Successive Victorian governments too closely aligned with property development and investment have inflicted continuous rapid population growth on Victorians. This has had a terrible effect on democratic rights to object and protect property and the environment, built and wild. It has seemed that no power could hold the government up to any effective criticism. The Victorian Auditor General has tabled the following reports. We have included an extract from the report which shows a democratic deficit in the public review process. This report may be of use to population and environment activists and they should publicise it.

Effectiveness of the Environmental Effects Statement Process

Tabled: 22 March 2017

Land use planning and development are important for meeting the changing needs of the growing population. An environmental impact assessment is a tool used to predict the environmental, social and economic effects of a proposed development at an early stage in project planning and design.  The assessment aims to find ways to reduce negative impacts, and shape projects to suit the local environment. In Victoria, assessments of the environmental impact of proposed development projects are conducted through the Environmental Effects Statement process under the Environment Effects Act 1978. In this audit, the Victorian Auditor General examined if the Department of Environment, Land, Water and Planning is managing the Environment Effects Statement process effectively. It makes eight recommendations for the Department of Environment, Land, Water and Planning. Candobetter.net has included below the video the observations and recommendations on the hearing processes in public reviews. They will be very interesting for groups like Planning Backlash and Protectors of Public Lands, whose members have so often complained of how difficult and unfair the process of objecting to constant damaging development has become. An extract from the full report shows democratic deficit in the public review process 4.3 Public review process The Ministerial Guidelines provide a range of consultative options for the public review stage of an EES. These include: an inquiry by written submission an inquiry by submitter's conference an inquiry by formal hearing where proponents and submitters can present their cases and expert witnesses can be called. We examined seven projects with referral decisions since September 2011 that have progressed to the public review stage. We found that public consultation occurred through inquiry by formal hearing in all cases. The department has not recommended the minister use the alternative consultation options to the formal hearing. 4.3.1 Appointment of panel members Inquiry panel members are appointed by the Governor-in-Council, based on advice from Planning Panels Victoria (PPV). PPV prepares a brief outlining the names and qualifications of the proposed chair and inquiry panel members. Prospective panel members are drawn from a pool of members maintained by PPV. Appointments to EES inquiries are in accordance with Department of Premier and Cabinet Appointment and Remuneration Guidelines. Probity checks are mandatory, and panel members must complete a Declaration of Private Interests to enable any conflicts of interest to be determined before their names are submitted to the minister. 4.3.2 Inquiry terms of reference The inquiry terms of reference enable the panel to enquire into any aspects of the project they consider necessary. They also allow the panel to seek advice from experts as needed, including using the expertise of panel members themselves. The terms of reference directly refer to the areas of focus specified in the minister's EES decision. The terms of reference for inquiry panels appointed for projects over the past five years have been drafted to enable the panel to ensure that potential significant environmental effects are examined with sufficient rigour. Terms of reference for inquiries also include clauses that aim to encourage public input into the inquiry process, including: requiring the inquiry to consider public input requiring the inquiry to conduct a public hearing stating that hearings are to be conducted with minimal formality and without the need for legal representation restricting cross-examination and adversarial conduct requiring that parties without legal representation will not be disadvantaged. Our audit found that of the seven projects that have had an inquiry by formal hearing, six of the inquiries' terms of reference were based on a template provided in the department's quality management system (QMS) documents, with content individualised to suit specific projects. One project has more tailored terms of reference—the Melbourne Metro Rail Project (Metro Tunnel). The scope of the Metro Tunnel project includes five new underground stations, two of which are new city stations directly connected to Flinders Street and Melbourne Central. As identified in the 2011 Parliamentary inquiry, terms of reference for inquiries by formal hearing for high-profile projects that generate significant public interest have deviated from the QMS template. The key differences included: removal of the clause in the template that requires the panel to ensure people appearing without legal representation are not disadvantaged an additional clause for the panel to limit the time allowed for presentations an additional clause for the panel to exclude attendees who behave inappropriately. 4.3.3 Barriers to public participation There can be significant imbalances between proponents and community participants. In all projects within the audit scope, proponents had legal representation, and several proponents used the same representative. In contrast, members of the community were usually self-represented, seldom using a lawyer or other advocate. Legal representatives with expertise in planning law and EES inquiry panels have a marked advantage over members of the public when presenting their case at hearings. In the public review stage, all projects in the audit scope conducted reviews through an inquiry by formal hearing. The department did not advise the minister to consider any other inquiry options available under the Ministerial Guidelines. The intent of the hearings is a minimum of formality and no requirements for legal representation. Yet proponents in all projects had legal representation. One inquiry specifically addressed the concerns of submitters who felt disadvantaged by having no access to experts or legal representation. The inquiry panel denied a submitter's request, supported by other submitters, for an adjournment to review materials. The independence, powers and knowledge of the panel members—who are often experts and experienced in conducting planning panel hearings—is intended to ensure that proponents do not unduly or falsely influence the proceedings. Despite this, the imbalance between proponents represented by lawyers and self-representing community members creates perceptions of unfairness. 4.3.4 Advice to the minister The Ministerial Guidelines enable the department to recommend options to the minister that can reduce the formality of the EES inquiry stage. This aims to improve the ability of local communities and individuals to participate in inquiry processes and reduce perceptions of unfairness. Although the Ministerial Guidelines provide the flexibility for the inquiry process to differ in depth and formality depending on the complexity of the project, we did not find significant differentiation in the variety of projects that we examined. For those projects, the department's consistent advice has been to recommend formal hearings. Less intensive options of inquiry by written submission or inquiry by submitter conference were not presented as options to the minister. Access the Report Full report as HTML Full report as PDF  (1.5 MB) PDF of the presentation

"The governance, coordination and oversight of the management of Ramsar sites must improve overall for Victoria to effectively meet its obligations. Monitoring the implementation of management plans also requires improvement. The recommendations are designed to improve gaps in governance, oversight, coordination and monitoring." (Victorian Auditor General)

In a report tabled on 14 September 2016, the Victorian Auditor General summarised:

Wetlands are a critical part of our natural environment and have environmental, cultural, social and economic value. The Ramsar Convention is an international intergovernmental treaty which provides a framework for the conservation and wise use of designated wetland ecosystems throughout the world. Australia is a signatory and has 65 Ramsar listed sites, 11 of which are in Victoria.

This audit reviewed how effectively Victoria’s Ramsar wetlands are managed and whether Victoria is meeting its national and international obligations. We reviewed the Department of Environment, Land, Water & Planning (DELWP) and primary site managers—Melbourne Water and Parks Victoria—who all have a role in conserving and maintaining Victoria's Ramsar sites.
We also reviewed selected catchment management authorities.

The audit found there is limited evidence that all Ramsar sites are being effectively managed and protected from decline. There is also evidence of potential change in the ecological character of some sites and changes at other sites cannot be fully determined due to limitations such as a lack of data. Some projects have improved outcomes for Ramsar sites but these are not clearly linked to a Ramsar management plan.

The governance, coordination and oversight of the management of Ramsar sites must improve overall for Victoria to effectively meet its obligations. Monitoring the implementation of management plans also requires improvement. The recommendations are designed to improve gaps in governance, oversight, coordination and monitoring.

Link to full report

VAGO 2016–17 reports:
http://www.audit.vic.gov.au/reports_and_publications/reports_by_year.aspx

Audits in progress:
http://www.audit.vic.gov.au/audits_in_progress.aspx

Public hospitals present hazardous challenges that demand OHS management of the highest standard. The audit found that while there are instances of better practice among the audited public hospitals, there are also significant shortcomings which put staff at unnecessary risk. In addition, weaknesses identified with the role of the department as the health system manager, and with WorkSafe as the OHS regulator, have contributed to the failure to achieve better management of OHS risk by public hospitals. Neither the department nor WorkSafe has a comprehensive understanding of sector-wide OHS risks or emerging trends in public hospitals.

