2.0 Objection to the lack of transparency and proper process

WAG objects to the lack of transparency and proper process that has characterised the WestConnex project since its inception, and continues to do so with the New M5.

 Residents holding signs saying Lies & Answer the Question at WestCONnex info evening

These flaws are all the more serious given the Federal and NSW governments have called WestConnex the largest road infrastructure project in Australia’s history. For such a major piece of infrastructure it has had a relatively short period of review. It appears to have been ‘fast-tracked’ to bypass important evaluation steps aimed at providing assurance to government and the taxpayers that the project is the best solution.

2.1 Long delayed and heavily redacted business case

The business case for this $16.8 billion project was only released in November 2015 - three years after the project was first proposed - and only then after intense public pressure, including a parliamentary petition that gathered more than 10,000 signatures from constituents across NSW opposed to WestConnex.

Even then, the business case that was released contained so many redactions and was so lacking in any serious detail that would allow any independent experts to undertake a serious review of the projected costs and benefits of the WestConnex project.

WAG finds it difficult to believe that a compelling business case that supports the benefits being touted by its proponents would have needed to redact so much critical information - including the cost and revenue figures that form the cornerstone of any business case - particularly given the increasingly controversial nature of the WestConnex project.

“Commercial in confidence” excuses for this secrecy can hardly apply when the project is being funded almost exclusively by taxpayers. Any other project would see investors have full access to the accounts of the project before putting their money at risk. In this case, the NSW and Federal governments have placed billions of dollars of taxpayers’ money at risk on the project without giving the people who provided the funds access to this data. This is unacceptable.

2.2 Lack of independent oversight

There has also been an almost complete lack of independent oversight of the WestConnex project as a whole. Recent moves to dissolve the WestConnex Delivery Authority (WDA) and move its functions into the private corporation Sydney Motorway Corporation seem designed to make the planning processes even less transparent.

It is also disturbing that this merger follows reports of internal problems with the governance of WestConnex, including issues behind the move is conflict over the control of the planning processes. It is also unacceptable that public money has been used to establish a private company, with two ministerial shareholders, so that the corporation does not have to be publically accountable. 

2.3 Grossly inadequate timeframe for community submissions to this EIS 

Other projects that were less complex and impactful than the New M5 EIS were allocated considerably more time to the EIS process than the time given to the New M5 project, particularly when this EIS was only open for submissions over the Christmas and summer holiday period. 

The fact that the timeframe granted to this project is longer than the statutory 30-day requirement is irrelevant given the size, scope, and socio-economic cost of this project. 

This is inadequate time for submissions and findings of EIS to be considered, summarised and incorporated. Even with our network of experts and actively involved individuals, WAG found it difficult to compile this response in the allotted time. We cannot believe that ordinary residents, especially those compiling submissions on their own, would have been able to manage this process effectively in the time allowed. 

We also know that the Department of Planning & Environment was well aware of the depth community anger at the short period of time given for public review and submissions. WAG’s campaigns for the M4 East submission period saw hundreds of people jam the phone lines at the Minister’s office on two separate occasions, and triggered hundreds of emails sent to the Minister for Planning, Rob Stokes, all to ask for an extension to 90 days for all WestConnex EIS submissions. Many people did not even receive an acknowledgement of, let alone reply to their requests. 

The Minister was told repeatedly a 55-day submission period was not enough time for the community to absorb and respond to this project’s massive EIS. Despite this, he failed to grant an extension. He has stated that he acts on the advice of his Department in such matters. Members of the public who contacted the Department during this period were repeatedly told the matter of an extension was still under consideration. Ultimately, the requests were declined.

The failure to grant such an extension in the basis of such an obvious need, and to release this EIS at a time when many affected residents, businesses, government departments and local councils are away, can only be interpreted as an attempt to maintain the lack of transparency surrounding WestConnex, as well as an effort to avoid proper process by circumventing community input.

This time frame is grossly inadequate for a document of this length, and the size and complexity of the task involved in reviewing in excess of 7,000 pages. This period includes many public holidays, together with a long shutdown period for administrators of the WestConnex project, adding further difficulties within an already short time period.

WAG’s members and other members of the community have reported delays in obtaining additional information from the project proponents, in part because the USBs made available did not contain the complete EIS (in particular the Appendices), in part as we have had to wait for a response while the WestConnex office was shut over the Christmas break, and in part because of inefficiencies in making the additional information available.

We are disturbed that such a fundamental task such as supplying the correct information could not be accomplished by Westconnex. We have been reliably informed that residents seeking information were given the wrong USBs without the appendices. Because the app

We object to the inadequate community information process involved regarding the EIS for the New M5.

