Democracy, consultation and socio-environmental degradation

Democracy, consultation and socio-environmentaldegradation : diagnostic insights from the Western Sydney/Hawkesbury-Nepean region

Author:Darbas, Toni

Publication Date:2002

DOI:https://doi.org/10.26190/unsworks/21182

License:https://creativecommons.org/licenses/by-nc-nd/3.0/au/Link to license to see what you are allowed to do with this resource.

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Democracy, Consultation and Socio-Environmental Degradation:

diagnostic insights from the Western Sydney/Hawkesbury-Nepean

region

Toni Darbas

Doctorate of Philosophy Thesis

School of Science and technology Studies, University of New South Wales

November 2002

Abstract The use of community consultation to address socio-environmental degradation is entwined with contested democratic principles polarising views of its role. I frame this problem by examining three democratic paradigms faced with two contemporary problems. The deliberative argument that preferences require enrichment with debate mediates between the liberal-aggregative view that preferences are individual, private and amenable to aggregation and the view that participation in public life is foundational. Viewing consultation as deliberative reconciles the liberal-aggregative view of consultation as the illegitimate elevation of unrepresentative minority groups with the participationist view that consultation constitutes a step towards participatory democracy. Theorists of social reflexivity, however, point to an elided politics of knowledge challenging technoscience's exemption from politically garnered consent. Also neglected by much democratic theory is how functional differentiation renders self-referential legal, political, technoscientific and administrative domains increasingly unaccountable. I employ Habermas' procedural theory that public spheres allow social irritations into the political domain where they can be encoded into laws capable of systemic interjection in response, along with a dialogic extension accommodating the politics of knowledge. I then use this procedural-dialogic deliberative understanding of democracy to elucidate the context and outcomes of the NSW State's consultative strategy. The NSW state, institutionally compelled to underwrite economic growth, implicating itself in that growth's socio-environmental side effects provoking widespread contestation. The resulting Environmental Planning and Assessment Act (1979) and its adjunctive consultative provisions helped highlight the socio-environmental degradation of the Hawkesbury Nepean River Catchment via Western Sydney's urban sprawl, politicising the region. The convenement of a consultative forum to oversee a contaminated site audit within the region facilitated incisive lay critique of the technoscientific underpinnings of administrative underwriting of socio-environmental degradation. The discomforted NSW State tightened environmental policy, gutted the EP&A Act's consultative provisions and removed regional dialogic forums and institutions. I conclude that the socio-economic accord equating economic growth with social progress is both entrenched and besieged, destabilising the political/administrative/technoscientific regime built upon it. This withdrawal of avenues for critique risks deeper estrangement between reflexive society and the NSW State generative of electoral volatility.

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Table of Contents

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Part A Orientation 1 Chapter One The Dissertation Outlined 2

1.1 Research Topic 2 1.2 Field Research 6 1.3 The Western Sydney/Hawkesbury-Nepean Region 8 1.4 Literature Reviews 11 1.5 Interpretive Frame 28 1.6 The Interpretive Scheme 33 1.7 Statement of Thesis 39 1.8 Map of Thesis Argument - Parts and Chapters 41

Figure 1.1 Outline of Chapters 44 Figure 1.2 Conceptual Outline 45 Table 1.1 Systemic Codes 20 Table 1.2 Schematic of Literatures 28 Map 1.1 WS/HN Region 8a

Part B Democracy, Consultation and Socio-environmental Degradation 46

Chapter Two Which Democratic Paradigm - Aggregative,

Participative or Deliberative? 47

2.1 Introduction 47 2.2 Democracy as Aggregation 49

2.2.1 Rationality and Preferences 52 2.2.2 Hostility to Groups and the State 55 2.2.3 Underdetermination of Aggregations 58

2.3 Democracy by Participation 61 2.3.1 Civil Society- the problem of pluralism 63

2.4 Democracy as Deliberative 67 2.4.1 Rawls and Habermas - precommitment versus

proceduralism 70 2.5 Two Crucial Challenges 75

2.5.1 Systemic Complexity 76 2.5.2 The Politics of Knowledge 85

2.6 In closing 95

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Figure 2.1 Cognitive Diagram of Liberal-Aggregative Democratic Paradigm 50

Figure 2.2 Two Views of Civil Society 74 Figure 2.3 Bookends to the Three Democratic Paradigms 76 Figure 2.4 Interpretive Frame and Scheme 95 Table 2.1 Systemic Codes 78 Chapter Three The Interpretive Scheme 97