Statements from the Auditor General's Report, November 2013

There is insufficient priority given to, and accountability for, OHS (Occupational Health and Safety) in public hospitals.

Staff safety needs to be given a higher priority by senior management and the department, and managers within public hospitals should be held to account for the OHS performance of areas under their control. Sustained improvement in the public hospital safety culture is not likely to occur without greater priority and clear accountability.

Neither the department nor WorkSafe has a comprehensive understanding of sector-wide OHS risks or emerging trends in public hospitals. WorkSafe cannot demonstrate that its project activity reduces OHS risk in public hospitals. Collaboration between the department and WorkSafe has been poor, with missed opportunities to reduce sector-wide OHS risk. Wide variability between public hospital OHS management practices—such as quality assurance of safety management systems and safety inspections—highlight the need fo r stronger sector-wide leadership.

These issues collectively warrant a future review of public hospital OHS risk to assess whether the level of protection for public hospital workers has improved.

Top down dereliction

The Victorian health services governance handbook states that the department plays a key system-level role in the performance of health services. This involves ‘shaping and enabling health services to function effectively’. The Health Services Act 1988 states that part of the department’s role is to enc ourage safety and improvement in the quality of health services provided by healthcare facilities.

However, the exact role of the department—as the health systems manager—in worker health and safety is not clear. Key documents governing the relationship between the department, the Minister for Health and public hospitals make no mention of OHS management in public hospitals, or outline the department’s expectations.

[...]

Although policy at each of the four audited public hospitals states that the board of the public hospital, as employer, is ultimately accountable for OHS, there is a breakdown in the chain of account ability below the board:

- Unit managers who are responsible for the day-to-day management of work units are not held accountable for OHS performance—this is also the case for the executive directors of public hospital departments. While there is a policy commitment that managers are responsible for maintaining a safe working environment, there are no mechanisms or targets to hold these managers to account for OHS performance.

- Ownership of OHS risk does not reside with the manager where the risk occurs.

At an organisational level, risk registers identify the corporate services area as the owner of OHS risks, despite OHS risks presenting predominantly in clinical departments.

"Under the devolved governance model, described in Part one of this report, the board and Chief Executive Officer of a public hospital play key roles in providing a safe and healthy workplace."

Occupational health and safety priority and accountability
Victorian Auditor-General’s Report
Occupational Health and Safety Risk in Public Hospitals

Managers are not accountable for occupational health and safety performance

Although OHS policies at each public hospital did state that the board, as employer, is ultimately accountable for occupational health and safety, there is a breakdown in the chain of accountability below the board:

- managers of clinical areas, where OHS risks predominantly present, are not held to account for the OHS performance of that unit or department

- ownership of OHS risk does not reside with the manager where the risk occurs.

However, there was no evidence that they were ever held to account at the four audited public hospitals. The OHS Management Framework states that ‘performance of OHS responsibilities is part of established job performance assessment process’.

None of the four audited public hospitals could demonstrate that mechanisms were in place to hold unit managers to
account for OHS performance. For example, even though the position descriptions of nurse unit managers NUMs)—who have direct responsibility for frontline staff and daily tasks—allocate them responsibility for overseeing OHS at the work unit level, half of the NUMs interviewed were not sure of their OHS responsibilities. Even those who understood their OHS responsibilities were not required to demonstrate how they fulfilled those responsibilities.

Managers to whom NUMs report are also not held to account for OHS performance. Position descriptions of executive directors, who are responsible for the day-to-day management of the clinical departments, assign responsibility for OHS in these areas. However, there was no evidence that they were ever held to account at the four audited public hospitals. The OHS Management Framework states that ‘performance of OHS responsibilities is part of established job performance assessment process’.

The audit team did find some examples of better practice at public hospitals that were not part of this audit. For instance, one public hospital requires NUMs to report on OHS incidents and control measures in their unit. NUMs at this public hospital are also required to develop an action plan where gaps have been identified, and these action
plans form part of their annual performance review.

Lack of occupational health and safety reporting against set targets

Managers need to receive regular reports against the targets set on OHS performance in the workplaces under their control if they are to be held to account. Neither reporting nor target setting was found at the work unit or department level of the public hospitals audited. Unit managers and clinical executive directors do not receive regular reports or trend data of OHS incidents in the work units for which they are responsible. As there are several unit managers rostered on during any month, without aggregated reporting it is difficult for each manager to know whether OHS performance is deteriorating or improving, or how their unit compares with other workplaces in the
organisation. The OHS Management Framework emphasises that ‘Health and safety performance is regularly reported’.

The Australian Wildlife Protection Council has taken unprecedented steps towards preparing a case for negligence against the Victorian Government and the Department of Sustainability and Environment (DSE) for failing to protect Victorian Wildlife and failing to assign official 'Threatened Status' to species under threat. The Victorian Auditor General in 2009 warned that the Victorian government had failed to uphold their charter to fully implement the Flora and Fauna Guarantee Act 1988 but the Government has since done nothing about this. There is at present no effective protection for wildlife in Victoria. The Department of Sustainability has declined into a kind of rubber stamp office-front for shooting licenses with an agenda mostly outsourced to corporate interests for massive urbanisation of the state.

Australian Wildlife Protection Council
September 16, 2012

Part One

A Case for Negligence by the Victorian Government and the Department of Sustainability and Environment, (DSE) for failing to protect Victorian wildlife. DSE fails to assign official "Threatened Status" to species under threat.

Former Executive Director Dr Ian Miles arranged for DSE Adrian Moorrees, Project Manager, Actions for Biodiversity Conservation (ABC), Biodiversity and Ecosystem Services Division to demonstrate to AWPC the DSE Actions Biodiversity Conservation (ABC) Data Base system.

”DSE uses an inadequate Victoria-wide definition of ‘threatened’ which means that local populations can be extinguished without sounding the alarm so long as some numbers remain for the whole state; pockets where animals appear numerous, due to fragmented populations trapped in small areas, are not assigned official “threatened” status. Little effective tab is kept of numbers. More and more native species simply vanish!”
Sheila Newman Land- Use Planner and Environment Sociologist

The Victorian Government and DSE fail to uphold their charter to fully implement the Flora and Fauna (FFG) Act 1988. An important requirement under the FFG Act is the development of a ‘Flora and Fauna Strategy’ (Biodiversity Strategy). The former Government committed to renewing the Biodiversity Strategy and released a draft for public comment in June 2010. The Baillieu Government indicates that they have no plans to revive it.

The 2009 Auditor Generals’ Report revealed that “As a general rule the processes and measures available to conserve and protect flora and fauna have been abandoned by DSE because of their perceived complexity and difficulty of administering the provisions.” Lack of resources was cited as the reason for poor implementation of the FFG Act. As a result of this failure to uphold their charter, many of the legal measures to protect flora and fauna have never been implemented. The Auditor General’s Report was damming; the FFG Act no longer provides an effective framework for the protection of flora and fauna.

• DSE has not implemented 2009 recommendations made by the Victorian Auditor General
• DSE has failed to improve the ‘threatened species list
• The Victorian Government has failed to provide adequate resources to implement critical work.
• DSE has not published a compliance monitoring and enforcement policy
• DSE has not promoted transparency, accountability by identifying key information about
implementation.
• DSE has not provided annual reports containing statements of implementation of flora and fauna conservation and management of their objectives.
• Victoria’s Biodiversity Strategy is significantly out of date.
• The Biodiversity Strategy was not approved before the change in Government and there is no set time frame for the strategies release and DSE have removed it from their web site.
• There is no indication that the Victoria Government is moving to adopt the existing draft or develop a new strategy.
Human population growth is causing environmental changes and coupled with climatic weather changes should make the implementation of the FFG Act a priority by any Victorian Government. Ignoring the significance of these events and failure By DSE and the present Victorian Government to take precautionary measures will result in the total destruction of our flora and fauna.