2.4 Breach of WCAG 2.0 publication standards and Disability Discrimination Act

The EIS is published in an inaccessible form with little care taken to guide the public in accessing it. For example, the chapters are not labelled in any clear way.

By publishing the EIS in PDF format, the Department has also ignored the requirement to publish an alternative to PDFs, preferably in HTML. These alternatives are required to be published at the same time and not merely be available upon request.

This requirement is imposed on all documents published by government departments to make information accessible to the visually impaired, as well as people with other disabilities that make it difficult for them to access PDFs.

The Department’s failure to provide these submissions in an alternative format is clearly a breach of the government’s own standards. All Australian, state and territory government websites are expected conform to Web Content Accessibility Guidelines (WCAG) 2.0 AA standards. It also places the Department in potential breach of the NSW Anti-Discrimination Act as well as the federal Disability Discrimination Act.

2.5 Issues with the response to the M4 East submissions

Having put a lot of trouble into preparing a submission for the M4 East process, WAG was disappointed that we did not receive a notification of receipt and ID number of our submission or any information about how we find out how WestConnex responded to our submissions. We were even more disturbed to discover that the M4 East Response to Submissions report states that people were sent notifications. We have contacted many of our members who have informed us that they did not receive notifications either. This has left us wondering about who provided this sentence in the report and why it is wrong. Can we expect the same dismissive arrogance during the New M5 process?

We also noticed that some important points in our submission did not receive responses at all. This seems to be a failure of process. We understand that the volume of responses was unusual and made processing difficult. But if the Department of Planning expects the community to respond in short timeframes (in this case over the Christmas and summer holidays), the Department should surely be able to deal with the process in a professional and efficient manner.

We are aware that investigative journalist Professor Wendy Bacon has submitted a detailed complaint about the issues with this response to submissions process, which she has published on her blog.

Among the anomalies identified by Prof Bacon were:

  • Failures in the publication process

    • Delays in publishing the agency and public submissions

    • Dumping submissions in 61 PDFS in breach of the Department's own undertaking to provide the public with access to names, suburb and content of each submitter

    • Members of the public being misled into thinking that their submissions would be published clearly and transparently.

  • Inequitable treatment of submissions

    • No way of identifying submissions initially

    • No notification of when the list of submitters was finally published following public complaints which identified submissions with numbers, and was still incomplete

    • No explanation has been provided for the change in practice and why this standard of publication was far lower than the one offered for the two projects mentioned above

  • Failure to publish all submissions

  • Publication of unreadable submissions

  • Failure to follow the Department’s own Privacy Policy

  • Failure to publish organisation names of at least one community organisation who submitted to the planning process

  • Breach of WCAG 2.0 publication standards and Disability Discrimination Act by publishing submissions in PDF, in contrast with standards adopted for other projects including NorthConnex

  • Updating of Response report in response to complaints without any clear notification to public

  • False statements about letters having been sent to submitters

  • Redactions made to submissions before being sent to the proponent for response

  • Apparent failure to submit a complete set of submissions to the proponent or to have processed them systematically

  • Publication of false statements to the public about the steps taken by the Department of Planning and Environment to process submissions and its dealings with the community

WAG shares Prof Bacon’s concerns that the unfair and unsatisfactory procedures may be adopted in the New M5 project process as well as the M4 East process. At the time of writing, WAG is not aware of Prof Bacon having received any satisfactory response to her letter, which we find extremely disturbing given the serious nature of her complaints. It suggests that the same issues will occur with the submissions process for the New M5, particularly as this project deadline has now passed without any resolution.

2.6 Lack of transparency around WestConnex contracts

Very little information about NSW government contracts for this project is available to the public.

Notices for contracts worth more than $150,000 are published on the NSW Government eTendering website, but are removed soon after a contracts expires. This is in stark contrast to the Federal register, where historic contracts remain available. The NSW system makes it more difficult for the public to track the development process in NSW.

Since responsibility for the project switched to the SMC, this process has become even less transparent. The company refuses to release contract details and refuses to respond to freedom of information (GIPA) requests.

2.7 Failure to consider cumulative negative impacts

While cumulative benefits in travel-time savings and productivity are claimed for the whole 33km WestConnex project – and even, at times, for additional projects that are unplanned and unfunded, such as the Sydney Gateway and southern extension / Souther Connector  – cumulative negative effects are almost completely overlooked in the entire EIS. 

