorts of decisions and dealing with these sort of permits you realise it is not as simple as separating out an issue, as the minister chooses to, of height density and residential development and suggesting that we now have a clear-cut framework for how DACs may operate.

I am happy to move on to proposed section 97MJ.

Hon. J. M. MADDEN (Minister for Planning) -- I know Mr Barber has a fixation about licensed premises, and I can understand the politics of why he may have that fixation. I know there has been public criticism of decisions I have made in relation to venues, but I do make decisions from time to time -- --

Mr Guy -- You said your department made them.

Hon. J. M. MADDEN -- Mr Guy did not let me finish. Or the department will make decisions about venues. I am not the minister for liquor licensing. The minister for liquor licensing has responsibility, as does the Liquor Licensing Commission, for the final issuing of any liquor licence. The house spent a great deal of time in the last sitting week debating the new licensing regime and the costs associated with it and the development of risk. Mr Barber may be concerned about a cafe located in an activity centre having a licence to serve a drink with a meal. Is that unreasonable? I am not sure; that is for Mr Barber to decide. If Mr Barber believes a large-scale venue is unreasonable in an activity centre, he may be being reasonable, but I make the point that there are differences between licences, there are differences between venues and there will be specific venues that people who live in these activity centres will want and that will make those areas attractive.

They are often described colloquially and light-heartedly as the cafe society. Some people want that and want to live close to that. They may not necessarily want a big venue, a tavern or any other venue, but those are decisions that will be made by the relevant authority.

The thresholds that members have talked about and that I continue to talk about in relation to development assessment committees and the most sensitive issues in these areas seem to be -- this is the impression I got from local government -- around height, particularly multi-residential developments. This is a mechanism to assist in objective decision making based on good controls set in a partnership with local government and state government to give clarity and, on more occasions than not, probably more prescription than has been the case around what can happen in the centres. It will then allow for those decisions to be made accordingly.

I would hate to think that Mr Barber is just trying to muddy the waters here today to scare people about something which, at the end of the day, will provide more dwellings and more opportunity for smaller dwellings, and will give people more confidence in what will happen in their local areas in advance rather than on an application-by-application basis.

Lack of clarity about classes of buildings included in the Minister's broad powers

The DEPUTY PRESIDENT -- Order! I think this minister obviously has no height sensitivity! I think Mr Barber's line on the liquor licences was more of a throwaway line. What he was trying to establish was some clarity about the classes of buildings that were likely to be involved with the minister's very broad powers, as the minister himself described them. I think the issue is that this is very significant legislation and Mr Barber was exploring what was in and what was out as far as classes go and not at all being specific about liquor licences. I think that was a throwaway line.

.

Hon. J. M. MADDEN (Minister for Planning) -- That is right, but if it assists, basically there will be widespread consultation about what classes of buildings will fall into these thresholds, what will come under the controls within a precinct and also the controls that will be established for the development assessment committees to make decisions on. Mr Barber might be concerned that they have not been finalised, but the intent is to consult broadly at a local level and also have those controls come through the Parliament through the negotiations that have taken place to resolve some of these matters in this new bill.

Mr BARBER (Northern Metropolitan) -- Just on that last matter, how do these controls -- that is, the classes -- come to the Parliament?

Hon. J. M. MADDEN (Minister for Planning) -- They will come through as planning scheme amendments which will articulate what takes place in these centres, where the thresholds for the activity centre controls lie and also where the thresholds for the development assessment committees in a sense cut in when it comes to certain types of decisions in relation to certain classes of buildings.

Mr BARBER (Northern Metropolitan) -- I am sorry, but I may be missing something here. The decision as to which areas will be covered by activity centre zones is made via the gazettal process. The decision as to which classes of permits are referred to a DAC under proposed section 97MCA comes into proposed section 97MB, which says the Governor in Council, on the recommendation of the minister, publishes an order to establish the DACs, and that order must specify:

(a) the class or classes of applications for permits to be decided on by the DAC; and

(b) the area or areas in a Relevant Activity Centre Zone or Zones for which the DAC is established and to which any such class of application applies.

.Why would it not be possible to gazette an activity centre zone, put out an order in Governor in Council that says, 'This is the DAC and this is the class of applications it would look at', and then, somewhere down the line, change the classes of application that are covered within that given DAC with its area? That was not a rhetorical question; that was a specific question for the minister.

Hon. J. M. MADDEN (Minister for Planning) -- As I am saying, and have said on a number of occasions, the minister has other powers. If I wanted to go down the path of, in a sense, being ham-fisted I would not surreptitiously seek to do that. What would happen is that the minister would just intervene. At the end of the day, this is about a process of partnership in good faith with tests that we have been able to negotiate and put into this legislation. The minister has an enormous amount of power in relation to controls anyway if the minister seeks to intervene.

There is no logic, in a sense, in going the long way around when the minister can just step in and intervene if he really wants to and do it much more quickly.

Mr BARBER (Northern Metropolitan) -- Yet here we are debating this bill -- I, like the minister, am wondering why, because with that answer he has basically confirmed that it is possible to bowl up an activity centre zone.

This Parliament looks at it and decides on balance that it will not disallow it, but then at a subsequent date we find out that the DAC is extending its reach and power to take over virtually every detail of how planning permits are issued. Up-front we might have looked at the list of classes and the area and said, 'That seems quite all right', but as we go along, we could find that the classes change.

I can give the minister another example if he is leery of licensed premises applications. Take car parking. Car parking might not be listed as a class of application, yet some whopping great big shopping centre could be developed with a DAC approval and then at a subsequent date it could seek changes to its car parking requirements: small or large, to expand, to contract, to do something different.

The DAC would not be able, nor would it be willing, to deal with those particular classes of permit, which could be very germane; they will then go back to the local council because they would not be of a class that could be dealt with by the DAC. You can see the risk there: the applicant makes an application that it thinks it can get past the DAC and then any hard stuff that is going to be too problematical for the members to deal with gets left off the application. The minute that is over, we go back and make another planning permit application, but this time it will not be the DAC that will have to deal with it; it will be the council.

We could go on for quite a long time on that particular question but I am feeling pretty happy that I have made my point with that one. It is proposed section 97MJ that I am interested to get involved in.

The DEPUTY PRESIDENT -- Order!
If the minister has no further comment, please proceed.

Legal consequences for councils

Mr BARBER (Northern Metropolitan) -- Proposed section 97MJ says that:
A decision or failure to make a decision by a DAC on a DAC application is taken to be a decision or failure to make a decision on that application by the responsible authority.

I presume that what this is telling me is that for all legal purposes, a DAC decision is owned legally by the local council after the DAC has made that decision. I am familiar with a particular instance at the City of Yarra where a council planning decision was made that was not lawful; that led to legal action and subsequently the council had to undertake a number of actions in order to provide remedy. One thing was that it paid for some very expensive works to be undone that should never have been done.

The other thing was that everybody's costs at the end of a very long and tortuous legal action had to be covered, and there was some dispute as to how much of this was to be covered under professional officers indemnity insurance. Can I take it from the minister that with proposed section 97MJ(1), any future course of action -- legal and so forth --
will be subject to the council's own insurance or, failing that, its own risk?

Hon. J. M. MADDEN (Minister for Planning) -- I will not try to answer that directly only because it is in many ways a hypothetical question about something going off the rails, and I cannot comment on the indemnity insurance of a hypothetical off-the-rails incident if I do not know what the incident is.

This model is basically part of the council's decision making.

The DAC itself is in a sense like a subcommittee of the council; it makes the decision but it is a binding decision for the council made at arms length from the council chamber other than of course the representatives from the council who are at the DAC table. It is the equivalent of a decision of the council but it is not made in the council chamber around the council table; it is made away from that through the DAC. Councils will have to make their own decisions on their own matters, as they would have done anyhow in relation to the decisions that are made for or on behalf of councils. I am not going to labour over any hypotheticals, but the councils will have to determine those matters as and if and when they arise.

