Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 225-234
The town of Yass, located 60 km from Canberra, is familiar to many who have driven between Sydney and Melbourne. Situated amidst rolling hills in rich grazing country, Yass is heralded as the 'Fine Wool Centre of the World'. It is a typical New South Wales country town with a broad main street, Comur Street, which is in fact the Hume Highway. The shire of Yass has about 7,000 residents, of whom 4,500 live in the township. American media baron Rupert Murdoch owns a property nearby which he visits occasionally in the course of his infrequent visits to Australia. Ironically, in light of the difficulties described in this chapter, the name Yass is derived from an Aboriginal word meaning 'running water'. The Yass River, a tributary of the Murrumbidgee, flows through the town.
The 1970s were good years in Yass, but not without their unpleasant aspects. The infrastructure of the town was under stress. Despite the fact it had been augmented as recently as 1978, the sewage treatment works needed modification when the State Pollution Control Commission (SPCC) required changes in the means of effluent disposal. The town's garbage tip had also become saturated. Nature, too, was becoming uncharitable, as a drought had set in.
By the late 1970s residents living along the Yass River, downstream from the town, had noticed unpleasant changes in the river. There was considerable growth of algae, some of which tended to rot and give off an offensive smell. The river had become enriched; excessive nutrients had flowed into the river in the treated effluent from the sewage treatment plant, and had leached into the river from the town's rubbish tip. The problem was not without precedent in the Yass region; in the early 1970s, Burrinjuck Dam on the Murrumbidgee, had become polluted as a result of effluent from the Australian Capital Territory. Indeed, pollution had been a problem upstream of the town, apparently as a result of superphosphates leaching from areas undergoing intensive pasture improvement. This process of eutrophication, as environmental scientists would term it, accelerated during periods of low flow, with severe ecological consequences. With the river choked by vegetation, there was a fall in population of fish and other aquatic species. Recreational use of the river had become curtailed. Its usefulness for swimming, boating, fishing and even as a source of potable water, were limited. At a meeting of the newly constituted Yass Shire Council in January 1980, the Council health surveyor reported the findings of an inspection which he had conducted with an officer of the State Water Resources Commission. They reported an algal bloom extending approximately four km. Whilst isolated patches of algae characterised the first three km, the composition of algae growth changed from a coarse mat to a slimy gelatinous mass further down stream (Yass Post 30 January 1980, p. 10). As the drought of the 1980s became worse, so too did the condition of the river. Downstream residents complained to the Shire Council, then to the SPCC, and finally to the state Ombudsman.
Among the many functions performed by local government agencies in Australia is the control of noxious weeds. For many years, one of the substances used by the Yass Shire Council for this purpose was 245T, a highly toxic chemical containing dioxin. Dioxin, it will be remembered, was used extensively as a defoliant in Vietnam under the name of 'Agent Orange'. The Council's Inspector of Noxious Weeds, a Mr Bush, advised the Council that he used over 2,000 litres of the substance over the previous year (Yass Post 5 March 1980, p. 23).
In July 1982 it was disclosed that council workers had been using a mixture of diesel oil and 245T to spray stumps along the banks of the Yass River, and that an estimated two gallons had found its way into the river. The ecological impact of this herbicide was not great; tests carried out by the NSW Health Department indicated insignificant levels of pesticide in the water. Nevertheless, the resulting oil slick further offended the sensibilities of residents already uneasy about water quality; the Secretary of the Yass Acclimitisation Society expressed his concern to state government authorities (Yass Post 7 July 1982, P. 1).
The Yass Shire Council also encountered public dissatisfaction over the condition of the town's rubbish tip. A front page article in the Yass Post (12 March 1980) headlined 'RESIDENTS ANGRY OVER TIP', claimed that the Post offices had been 'inundated with complaints' about the ,shocking conditions existing at the tip'. It commented on the tip's 'perennial saturation' and resulting 'shocking odours' and suggested that a new tip be found. Such a task proved to be easier said than done; the Council, which had been endeavouring to locate a new site since 1976, was to be plagued by problems of waste disposal and public indignation for the following six years.