3.1 Introduction 97 3.2 Habermas' Theses on Modernity 99

3.2.1 System and lifeworld 99 3.2.2 Social evolution 103 3.2.3 Colonisation of the lifeworld 105 3.2.4 Displacement and secondary conflict 106 3.2.5 Legitimation 109

3.3 Law, Legitimation and Democracy 111 3.4 Habermas' Rationalism 119

3.4.1 Rationalism and the Public Sphere 119 3.4.2 Rationalism and Administrative Neutrality 123

3.5 The Dialogic Extension of Procedural Deliberation 126 Figure 3.1 Neomarxist Politics and Environmental Subpolitics 108 Figure 3.2 Interpretive Scheme 130 Table 3.1 Polarisations Driven by Private/Public Autonomy Opposition

114 Table 3.2 Aggregative, Participative and Deliberative Models 119

Part C Socio-environmental Debate and its Legal Codification 132

Chapter Four The Provocation of Socio-environmental

Contestation and Debate 133

4.1 Introduction 133 4.2 The NSW State's Liberal-Aggregative Architectonic 134 4.3 The Brave New World of Urban Planning 139 4.4 Restless Residents 147 4.5 The Regrouping of Liberal-Aggregative Politics 152 4.6 In Closing 159

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Map 4.1 County of Cumberland Functional Plan 141 Map 4.2 Sydney Region Outline Plan 145 Chapter Five The Environmental Planning and Assessment Act: a deliberative reading 162

5.1 Introduction 162 5.2 A Procedural-Dialogic Reading of the EP&A Act 164 5.2.1 Normative Codification - the Act's Objects 167

5.2.2 Separation of Powers - Civil Enforcement 169 5.2.3 Dialogic Deliberation 171

5.3 Tension between aggregative and participative principles 175

5.4 Twenty years of Amendments - a 'Developer's Charter' 183 5.5 Conclusion 195

Table 5.1 Planning Instruments and Public Participation 173 Table 5.2 Development Assessment and Consent Variables 181

Part D A Steering/Legitimative Dilemma: the Western Sydney/Hawkesbury-Nepean Region 199

Chapter Six Dumping Ground: the creation of the west200

6.1 Introduction 200 6.2 Definitions and Delineations 202 6.3 SROP - Socio-environmental Displacement 205 6.4 Post 1980 - Environmentally Conscious Administration 211

6.4.1 SROP's Review 211 6.4.2 The North West Development Sector 213 6.4.3 The Metropolitan Strategy 218 6.4.4 The South West Development Sector 221

6.5 The WS/HN Region's Politicisation 225 6.6 Policy Stalemate 232

6.6.1 The New Metropolitan Strategy 233 6.6.2 Air Quality 236 6.6.3 HNCMT and Hawkesbury-Nepean River REP 237

6.7 Conclusion 239

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Figure 6.1 Sydney Airsheds and Development Regions 223 Table 6.1 Basic LGA Statistics Circa Late 1940's 206 Table 6.2 SROP's Proposed Population Distribution 209 Table 6.3 Notional Distribution of Future Sydney Region Housing 234 Map 6.1 The Metropolitan Strategy 219 Chapter Seven The Castlereagh Community Monitoring

Committee: the politics of truth 242

7.1 Introduction 242 7.2 Historical Context 244

7.2.1 The Depot's Administrative History 244 7.2.2 The Depot's Politicisation 250

7.3 Local versus Scientific Knowledge 252 7.3.1 The Groundwater Study 257 7.3.2 Animal and Plant Health Study 262 7.3.3 Human Health Study 266

7.4 The CCMC and EPA 269 7.5 The CCMC and Environment Ministers 273 7.6 Conclusion 278

Figure 7.1 Typical Cross Section Through Cells 249 Table 7.1 Regulatory, Popular and Research Science 254 Table 7.2 CCMC Motions Regarding Audit 262

Table 7.3 CCMC Motions Regarding Animal and Plant Health Study 266 Table 7.4 CCMC Motions Regarding Human Health Study 269 Table 7.5 CCMC Motions Regarding the EPA 272 Table 7.6 CCMC Motions Regarding Ministers 277 Map 7.1 Water Table Elevation 60a