Mr BARBER (Northern Metropolitan) -- The minister knows full well there is nothing hypothetical about council planning decisions going off the rails.

He has got a whole slew of them from a number of different councils, and he could provide many examples of where those councils' decisions went off the rails for a whole range of reasons. He is now attempting to unscramble some of those more famous examples. I think he confirms with his answer that the moral hazard of non-council members who make decisions under these DACs, and the minister's own moral hazard in appointing them to a DAC, is zip, because if they make bad decisions or if they even make unlawful decisions -- and we all know it has happened -- the council will have to wear the problem.

DACS has wide powers to close meetings to the public for 'confidential' discussions

I am interested in new section 97MTA for our next discussion. New section 97MTA(2) says:

A DAC may close a meeting to the public if the meeting is discussing confidential information or legal advice or any other matter that the DAC considers would prejudice the DAC or another person.

Why is that test so much weaker than the existing test under the Local Government Act?

By 'weaker' I mean providing much wider grounds for a DAC to close a meeting than would normally be permitted by a council.

Hon. J. M. MADDEN (Minister for Planning) -- I sort of understand what Mr Barber is getting at, but he might want to background me on what sort of answer he is seeking, as opposed to -- --

Mrs Peulich -- Get a bit of advice from the boss.

Hon. J. M. MADDEN -- No, as opposed to just trying to get an answer on what the definition of 'weaker' is.

Mr BARBER (Northern Metropolitan) -- The Local Government Act sets a test for what sorts of meetings may be closed -- it is when councils are considering certain sorts of matters.

When he sat down to write this bill, the minister came up with a different test. I just want to know why.

Hon. J. M. MADDEN (Minister for Planning) -- I have got to admit I am getting a bit tired here, Chair. I am having a bit of difficulty concentrating as we speak, only because it has been a long day. I am not picking up entirely the point of Mr Barber's questions, but I will try to do justice to them.

Mrs Peulich -- You haven't got the ticker!

Hon. J. M. MADDEN -- I am not saying that. I ask Mr Barber to explain the point of his question one more time.

DACS Powers of secrecy and silencing of dissent within DACS

The DEPUTY PRESIDENT -- Order! It is fairly clear.

Mr Barber has said that under the Local Government Act there are circumstances in which a local government authority, a council, can close a meeting and hold it in camera. Mr Barber is saying that those provisions in the Local Government Act are different to the provisions here. Indeed in this legislation a DAC would seem to be able to close a meeting and go in camera on a much easier basis than a local government authority. In other words, the test for going in camera for a DAC is considerably lower than for a council. All they really need to do is say, 'We think it is going to be confidential; we are going to be talking about a person or a corporation or such like in our deliberations. Therefore we will go in camera'. Mr Barber is trying to establish when the DAC would go in camera, if the minister can provide some greater definition of when the DAC would go in camera and what their obligations are implicitly and what their obligations are to be open and transparent to the public. I am sorry the minister is tired, but I think we have all been here the same amount of time.

Hon. J. M. MADDEN (Minister for Planning) -- I was not bemoaning being tired, it was just my ability to concentrate on Mr Barber's question in that instance. Thank you very much, Chair, I certainly appreciate your qualification. My understanding is these matters were accommodated and accepted by the Dispute Resolution Committee. The provision was deemed as warranted and acceptable in these circumstances.

Mr BARBER (Northern Metropolitan) -- I know you get it, Chair, because you have been a councillor, and so have I. Like the minister I have served in the role of responsible authority. The difference is all my decisions had to be made in public, whereas none of his ever are. He sits in his office and he makes these decisions all day long as the responsible authority. There is nobody looking over his shoulder.

I was surprised earlier today when we heard the Treasurer say, 'This government is not scared of scrutiny', and I am equally surprised that the coalition says it will be campaigning on the potential for corruption at the next election, because this is a measure that will allow the DAC, if it considers a matter would be prejudicial to the DAC or another person, to close a meeting. The reason must be recorded in the minutes of the meeting but, unlike a local government meeting, that is not subject to challenge because there are not those strong criteria.

New section 97MTA(4) says:

A DAC must give public notice of a meeting of the DAC if practicable.
Local councils have pretty consistent and regular time lines of meetings, and nobody would be terribly shocked that a council is having a meeting.

They may receive only a few days notice of what is on the agenda for that meeting, but councils generally have websites, so it is pretty practicable to provide the advice.

The Minister can make the rules for DACS and DACS must obey

I turn to proposed new section 97MU, which states:

(1) In addition to the procedures set out in this Division

-- which are pretty minimal --

a DAC must act in accordance with any procedures determined by the Minister and published in the Government Gazette from time to time.


This really means that the minister will set about writing the rules by which these meetings of a responsible authority will operate after the fact. Again we will have no idea how they are meant to operate.

With all that as background, I am interested in moving on to proposed new section 97MY.

The DEPUTY PRESIDENT -- Order! Does the minister have any response?

Hon. J. M. MADDEN (Minister for Planning) -- No.

Mr BARBER (Northern Metropolitan) -- How are the minister's tiredness levels, Chair, because we could always come back and do this tomorrow, which would give him time to get some answers for these other questions.

Hon. J. M. MADDEN (Minister for Planning) -- I was tired of the one question, basically.

Mrs Peulich -- You just did not want to answer it.

Hon. J. M. MADDEN -- I was happy to answer it, but I was not quite clear of what sort of answer Mr Barber wanted. I am quite happy to try and answer Mr Barber as best I can, but the point here is that if Mr Barber wants to make rhetorical statements, I am happy for him to do that as well.

However, if Mr Barber wants to me to attempt to give him the answers he is seeking, I will do that. I think I have a proven track record of doing my best in seeking to give people the sorts of answers they are after, whether it suits me or not, in this chamber. I seek to do that in good faith, but if Mr Barber's aim is to belabour this point and try and score points by making rhetorical statements, I am also prepared to allow him to do that. However, I am not going to sit here and give Mr

Barber answers to his rhetorical statements in relation to what he does or does not like about the bill.

Mr BARBER (Northern Metropolitan) -- I turn to proposed new section 97MY and the definition of 'confidential information'. The bill tells us that confidential information is:

information provided to a member of a DAC --

(a) which was identified as being provided in confidence by the responsible authority or person who provided the information; or

(b) which the DAC has identified as being confidential.

My concern is that this is a much tougher test than the Local Government Act. Under the Local Government Act information is confidential if it was provided as part of a deliberation in a closed meeting, and closed meetings can only be closed under those criteria we were just talking about.

Here it seems that a vote of the DAC could be used to declare that certain information is confidential, even if other DAC members did not want it to be confidential, because there are two ways the information can become confidential.

One is that the DAC identifies it as being confidential -- that is, the DAC as a whole, and I presume it votes it to be confidential -- and the second is that either the responsible authority said it was confidential or the person who provided the information said it was confidential. As a councillor I would have legal duties, and that includes keeping confidential information that was properly designated as confidential.

However, I also have another duty -- that is, to inform my constituents about certain key issues, and in certain cases simply to go public, not as a whistleblower, but with information that has been provided to me that I believe the public should know about. I know council managers and staff love to pull out a big stamp and put 'confidential' all over everything, but it does not mean anything legally; it may give them a bit more comfort. Here the danger is even greater -- that is, that the DAC itself can actually close down other members simply by deeming the information as confidential.

As we get into later sections there are penalties associated with releasing confidential information that would leave me, as a member of a DAC, in jeopardy. That is the only point I wanted to make on that section. I have a point to make about the next section as well.

The DEPUTY PRESIDENT -- Order! Does the minister have any comment?