The Victorian Government and DSE are also guilty of negligence pertaining to the management and issuing of Authority to Control Wildlife Permits (ATCW). They have also shown a decided bias and are selective when nominating Committees set up for wildlife management. The Scientific Advisory Committee was established under Section 8 of the Flora and Fauna Guarantee Act 1988.

A new panel was appointed in March 2012 to oversee wildlife control and to assess applications to control wildlife which are of significant community interest. The panel consists of:

University of Melbourne - there are questions about ‘ethical practices’ within the zoology department
Bureau of Animal Welfare (DPI) - has a vested interest in domestic stock and little interest in wildlife
Zoos Victoria - the main objective of zoos is for captive breeding programs for endangered animals
RSPCA - has little interest in native animals with their emphasis being on domestic pets

There is no representation on this panel by independent persons or wildlife groups.
Pernicious (meaning destructive, very harmful) evasion can be applied to both examples used here.

The following Motion was moved at the Australian Wildlife Protection Council 2012 AGM:

Ciewen Hickey
I move
(a) that the Australian Wildlife Protection Council Inc 2012 AGM challenges the Victorian Department of Sustainability and Environment (DSE) and the Victorian Government for negligence regarding their compliance with the DSE Fact sheet 1 – Issuing of Authority to Control Wildlife (ATCW)Permits. DSE is responsible for the management of Victorian wildlife and it is in this area that DSE has shown negligence in their statutory responsibility. Australian native animals belong to the Crown and the DSE has a Duty of Care to protect them and the habitat they need to survive. The DSE is bound by Rules and Regulations set by the Victorian Government, which is voted into power by the people and for the people. They are given a Mandate to manage State affairs on behalf of the people –
and I further move

(b) that the Australian Wildlife Protection Council Inc challenges the DSE and the Victorian Government for failing to implement provisions of the Flora and Fauna Guarantee Act 1988 to protect wildlife. Concern about threatened waterbirds being shot by game shooters, leaving wounded, maimed unprotected threatened species, makes a mockery of the "guarantee".

Freedom of Information (FOI) obtained by the Victorian Greens Party DSE Authority to Control Wildlife Permits (ATCW) can be viewed at:

http://vicmps.greens.org.au/content/authority-control-wildlife-permits-issued-under-cloak-secrecy

ATCW Permits Summary (Statewide) 2011
Species Permits Max No
Australia fur seal 2 110
Australian magpie 17 340
Australian magpie lark 3 22
Australian raven 75 2326
Australian shelduck 11 205
Australian white ibis 2 50
Black kite 2 40
Black swan 1 10
Black faced cuckoo-shrike 3 25
Black tailed native hen 6 170
Cape barren geese 2 302
Common brushtail possum 5 126
Common ringtail possum 1 5
Common wombat 134 1612
Crimsom Rosella 19 525
Dingo 1 10
Eastern brown snake 3 42
Eastern Grey Kangaroo 793 29152
Eastern Rosella 5 90
Emu 37 538
Galah 29 1275
Great cormorant 2 22
Grey butcherbird 2 30
Grey teal 3 140
Grey-headed flying fox 1 1000
Laughing Kookaburra 3 30
Little black cormorant 2 22
Little Corella 37 2457
Little Pied cormorant 2 22
Little Raven 7 195
Long billed corella 15 1160
Mallee Ringneck 3 15
Maned duck 94 3393
Masked lapwing 7 185
Musk Lorrikeet 39 2430
Noisy Friarbird 12 365
Pacific Black Duck 8 358
Pacific Heron 1 2
Pied Carrawong 22 640
Purple Swamphen 3 25
Rainbow Lorrikeet 20 910
Red Wattlebird 10 295
Red necked Wallaby 13 213
Satin Bowerbird 5 85
Silver Gull 38 10140
Silver Eye 13 380
Sulphur Crested Cockatoo 28 1098
Swamp Wallaby 128 2239
Tiger Snake 1 10
Welcome Swallow 2 11
Western Grey Kangaroo 56 1162
Yellow-tailed black-cockatoo 1 30
Background What is an ATCW Permit? An ATCW is a permit issued by DSE which allows the killing of native animals.
• Who can obtain an ATCW?
• Anyone can obtain an ATCW.
• What cost is involved to an applicant for an ATCW?
• There is absolutely no cost to the applicant but the cost to the Victorian tax payer is approximately $275 per application.
• If this cost were applied to each application it would drastically cut the number of ATCW’s issued.
What DSE say in their ‘Managing Wildlife’ – Fact sheet 1

A landowner or manager identifies a conflict with wildlife on their land which cannot be resolved by non- lethal techniques.
DSE do not give any education to landholder with regard to non-lethal methods unless a landowner specifically asks for help. Education about wildlife should be a priority with DSE and it is not.

The applicant completes the form by specifying the wildlife species causing the problem, number of individuals involved, non-lethal methods used, the proposed control method (scare only or destroy) and submits the application to DSE.

DSE take the word of landholders about the number of animals causing problems. Landholders are not required to validate either numbers of problem animals or the perceived damage.

In most cases, a DSE Officer inspects the property to determine the validity of the application.

In most cases this does not occur. By their own admission DSE do not have enough Officers to carry out inspections to validate claims made by landholders or undertake any follow-up monitoring. When a DSE Officer does go to a property to make an inspection, there is no requirement that numbers of animals sighted be validated by either photographs or video. In the case of macropods, when a DSE Officer sights and counts the number of ‘pest animals’ the number counted will be more than doubled as it is presumed that if they see 100, there will be 250 in the area, because there are those which they can’t see hiding in woodland.
How are ATCW applications assessed?

All ATCW applications are considered on a case by case basis and generally involve an on-ground inspection of the problem (unless the issuing Officer has firsthand knowledge of the property)

On ground inspections are extremely rare due to the lack of DSE Officers available to undertake inspections. Firsthand knowledge usually means a permit has been issued before but no inspection is carried out to confirm that the problem remains.

ATCW’s are only issued where there is a demonstrable need to control numbers and following consideration of: Severity of the problem, other measures available to control the problem, past management of the problem.

The ATCW system provides a structured and controlled way of responding to problems in a humane and sustainable manner. Without this system, it is likely that people experiencing damage would take matters into their own hands.

The ACTW system does not provide a structured and controlled way of responding to perceived problems and the very act of killing animals is neither ethical nor humane.

How is animal welfare insured?

All authorisations include strict conditions to ensure that animals are controlled in a humane manner. An ATCW does not confer any right to use poison and does not absolve the holder of any legal obligation under any other legislation, including the Prevention of Cruelty to Animals Act 1986.

The strict conditions mentioned here consist of the type of gun which is to be used, the type of bullet and a diagram of where a shot should be placed in the case of Macropods and Wombats.

Animals which are not cleanly shot and are injured are not chased up by the landholder or the agent and put out of their misery; they are left to die agonising deaths which sometimes takes days. There is no ‘Prevention of Cruelty’.

DSE do not have any methods in place where records are kept of how many animals were actually killed, how many were injured and not found. There is no requirement by DSE for the holder of an ATCW to report these figures which means the permit holder could kill less than the permit allows or more likely, many more than the permit allows. It could be a bottomless pit.

There is also no requirement in the case of Macropods and Wombats to find any young at foot and no requirement for any in-pouch young to be humanly killed.