The issue of eutrophication was regarded by Council officers as a temporary problem, caused by runoff of superphosphate fertiliser and animal wastes from grazing properties upstream, and one which had been aggravated by the prolonged drought. It was assumed that the inevitable breaking of the drought would see the river flow clean again. There was thus no need for hasty and expensive engineering intervention; the sewage treatment works had been upgraded as recently as 1978, and the Council's modest fiscal base could scarcely support another large project.
The difficulties encountered by the Yass Shire Council appear to have arisen from the rather cumbersome manner in which local government in New South Wales is organised and from the time-honoured bureaucratic inclination to avoid decisions when confronted with conflicting pressures from constituents. Prior to 1980, Yass township was governed by a Yass Municipal Council, while the surrounding area was governed by the Goodradigbee Shire Council. In April 1967 the Yass Municipal Council sought to extend its rubbish tip to land owned by the Pastures Protection Board. In late 1975, the Yass Municipal Council sought to extend the tip on to land owned by the Goodradigbee Shire Council. To this end, it began negotiations with the Pastures Protection Board, the Department of Lands and the State Health Commission. In October 1976 the Goodradigbee Shire Council refused to cede the land and objected to any extension of the tip; so too did the State Electricity Commission, which claimed to have had easements over part of the area under consideration.
In August 1977, the Yass Municipal Council and the Goodradigbee Shire Council established a Joint Committee to consider future rubbish disposal. Seven months were to expire before the Committee met for the first time. Eventually the Goodradigbee Shire Council offered to grant land for a small extension of the existing tip if the Yass Municipal Council undertook to look for an alternative site entirely. In April 1978, the Yass Municipal Council contacted the local member of State Parliament, who referred the matter to the Ministers for Local Government, Environment and Planning, Lands and Health. In 1978 the State Health Commission, which had already agreed to an extension of the old tip site, pressured the Municipal Council to re-locate the rubbish depot. The Council sought unsuccessfully, once again, to negotiate with the Goodradigbee Shire Council.
A request to the State Lands Department for permission to dump rubbish in a quarry was refused in December of 1978. The following month, January 1979, the Council asked the Lands Department if any Crown land was available in the vicinity. In response, the Lands Department noted that the only possible land available was under the control of the Pastures Protection Board, the body that was contacted originally, twelve years before, in 1967.
Meanwhile, the Municipal Council came under pressure from the SPCC in 1979 for violations of the Clean Air Act 1970 (NSW) arising from the burning of rubbish at the, by then, saturated rubbish tip. By this time, it had been decided by state government to amalgamate the Yass Municipal Council and the Goodradigbee Shire Council. With this amalgamation pending, the Municipal Council wrote to its local member of Parliament requesting that further action be postponed. In 1980 the new Yass Shire Council referred the matter of the tip to another committee. In June of that year, Council arranged an inspection of nine alternative tip sites with inspectors from the State Health Commission. Correspondence with the Health Commission and SPCC ensued, and by late November of 1980 the Yass Shire Council announced its choice of a preferred site along Yellow Creek Road.
It is perhaps not surprising that this choice met with some disapproval from the owners of the land in question, and from their neighbours. In the face of strenuous objections, the Council reconsidered its choice. In March 1981, the Council health surveyor proposed that as an alternative to a new site, the existing tip be extended. This met with objections from the State Health Commission and SPCC.
In late 1981, the SPCC became impatient with inaction on Council's part and began sending letters by certified mail. By October 1981, the Yass Shire Council had narrowed its choice to two sites. Negotiations with the land owners took place over the first six months of 1982.
After protests by parties affected, and consideration of additional reports, Council resolved to choose one of the sites for its new rubbish tip. It then rescinded its decision and reverted to the previous choice. In October 1982, the Yass Shire Council had its preferred site subject to valuation, and had resumption documents drafted. At that point the land owners complained to the state Ombudsman and to the New South Wales National Parks and Wildlife Service that the site in question contained Aboriginal graves. An archaeologist from the National Parks and Wildlife Service stated that this was indeed possible. The project was thus postponed again.