Negative impacts are restricted to the EIS New M5 project footprint, which is very narrowly defined. They are not extended to include impacts on nearby local government areas; the combined impacts of the full WestConnex on factors such as traffic congestion, pollution, health, and environmental and community destruction; and so on. 

If cumulative negative aspects were considered, the opportunity cost of not spending $16.8 billion on a more efficient transportation system (or any public asset) could be evaluated. If the benefits are considered for the whole project at a NSW scale, so too should the negative aspects. The failure to include such analysis in this EIS has the effect of hiding the true impact of both the New M5 and the full motorway, andit contributing further to the lack of transparency surrounding this project.

We particularly note that this EIS does not take account of the greenhouse gas emissions of the whole project, should indeed it ever be constructed.

2.8 External criticism

WestConnex’s lack of transparency and proper process have also come in for sharp criticism from a number of credible independent sources.

2.8.1 NSW Auditor General’s Performance Audit

NSW Auditor General’s Performance Audit of WestConnex conducted in 2014 highlighted the importance of proper evaluation and identified some serious deficiencies in the development of the WestConnex project.

The Executive Summary of this audit concluded:

“In the period covered by this audit, the processes applied to WestConnex to provide independent assurance to Government did not meet best practice standards…

“The preliminary business case submitted for Gateway review had many deficiencies and fell well short of the standard required for such a document. Further, on our analysis, the business case put to the Government still included some deficiencies that independent Gateway reviews and external assurance arrangements, if they had occurred, should have identified…

“The post-business case governance arrangements did not clearly separate board-level responsibilities for commissioning from responsibilities for delivering the WestConnex project. After not separating the roles, they also failed to provide mechanisms to effectively manage the conflict between these roles.

“The WestConnex project offers several lessons. While good internal controls are critical, they are not a substitute for externally managed Gateway reviews. Steering committees and boards cannot be responsible for both project delivery and independent assurance and reporting to the Government. Responsibility for commissioning should be clearly differentiated from the responsibility for project delivery. Challenging deadlines heighten the need for good assurance but, paradoxically, also the risk of departure from best practice.” (p.3-4)

“The Government approved a new Major Projects Assurance Framework in December 2011…

“The objective of the Framework is to increase the Government’s confidence and assurance in planning and implementation of major projects through their entire lifecycle, specifically:

·      prevent projects failing or not realising their stated objectives/benefits

·      improve clarity in the feasibility phase of projects

·      drive better governance

·      inform Cabinet Infrastructure Committee intervention

“A key component of the Major Projects Assurance Framework is the Gateway review system. The Gateway system is a series of structured reviews at key decision points (gates) in a project’s lifecycle. Gateway gives the Government a level of independent assurance on:

·      whether an investment in a project is warranted

·      the strategic options considered

·      the agency’s capacity to manage and deliver the project on time, on budget and achieve desired project outcomes

·      whether a project is on track and ready to move to the next phase.”(p.10-11)

WAG agrees with this assessment and it forms part of our objection to the New M5 and WestConnex as a whole. Failure to abide by the Major Projects Assurance Framework and employ best practice governance from project inception has greatly reduced community confidence in the WestConnex project. In the case of the New M5 EIS, the community is being asked to comment on an EIS that is deficient in analysis of project justification.

A project of this size and impact should adhere to the NSW Government’s Major Projects Assurance Framework. Vital gateway reviews should have been undertaken before the preparation of the EIS (and certainly before awarding construction contracts) should be commissioned, completed and made publicly available before any further approvals are issued.

The NSW Auditor-General also called the assessment of the WestConnex project concept into serious question. The following quotes are taken directly from its Audit:

“Based on the Major Projects Assurance Framework, we expected a Gateway review (or similar arm’s length, independent review) either during the concept phase or early in the development of the business case.

“The Major Projects Assurance Framework introduced a Gate Zero to provide assurance that projects are well justified after considering a wide range of options. A Gateway review or similar should therefore be conducted early in a project’s life cycle to provide assurance around whether:

• the need for a project is properly defined

• there is justification for addressing that need

• the best value means of servicing that need are being proposed after considering a broad range of alternatives and their associated costs and benefits.

“We also expected that Infrastructure NSW or some other body would have recognised the need for a Gateway review during the concept phase, or early in the development of the business case and taken steps to ensure this occurred, including reporting to the Cabinet Infrastructure Committee.

“There was no independent Gateway review or equivalent undertaken at the concept stage. Infrastructure NSW has indicated that the concept paper it prepared to advise Government before WestConnex was publicly announced was not subjected to any independent assurance reviews. The first gateway review was of the preliminary business case late in the business case development phase.

