Published 22 October 2020
There is a worrying trend in Australia for democracy and procedural justice: Governments are increasingly taking away power from the courts and setting up their own “quasi-courts”, including commissions and the like, which give the appearance of neutrality but are much more amenable to political persuasion. A case in point was the NSW government’s announcement in March 2018, that the Independent Planning Commission (IPC) would be the consent authority for state significant development (SSD) projects, removing decisions about some contentious major projects from the Land and Environment Court (LEC) to the new body.
Among the significant implications of this are that the IPC may hold a public meeting or a public hearing about an SSD project; but if the latter, their decision is not open to a merit appeal to the Court1. The panel is comprised of members appointed by the Minister with expertise in land use matters (although not social impacts) and is not bound by the rules of evidence otherwise followed in the LEC2.
In April 2020, in response to COVID-19, the NSW government increased access to IPC hearings by holding these online as well as providing online assistance to participants, online publication of hearing schedules and online publication of transcripts3.
This policy change appeared to come under pressure with the public hearing about the Narrabri Gas Project proposed by Santos. There had been 23,000 submissions made regarding this project and a public hearing would therefore be a long process – 7 days as it turned out – and a tight deadline had been imposed on the IPC to deliver its decision.
The IPC process allowed anyone who wanted to speak to the Commissioners to do so – much like the opportunities afforded to local residents to speak before the LEC, but in this case, because people didn’t have to physically attend, it was much easier for more people to attend virtually. And in some respects that process was similar. Local residents and stakeholders prepared and had their say. Many spoke from the heart, providing local detail, personal experience and perspectives that would otherwise be difficult to obtain.
However, in many respects, the comparison ends there. Unlike a traditional court hearing, this hearing was conducted as an open online forum. And unlike an LEC onsite hearing where people take notes, every speaker’s words were recorded and transcribed, and the transcriptions were almost immediately made public. This applied to all stakeholders including the applicant, expert witnesses, interest groups, and members of the public. The court system operated by the LEC usually has open doors, so anyone can attend a hearing, but this is not nearly as open as being able to watch and listen from anywhere while a public hearing is taking place, and read the transcripts shortly thereafter.
For SIA practitioners, this helped break down the barriers between researcher and community. The LEC system is a much more closed system: social impact assessments prepared by the parties are rarely published. Community stakeholders may only have access to a SIA lodged with a development application. By the time a matter gets to the court, a new SIA will probably have been written to which members of the community do not have access. When verbal submissions are not available for review, when independent expert SIA reviews are not publicly available and when the applicant’s original SIA making the case for the proposal is the only document available, then the system is biased. Already isolated individuals and communities are unable to access documentation that would validate their concerns or experiences of harm, with the only publicly available resources being those minimising, or sometimes contradicting, the social impact realities of those most affected
“Already isolated individuals and communities are unable to access documentation that would validate their concerns or experiences of harm…”
In the context of procedural justice, the IPC process therefore seems a major advance. Transcripts of all evidence were readily made available, and crucially, all the expert reports – including SIAs – were made available on-line. Accessibility and transparency are essential to fair representation and participation by all stakeholders including members of the community. Indeed, the IPC system was exemplary in meeting the NSW government’s SIA guideline4. Most importantly, transparency also allows justice to be seen to be being done.
Beyond this, these changes have particular import for those of us appearing in these fora as social impact experts. In the LEC we represent an impact issue with which the person hearing a matter is likely to be least familiar5. This can result in the substance of important social impacts being unaddressed in the decision, which is the only document available on the public record. On this basis it is often unclear what the contended social impact issues were or how, or even whether, they were considered. There may be a decision, but the basis for the social impact aspects of that decision may be unclear or incomplete6. None of these outcomes facilitates a good understanding of what social impacts are and how they operate.
In the case of the Narrabri Gas Project, publication of all the documents and expert reports means that anyone can look at the evidence provided to the IPC and the extent to which that evidence was taken into account in the decision. This gas project raised numerous environmental and economic issues, but there were also significant social impact issues which did not get a full airing in the decision. In particular, the decision to place the management of social impacts arising from the decision in the hands of Santos – that is, the proponent themselves- demonstrated a complete disregard for the lack of capacity of resource companies to deal with complex social matters, but also the history of the company’s social interventions in the town over a number of years – issues that had been brought to the attention of the IPC7.
In light of the decision to approve the Narrabri Gas Project, what appeared initially as strengths of the new system must be re-examined for their implications both structurally and for the community. Transparency reveals when justice is being done. It also reveals when more needs to be done to ensure that social impact issues have standing in the planning system. Through the lens of procedural justice, what does it mean for a system that facilitated greater participation and transparency to then overlook, or apparently ignore the substance of overwhelming community dissent?