DSE do not have any system in place by which they test the competency of the person who is to do the shooting. The only requirement when applying for an ATCW is a current gun license number so anyone with a current license can shoot wildlife no matter how inexperienced.

Are ATCW’s Monitored?

DSE staff randomly inspects a number of ATCW’s each year.

Destruction of protected wildlife without an appropriate authorisation, or breaching the conditions of an ATCW is a serious offence and will most likely result in prosecution. There are penalties of more than $5,000 for illegally destroying protected wildlife and or up to 6 months imprisonment.

Given the lack of DSE Officers, it is reasonable to conclude that ‘random inspections’ are not carried out and there is no available evidence that any of the mentioned penalties have ever been applied.
It is also interesting to note that DSE does not have a central electronic document management system that allows for searches of ATCW’s when a request is made under Freedom of Information. There are only two DSE Officers with knowledge and understanding of the documents whereabouts who are able to assist the FOI unit. It would appear that all documents relating to the issuing of ATCW’s are kept at the regional office where they were issued. This appears to indicate, that in the eyes of DSE, the killing of Victorian wildlife is not important enough to keep centralised records.

Areas where negligence of duty are occurring

• DSE by their own admission do not have enough Officers to undertake all their duties which are outlined in their ‘Fact Sheet 1 – Authority To Control Wildlife’
• There is no system in place to prevent cruelty to animals killed under an ATCW.
• There is no system in place by which counting of ‘pest animals’ can be validated.
• There is no system in place which requires the holder of an ATCW to report and validate the number of animals killed.
• There is no system in place where the firearm competency of the applicant is tested.
• If DSE cannot comply with their own regulations with regard to the issuing of ATCW’s then they should cease issuing them until such time as they can competently oversee, monitor, validate and justify the issuing of these permits.

Parliament of Victoria

Parliament makes laws and holds the Government to account for its policies, actions and spending. Among the functions of the Parliament are;

• Representing the people
• Holding the Government to account for its policies and actions
Under the Victorian Constitution (Parliamentary Reform) Act 2003 Act number 2/2003 Part 2 – Amendment of the Constitution Act 1975
Page 12 – 16A ‘the principal of government mandate’
(b) The Government’s general mandate – to govern for and behalf of the people of Victoria

Department of Sustainability and Environment (DSE) Overview:

DSE believes they assist in delivering the governments vision to position Victoria as a world leader in sustainability; the department employs 2,700 staff, working in 90 different locations across the state, with annual funding of around $1 billion.

Department of Sustainability and Environment Liability in Negligence Mark Aronson November 2009
According to ‘Public Administration Act 2004

Government activities are usually judged by the ‘ordinary’ law of negligence, and one can often find good reasons for the exceptions. It is submitted, however, that it is never a good reason to deny a duty of care simply because the defendant is the Government, or because it is a statutory authority, or because it has statutory powers or statutory duties.

Perhaps, therefore a better approach would be to stop asking what special rules should apply to Government or even to Governmental actions. It might be better to focus more directly on the judicial role in a negligence case and ask what factors might be considered too difficult for the courts or inappropriate for their resolution according to a negligence standard, regardless of whether the defendant is a Government body or its action a Governmental function...it is difficult to understand what possessed the parliaments to grant Government entities generic permissions to be careless, or careless to a degree not permissible to their private sector analogues.

Ref. Government Liabilities in Negligence – Mark Aronson November 2009 ‘Public Administration Act 2004

7 Public sector values
(a) Responsiveness
(ii) providing high quality services to the Victorian community; and
(iii) identifying and promoting best practice;

(b) Integrity
(v) striving to earn and sustain public trust of a high level;

3 Objects
(ii) provides effective, efficient and integrated service delivery;
(iii) is accountable for its performance.

Public Administration Act 2004 – Section 7

Public sector values
(1) The following are some of the public sector values –
(a) Responsiveness – public officials should demonstrate responsiveness by -
(ii) providing high quality services to the Victorian Community; and
(iii) identifying and promoting best practice;

(b) integrity – public officials should demonstrate integrity by -
(v) striving to earn and sustain public trust at a high level

Part 2

Failures of the Flora and Fauna Guarantee Act 1988

The Flora and Fauna Guarantee Act 1988 (the Act) is the primary Victorian legislation providing for conservation of threatened species and ecological communities. Since the Act was passed in 1988, 653 plant and animal species, communities and threatening processes have been listed.

The primary aim of the FFG Act is to guarantee that all taxa of Victoria’s flora and fauna can survive, flourish and retain their potential for evolutionary development in the wild, and to ensure that the genetic diversity of flora and fauna is maintained.

The full range of ‘management processes’ and ‘conservation and control measures’ available in the Act has not been used. Various management processes and conservation and control measures available to conserve and protect flora and fauna are not being used, largely because of their perceived complexity and the difficulty of administering these provisions.

The gap between listed items and items with action statements continues to widen.

The lack of baseline data and outcome or output performance measures means it is not possible to conclude whether the Act has achieved its primary objectives.

The available data, which is patchy, indicates that it has not.

Administration of the Flora and Fauna Guarantee Act 1988 Recommendations by the Attorney General – 2009

The department should:

-review the internal timeframes it sets for listing, against the resources it applies and the processes it adopts, to confirm they are realistic

The only critical habitat determination made was subsequently revoked at the time of his report; and no interim conservation orders have been issued.[3]

Action statements are the primary tools in the Act being used to protect and conserve threatened flora and fauna. However, the effort directed to listing threatened species and processes has not been matched by effort to develop action statements, to monitor the implementation of actions, or assess their effectiveness.

The Flora and Fauna Guarantee Act requires Action Statements to be completed for each listing. An Action Statement sets out management prescriptions to protect endangered species. An Action Statement must be completed 'as soon as possible' after listing.

-continue to build its knowledge-base on threatened species, causes of their decline and how best to mitigate threats to them; and expedite the transfer of information held on manual files to the ABC system formalise its collaboration on conservation activity with the Federal Government and seek a joint agreement to eliminate duplication in the listing process (Recommendation 4.1).

The department should:

-assess the resources it applies to developing, monitoring and reviewing action statements and establish a prioritised action plan to address the backlog of listed items with no action statements

Proper utilization of the conservation measures available in the present FFG Act would make a real difference to biodiversity conservation in Victoria.

The action statements must set out what has been done to conserve and manage that taxon or community or process and what is intended to be done and may include information on what needs to be done.

The failure to complete Action Statements renders the RFA (Regional Forest Agreement) Reserve System inadequate for the protection of endangered species due to lack of information and management strategies.

The CAR (Comprehensive Adequate Representative) reserve system on paper is meant to protect all biodiversity values in the Otways from logging practices based on best scientific information. However if the impact logging has on other forest values is not done then decreased levels of protection are what occur. [1]

An analysis by lawyers at the Environment Defenders Office (EDO) found that of 599 threatened plant and animal species listed under the Flora and Fauna Guarantee Act, only 270 have an action statement to manage their conservation as legally required.[2]

Brendan Sydes, Chief Executive Officer and lawyer at the EDO found that Action Statements have still not been prepared for 374 of the 675 species, communities and processes listed under the Flora and Fauna Guarantee Act, despite the clear legal obligation to do so. In the past year, only one draft statement has been released. “At this rate, it will take the Government decades to fulfil their obligations,” said Mr Sydes. [3]

-review the efficacy of conservation and protection tools available under the Act

Imposition of yet another environmental impact assessment option, such as the Environmental Protection Biodiversity Conservation Act 1999, through the state significant planning process adds to the confusion and complexity, and should be resisted. In the view of the EDO, the lack of political and Departmental will to fully implement and enforce the FFG Act, combined with a lack of resources provided to DSE for implementation of the Act has resulted in its weak implementation. [4]

The Native forest timber industry is exempt from complying with legislation which is in place to protect flora species listed in the Flora and Fauna Guarantee Act 1988.