Hon. J. M. MADDEN (Minister for Planning) -- No.

Mr BARBER (Northern Metropolitan) -- Whatever they say is confidential is confidential. Proposed new section 97MZ is a close corollary of the relevant section in the Local Government Act. It reads almost the same, until we get to proposed section 97MZ(1), which states:

(1) A person who is, or has been, a member of a DAC must not misuse his or her position or former position --
...

(b) to cause, or attempt to cause detriment, to the DAC or to a responsible authority.

Can the minister indicate, apart from the legal responsibilities I would already have as a member of a DAC, how I would cause detriment to a DAC?

Hon. J. M. MADDEN (Minister for Planning) -- I assume Mr Barber means as a DAC member. Is that what he means?

Mr BARBER (Northern Metropolitan) -- Proposed section 97MZ(1) states:

(1) A person who is, or has been, a member of a DAC must not misuse his or her position or former position --

...

(b) to cause, or attempt to cause, detriment to the DAC or to a responsible authority.

Hon. J. M. MADDEN (Minister for Planning) -- Of course there are a whole range of ways somebody could be detrimental to a DAC, and it is not hard to imagine how that could or might happen. However, I am not going to prescribe or go into great detail of exactly what people might need to do. I suppose there are all sorts of ways they could do it, and that might relate to some of the comments Mr Barber made earlier about confidential information. It might relate to the way in which members of DACs do or do not conduct themselves in the role that they have in their position, or whether they seek to undermine the operation of the DAC in conducting its duties.

It would not be hard to imagine that one individual might seek to undermine the operation of the DAC because they hold a particular view which is contradictory to the DAC itself. Of course that would need to be determined. I am not necessarily the one to determine it -- it could be determined by the courts -- but with Mr Barber's experience in local government he would agree that it would not be hard to imagine how somebody might attempt to cause or cause detriment to the DAC or to a responsible authority whilst holding a position or having held a position in a DAC.

What unlawful acts could cause harm to a meeting? Seems wierd

Mr BARBER (Northern Metropolitan) -- I genuinely am having a lot of difficulty understanding how in some sort of unlawful act I could cause detriment to a DAC. A DAC is nothing; a DAC is a meeting. How do I cause detriment to a meeting?

I could cause detriment to a responsible authority, and I could misuse my position in such a way that I know would cause monetary damage or damage to reputation or risk or whatever to the responsible authority, because that responsible authority exists as a legal entity with all sorts of elements to it. I just do not know what 'detriment to the DAC' means. The minister says he does not know and it would be for the courts to determine, but the minister writes the acts that the courts interpret. They would be interpreting what he meant when he wrote this, so I am hoping there is some further elucidation of what 'detriment to the DAC' would mean.

The DEPUTY PRESIDENT -- Order! Perhaps what the committee would like to know is, given that members will be appointed by local government authorities, if a member were to criticise the proceedings of a DAC, would they be bringing detriment to a DAC? Would this provision apply where a member of a DAC actually went out and criticised the process?

Hon. J. M. MADDEN (Minister for Planning) -- That could well be the case. I am not going to say yes or no. It would depend on the circumstances. Like any position, if you elect to take up a position on the DAC itself and the DAC operates accordingly, one of the reasons for seeking to have a DAC is so that you do not necessarily have some of the difficulties that arise or may have arisen previously when councils need to make objective decisions in a council chamber and politics prevails.
As we know, politics can prevail in a council chamber as it can in this place.

The purose of DACS is to take politics out of local decision making: "Yes, that is the intention."

Mr Barber -- The purpose of DACs is to take politics out of local decision making.

Hon. J. M. MADDEN -- I understand that, Mr Barber. That is the intention.
But if you had an individual from local government or state government or even an independent chair who misused their position and undermined the operation of the DAC from its intended purpose, which is to make objective decisions based on the controls and guidelines, then of course that individual or those individuals might be considered to be causing detriment to the DAC, and so decisions would have to be made accordingly.

I am not saying exactly what circumstance may or may not bring detriment or show an intent to bring detriment to a DAC. There are a plethora of things that people could do. I am not trying to avoid the question, but I am not prepared to prescribe exactly what fits or does not fit into that category. The DACs are being established to make decisions and resolve matters. Anything that might undermine that because it politicises the process in some way or undermines the public's confidence in the operation of that process or threatens the operation or outcome of a DAC of course would be a matter that could be considered to the detriment of the DAC, and no doubt decisions would be made accordingly and somebody would have to prove their case either way.

Madden, this is serious: The Courts look to the second reading and committee proceeding to interpret laws

The DEPUTY PRESIDENT -- Order! I remind the minister again that the process of the committee stage is an extraordinarily important process in terms of the conduct of the Parliament. When legislation is enacted people rely on that legislation and its provisions. When the courts are considering matters brought about by legislation they look at two things. They look at the second-reading speech and they look at the committee proceedings to interpret what the intentions of the Parliament were in enacting particular clauses. It is frankly not good enough for the minister to say, 'This is my legislation but I am not going to discuss what this may or may not mean'.

The reality is that it is the minister's legislation, he is bringing it to the house and Mr Barber is asking legitimate questions in relation to this clause and other clauses that he has explored to establish positions that the public and in future courts and certainly local government and members of the DAC would need to understand the implications of. It is not enough for the minister to say, 'Well, there could be lots of things but I am not going to go into them'. If there are matters, then really this is the time to disclose at least some of the matters that are likely to be subject to the ramifications of this clause. I am happy for the minister to speak to that, otherwise I will let Mr Barber proceed with any further questions.

Hon. J. M. MADDEN (Minister for Planning) -- Thank you, Chair. I appreciate your guidance in these matters. I am not trying to avoid the issue here.

What I am trying not to do is pre-empt or prescribe a list of things people might do that could undermine the operation of or cause detriment to a DAC. There are a range of things I could describe but I do not want to limit the explanation to that either. I am seeking not to limit the explanation and I am seeking not to be too prescriptive because there are those who might want to use this to inflame the debate or the acceptance of DACs out there.

"Partnership arrangements" sound like private-public dictatorships

The general idea of the DACs is to give the decision-making process to a partnership arrangement and really take it away from the politics of the council table, to put it into a partnership arrangement where objective decisions are made away from the council chamber. We have seen, and Mr Barber has also referred to, matters where from time to time a council or two might politicise a matter to either an individual councillor's or a number of councillors' personal advantage and also seek to undermine the decision of their own local council by taking quite a vocal position of criticism against it.

That does a number of things. It undermines the confidence of the community in the operation of the council, particularly if it is done surreptitiously and particularly if it is done in order to undermine that decision. We know that from time to time an individual councillor might seek to undermine a decision that has been made by a council even though they are a councillor and have shared obligations around that council chamber.

Basically this clause seeks to at least give some direction that if you volunteer to be a representative on a DAC, you have an obligation not to undermine or cause detriment to the operation of that DAC. I am not going to describe how you might do it but I think it is very clear, Chair, that what I am trying to give reference to without describing it in absolute and exact detail is that if an individual volunteers to be on, or makes themselves available to be on, a DAC, then they must conform with the obligations of the DAC rather than seek to undermine it.

By undermining it they would cause detriment not only to the operation of the DAC or the public perception of it but to a whole range of other things in relation to the DAC. So it is particularly important to understand that if you make yourself available to a DAC, you do not want to cause detriment, you do not want to undermine it and you want to see that its operation succeeds.

If Mr Barber was not aware, in a sense this is flagging to those who might seek to volunteer themselves to a DAC that unless they enter into that position with an objective frame of mind in relation to the decision making, they might cause detriment to the DAC.