“We saw no evidence that:

• the Government specifically exempted WestConnex from the Major Projects Assurance Framework Gate Zero

• provided an explanation or justification for the variation from the Major Projects Assurance Framework

• the alternative approach adopted was assessed as being equivalent to, or better than, the Major Projects Assurance Framework.

“…we believe that a Gate Zero Gateway review should have been conducted. It would have provided independent assurance that the project was justified…

“Infrastructure NSW’s roles at this stage of the WestConnex project were in conflict. It was responsible for developing the WestConnex concept and at the same time it was the key agency responsible for providing assurance to Government over major capital projects including WestConnex. A fundamental principle is separation between those providing independent assurance and those developing and delivering a project.” (p. 16-17)

WAG agrees with this assessment and it forms part of our objection to the New M5 and WestConnex as a whole.

The development of the WestConnex business case was also criticised in the NSW Auditor-General’s audit. The following quotes are taken directly from its report:

“Given no Gate Zero Gateway review was conducted during the concept phase, we expected one (or an equivalent arm’s length, independent expert review) at the beginning of this phase.

“In line with the Transport for NSW Investment and Gating System we also expected to see the following Gateway reviews (or equivalent arm’s length, independent expert reviews)

• a strategic business case review (Gate One)

• a preliminary business case review (Gate Two)

• a final business case review (Gate Three).

“We expected there would be acquittals of each of these reviews, and that the review reports and acquittals would be provided formally to Infrastructure NSW and followed up in each subsequent Gateway review or equivalent. We also expected regular progress reports to, and monitoring by, Infrastructure NSW.” (p.21)

“We expected to see outputs from the other peer reviewers but detailed reports were limited to infrastructure solutions, capital costs and traffic analysis. Even here, timing was a concern. The peer reviewer engaged to review the traffic analysis produced a report, but not until November 2013 after the business case went to the Government. The reviewer’s report indicated that the review was supposed to be continuous throughout the process of modelling, but the traffic modellers were too pressed for time to consult on a continuous basis with the peer reviewer. The reviewer described the exercise as more an audit than a peer review. The reviewer concluded that the traffic data he received in early August 2013 ‘raises questions about the underlying quality of the modelling’.

“The agencies concerned advised us that significant analysis and review of traffic numbers was undertaken by the specialist work streams established within the Project Office. However, we have seen no evidence of an independent, arm’s length review of the traffic analysis used for the final business case, by someone technically qualified to do so, before the business case was presented to the Government.

“We did not find peer review outputs for land use, urban planning or transport planning.”(p.26)

WAG agrees with this assessment and it forms part of our objection to the New M5 and WestConnex as a whole.

As well as criticising the process by which the WestConnex business case was developed, the NSW Auditor General also criticised the lack of information provided about the project in the single independent review undertaken of the WestConnex business case. From its audit report:

“One formal, independent Gateway review was conducted during the development of the business case. This was of a preliminary business case.

“In its report to the Sydney Motorways Project Office (dated 14 June 2013), the Gateway Review Panel concluded that: ‘due to lack of key information presented for the review, the Gateway Review Panel was not able to form a view on whether the project is a worthwhile and prudent investment (both economically and financially viable) for the NSW Government’.

“Further, the Gateway Review Panel stated that:

“A number of key documents were delivered later than anticipated and the Review Panel had very limited time to review the Silver business case.

“Relevant documentation relating to a number of critical areas of the business case was not available for review – these included the Governance Section, Financial Plan and Communications Plan. The absence of these documents did impact on the ability to review related sections.

“The Review Panel did not have access to a number of Stakeholders or documents that were considered essential in order to satisfactorily complete the review.

“The Review Panel noted that not all key benefits nor all key risks were adequately documented, and that the business case would benefit from these and other inclusions”. (p.28)

“The Gateway Review Panel also found the preliminary business case should have been more advanced than it was and would have benefited from previous iterations and review processes which had not occurred.

“The Gateway Review Panel’s ‘traffic light’ risk ratings against the Gateway criteria were all red and yellow, with no greens.”

WAG agrees with this assessment and it forms part of our objection to the New M5 and WestConnex as a whole.

According to the NSW Auditor General, a full Gateway review may have identified a number of key matters with the business case:

“We reviewed the final business case and identified some issues with the underlying analysis which we believe a full Gateway review should have identified.

“These deficiencies related to the way the business case dealt with risks around traffic projections, project cost, economic benefits, financial analysis, governance arrangements and the procurement strategy.” (p.31)

WAG agrees with this assessment and it forms part of our objection to the New M5 and WestConnex as a whole.