The existence of this Order for exemption is an admission that logging practices in State Forest threaten and destroy listed flora in the Flora and Fauna Guarantee Act 1988.[5]

East Gippsland is now a refuge for many of Eastern Victoria’s rare and threatened forest species. To be responsible and responsive about reversing the decline in number and populations of threatened species, the zoning system must now strongly favour protection of their remaining habitat.

Under the FFG Act, action statements are required to set out "what has to be done to conserve and manage (a threatened) taxon or community." The action statements contain short-term, interim, objectives and actions as well as longer term objectives and actions to ensure the species return to a secure conservation status. To the extent that re-zoning will result in the longer term actions and objectives of the action statements for the relevant species not being implemented and achieved, the re-zoning could result in a failure to meet legal obligations that arise under the FFG Act.

For the Powerful Owl, the long term objective of the FFG action statement is:

“...to increase population numbers in potentially suitable areas, where owls are now scarce by maintaining and restoring habitat for species across all land tenures to return it to a secure conservation status in the wild.”

Changes to the zoning are inconsistent with the long term objective of this statement. [6]

The Wildlife Act and the FFG Act should be at least partially amalgamated so that the FFG Act includes prohibitions on taking or destroying all listed flora and fauna.

Victoria’s Flora and Fauna Guarantee Act 1988 has objectives to ensure “Victoria’s native flora and fauna can survive, flourish, and retain their potential for evolutionary development”. Now the integrity of this Act is under threat. Perversely DSE’s Code of Practice argues that deliberate burning of bushland and forest habitat will help Victoria’s native flora and fauna to survive, flourish, and retain their potential for evolutionary development. No document exists to zoologically prove that native fauna will suffer such negative consequences if it does not have a bushfire range through its habitat. As a result, the Code of Practice implies that bushfire is ok for all Victorian bushland and forests – DSE conveniently convinces itself that the urgent moral imperative for DSE to suppress bushfires is extinguished. So now it lights more fires than it puts out. The ability for forest fauna to recover is therefore being hampered by further prescribed burning, and recovery is also hampered by reduced fecundity caused by a decade of drought, and for the owls, low prey population densities.’ [7]

-assess whether the listing process is the most effective and efficient means of protecting species and communities

The Spot-Tailed Quoll is now classified as 'Vulnerable' under the Commonwealth Endangered Species Protection Act 1995, and has recently been reclassified to 'Endangered' under the Flora and Fauna Guarantee Act. When the Quoll was first listed for protection under the Flora and Fauna Guarantee Act (nomination 146), logging practices that cause habitat fragmentation were cited as a major threat.

The first Tiger Quoll Action Statement has no prescriptions to protect Quolls from logging practices despite the primary Quoll habitat being within forest available for logging. The failure to recognise the potential for forestry operations in State Forest to create fragmentation is a serious issue.[8]

The deliberate inaction and disregard of the Flora and Fauna Guarantee Act by the government, coupled with an assumption that no one would ever have the funds to take them to court, proved to be not enough to protect the historical over-logging operations of the hooligan industry. [9]

Offences for the protection of fauna – there are no provisions for the protection of listed fauna. Offences in relation to fauna are contained in a separate piece of legislation, namely, the Wildlife Act 1975 (Vic). [10]

The offences in the FFG Act should apply to all listed species, not just flora and fish. The defence available to owners and lessees of private land should be removed. The FFG Act should also prohibit the harmful alteration, disruption or destruction of habitat of listed species. Or at the very least, the FFG Act should prohibit the destruction of the "residence" of a listed species (e.g. the hollow, nest, or other dwelling place), similar to the new Canadian legislation, the Species At Risk Act 2002.

Currently there are exemptions under the FFG Act for logging, in the form of the Flora and Fauna Guarantee Act (Forest Produce Harvesting) Order 1988. These exemptions should be removed. [11]

Sambar Deer are confusingly listed as 'environmentally threatening' under the Flora and Fauna Guarantee Act, yet protected as a game species under the Wildlife Act. That makes no sense, and has led to gross inaction on a rapidly escalating problem. [12]

A number of species listed under Victoria’s Flora and Fauna Guarantee Act (FFG Act) and browsed by Sambar were recognised by Victoria’s Scientific Advisory Committee (SAC 2007) as threatened by Sambar.

The Mountain Ash forests of the Central Highlands are home to several threatened and endangered species, for example, the endangered Leadbeater’s Possum, which is Victoria’s faunal emblem. Endemic to the Yarra tributaries, the population of the Leadbeater’s Possum is currently in decline as a result of inadequate habitat.

T he protective provisions of the FFG Act are excluded where logging is conducted in areas containing flora listed as threatened under the FFG Act. The Flora and Fauna Guarantee (Forest Produce Harvesting) Order 1998 authorises the taking of protected flora from State forests, where such taking is the result of logging. However, a similar exclusion in areas of threatened
Fauna does not exist. Therefore, the protection afforded by the FFG Act remains intact and applies to logging operations conducted in the threatened species habitat in the Yarra tributaries. [13]

Recommendations:

Logging in habitat areas must be listed as a potentially threatening process under The Act.

Logging management must be reviewed in order to develop sustainable rates of logging, if logging is to continue. (ibid)

VicForests won on their contest that they can log FFG recognised habitat for the endangered Leadbeater's Possum - Victoria's faunal emblem. This has meant the survival of the species cannot be 'guaranteed' under the FFG Act. [14]

The proposed variation to the Code of Practice for Timber Production 2007 will allow the Secretary of the Department of Sustainability and Environment (DSE) to override a Flora and Fauna Guarantee Action Statement (Action Statement) for any given forest coupe. In other words, it empowers the Secretary to clear threatened species habitat that would otherwise have been protected.

This effectively takes the only readily enforceable part of the Flora and Fauna Guarantee Act 1988 (Vic) (FFG Act) and allows the Secretary to make it unenforceable. [15]

-develop a suite of output efficiency and outcome effectiveness measures to monitor and assess its conservation efforts (Recommendation 5.1).

The impacts of climate change, fire, weed and feral animals and logging, coupled with changing demographics and community attitudes to forest management, all point to the need for a major, independent assessment and overhaul of current logging arrangements.
(Australian Conservation Foundation - East Gippsland)

DSE has provided no evidence to suggest that any comprehensive surveys have taken place to ensure that the species are being adequately monitored and protected as per legislative requirements in their action statements and the FFG Act.

In June of this year, 10 of the 11 staff who make up the south-west biodiversity team will not have their contracts renewed, with similar cuts expected in other regions of the State. Many species of flora and fauna in south-west Victoria are on the brink of extinction and require urgent proactive management. The government’s dismissal of threatened species officers will ensure that next to nothing is being done to save these species, thus totally ignoring its legal requirements under the Victorian Flora and Fauna Guarantee Act 1988 and the Federal Environment Protection and Biodiversity Conservation Act 1999. [16]

The implications of this move are alarming. Less DSE officers and staff will further compromise the effectiveness of the enormous and important task of protection biodiversity.

Urban sprawl is eating into natural areas and green wedges, and impacting on some of the most endangered habitats and species in Victoria. A significant population of the Southern Brown Bandicoot (Isoodon obesulus obesulus), a nationally threatened species, still persists in south-eastern Melbourne in the cities of Casey and Cardinia. The Southern Brown Bandicoot is listed as ‘endangered’ under the Commonwealth Environment Protection and Biodiversity Conservation (EPBC) Act 1999. In Victoria, Southern Brown Bandicoots are listed as ‘threatened’ under the Flora and Fauna Guarantee Act. [17]

About 5000ha of Victoria's last remaining grassland habitats will be cleared in the growth corridors, approximately 2600ha of grassland will be retained in the urban growth areas and the rest will be offset into two large 15,000ha grassland reserves outside the growth areas.