I advise Mr Barber that that is not unlike the Winky Pop decision that we have debated in this place in relation to decisions and positions that councillors take, so I would hope that those who volunteer themselves to a DAC would come to the DAC with an objective frame of mind, bearing in mind their own responsibilities and bearing in mind who they represent when they arrive at the DAC, but also given whatever decision the DAC makes, that post that decision they would not seek to undermine it or continue to undermine the operation of that DAC because of their individual view on the decision of that DAC.

Mrs Peulich (LIBERAL PARTY) on suppression of dissent in DACS

Mrs PEULICH (South Eastern Metropolitan) -- I have two questions. Does criticism of the DAC process therefore constitute undermining the DAC?

And, dare I say, if there is in particular anything that is untoward, I would have thought that it was vital for members of DAC to still have that ability. And secondly, in view of the emphasis that the minister has placed on coming to the DAC with an open and unbiased mind, does that mean that members of the Labor Party who are required to caucus will not be eligible to be DAC members?

Hon. J. M. MADDEN (Minister for Planning) -- My comments in relation to the way people enter into the responsibilities of the DAC and also arrive at the DAC with an objective frame of mind goes for absolutely everybody, so there is no delineation between people's allegiances. They should come to that position in the same way that Liberal Party councillors or Labor Party councillors might arrive at that position.

Mrs Peulich -- They do not caucus. They are not required to by constitution.

Hon. J. M. MADDEN -- I am not going to go into -- --

Mrs Peulich -- Just ignore it?

Hon. J. M. MADDEN -- No, I am not going to ignore it, but I am not going to get into a long-winded argument about what does or does not happen specifically based on political allegiances. What I would say is that people must come and make decisions with an objective frame of mind for exactly the same reason as in the Winky Pop decision that I have referred to -- that all councillors, regardless of their allegiances or what party they belong to, might belong to or have belonged to and regardless of whether they are independent or not, need to make planning decisions in an objective manner based on the information provided to them. I would expect that to be the case at a DAC when people volunteer or make themselves available to become representatives on a DAC. In relation to some of the other matters you raised -- --

Mrs Peulich -- Criticism.

Criticism which 'undermines the authority of the DAC'

Hon. J. M. MADDEN -- Criticism, yes.

This is not to in any way undermine freedom of speech, because people would have the ability to no doubt share their views about their experience on the DAC. If they did not have a good experience, they would say, 'It might be the last time I go near a DAC'. If somebody wanted to say that, they could, but if it is a criticism that undermines, in a sense, the authority and the decision of that authority, that is slightly different. I am not going to give exact details of where the line of demarcation is between somebody's ability to speak freely and to limit what they might say because of having been on the DAC. I am not going to define that, but I am sure there are others who will define that, and the courts will no doubt define that as they do in other circumstances where people go a little bit further than they should when it comes to what they do or do not say under the banner of freedom of speech.

Mrs PEULICH (South Eastern Metropolitan) -- Further to that, because I do not believe that the minister's answer provided any clarity to the question I asked, if there was anything inherently wrong in the DAC process, would members of a DAC be free to make their views known on that? I am not talking about passing informal and personal reflections on their experience. If they criticise the DAC process, are they undermining the DAC?

Hon. J. M. MADDEN (Minister for Planning) -- If individuals think there is something not quite right about the operation of the DAC, then I would expect that first of all they would bring it to the relevant authority's attention -- whether that be the council or whether it be the minister. There are places to go if they feel that something has not been complied with in terms of the operation of the DAC, and they should go to those relevant authorities.

Sounds like 'Yes-men' only need apply for positions on DACS

But if they come out and make high-level criticisms of the operation of the DAC and do not follow it through but just go to the press, I think there would be some legitimacy in people questioning the bona fides of that criticism and whether that criticism was warranted on operational grounds or technical grounds rather than just being some politicisation of the operation of the DAC. This is an issue that we are very conscious of in the operation of the DAC. We are not trying to undermine the ability of local government to set controls. We want to enter into a partnership in good faith, but what we do not want is sceptics who are sceptical from the very beginning entering the process and just reinforcing their scepticism and then coming out the other end and undermining it because they were always sceptical about the process from the very beginning. If they are sceptical about it, do not do it.

Mrs PEULICH (South Eastern Metropolitan) -- Could the minister clarify therefore the remedies for the different categories of members that he has alluded to; and secondly, does that mean that anyone who is not prepared to basically toe the line and accept the process and the outcome -- and I imagine our history has been full of regimes where speaking out is something that is not condoned -- they should not apply or they will not be considered?

Hon. J. M. MADDEN (Minister for Planning) -- It is like any commitment; if you make a commitment to something, you make a commitment to something. If people are not committed, then there is no point in remaining there.

Mrs Peulich -- Leading to a bad result?

Hon. J. M. MADDEN -- What I am saying is if they are not committed, they should not necessarily remain there. The importance here is that they remain objective at all times, and they should enter with an objective frame of mind. If, because of their scepticism or cynicism, they arrive with a commitment that is not objective, then I think that those individuals need to question the legitimacy of the bona fides of that commitment. It is like any public office, and I expect that people who make themselves available to a DAC would do so in good faith, with objectivity and with respect for the operation of the DAC, and in respecting the operation of the DAC it would not be in their interests to cause detriment or certainly to undermine the operation of that DAC.

Mr BARBER (Northern Metropolitan) -- The minister does not really need to lecture Council members on these DACs as to what is thorough decision making and what their responsibilities are to have an open mind.

However, in terms of the non-councillor member of the DACs that the minister will be appointing, what process will he go through to ensure that the members he appoints to these DACs both understand the principles that he has just laid out and also have a commitment to implementing them?

Hon. J. M. MADDEN (Minister for Planning) -- I certainly appreciate the question because it is a very good point. There is no doubt that in entering into a commitment to the DAC people have to be well informed of what their obligations and responsibilities are, and I would expect that we would have a protocol of ensuring that people are versed in their responsibilities and informed and versed in what their obligations are before, during and after the event in the sense of their role in the DAC. I would ensure that there is certainly supportive advice given to allow people to know what their obligations are.

In terms of those who are representatives, if they are not from local government, if they are either the independent chair or a representative of the state government or an individual with expertise, they would also need to be well versed. The comparison I make here is with Planning Panels Victoria, which has individuals who are highly trained. They are also experts in respective fields and well versed in what their responsibilities are. They are also reminded of what their responsibilities are by the chair of the DAC. It is important that the chair also continues to ensure that the obligations of the DAC are fulfilled, that that is done based on the information provided and that all of that information is also considered. I would expect it to be done after making sure all the relevant information has been provided and by having a protocol by which people are informed and recognise what their obligations are.

As well as that, one of the obligations of the chair would be to keep people informed about maintaining their commitment and their obligations, particularly in relation to the process but also the decisions that need to be made by that DAC.

What about duty to represent the best interests of the community?

Mrs PEULICH (South Eastern Metropolitan) -- I am mindful of the minister's emphasis on the requirement for members of DACs to be objective. However, councillors take an oath to represent the best interests of their community and they are obliged to be cognisant of the views of their community as well as of the council's strategic and planning decisions, processes and imperatives. In the minister's view, what is objectivity? Does it mean preparedness merely to embrace state government policy and positions?

Hon. J. M. MADDEN (Minister for Planning) -- Not at all, Mrs Peulich.
In a sense objectivity means that DAC members must hear the case by the proponent or the proposal on its merits and be free to give it objective consideration and determine their own position on the matter on the basis of the other relevant matters they need to consider. The other relevant matters that an individual and any other member of the DAC might need to consider are balancing local policy and state policy according to what is warranted in the face of the controls that are set in relation to the activity zone in a particular precinct, taking all of those matters into consideration and giving them appropriate weighting.

I would expect that local government representatives and some experts might give more weighting to local expertise. In a sense, I think that is why there has been consideration by the Legislation Committee about the mechanisms by which an independent chair is independent. The mechanics of having five people means that there is a significant potential casting vote ability by the independent chair or the chair, if it is warranted.