Part E Conclusion 282 Chapter Eight Democracy, Sustainability and Consultation

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8.1 In Review - The Diagnostic Tools 283 8.2 The Diagnosis 287 8.3 A Prescription 288

8.3.1 ESD as Normative Deliberation 289 8.3.2 Public Environmental Rights 291 8.3.3 Dialogic Forums 292

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8.4 In Closing 293 Bibliography 295

Newspaper Articles 295 Interviews/Personal Notes 302 Archival 303 Letters 306 Statistics 307 General References 308

Appendices 358

Appendix 1 Sydney's Population Growth and Distribution by LGA 358 Appendix 2 Sydney's Population Growth Rates by LGA 359 Appendix 3 Comparison of air monitoring network 1988 and 1994 360 Appendix 4 LGA Boundaries in Hawkesbury-Nepean Catchments 361

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Acronyms ABS Australian Bureau of Statistics ACT Australian Capital Territory ADI Australian Defence Industries AWTP Aqueous Waste Treatment Plant CBD Central Business District BLF Builders and Labourers Federation CCC Cumberland County Council CCMC Castlereagh Community Monitoring Committee CHANGE Coalition of Hawkesbury and Nepean Groups for the

Environment CMC Community Monitoring Committee CRC Cooperative Research Centre CRWDD Castlereagh Regional Waste Disposal Depot CWP Clean Waterways Program DA Development Application DC&LM Department of Conservation and Land Management DD Designated Development DE&P Department of Environment and Planning DOA Department of Agriculture DOH Department of Health DOP Department of Planning DUAP Department of Urban Affairs and Planning EIS Environmental Impact Study EPA Environmental Protection Authority EP&A Act Environmental Planning and Assessment Act EPI Environmental Planning Instrument ESD Ecologically Sustainable Development FCC Fairfield City Council GI Group Interview HNCMT Hawkesbury-Nepean Catchment Management Trust HTI High Temperature Incinerator IDO Interim Development Order LEP Local Environmental Plan LGA Local Government Area MACROC Macarthur Regional Organisation of Councils MAQS Metropolitan Air Quality Study MP Member of Parliament MWDA Metropolitan Waste Disposal Board NHMRC National Health and Medical Research Council NSW New South Wales PCC Penrith City Council PEC Planning and Environment Commission POE Act Protection of the Environment Act

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RAG Resident Action Group RAGE Resident Action Group for the Environment REP Regional Environmental Plan ROC Regional Organisation of Councils RTA Roads and Traffic Authority SCRA Sydney Cove Redevelopment Authority SEL Special Environmental Levy SEPP State Environmental Planning Policy SMH Sydney Morning Herald SPA State Planning Authority SPCC State Pollution Control Commission SROP Sydney Regional Outline Plan SSK Sociology of Scientific Knowledge STP Sewage Treatment Plant STS Science and Technology Studies STW Sewage Treatment Works TCM Total Catchment Management UBD Urban Development Program WMA Waste Management Authority WR&PS Waste Recycling and Processing Service WS/HN Western Sydney/Hawkesbury-Nepean WSROC Western Sydney Regional Organisation of Councils

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Part A

An

Orientation

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Chapter One The Dissertation Outlined

... industrial society exits the stage of world history on the tip-toes of normality, via the back stairs of side effects and not in the manner predicted in the picture books of social theory... (Beck, 1992:11).

1.1 Research Topic

I embarked upon this dissertation under the auspices of the Co-operative Research Centre for Waste Management and Pollution Control1 in 1993 within an interdisciplinary action-research team, the Centre for the Social Ecology of Water and Waste Management, based at the Hawkesbury campus of the University of Western Sydney. This team's investigations were meant to underpin the development of a consultancy specialising in convening and conducting community consultations convened to assist resolve socio-environmental controversies. The team was positioned within, and its research focused upon, the Hawkesbury-Nepean River catchment. This catchment now overlaps with the westerly urban sprawl of Australia's largest city and first colony, Sydney. Composed of pristine national park, prime agricultural land, colonial villages and a large, multi-cultural urban incursion, the Hawkesbury-Nepean catchment has experienced dramatic environmental degradation vividly symbolised for its communities by the decline in health of the river system. My initial efforts to shape a doctoral topic concerning community consultation and the Western Sydney/Hawkesbury-Nepean region confronted widespread contestation over how environmental degradation had been and should be measured, how responsibility for it should be attributed and distributed, and over the role community consultations should play in addressing it. Embedded in these contestations were deep-seated conceptual and operational dissonances. Foremost among these dissonances was polarisation, at times passionate, around the notion of community consultation, ranging from, at one end, the idea that communities should have a legal right to veto developments 'imposed' on them, to, at the other, the view that consultations indulged unrepresentative vocal minorities that threatened to usurp the legitimate

1 Cooperative Research Centres (CRCs) were an initiative of the Hawke Labor Federal

Government that linked the resources of universities with industrial and government organisations in the pursuit of research commercialisation.