In a world of finite resources with unchecked economic and population growth, some form of overshoot and collapse is inevitable.

Victoria could bear the brunt of a climate change front that would see almost a third of animal species wiped out in less than 60 years.

By 2070, Victoria could be rendered unrecognisable as the continent heats up and rainfall patterns change, according to a drastic new report by the CSIRO. Victorian animal species already threatened by climate change include the mountain pygmy possum, the helmeted honeyeater, and pink-tailed legless lizard.

One of the report's authors, Dr Michael Dunlop said ecosystems such as the eucalyptus forests to Melbourne's north could disappear and snowfall in Victoria's alpine regions become more sparse, and the Mallee become increasingly thirsty. It's easy to blame climate change as if it were indistinct from human actions, and with loss and degradation of habitats, compromising management of flora and fauna, and loosening policies that protect native animals, will likely cause their demise. [18]

Of the 91 species of non-marine mammals known to have inhabited Victoria since European settlement, 19 are now extinct in the state, and five of these are now totally extinct. Many other species survive with much diminished populations. For example, the native grassland complexes of lowland Victoria are now among the most endangered ecological communities in Australia, there being less than 2% left of the pre-1750 area of thousands of square kilometres. [19]

While there is legislation to protect native vegetation, or their offsets, it's assumed that wildlife will adapt to smaller, degraded and diminishing habitats.

State of the Environment 2011 (SoE 2011)
Independent report to the Australian Government Minister for Sustainability, Environment, Water, Population and Communities

Human population growth is a potential cause of environmental change worldwide, including Australia, even without considering the impact of changes on living standards or resource use per capita. The largest factor influencing population growth over the past decade has been net overseas migration rather than natural increase, although less so than over previous decades. Direct impact are the extension of the urban growth boundary, land clearing for agriculture, feral animals, proposed invasion of green wedges for developments – and also in national parks.

18 species are listed as extinct

The Advisory List of Threatened Vertebrate Fauna lists 41 extant species compared with 34 listed under the Flora and Fauna Guarantee Act 1988. [20]

The perception that kangaroos are a renewable resource, coupled with the labelling of these native animals as pests, has resulted in the largest slaughter of land-based wildlife on the planet.

In the past 20 years, 90 million kangaroos and wallabies have been lawfully killed for commercial purposes. Kangaroos are often found with missing limbs or jaws or suffering from gaping wounds due to the difficulty of the shot. The writer concludes:”It is irresponsible to commercialise the hunting of kangaroos, given these serious concerns of contamination and animal cruelty”.[21]
Although kangaroo and wallabies are not considered endangered or threatened, there is a moral dimension of protecting wildlife from profits, and being cruelly plundered. All wildlife should be protected from commercial activities.

( [1]Otway Ranges Environmental Network – West RFA reserve system
http://www.oren.org.au/issues/forestmanag/rfa/rfacar.htm)

([2]The Age – Threatened species still missing out May 9 2012)

([3]Report finds Victorian Government ignoring key environmental laws- EDO online http://www.edovic.org.au/media-release/report-finds-victorian-government-ignoring-key-environmental-laws 5 July 2012)

([4] VCEC Inquiry into Victoria’s Regulatory Framework Issues Paper prepared by
Environment Defenders Office (Victoria) Ltd 24 September 2010)
([5]Otway Ranges environment Network – The Flora and Fauna Guarantee Act )http://www.oren.org.au/issues/forestmanag/ffgact.htm
([6]Australian Conservation Foundation Environment East Gippsland - Gippsland Environment Group - The Wilderness Society Victoria - Victorian National Parks Association Submission to East Gippsland Forest Management Zone Amendments September 2010 )
([7]The Habitat Advocate A HABITAT CONSERVATION WEBSITE ‘State Arson’, ‘State Logging’ wiping out owls
http://www.habitatadvocate.com.au/?tag=flora-and-fauna-guarantee-act)
([8] Environment East Gippsland - Baillieu to protect loggers above threatened species
http://www.eastgippsland.net.au/?q=node/587)
([9] ibid)
([10] REVIEW OF THE FLORA AND FAUNA GUARANTEE ACT 1988 (VIC) Lawyers for Forests Nov 2002)
[11] ibid
([12] Victorian National Parks Association – Feral horses and deer in the Alps)
([13] LOGGING IN MELBOURNE’S WATER CATCHMENTS: the yarra tributaries: HANNAH NICHOLS Monash University Victorian Parliamentary Internship Report June 2008)
([14] http://www.myenvironment.net.au/index.php/me/Work/Legal/Save-Sylvia-Appeal/What-it-s-all-about)
([15] EDO - EDO Briefing Paper Forestry Code changes endanger threatened species 30 Nov 2011)
([16] The backwards spiral continues - Baillieu Government axes threatened species officers http://www.iffa.org.au/backwards-spiral-continues-baillieu-government-axes-threatened-species-officersIndigenous Flora and Fauna Association)
[17] VPNA: Submission guide - threatened species and urban sprawl
http://vnpa.org.au/page/nature-conservation/take-action/submission-guide-_-threatened-species-and-urban-sprawl
([18] http://www.news.com.au/national/climate-change-could-see-a-third-of-victorias-animal-species-extinct-in-60-years/story-fndo4cq1-1226476070373)
([19] http://www.dse.vic.gov.au/conservation-and-environment/biodiversity/victorias-biodiversity-strategy-1997/sustaining-our-living-wealth/the-challenge-today)
[20] SOE report 2011- http://www.environment.gov.au/soe/2011/report/biodiversity/2-4-plant-and-animal-species.html
[21]Victoria's cull plan bad for health: roos and ours- http://www.smh.com.au/environment/animals/victorias-cull-plan-bad-for-health-roos-and-ours-20120918-263lq.html#ixzz26oBkQDkf

Respectfully Submitted by the Australian Wildlife Protection Council Inc

September 24, 2012

Maryland Wilson

President

Case of DSE Negligence compiled by Members of the Australian Wildlife Protection Council Inc:

Maryland Wilson - President
Vivienne Ortega - Vice President
Ciewen (Val) Hickey - Research
Rheya Linden - Research
Sheila Newman - Sociological Land Use Planner

Public housing’s operating model is unsustainable. Costs are outstripping rental income and the division is forecast to be in deficit in 2012–13. Full report here.

Ed. Never have we had more developers and more draconian laws passed to interfere with citizens environments and rights to shelter. We are working harder and harder for less and less. Where once one wage would buy a home for a family, these days two people working full time are more likely to leave their home to the bank than to their children. Workers cottages with gardens are now the goals of socially aspiring professionals. Workers and the unemployed have fewer and fewer choices and more and more sleep rough. That public housing has been allowed to get into such a mess while the private sector runs the country is another piece of evidence - if you needed it - that Victoria is corrupt and a democracy in name only. This has been so since Kennett and did not improve with Labor and will not improve with the Liberals. We need many independents and a free (non-corporate) press to promote them.

The state and future of public housing

Public housing is facing major challenges, including growing demand due to reduced housing affordability, more tenants with complex needs, ageing infrastructure and high maintenance costs. Meeting these challenges to provide access to public housing now and into the future requires decisive direction and a sustainable operating model.
Conclusion

Public housing is operating unsustainably and without direction. The Department of Human Services’ (DHS) Housing and Community Building Division (the division) has been slow and short-sighted in responding to a changing operating environment. Despite DHS and the departments of Treasury and Finance and Premier and Cabinet awareness of the problem for at least six years, sustainable solutions are yet to materialise. New directions now being developed through the housing framework must innovate and unlock portfolio value to assure viable public housing in the future.
Findings

Public housing’s operating model is unsustainable. Costs are outstripping rental income and the division is forecast to be in deficit in 2012–13.
The division’s short-term strategies to address the financial position have deferred and compounded the problem.
The asset base is deteriorating, with an estimated 10 000 properties reaching obsolescence.
The division has not articulated long-term objectives or plans for public housing.
A housing framework is being developed but it is not yet clear how it will support public housing sustainability.