I would hope, though, that in the vast majority of cases the decisions of a DAC are almost unanimous and, as I have said on a number of occasions, unanimous in the sense that the emphasis now is on local government, and also state government, to make sure the controls almost help the DAC to make the decision itself. What we have often had previously is controls which are a little bit open-ended and somewhat vague because people have known at the end of the process that they have been able to use some discretion in the decision making about what the interpretations of those controls are. I would hope that this legislation creates a discipline and a rigour so that the controls are prescriptive to the point where people know what they do and do not mean and that those controls give clarity and direction to the decision-makers who then have to balance their decision in terms of the policies that the controls may or may not inform.

That is particularly the case in the difference between performance controls and prescriptive controls. I am inclined to want to see more prescriptive controls in activity centre zones so there is more clarity.

But where from time to time there may be performance controls, where there is a degree of interpretation of what is a performance measure that people have either arrived at or are close to; if that is where the margin is for the differences within a DAC, I would hope that people make that consideration based on policy, not only their own but of the other authority at the table -- the state policy and local policy balance -- and that is what the intention has always been.

What if any structures etc available for public scrutiny of DACS decisions and processes?

Mrs PEULICH (South Eastern Metropolitan) -- Further to getting a handle around the intersect between the requirement for members to be objective, the obligations that elected councillors have and the oath they take to represent their community, could the minister explain, firstly, how members of a DAC and their conflicts of interest are monitored and available for some sort of public scrutiny? Secondly, can he guarantee that Labor Party activists and Labor Party donors will not be appointed to DACs?

Hon. J. M. MADDEN (Minister for Planning) -- When Mrs Peulich asks questions like that I am almost tempted to not even dignify them with an answer. Mrs Peulich might wish to make out that this is a conspiracy, but it is not; nor does it seek to be.

Mrs Peulich -- I was born under a communist regime where there were lots of conspiracies.

Hon. J. M. MADDEN -- I know.

Mr D. Davis -- It is 20 years since the fall of the Berlin wall.

Hon. J. M. MADDEN -- That is right: we are now celebrating 20 years since the fall of the wall. It was not long ago; it was in our lifetime.
so I certainly appreciate that. I am very mindful of Mrs Peulich's request and I am very confident and happy to guarantee her that anybody who is appointed to these positions will be required to comply with the issues I have already mentioned about objectivity.

In relation to all those matters -- --

Mrs Peulich -- Objectivity? The question was about conflict of interest.

Hon. J. M. MADDEN -- Yes, objectivity, but if councillors or experts have a conflict or perceived conflict, they have to deal with those accordingly, because the issue around conflict of interest is for the individual themselves to be able to declare that and not for someone else to find it before, during or after the event. The important issue around conflict is not only should you not have a conflict but you should be seen not to have a conflict. I would expect that anybody who makes themselves available for a DAC would make public any potential conflict. But if they did have a conflict, then they would not make themselves available for that DAC. I think they would have to exclude themselves from the DAC if they had a potential conflict and potentially even if they had a perceived conflict.

Mrs Peulich not reassured

Mrs PEULICH (South Eastern Metropolitan) -- So members of the Labor Party who under their constitution are required to caucus on local government matters would not be appointed to a DAC because of their conflict of interest and their automatic allegiance to a set of policy positions and platforms that the Labor Party expects? Would the minister comment on that?

Hon. J. M. MADDEN (Minister for Planning) -- The issue here is that they must be objective in their decision making, so that is -- --

Mrs Peulich -- How do you know when they caucus in secret?

Hon. J. M. MADDEN -- I do not necessarily know either, nor will Mrs Peulich, but -- --

Mrs Peulich -- That is what you said about Hakki.

[Ed.] Madden refuses to answer reasonable question reasonably

Hon. J. M. MADDEN -- If Mrs Peulich wants a serious conversation, I will give her a serious conversation, but if she wants to take cheap shots across the chamber, I will not dignify her questions with any answers.

Back to how a person might cause harm to a [DACS] meeting

Mr BARBER (Northern Metropolitan) -- I am back to exactly where we started. I am wondering how a member of the DAC can cause detriment to the DAC. If I was the lawyer for the defence, I would say the DAC is not a person and it is not a body corporate. It has no financial interests and no other charter. I was kind of hoping the minister would simply confirm that you cannot cause detriment to a DAC, but he seems to have elucidated as we have gone along that what he is really talking about is criticism of the DAC or making some kind of decision that is meant to undermine that DAC's decision. I do not understand why that would simply be a question for a councillor member. The minister has suggested that members should not volunteer themselves, and he is referring to councillors. But the second part of section 97MZ(1) says:

(b) to cause, or attempt to cause, detriment to the DAC or to a responsible authority.

Can the minister give us a for instance where a member of a DAC could cause detriment via an action on a DAC to a responsible authority, which is the council in which this decision has been made?

Hon. J. M. MADDEN (Minister for Planning) -- Again Mr Barber is asking me to present a hypothetical on what could or could not happen, and I am not going to try to describe an incident that I have to make up or imagine to undermine it -- --

Mr Barber interjected.

Hon. J. M. MADDEN -- It is not hard to imagine how an individual could, if they really felt aggrieved by the whole notion that they have to be at a DAC or they want to undermine the operation of DAC, come up with some convoluted mechanism to try to scuttle the operation of a DAC. That is basically what we are talking about. We are talking about individuals who get a decision they do not want, take their bat and ball and go home and then try to scuttle the decision of the DAC. That is basically what we are talking about.

I can describe to Mr Barber all manner of ways in which that may or may not happen, but I am sure Mr Barber would be better at describing that than I would, if he wished to, but I do not want to take up time by trying to present hypotheticals as to how somebody could undermine it.

In any operation where a group of individuals has to make a decision together and somebody might have a decision that is in the minority that they are not happy with, as we have seen in Parliament there are ways to do that. If you are on a committee in the Parliament and you do not like the decision of the committee, you write a minority report.

Mr Barber interjected.

Hon. J. M. MADDEN -- That is what I am saying, but what I -- --

Mr Barber interjected.

Hon. J. M. MADDEN -- Is Mr Barber going to listen to me or not? If he really wanted a productive conversation, he would let me finish what I am trying to say.

Otherwise he can just get up and talk for as long as he wants, and I will sit down and save my energy. I know Mr Barber does not like the idea of a DAC. I know he voted against it. I know he was not happy with the negotiations of the Legislation Committee to resolve this issue. He has already voted against this, so I understand he does not like the idea of a DAC. If he had his way, he would scuttle it. I suspect there are even members of his party who will volunteer to go on a DAC to try to scuttle a decision if it does not suit them.

Madden should answer Barber's question so that future courts can understand the law

The DEPUTY PRESIDENT -- Order! The minister was asked a very specific question, and as Chair I think it was a fair and reasonable question.
The minister suggests that he does not want to go into a hypothetical.
The reality is that people who refer to this legislation will want to know what it means, and that is all Mr Barber is trying to establish. I suggest the minister take advice and come back with an example, as he has been invited to do.

Hon. J. M. MADDEN (Minister for Planning) -- The prime example might be to volunteer to take up the position and then refuse to turn up or for two local government representatives to refuse to turn up, having sought to take up the position when other local councillors might have wanted to and had been prepared to turn up. That might be an example. But it is not necessarily the only way in which they might undermine it. I do not want to go into all the other ways they might, but I suspect there will be some very inventive minds seeking to come up with mechanisms that might undermine a DAC if they want to try to scuttle the decision of the DAC or the operation of the DAC.

The DEPUTY PRESIDENT -- Order! This is an appropriate time to break for dinner.

Sitting suspended 6.31 p.m. until 8.04 p.m.