“Transparency reveals when justice is being done. It also reveals when more needs to be done to ensure that social impact issues have standing in the planning system.”
Social Impact assessments do not represent a process of voting, nor should majority opinion solely dictate whether or not a development should proceed. However, the online IPC hearing offered, at least theoretically, a unique opportunity for greater representation, transparency, and just procedure. But when commissions, such as the IPC, are strongarmed by Government into making decisions in rushed timeframes, when commissioners invariably lack social impact expertise, and their decisions are unappealable to a court of law for a merits based review, the effects are fundamentally disempowering for communities. What communities hoped would provide an opportunity to be heard, has demonstrated the extent of public disempowerment of those who stand to be the most impacted by this development.
1. A public hearing held by the Commission affects merit appeal rights for both the applicant and objectors.
After a public hearing, no merit appeal may be brought under Division 8.3 of the EP&A Act, in respect of any future decision made by the Commission as consent authority under the EP&A Act in relation to the carrying out of any development that is the subject of this public hearing. See Division 8.3 of the EP&A Act for more details. https://www.ipcn.nsw.gov.au/our-processes
2. EP&A Act 1979 Sch 2 (21)
3. On 30 April 2020, the NSW Government introduced the Environmental Planning and Assessment Amendment (COVID-19 Planning Bodies) Regulation 2020 requiring planning bodies, including the Commission, to conduct public hearings and public meetings by electronic means. Under the regulation, a public hearing or public meeting must:
* be held by means of an audio link or audio-visual link, and
* be able to be heard or viewed by electronic means by a member of the public at the time it is held.
Accordingly, the Commission will conduct its public hearings and public meetings electronically using tele- and/or videoconferencing facilities for the prescribed period. This will be in place of face-to-face meetings and hearings.
Hearings and meetings will continue to be conducted in a similar format, with the technology to be used for each hearing or meeting selected to maximise its effectiveness for participants based in the area where the project is located. Proceedings of these hearings and meetings will be streamed ‘live’ online and a transcript published on the Commission’s website. The Commission will continue to accept written submissions or comments up to one week (7 days) after the public hearing or meeting, providing an additional opportunity for participation outside of the Electronic Public Hearing (EPH) or Electronic Public Meeting (EPM). https://www.ipcn.nsw.gov.au/covid19
4. NSW Department of Planning and Environment, Social impact assessment guideline For State significant mining, petroleum production and extractive industry development: https://www.planning.nsw.gov.au/-/media/Files/DPE/Guidelines/social-impact-assessment-guideline-2017-09.pdf
5. A search of decisions by the LED in the period 01/01/2011 – 30/07/2020 reveals only 20 of 7023 matters were identified by the catchword ‘social impact’.
6. See for example PRJM Pty Ltd v Hawkesbury City Council  NSWLEC 1187
7. In summary, see White, R, 2020 Closing submission for North West Alliance before the IPC on 10 August, prepared for Environmental Defenders Office, paras 360-362: https://www.ipcn.nsw.gov.au/resources/pac/media/files/pac/projects/2020/03/narrabri-gas-project/correspondence/edo/200810-narrabri-closing-written-submissions–final.pdf
Alison Ziller is a lecturer from the Macquarie School of Social Sciences at Macquarie University. She has extensive practitioner experience in the preparation and evaluation of social impact assessments. She was a member of the NSW Liquor Administration Board’s Social Impact Assessment Panel from 2002-2008 and she has also prepared and reviewed SIAs on a range of topics for other organisations. Her teaching, publications and research interests reflect this experience and her commitment to improved practice in this area.
Gemma Viney is a Research Assistant on the FASS 2018 Strategic Research Program Project developing the field of Multi Species Justice and is currently completing a PhD in the Department of Government and International relations. Gemma was an Honours Research Fellow with the Sydney Environment Institute in 2017. She has a Bachelors degree in International and Global Studies from the University of Sydney, and a First-class Honours Degree in the Department of Government and International Relations. Gemma is the Research Lead on Anti-Mining Community Movements at the Sydney Environment Institute.
Rebecca Lawrence is a Senior Research Fellow at the Sydney Environment Institute where she joined in 2020 after her time at the Department of Political Science, Stockholm University as Research Fellow. She is Chief Investigator for a major research project funded by the Swedish Research Council for Sustainable Development on the impacts of mining on local and Indigenous communities in Sweden, Norway, Finland and Australia. Rebecca is also funded by the Norwegian Research Council for a project concerned with the integration of Indigenous knowledge systems into environmental decision making.
For an interview with the authors, contact Gemma Viney at email@example.com.