Meanwhile, the Yass Shire Council continued to dispute the contention that the sewage treatment plant was in fact the source of pollution of the Yass River. It argued that the sewage plant was effective, and that effluent did not contain bacteria or organic residues. It argued that whatever pollution existed, could as easily have been caused by agricultural chemicals and other substances leaching from surrounding agricultural properties. Moreover, it argued that similar problems existed upstream of the town and the treatment works. Knowledgeable environmental scientists however, would observe that algae growths such as that which gave rise to the downstream residents' complaints, would quite likely have arisen from the concentration of nutrients flowing from the sewage treatment facility.
With so many arms of state government involved in the affairs of Yass Council, some difference of opinion was inevitable. Council's disinclination to proceed with haste was reinforced by encouragement it received from some quarters. As recently as 1978, the state Department of Public Works had designed and built a new Pasveer treatment plant in consultation with the Department of Health and the SPCC. In 1980 the State Water Resources Commission had advised that the algal bloom then evident resulted from natural runoff, and was not directly related to a point source discharge (Kaub 1986, p. 3). In 1982, the Department of Public Works investigated eutrophication complaints, and after consulting with SPCC, concluded that no further works were required. This judgment was reaffirmed two years later (Brereton, L. 1984, pers. comm. to T. Sheahan, 9 March). Whilst the state Ombudsman concluded that the Council was playing one state agency off against another, Council found enough justification for its decision to proceed slowly.
In December 1982, the SPCC issued orders under the Clean Waters Act 1970 (NSW) for the Council to install a water spray irrigation system within ninety days. On 2 March 1983, the Yass Shire Clerk requested an extension, pleading, 'it is very difficult to make quick decisions in this matter, as the procedure to direct treated sewage effluent away from discharge into the Yass River cannot be achieved overnight' (quoted in New South Wales Ombudsman 1985, p. 169).
Downstream residents' frustration with poor water quality and with what was perceived as inaction on the part of responsible public authorities gave rise to a complaint to the New South Wales Ombudsman in 1981. Soon thereafter, the problem of eutrophication was called to the attention of the state Minister for Environment and Planning. At this point, the Ombudsman's inquiry was postponed for a number of months in deference to ministerial involvement, then resumed when it became apparent that matters remained essentially unchanged. The investigation culminated in a report presented to the Council and to the complainants toward the end of 1983 more than two years after the initial complaint.
The report was strongly critical of the Council for its delay in rectifying waste disposal problems. The Ombudsman's Office had become as impatient as the aggrieved residents of Yass. The language of the report was not delicate:
The garbage tip is a disgrace to any community, and to the representatives and officials who are responsible for that community's welfare. Within sight of the Hume Highway, the tip spreads sheets of paper and dirty plastic bags over the surrounding countryside and dangles them from the crooked fences that surround it. Garbage is now being buried in older garbage, since there is no more earth left. Cartons and papers are burned, in order to reduce bulk, so that there is often a column of smoke over the tip. In holes in the garbage into which yet more garbage is to be thrown, there are pools of repulsive fluid, which seeps through the patches of weeds below the tip and then enters the creek and the Yass River (NSW Ombudsman 1983, p. 15).
The report urged that Council obtain a new site for a rubbish tip and begin operations there within six months; that it immediately begin spray irrigation of land adjoining the sewage treatment works; and that it cease discharging treated effluent into Bango Creek and the Yass River. The Ombudsman further requested compliance reports from Yass Shire Council on 31 October 1983, 31 January, 30 April and 31 July 1984. The report urged that these recommendations be implemented 'before Yass becomes known not as the fine wool hub of the world, but as the pollution centre of the south.' (NSW Ombudsman 1983, p. 21).
The SPCC issued licences to the Yass Shire Council in 1983, and again in 1984 permitting the Council to continue to discharge its treated effluent into the Yass River. The licences were subject to two conditions - the submission of quarterly analysis reports and the eventual installation of equipment to monitor daily flow of effluent.
But the patience of SPCC authorities had become exhausted. In December 1983, SPCC issued a summons to the Council. By this time, the Member for Burrinjuck, the state electorate in which Yass is situated, had become state Minister for Planning and the Environment. For a time it was hoped that he might be prevailed upon to intervene to have the prosecution withdrawn. Whether because of media attention drawn to a previous act of similar largesse on behalf of another constituent (Bacon 1984) or the persuasive powers of SPCC staff, the case went ahead. In late 1984, nearly two years after its spray irrigation order, the SPCC prosecuted the Yass Shire Council for failure to comply with the notices in the prescribed ninety day period. It was the first shire council to be subject to prosecution by SPCC.