Mrs Peulich: DACS not courts, but treated almost as such

Mrs PEULICH (South Eastern Metropolitan) -- We were talking about detriment, what constitutes detriment and the lack of clarity about who will decide what constitutes detriment. My concern is that a DAC is being treated almost like a court, judging from the answers the minister has given -- that is, somehow one can show contempt towards the DAC and this is referred to as 'detriment'. Clearly the DAC is not a court. I would like the minister to elaborate on this point: what constitutes detriment, who makes this decision and will there be guidelines?

Hon. J. M. MADDEN (Minister for Planning) -- As I mentioned earlier, there will certainly be guidelines in relation to the operation of the DACs, the obligations of those involved and the expectations of how people conduct themselves and the way in which they make themselves available for the DACs. I would expect that is a critical component of how anything beyond that is then interpreted as being to the detriment of the DAC.

Again, I go back to the need for people to be objective, for people to ensure that the community can have confidence in the operation of the DAC, particularly if they are representatives of the DAC. That is critical. Representatives of the DAC should seek to fulfil their obligations in making themselves available for their role in the DAC. I would expect that there is nothing new in that. As I said before, if people make themselves available for various obligations and if they make a commitment, they are obliged to fulfil those obligations and uphold that commitment. When they do not uphold those commitments that is often not only to the detriment of the individual but will also be to the detriment of the operation of the DAC.

Most critical to that is the need for the DAC to be able to reach a resolution and a decision on what it is that it is considering.

Mrs PEULICH (South Eastern Metropolitan) -- The minister still has not elaborated on who decides what constitutes detriment.

Hon. J. M. MADDEN (Minister for Planning) -- Just to give some background in relation to a member of a DAC (development assessment committee), the ability of the Governor in Council to dismiss a member of a DAC is important in order to ensure the integrity of the decision-making process and confidence in the decisions made by the DAC.

The Minister for Planning does not have the ability to dismiss a member; only the Governor in Council can do this. The removal and suspension provisions are intended to cover such matters as -- and these are probably the ones that go to the issue the member has raised about what is improper or is to the detriment of the DAC -- acting dishonestly, conflict of interest or acting inappropriately such as releasing confidential information. A three-month suspension period is proposed to enable an investigation of any allegations in relation to any of these matters.

Mr BARBER (Northern Metropolitan) -- I refer to another and different aspect of the same new section. This part is a mirror of the provision that exists in the Local Government Act. In that act the suspension under 'Misuse of position' says that you must not use your position either to gain or attempt to gain an advantage for yourself or for another person, nor must you use your position to cause or attempt to cause detriment to the council or to another person. But when we look at the provision in the bill it is not quite a mirror. If you like, there is a symmetry in the Local Government Act which says that you cannot cause detriment or gain advantage to a person whereas the bill says you cannot attempt to gain advantage for yourself or cause detriment to the DAC. I wonder why we are not making it an offence to cause detriment to another person, which is the provision which would apply to you if you were a councillor making the same decision under the Local Government Act.

Hon. J. M. MADDEN (Minister for Planning) -- I suppose there are reasons for and against it in terms of the absolute definitions of these things, remembering that we receive legal advice about the formation of the clauses we put into these bills. The advice I have received is that this is sufficient, and it should cover the incidences that I have referred to previously. We get that advice from relevant legal sources within the department and also from parliamentary counsel. My understanding is that the provisions are sufficient for what we are seeking to achieve.

Members of DACS could use position to cause persons harm with little consequence at law

Mr BARBER (Northern Metropolitan) -- It seems to me that if I am on a DAC, I can use my position to cause detriment to another person. I could cause them some harm -- it might be the developer or it might be the applicant. Never mind the detriment that I am apparently going to cause to the DAC.

The penalty here is 100 penalty units.

In the Local Government Act the mirror offence -- misuse of office --
also has a penalty of 100 penalty units. However, in the bill before the house to make amendments to local government offences, the proposal is to increase the penalty under the Local Government Act to five years jail. If that bill passes and this bill stays the same, we will be in a position where a councillor who misuses their position on a planning permit that does not go to a DAC faces five years jail, but if they misuse their position in relation to a planning permit while sitting on a DAC, the most they face is 100 penalty units. Can the minister explain why the offence in this case is so low, even if he cannot speak for the Minister for Local Government in regard to his changes?

Hon. J. M. MADDEN (Minister for Planning) -- Mr Barber might have to assist me again. Did he say the bill had been passed or was being considered?

Mr BARBER (Northern Metropolitan) -- It is the Local Government Amendment (Offences and Other Matters) Bill which is currently before the chamber and which I think we will be debating later this week.

Hon. J. M. MADDEN (Minister for Planning) -- I am unable to explain the inconsistencies there, but I am happy to seek to provide Mr Barber with advice on the reason for the inconsistencies. I suspect that one has been based on previous legislation, and of course the other one is waiting for a new lot of legislation to be passed. I also suspect, because this legislation has been a long time in proceeding through the Parliament, that it may well have been initially drafted prior to the most recent local government legislation.

Mr BARBER (Northern Metropolitan) -- It could well be. It is just that I am pointing out that these are identical clauses. To all intents and purposes the title is 'Misuse of position'. The wording is almost identical except with regard to that little bit on the end, and it would literally be the case that if I were a councillor making a decision on a planning permit, I could face five years jail for misuse, but as soon as that planning permit went to a DAC for a decision I would be facing 100 penalty units.

In any case, since he will no doubt be assisting us at the table on the local government bill when we get to that, the minister will be able to provide us with an answer at that stage as to why there is that inconsistency. But I do not need to anticipate debate.
Just moving down, proposed section 97MZ(2)(e) refers to:
using public funds improperly or in an unauthorised manner.

What public funds is it that DAC members will have at their disposal under the bill? I do not understand.

Hon. J. M. MADDEN (Minister for Planning) -- As I said previously, this is an instrument of a council, and because it is an instrument of a council no doubt funds for the day-to-day operation will be the council's funds.

It is really about the operation of the funding and how those funds are used and how they should be applied to the DAC and for no other reason.

Mr BARBER (Northern Metropolitan) -- Is the minister saying that if I am a councillor and I am on a DAC, then I am subject to the provisions of the Local Government Act and this act, whereas if I am just an appointed member of a DAC, I am only subject to these provisions?

Hon. J. M. MADDEN (Minister for Planning) -- I am sorry but Mrs Peulich said something on the way through. I did not pick up what Mr Barber said because Mrs Peulich was interrupting him.

How might a DAC member have access to public funds?

Mr BARBER (Northern Metropolitan) -- First of all I do not understand how a member of a DAC has access to public funds that they can use improperly or in an unauthorised manner.

The minister said, 'It is to do with council funds', but that would apply to a councillor with respect to their responsibilities under the Local Government Act. What is going to happen here is that as a local councillor I am going to be subject to two different acts even though I am just continuing to do my duties as a councillor.

Hon. J. M. MADDEN (Minister for Planning) -- It is not necessarily news that you might be subject to a number of acts at any particular instant whether it is in local government or in the community. You might be covered under a number of things, so I do not think that is so much the point as the point I suspect Mr Barber is attempting to make which is that in a sense potentially there is a higher degree of rigour at the local government end than the rigour for the other appointees. But the chamber should remember that there are no specifics about how these DACs will be funded over and above their operations.

If members of a DAC were to seek, say, some specific legal advice which required an advance from the council, because it is an extension of the council itself, but those funds were used improperly rather than for the operation of the DAC, then any one of the five members of the DAC -- if it was specifically one of those members who had asked for some advance
-- might in some way come under that provision.

The DAC is an extension of the operation of a council. It is a vehicle, a decision-making body, but of course there is always the expectation of a high degree of rigour in local government anyway. That does not change. The other members are certainly covered under that clause if they are not covered under the Local Government Act.

Do DACS rely entirely or mostly on using council funds?