Recommendations

The Department of Human Services should:

develop and apply options to overcome the unsustainable operating model
assess its operational efficiency and role in public housing
develop a long-term plan for public housing with clear objectives.

Source: Victorian Auditor General:
"Access to Public Housing."

This audit assessed whether State Trustees is effectively managing the financial and legal interests of represented persons. It examined the extent to which State Trustees is meeting its legislative and administrative responsibilities, the systems and processes that enable State Trustees to measure quality, timeliness and cost effectiveness, and the adequacy of State Trustees' communication and accountability processes to represented persons. The audit found that State Trustees is not able to clearly demonstrate that it is fulfilling its obligations to represented persons. State Trustees’ direct engagement with represented persons is not sufficient for it to be assured that their needs and wishes are properly understood.

State Trustees Limited: Management of represented persons

(Long report follows this summary).

Tabled: 8 FEBRUARY 2012

Represented persons are those deemed incapable of managing their own affairs due to disability, mental illness, injury or other incapacitating circumstances. They are considered to be among the most vulnerable members of the community. Under the Guardianship and Administration Act 1986 (the Act) represented persons are appointed administrators who must manage their legal and financial affairs while acting in their best interest. State Trustees Limited is the administrator for over 10 000 represented persons in Victoria.

This audit assessed whether State Trustees is managing the financial and legal affairs of represented persons in their best interests.

The audit found that State Trustees is not able to clearly demonstrate that it is fulfilling its obligations to represented persons. Its focus is on measuring its commercial success and it relies predominantly on compliance with its service contract with the state as a proxy for compliance with the Act. However, this does not demonstrate the quality or effectiveness of the management of represented persons' affairs and it does not have the robust governance, monitoring and reporting mechanisms needed to do so. There is also inadequate quality assurance and review of the services provided to represented persons.

State Trustees’ direct engagement with represented persons is not sufficient for it to be assured that their needs and wishes are properly understood. In addition, poor information management and high case manager turnover means that decisions about their affairs are not always based on complete or accurate information.

Victoria's Auditor-General, Des Pearson, this morning tabled the following report in the Victorian Parliament:

State Trustees Limited: Management of represented persons

Ordered to be printed

VICTORIAN GOVERNMENT PRINTER February 2012

PP No 102, Session 2010–12

That the Baillieu government is to embark upon a study for a possible freeway extension on the Mornington Peninsula is not much of a surprise in the wake of the catastrophic decision of the predecessor Labor government to construct the $760 million Peninsula Link freeway between Carrum Downs and Dromana. Absent sensible policy intervention, freeways provide impetus for ever more freeways.
Written by Ian Hundley
30 July 2011

Baillieu government to embark upon a study for a possible freeway extension on the Mornington Peninsula

On 14 June The Mornington Peninsula Leader reported Nepean state Liberal MP Martin Dixon to say that the Baillieu government is now to undertake a study which would examine three road expansion options south of Dromana to further increase the capacity of the road system. These included extending the Mornington Peninsula Freeway on the current reserve to Blairgowrie, creating an arterial road on the freeway reserve or upgrading Browns Road.

When the successful construction bid for Peninsula Link was announced in January 2010 by the then roads minister, Tim Pallas, he asserted that it would allow people to make the 27 kilometre trip from Carrum Downs to Mount Martha in 17 minutes. This is an average speed of about 95 kilometres per hour and no doubt a source of immediate appeal for many local residents resigned to continuing car use in the absence of any alternatives. He even had the cheek to say that it would be of benefit to the environment.

Government agenda hidden from public view, but the proposed roads study under the Baillieu government raises serious questions about the future of the Peninsula and the ability of successive state governments to run agendas hidden from public view. It remains a puzzle why the Brumby government should have outlaid over three quarters of a billion dollars of taxpayer's money on a freeway heading towards the pointy end of a peninsula, much of which is designated as a "green wedge" whilst it continued to deny worthwhile funding for public transport and other measures to reduce car dependency in the area.

That Peninsula Link, now under construction, would inevitably induce substantial increases in road traffic on the Mornington Peninsula was a major concern for the many residents and transport policy experts who spoke out against the project in submissions to the Environmental Effects Statement inquiry process that ultimately rubber stamped the project in April 2009.

Auditor-General slams Peninsula Link decision Concerns about the questionable origins of Peninsula Link were further validated recently when the Victorian Auditor-General tabled a highly critical report in the Parliament(1)

The Auditor- General found that the estimated economic benefits of the project calculated by the Linking Melbourne Authority (known as the Southern and Eastern Integrated Transport Authority until July 2009) were unreliable. The Auditor-General also criticised the analysis provided by the Linking Melbourne Authority for its analysis of whether Peninsula Link should have proceeded as a public sector project or (as ultimately decided) a public-private partnership (PPP). Specifically the Auditor-General found that there were flaws in the way the Linking Melbourne Authority estimated the cost of state delivery as represented by the public sector comparator (PSC) and because it did not test the sensitivity of the relative costs of the PSC and PPP bids to small changes in the PPP discount rate.

In forecasting traffic for Peninsula Link by assuming that drivers responded to the improvement by changing their travel routes the Auditor-General found that the Linking Melbourne Authority ignored the potential traffic growth from journey destination, mode and time of travel, and the additional journeys generated where Peninsula Link stimulated new development.

According to the Auditor-General, ignoring these factors underestimated traffic and overestimated the economic benefits of the project.

The audit also unearthed the fact that the wider traffic impacts of the project had been included in the Linking Melbourne Authority's traffic estimates which meant that the traffic forecasts for the "with" and "without" Peninsula Link scenarios both included the higher demand expected once the project was in place. The Auditor-General concluded that applying the demand generated by Peninsula Link to a network without the project exaggerated existing congestion, thus overstating the scale of the problem and consequently inflating the congestion relief, travel time savings and economic benefits of the project.

Importantly, The Auditor-General also found that the Linking Melbourne Authority did not consider as part of its analysis the amount of induced traffic that would be generated, as required by the Department of Transport's guidance material. Nor, by averaging road performance across a 24-hour period had it properly measured benefits to be gained from the relief of peak period road congestion. All in all a very sloppy effort by the Linking Melbourne Authority.

A shovel ready project: is that what Peninsula Link was about?

The revelation by a senior transport authority source (2) that the Brumby government was looking for a "shovel-ready" project as an economic stimulus measure in the wake of the Global Financial Crisis was also damning. Whilst the Auditor-General found that the Linking Melbourne Authority's estimate of the economic benefits of the project were unreliable and did not adequately communicate this uncertainty to government decision-makers it is questionable that this would have stopped a state government seemingly hell bent on proceeding with the project. It gives some credence to the cynical adage that it is often more difficult in government to misspend $50 in petty cash than hundreds of millions of tax payers' dollars on a misconceived capital project with its attendant imposts on the community for decades to come. 2

The fact that Peninsula Link also proceeded despite the fact that the Commonwealth government declined to provide the matching funding requested by the Brumby government should have also called into serious question the effectiveness of the project.

In any event, if economic stimulus was the primary motive for the project, it also started far too late to be useful as a local counter-cyclical employment generator in the wake of the Global Financial Crisis. It has also been speculated more recently that much of the workforce on the project had been recruited from interstate.