On 12 November 1984, charges were heard by Smith SM, in Yass Petty Sessions for breaches of the Clean Waters Act. The maximum fine which could be imposed was $4,000. An SPCC industrial chemist testified that a recent inspection had shown severe deposits of black rotting matter on the river bed, and the photographs taken by one land owner showed the river to have been 'effectively mutilated' and of no real recreational use.
The Council's evidence in mitigation rested on the argument that as its sewage treatment works had been designed and constructed by one government agency and licensed each year by another, it had become 'the meat in the bureaucratic sandwich'. The Council thus sought to fix responsibility for the delay on the Department of Public Works. The defence endeavoured further to argue that it was inconsistent for SPCC to continue to license effluent after ordering its control. Moreover, with the breaking of the drought, the eutrophication of the river had significantly abated.
The magistrate found the Yass Shire Council guilty of the offence, but pursuant to s.556a of the Crimes Act 1970 (NSW) did not record a conviction or impose a fine. He did, however, award costs of $1,000 against the Council. The magistrate explained his lenient decision in part, by suggesting that any penalty imposed would ultimately be borne by ratepayers. lie also observed that the Council had faced considerable difficulties in acquiring suitable land for a new rubbish tip and that it had in fact been obliged to consult with seven different departments of state government. The magistrate found that Council had taken all reasonable steps to ensure that work on the spray irrigation system proceeded, and he did not see how the Council could have complied with the SPCC notice within the ninety day period.
The Council, through its Shire Clerk, gave an undertaking to the Court that it would have the required works completed by February 1985. It then engaged the NSW Department of Public Works to design and install an effluent spray disposal system. In December 1984, SPCC advised of new conditions attached to Yass Council's licence to discharge sewage effluent. From 1 June 1985 treated effluent was to be directed to disposal by spray irrigation at all times, except when the river flow exceeded fifty megalitres per day. But again, the Yass Shire Council found that it could move no faster than those other branches of the NSW government on which it depended. Technical problems delayed completion of the project; however, in this instance, the SPCC did not seek to enforce the conditions of the Council's licence, instead choosing to negotiate with the Public Works Department.
The new plant finally began operating in June 1986. It is designed to operate continuously when the level of the river flow falls below the threshold specified by the SPCC. The total cost of the system was $430,000, half of which was provided by the state, and half borne by the ratepayers of Yass.
Meanwhile, Council had yet to locate a suitable site for a new rubbish tip, or at least a suitable site which would not arouse the wrath of its prospective neighbours. The challenge will be a daunting one, as long as ratepayers continue to regard a rubbish tip as a place where one is free to dump indiscriminately, and with total disregard for other users of the area. At the existing tip, the problems with saturation which had been the source of so much concern appear to have been alleviated to a large extent by more attentive management. Burning of bulk materials is now undertaken with greater care, and burial of appropriate matter is now done more frequently. The tip no longer causes visual affront to users or passersby. Abundant rainfall and a free flowing river have soothed public indignation over leachate. But Council officials remain indignant over what they perceived as insensitive treatment by bureaucrats in Sydney.
- Bacon, Wendy 1984, 'Charges Dropped Over Sale of Protected Birds', National Times 3-9 May, p. 14.
- Kaub, W.B. 1986, 'Yass Wastewater Treatment Plant and Associated Effluent Spray Disposal System', paper to NSW Recycled Water Co-ordination Committee, 13-14 November.
- NSW Ombudsman 1983, Yass Shire Council Report, NSW Ombudsman, Sydney.
- NSW Ombudsman 1985, Annual Report for the Year Ended 30th June 1984, Government Printer, Sydney.
- Yass Post 30 January 1980, p. 10.
- ibid. 5 March 1980, p. 23.
- ibid. 12 March 1980, p. 1.
- ibid. 7 July 1982, p. 1.