The DEPUTY PRESIDENT -- Order!

Can I just clarify this for the sake of the committee: it was my understanding that the government is also providing funds to the DACs process, so we are not just talking about local government funds here, are we?

Hon. J. M. MADDEN (Minister for Planning) -- That is correct. We have made a commitment to provide some funds, and I know Mr Guy has been very conscious of this. But the mechanics of these things are, I would suspect, that the money is provided to council for the operation and the council would not come seeking any advance, in terms of the operation, from the state government. The money will rest with the council as an advance in some form for the operation of the DAC or as a subsidy or through some program arrangement. So I would suspect that the mechanism by which you get an advance would go back to council, because the DAC is a vehicle of the council rather than of the state government, even though we are introducing it under state government legislation.

There is no provision for funding DACS members for legal advice

Mr BARBER (Northern Metropolitan) -- The minister mentioned legal advice. If councillors want legal advice, they go to the chief executive officer and the CEO either gives them advice or determines that legal advice needs to be obtained. I have never had an instance where a councillor could order up legal advice, let alone in the middle of deciding on a planning permit. Is there some other arrangement proposed here where, by virtue of being a member of a DAC, a person will be able to order legal advice?

Hon. J. M. MADDEN (Minister for Planning) -- No.

Payment for DAC members - no set figures, unlike council remuneration

Mr BARBER (Northern Metropolitan) -- What allowances are DAC members going to be paid?

Hon. J. M. MADDEN (Minister for Planning) -- My understanding is that the members will be given the equivalent of a service rate of some description and that it will be not unlike -- but not necessarily the equivalent of -- the service rate or arrangement at Planning Panels Victoria. Of course the local government itself, depending on who it appoints to the DAC, will have to determine arrangements on that basis.

If you are a local government representative, you may not wish to receive that service rate -- you might forfeit that fee -- or it might be rolled into your allowance as a councillor or assumed to be part of your allowance. But if you were an appointee -- either an independent chair or a representative from the state government -- and if you were someone with expertise, you would probably receive a service fee of some sort, not unlike the situation at Planning Panels Victoria. There is not a set figure at this point in time.

Mr BARBER (Northern Metropolitan) -- Council remuneration is set by the Local Government Act; councils are not in a position to vary the fees they pay to councillors in return for other duties. If what the minister is saying is that there will be allowances to DAC members and that those will be covered under the minister's regulations and paid to those people irrespective of their receipt of an allowance from the council, then I think that makes a lot more sense.

I am also uncertain as to how all the other operating costs of a DAC -- from advertising its meetings to requests for individual pieces of, say, heritage advice or design advice -- will be allowed for if the DAC is to make its own decision.

Hon. J. M. MADDEN (Minister for Planning) -- In many ways there is no great variance from the current operation of a council considering a major matter.

Relevant parties who may have an interest or who might be involved in the process would no doubt be notified. That is not that much different from the way the council would operate in the circumstance of a matter of consequence. The DAC would operate locally. It is highly likely it would operate within the council precinct somewhere, so I would not expect there to be a significant cost in terms of the hire of a public space within a building. So if there are to be costs, they are not really additional administrative arrangements, because most of those would have been the administrative arrangements local government would have had in terms of making an equivalent decision anyway. Any additional costs are more likely to be with the non-council law members of the DAC, who will receive a fee for service of some sort.

Mr BARBER (Northern Metropolitan) -- I suppose we could quibble about that.

The minister would have heard me referring to an article in the Australian Financial Review which stated that the minister's New South Wales counterpart had made the commitment that where a council or members of a DAC had opposed a DAC's decision and that decision subsequently became subject to appeal, the state government would fund the court defence of that decision rather than forcing the local government to defend a decision which its appointed members did not support. Is that the same commitment the minister is making in Victoria?

Hon. J. M. MADDEN (Minister for Planning) -- No, I am not making the equivalent commitment, because from time to time councils make decisions under delegation that sometimes councillors do not like themselves. They give authorisation to their planning staff to make decisions because of the controls that are in place in a particular location. Those controls themselves really determine what decision can and cannot be made.

I have been involved in a circumstance like that lately where the controls determined the decision rather than anyone using discretion over and above those controls in terms of the decision.

So it is not my expectation that we would make a similar commitment to funding what has taken place in New South Wales. In terms of the operation of the development assessment committee I will monitor very closely the situation where a council is not happy with a decision but needs to defend in some way, and I will see how often that occurs. I will seek to operate the system so that councils do not find themselves in that position on a regular basis when they have to stump up the money for a defence which they do not really feel compelled to invest in with any significance.

We know from experience that councils may often decide to reject a planning proposal even though their policy might advocate for the proposal, and then if the decision is challenged the council goes to the Victorian Civil and Administrative Tribunal and does not defend it very strongly. The council may send a junior officer to represent it and is almost complicit in letting VCAT make the decision on the basis of the existing policy or controls within the council.

I am conscious that there are already in the system some reported instances where councils do not strongly defend decisions they currently make, even if they do not support or necessarily want to support the decisions. I am conscious of those points but do not make that commitment at this time, which is not to say -- without monitoring the situation -- that I may not come back with a different view at a later date.

Minister has power to suspend DAC member. Madden did not know how a DAC member might be terminated.

Mrs PEULICH (South Eastern Metropolitan) -- Going back to an answer the minister gave earlier when he said the removal of a member from the development assessment committee would need to occur through the Governor in Council, if the minister became aware of a conflict of interest will he explain how he would deal with sacking a member of a DAC, what the process would be and how long it would take?

Hon. J. M. MADDEN (Minister for Planning) -- I mentioned in some of the detail I gave earlier that a member would be suspended initially and only after an investigation would a decision be made that somebody would be dismissed. A suspension may occur initially and then an investigation would take place and recommendations and a decision would be made after that. In the initial stage there would potentially be a suspension of the member if it was warranted.

Mrs PEULICH (South Eastern Metropolitan) -- Would this decision be made by the minister?

Hon. J. M. MADDEN (Minister for Planning) -- I do not have the ability to dismiss a member of a DAC but I will check to see how that termination or suspension would occur.

I can only suspend the member. As would be the case with any decision I make on any planning matters in any area, I would only do it on the advice of my department, and there would have to be some independence over and above the department's advice to qualify it in some manner. I would expect that on the suspension further advice would be provided to me after an investigation of these matters.

There could be a range of mechanisms on which I would qualify the advice of the department with additional independent advice in relation to the matter, but I would expect the advice of the department alone would not necessarily be sufficient justification or reason publicly for the confidence and operation of the DAC. I would be looking for some external independence to qualify the advice of the department.

Mrs PEULICH (South Eastern Metropolitan) -- I believe the minister is saying that natural justice principles would apply to the suspended member and that he or she would have the opportunity to defend their position in some way. Is the minister able to elucidate how that would occur?

Hon. J. M. MADDEN (Minister for Planning) -- Absolutely. Suspension of a member could only be for a short time.

I would expect that during that period an investigation would resolve the matters and clarify whether there was some legitimacy for the dismissal of that person from DAC.

Two sets of laws might apply simultaneously to a councillor

Mr BARBER (Northern Metropolitan) -- It is all very confusing because it seems to me we have mirror provisions in the legislation and that for a councillor both sets of provisions would operate. If a member breached the Local Government Act the local government ministerial inspectorate would talk to the member, but now we are getting a hint of some kind of unit or process being set up within the Department of Planning and Community Development that would look at another act that seems to have the same wording. Before the minister goes any further on that, I have a series of questions around register of interests which start at proposed section 97MZN, and some of them relate to the same kinds of questions. I am indicating that I am keen to move on to that proposed section.