The NSW Auditor General’s audit also raised serious criticisms about the lack of independent reviews of the WestConnex business case:

“Roads and Maritime Services say that the assurance provided to the Government on the WestConnex business case was appropriate for its purpose.

“It says the overall objective outlined in the Business Case Implementation Plan was to “produce a business case that demonstrates the overall technical and financial viability of the WestConnex scheme, consistent with the State’s Fiscal Strategy”.

“Roads and Maritime Services advised that at the conclusion of the business case in July 2013, Stage 1 was regarded as being sufficiently developed to proceed to procurement and environmental planning phases. For the other stages, the business case outlined a pathway for their further development and planning. It says that it was always envisaged that there would be additional Gateway reviews conducted on the component parts of the scheme.

“Roads and Maritime Services’ arguments do not justify the lower level of independent assurance provided on WestConnex than that offered by the Major Projects Assurance Framework. The objective was to “produce a business case that demonstrates the overall technical and financial viability of the WestConnex scheme, consistent with the State’s Fiscal Strategy.” Approval of the business case was the key decision point so far for this project, and arguably the stage at which independent assurance was most critical.”(p.31)

WAG agrees with this assessment and it forms part of our objection to the New M5 and WestConnex as a whole.

2.6.2 Productivity Commission

It is also clear that the WestConnex project has failed to meet industry best practice in project selection and transparency. The Productivity Commission in its recent inquiry into public infrastructure found: “an urgent need to comprehensively overhaul processes for assessing and developing public infrastructure projects.”

It pointed to “numerous examples of poor value for money arising from inadequate project selection, potentially costing Australia billions of dollars”. It argued that further spending under the status quo will simply increase the cost to users, taxpayers and the community, and lead to more wasteful infrastructure.(1)

2.8.3 Grattan Institute

At the request of the Senate Select Committee into the Abbott Government’s Budget Cuts, the Grattan Institute recently prepared a paper on infrastructure financing and expenditure with a focus on transport infrastructure.(2) Their recommendations stand in stark contrast to the WestConnex planning process, which has failed to meet any of the standards outlined below (all excerpts taken directly from the Grattan Institute report):

“To get a better return from infrastructure spending, governments should focus on selecting the right projects, and on making the business cases and their underlying assumptions more transparent. Governments can also get a better return through use of new technologies to get more value out of existing infrastructure; through minor augmentation and relief of pinch points; and through more systematic maintenance.

“The capacity to waste money is a serious risk for infrastructure, given the very large amounts of money involved.” (p.1)

“Infrastructure investment over the past five years has been about one per cent of GDP higher than a decade earlier. Such a significant increase would have been expected to have some visible effect on GDP growth. There is no evidence it has done so, with GDP growth still well below three per cent per annum and below historic growth rates.

“The wrong projects can destroy value and divert funds from projects that would be more valuable to the economy and community.” (p.4-5)

“Australia could get better value from public infrastructure by making better project selections. Unreliable or non-existent cost-benefit analyses have been an obstacle to optimal project selection. Recent large infrastructure projects in Australia have typically suffered from cost overruns of about 15 per cent, while patronage has been 15 per cent lower than projected, on average. As a result, real cost-benefit multiples are expected to be about 25 per cent lower than projected on average. All other things being equal, this consistent overestimation of benefit-cost ratios is making uneconomic projects look viable at the approval stage.” (p.5)

2.8.4 Prof Peter Newman, Professor of Sustainability at Curtin University

Prof Newman, a former member of the Infrastructure Australia board, has spoken out strongly against the processes surrounding WestConnex on a number of occasions.

Newman was a board member of Infrastructure Australia at the time the motorway was first proposed. He is also a member of a Scientific Advisory Committee with the United Nations Educational, Scientific and Cultural Organization (UNESCO).

Professor Newman considers that WestConnex only became a serious proposition when Prime Minister Tony Abbott took up the issue while still in opposition, and that the project is highly politicised.

He described the planning processes around WestConnex as, “very tight knit… (this scenario) doesn't surprise me because I was involved in the planning side. The planning was really very, very light – just a few ideas being thrown together without any serious detailed work being done, and all the detail that was done showed very poor cost-benefit ratio.

“They have completely subverted the normal planning processes and now they’re subverting the consulting processes.

“It’s corrupting the process, that is what you can say. It doesn't mean that it is corrupt in a legal sense, but it is close to the edge."

2.9 Conclusion

WAG formally and strongly objects to the lack of transparency and proper process in the WestConnex project, including the New M5, and we ask that the Minister for Planning reject the WestConnex New M5 project.



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