What is to be studied and by whom?

In the wake of this mess the Baillieu government is seemingly preparing to spend additional taxpayer dollars to attract more motor traffic onto the Peninsula, and especially south of Dromana.

Not much is known about the proposed $200,000 study. When, in response to the recent article in the Mornington Peninsula Leader I asked VicRoads, who are apparently to be in charge of the project, they were pretty tight lipped. There are no media releases, I was told, and its scope had not yet been determined, nor had timelines been considered for the report.

Road safety was an issue, but it was not known whether particular routes would be targeted.

And it was not known if the study would be conducted "in-house" by VicRoads or by consultants.

I asked whether the existing poor capability of public transport for residents and visitors would be addressed in the inquiry, and I also noted that the public transport service that does exist is particularly unsuited to meeting seasonal patterns in demand on the Peninsula. The idea that public transport capability should be addressed as part of the study might be
considered a novelty , I deduced, which is well outside traditional patterns of thinking. This is despite the fact that dealing with seasonal congestion on the road system during summer is reportedly to be a significant part of the project.
All that is known with certainty is that the study has funding in 2011-12 and, I was assured, there would be "community consultation."

A job for community activists

There is clearly a major job of work required to be undertaken by community activists and others concerned to see that this study does not gain traction as a vehicle to validate the further unnecessary asphalting of the Peninsula at the expense of a model of human habitation and mobility that heeds the environmental constraints with which we are now faced. This includes gingering up the Shire of Mornington Peninsula to improve upon its customary half-hearted attempts to advocate and facilitate improved public transport offerings.

In this regard, it is especially important to acknowledge that approximately 60% of the Peninsula is dedicated to green wedge areas (according to an estimate I received on request 3 from the Shire of Mornington Peninsula). A review of Melbourne's green wedges also recently announced by the Victorian government which might lead to additional environmentally burdensome uses in green wedges is potentially troubling. There now appears to be some prospect that the green wedges will take upon a sickly yellow or brown hue as Melbourne's undisciplined expansion towards the horizon is permitted to continue.

This process has already been given major succor on the Mornington Peninsula with the construction of Peninsula Link.

We should also be mindful that property industry lobbyists and freeway advocates are both in the same cart. And as recent newspaper reports show their political affections and cash are effortlessly transferable. (3)

Recent Peninsula transport inquiries biased towards road transport and against sustainable transport and planning
Apart from the Frankston Bypass EES Inquiry there have been other inquiries undertaken in recent years concerning transport policy issues on the Mornington Peninsula and in Frankston. Like the EES Inquiry none of the other inquiries considered the desirability or measures required for any significant increase in public and active transport and a reduction in car dependency on the Peninsula.

For the most part, the implicit official agenda has always been thealleviation of road congestion by the simple expedient of increasing road space. These other reports include:

• the Mornington Peninsula Access and Mobility Study Final Transport Plan (MAPMS)(November 2007) undertaken for the Frankston City Council and the Mornington Peninsula Shire Council by Booz Allen Hamilton. The report was supported by the Department of Infrastructure, the Department of Sustainability and Environment and Vic Roads. The Frankston Bypass EES report (April 2009) quoted the MAPM report with approval to validate its own finding in support of Peninsula Link;

• the South Eastern Transport Strategy (March 2010) completed for the South Eastern Integrated Transport Group, which includes the Shire of Mornington Peninsula as a member. This report flagged the construction of a road by-pass to Rye as a means to
manage peak tourism demand in the area. Funding support for the project was received from VicRoads and technical assistance was provided by AECOM Australia Pty Ltd; and

• the Frankston/ Mornington Peninsula Bus Service Review report completed in November 2009 for the Department of Transport by Connell Wagner Pty Ltd. The review recommendations do not meet the public transport needs of people who live or visit the areas of the Peninsula covered by the forthcoming study to be conducted by VicRoads. There have been no worthwhile mprovements to bus services on the Peninsula in the wake of the review. 4

Putting things in perspective

As noted above when Roads Minister Tim Pallas announced in January 2010 that the Labor government was to commence construction of Peninsula Link he effectively claimed it would permit road users to travel 95 kilometres per hour between Carrum Downs and Dromana, which would shave up to 40 minutes off travel time on the route. To put this into perspective
this compares with an average travel speed in the morning peak in 2009-10 of 35.4 kilometres per hour on the whole of Melbourne's monitored road network. (4)

Recently, traffic speeds during peak periods have been measured to be as low as 7 kilometres per hour on Warrigal Road near the Chadstone Shopping Centre. This is often the case on major arterial roads such as Warrigal Road which also has about 400 route bus services using it every week day. In 2008 average weekday traffic volumes on this segment of Warrigal Road near Chadstone was about 57,000. According to data tabled by the then Southern and Eastern Integrated Transit Authority (now Linking Melbourne Authority) in support of the application to construct Peninsula Link average weekday traffic volumes on Moorooduc Highway between Mornington-Tyabb Road and Bungower Road was in the order of 37,000 vehicles. (5)

It takes little imagination to conclude where the greater public benefit lies: getting travel times off the floor in inner Melbourne or spending three quarters of a billion dollars on a project for the ostensible purpose of "bypassing" Frankston which permits speeds over ten times greater.

Seen in this context the $760 million dollars expenditure on Peninsula Link by the Brumby government is outlandish. Any government that provides just one route bus service (the 788 from Frankston Station to Portsea) on Point Nepean Road with a headway of 45 minutes on weekdays (including peak times) and 75 minutes on Saturdays and Sundays cannot be taken seriously. It is not a public transport service in any meaningful sense. It's a bad joke. It is useless for commuters, school kids, university students and for doing the shopping or visiting friends. But that is what is happening at the moment. Issues of social exclusion have been effortlessly dismissed.

Notwithstanding this mediocre service, in 2008-09 1962 passengers took the 788 route bus service each weekday, and 1454 on Saturdays and 1040 on Sundays. Therefore the average occupancy rate per service is probably between 40 and 55 passengers and it could be expected that a large proportion of the passengers travel between locations south of Safety Beach and Frankston.

Meaningful increases in service frequency would result in more than proportionate increases in patronage and relieve pressure on road space on Point Nepean Highway and other roads on the Peninsula.

However, to compensate the new government is evidently willing to develop plans to spend millions of dollars on more road space! It should wrap some simple arithmetic around the 5 problem before it repeats the mistakes of its predecessor. And it is simple: one road lane is capable of moving about 1,000 people per hour if they are sitting in cars whilst it can accommodate 8,000 people per hour if they are on buses. Of course trams and trains are even more space efficient. In fact, according to VicRoads in 2008-09 only 687 persons per lane were carried on average each hour on the Melbourne arterial and freeway network (6)

This state government is at the point where it needs to decide whether it is in the same business as its predecessor of building more expensive road space for pieces of metal to fly around on the Peninsula or whether it will construct a transport system that focuses on the travel needs of the local and visiting populace that also respects enduring principles reflected in the establishment of Melbourne's green wedges four decades ago.

written by Ian Hundley
30 July 2011
Footnotes
(1) Victorian Auditor-General's Report, Management of Major Road Projects, June 2011
(2) Clay Lucas and Royce Miller, 'Auditor hits $2 b road project,' The Age, June 25, 2011
(3)
See for example Royce Millar, 'Driving a wedge between the locals,' The Saturday Age, July 30, 2011 (4)
Traffic Monitor 2009-2010 (VicRoads May 2011), p. 27 (5)
Maunsell/ AECOM, Frankston Bypass Strategic Transport Modelling Technical Report
(SEITA 3 March 2008, p. 21 (6)
Traffic Monitor 2009/2010, p. 30.
6