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decisions of local, state and federal governments and their administrations. It did not seem possible to consider community consultation independently of democratic commitments defining its role. The stakeholder analyses being employed by the research team seemed to me to sidestep the unsettled issue of the relationship of consultation over socio-environmental degradation to the system of representative democracy. This issue was not defused by the expertise brought to bear on the measurement and management of pollution. Resident action and environmental groups generally believed that pollution was either not being measured or managed, or was measured and managed so inadequately as to be inappropriately normalised. Experts typically disdained such lay critiques as a problem of perception. The prevailing assumption that lay opinion should not be allowed to contaminate expert judgements tended to increase conflict over what consultations were meant to achieve. Also evident was confusion and controversy concerning the role of the three levels of government and their agencies when it came to environmental matters. Straightforward solutions seemed unavailable. For example, an agency was established in 1993 with a jurisdiction contoured to the Hawkesbury-Nepean catchment boundaries in response to sustained regional lobbying. The creation of this agency necessitated protracted negotiations with existing local governments and state departments and authorities about the balance and distribution of pre-existing and new roles and responsibilities. Subjected to continuous reviews of its operations, the Hawkesbury Nepean Catchment Management Trust was suddenly disbanded in 2001. Underlying these territorial struggles, was the low esteem in which state agencies, traditional administers of the use of environmental resources of the region, were held. The history of socio-environmental change in the region revealed that economic development of the Western Sydney/Hawkesbury-Nepean region was facilitated by the provision of infrastructure by state agencies as part of their established developmental roles under the prevailing political accord emphasising economic priorities. Subsequent efforts towards environmental protection were often in blatant conflict with these entrenched objectives. However, the implications of this history, and conflict between economic and environmental goals, was generally unappreciated by bureaucratic 'stakeholders' dealing with resentful publics. Controversies were 'officially' approached as if unrelated to this history of regional socio-

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environmental degradation. While administrative agencies struggled with each other and their publics, environmental dissatisfactions across New South Wales, the largest of the Australian States in terms of population and economic activity, were having a profound impact upon the pattern of parliamentary representation and debate. Despite the preferential voting system in the lower houses of Australia ensuring the dominance of the two major parties, independents became successful in the NSW parliament to the extent that from 1991 to 1995 three independents, including one whose platform was solidly environmentalist,2 governed in coalition with the (resentful) Liberal Party. Socio-environmental issues in the Western Sydney/Hawkesbury-Nepean also became, on occasion, lively enough to drive wedges into party discipline as representatives were forced to respond to the concerns of their electorates or risk losing office. Socio-environmental dissatisfactions seemed to coalesce into a green politics subversive of longstanding political practices. Community consultation as a method of dealing with these discontents possessed no clear relationship to the logic of political mandates derived from aggregations of votes. Indeed consultations served to emphasise the disparity between views tied to specific localities and the views of the political centre. Finally, I was confronted with the necessity to understand the legal context in which socio-environmental controversies, evidently also technoscientific, economic, administrative and political controversies, were negotiated. Environmental law structured and channelled debate and conflict between disparate actors by specifying administrative procedures such as studies, plans and inquiries, as well as providing legal rights to appeal planning decisions. However, environmental statutes were too controversial to be treated as stabilising factors. Because they changed longstanding conventions on the balance between private and public rights, they were constantly contested and amended. My disciplinary background was in sociology generally and the sociology of science and technology specifically. Thus while I was well equipped to analyse public moods and individual environmental controversies, I lacked a language that could deal convincingly with the interconnections between social unease

2 The second had a predominantly gay constituency and the third's public reputation was

founded on a history of innovative, participatory local governance.