Register of interests, keeping of records - serious problems

There is a series of new sections within subdivision 6. First of all, members of DACs must register their interests. The secretary must maintain that register. The secretary must allow a person to inspect the register if they have written to the secretary and asked for permission to do so and if the application meets the requirements of the regulations, if any. The secretary has to maintain a record of the names of persons who have inspected the register. A member of a DAC can inspect the register. A person must not publish information derived from the register unless that information is a fair and accurate summary or copy of the information derived from the register. As soon as practicable after a person ceases to be a member or an alternate member of a DAC the secretary must remove all the returns submitted by the person from the register, but then the secretary must retain the returns of a member or an alternate member for a period of three years and at the end of the three years the secretary must destroy the records.

Never mind councillors, who will have to go through many of the same provisions anyway under the Local Government Act, it seems that if these DAC members -- and they could be all these planning consultants and architects and various people who the minister is going to decide are suitable people -- have any sort of expertise and professional involvement in this field, they are bound to have interests in the field. I for one would want to know which planning consultancies they work for so that I could determine if other clients of that consultancy may have an interest in the matter.

What we are told here is that I have to ask permission to see the register and the secretary may have regulations that deny me the ability to see it. I can be in trouble if I publish the information unless I give a fair and accurate summary.

The minute that person gets off the DAC, their returns are no longer available. They sit in the secretary's filing cabinet for three years and then they get destroyed. How is this meant to guarantee any probity in the process if the public at large cannot understand the interests of these people or even if that DAC member has to be investigated? It could be that they have made a pattern of decisions over a number of years which together trigger an investigation; however, on the day they quit that information is no longer publicly available. And if they do not get sprung for three years, the information itself is actually destroyed. It just seems to me that this is not really offering the opportunity for any person to make their own assessment of the probity of the process.

I do not think I have any particular question on the issue.

Having been through this issue when we did this with local government -- and in fact I had a private members bill which addressed these issues -- this seems to mean that the secretary is the only person who is likely to have free and unfettered access during the relevant period. For a member of the public to attempt to inspect the records is going to be quite difficult.

Mrs PEULICH (South Eastern Metropolitan) -- On the same point if I may, in relation to the provision which requires that those records be kept for a period of three years after the person ceases to be a member of the DAC, clearly there is currently a flaw in the Public Records Act in that it requires documents to be kept for three years -- a length of time which has not been synchronised with the new terms of the state Parliament and local government. I actually have it in writing from the Public Record Office that this has been a failing. How does the minister explain the fact that the three-year period is enshrined in this particular provision? Is this again a replication of a flaw?

Should it not be corrected to reflect the four-year election cycle?

Secondly, public records management protocols should apply. Here there appear to be no protocols. I am concerned that the regime does not guarantee probity. Is the minister able to comment on that?

People would have to fall back on the omsbudsman!

Hon. J. M. MADDEN (Minister for Planning) -- I suppose there is not a lot of difference in what is described here to what is currently the case in the expertise provided at Planning Panels Victoria in many instances in relation to the same way in which the interests of board members or members of panels are kept and stored -- there is not a lot of difference. I know Mr Barber has expressed concerns about if somebody has a consultancy or an interest connection and that people need to have confidence in that. I agree that there needs to be confidence in that process.

There are other mechanisms if people believe there is more than meets the eye. The Ombudsman exists in this state for that sort of reason. If people do have specific concerns about those individuals who are the experts who are taking up positions on the DAC, there are mechanisms by which they can make a request to the Ombudsman to follow that up.

Striking a 'balance' rather than guaranteeing probity (Madden)

The other issue is that individuals who have a degree of expertise might also have an interest in the degree of privacy around some of their personal matters which do not relate in any way to the DAC but might be listed on a register in some way. Of course if that private information is made publicly accessible without a degree of control for that particular individual, there are privacy issues there as well. Often the issue around an individual's privacy and the ability to access detailed information in relation to their position or authority has to strike the right balance, and we believe it does that.

There is also the ability for people to access that information and to report on it, but of course they have to report on it accurately, and that is the implication made and the direction given in terms of the legislation here: if people are going to quote from the register, they need to quote directly from it rather than describe it in some other fashion.

Privacy should be secondary to public interest in representative role

Mrs PEULICH (South Eastern Metropolitan) -- But if DACs members are fulfilling the role of what elected members should be doing, then protection of their privacy should be secondary to the public interest.

Therefore I cannot accept the minister's argument. I strongly suggest that the regime here is not sufficiently open and transparent. I do not believe it is corruption-proof, given that the three-year period for which records must be kept is not in sync with the election terms at both the state and local government levels. Is the minister prepared to change those?

Too bad for the public interest

Hon. J. M. MADDEN (Minister for Planning) -- We have a bill presented before us that has been resolved by the Dispute Resolution Committee of the Parliament. This is the bill which has been resolved, so there is no ability to change this bill as it is presented. Those issues no doubt will be monitored by all sides of politics.

Given Mrs Peulich's interest, I am sure she will pay a great deal of attention to this matter. If it is warranted, then we will look at making changes to the bill, but not only on this front.

As I said before, there are issues that we will monitor -- and I am sure the Parliament will monitor them -- and if there are changes that are warranted, there will be a chance to make changes to legislation by bringing forward other legislation.

The DEPUTY PRESIDENT -- Order! Can I get a sense of whether we are nearly completed?

Mr BARBER (Northern Metropolitan) -- We are extremely close, Chair.

The DEPUTY PRESIDENT -- Order! Thank you. I am very relieved.

Insufficient probity monitoring; high risk of corruption

Mr BARBER (Northern Metropolitan) -- My final concern is that the minister has admitted his department will have the responsibility of being the probity auditor for these people.

We are told that as soon as a DAC member resigns from the DAC all of their public returns will be removed, almost straightaway, from the register. The first thing a guilty person would do is quit. The next thing to happen would be that all of their register material would go missing. In any case, the material on that register is limited because it says what they would need to disclose. It is considered to be a conflict of interest or what they call in new section 97MZG(1) a 'conflicting duty' if the person:

(b) is a partner, consultant, contractor, agent or employee of a person, company or body that has a direct interest in a matter;


Unfortunately there is no requirement that a DAC member disclose on the register their employment, partnerships, consultancies or contractual arrangements with companies and bodies in the development industry, which they will almost certainly have. That is a real weakness.

It will make it extraordinarily difficult, even for the minister, to maintain probity, or for mindful members of the community to play any part in this either.

Hon. J. M. MADDEN (Minister for Planning) -- I have no further comments to make in great detail, other than to say the issue, as I raised earlier on, is for individuals to reveal where they may have a perceived, possible or potential conflict of interest in advance of that happening. There is an obligation on individuals to remove themselves from office if and when there is a potential conflict of interest. With these matters there is always a high degree of onus on an individual to know what those conflicts are. Even in registering potential conflicts there is a high degree of obligation on the individual to make them known on the register.

To cut a long story short, there is a high degree of obligation on the individual, and if they do not comply, then the individual is the one who will find themself in a very uncomfortable situation when it comes to the matters being investigated or followed up, particularly if they have a significant impact on the operation of or confidence in the DAC.

With many of these matters the ability of any one individual to manage those conflicts in a way which takes place across all sorts of areas of business and government is particularly important. Again, the onus falls very heavily on the individual to make sure that they have been careful.

Mr Barber interjected.

Madden's law demands public rely on reputation of appointees rather than proper checks and balances

Hon. J. M. MADDEN -- It will always fall back on the minister. The reputation of the individual and the reason they are in these positions is because they are no doubt held in high regard.

They are seen as experts with a high degree of established and well-regarded reputation in their respective fields and professions. There is as much an onus on them to do justice to that reputation than to have it undermined, hence undermining the operation of the DAC.

Clause agreed to; clauses 6 to 10 agreed to.

Reported to house without amendment.

Source: Victorian Hansard, Council Proof, 9 September 2009

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