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over socio-environmental degradation and the debates and decisions taking place in the administrative, technoscientific, political and legal domains. Consequently this has been an inductive study: much of the empirical material presented in Chapters 4 through 7 was gathered and collated first and necessitated lengthy consideration of a suitable framework within which they could be organised, interpreted and elucidated.

1.2 Field Research

I lived in the Western Sydney/Hawkesbury- Nepean (WS/HN) region and explored it extensively while my research team was operative (from 1993 to 1995) attending many socio-environmental events and forums. The methodologies employed were both diverse and strategic - oriented to building up the case study material in an ethnographic style while paying attention to the linkages between local, regional and state-wide processes so that the case study material could yield sociological insight into the fault lines of western democracies generally (Hamel, 1992, Kellehear, 1993). Listed more or less consecutively, my investigations began with participant observation in both regional events and forums and in consultative processes associated with site-specific controversies. One of these, an environmental audit of the Castlereagh Regional Liquid Waste Depot conducted under the eye of a community monitoring committee, was worked up into a case study.3 As part of my work within the research team, which was committed to an action-research methodology, I was obliged to undertake investigations into the public attitudes within the region. I did this through a literature review,4 media coverage analysis, focus groups, observation of an extensive community consultation by a local government, and small survey.5 More independently, I undertook historical research of socio-environmental degradation in the WS/HN region, including statistical analysis of population growth and a related review of the state government policies on the attempt to limit, and then facilitate, this urban incursion. Historical research into the genesis of the Castlereagh Depot was also completed. I then reviewed the regional debates

3 A second case study was partly developed and then discarded for lack of space as the

dissertation draft proceeded.

4 Consisting mostly of unpublished research conducted out of the University of Western Sydney - Hawkesbury.

5 Which I could not persuade my team leader to conduct using conventional research parameters - the use of sampling etc.

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that had captured the attention of state government and impacted on elections and parliamentary representation. At the close of 1994 the CRC withdrew funding for the research team6 and I continued to study on the CRC's PhD scholarship. I reviewed the public debates and controversies that led to the drafting and parliamentary debate of the Environmental Planning and Assessment Act (1979), a landmark piece of legislation forming the administrative architecture around and through which the regional issues I had been investigating took place. In general, the empirical investigations followed the general principle of following public debate from genesis to outcome using newspapers, hansards and local government records, forums and consultations, policy papers, reports, and political, administrative and legal journals whether historical or contemporary. In 1997, I took a two year break from study due to the interventions of life (marriage, baby, interstate move, mortgage) resuming study on a part time basis in 1999 focusing on developing the theoretical framework.

1.3 The Western Sydney/Hawkesbury-Nepean Region

Sydney is Australia's premier city, as much a global as an Australian phenomenon. The tension between Sydney's rich east and poor west, driven by relentless population and urban growth, lies at the core of the WS/HN region's socio-environmental troubles. The complex aetiology of the region instigated my use of the term 'socio-environmental', a deliberate variation of the term socio-economic implying both that the relationship between the social and environmental is capable of political negotiation and that the social and environmental are interwoven components of everyday life.7 The term Western Sydney/Hawkesbury-Nepean region formalises the idiom of local and regional debate and discussion and refers to the interplay between the region of Western Sydney, defined administratively by 12 local government areas (LGAs), and the catchment of the Hawkesbury-Nepean River, which is defined

6 This, it seemed, was due to the tension between the Centre for the Social Ecology of

Water and Waste Management which was committed to action research principles, and the engineering culture of the overseeing body - the Cooperative Research Centre into Waste Management and Pollution Control.

7 I here take my cue from Giddens: "Most of the modes of life we have to deal with ... are ecosocial systems: they concern the socially organised environment ... In most environmental areas we couldn't begin to disentangle what is natural from what is social - more importantly it is usually irrelevant to policy-making endeavours to do so" (1994:210).

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by the pattern of water flow and drainage (See Map 1.1). Western Sydney's urbanisation was facilitated by state government policies from 1968 that permitted the extension of the Sydney metropolis westwards along the Cumberland Plain into the Hawkesbury-Nepean catchment. The existing small settlements derived from the colonial period and servicing primarily agricultural communities were thus overwhelmed by anonymous suburban adjuncts to Eastern Sydney. There are 11 urban and partially urban Western Sydney LGAs wholly or partially within the Hawkesbury/Nepean Catchment. Their growth rate between 1961 and 1991 was 5.5%, an increase of one million residents from nearly 600 000 in 1961, a nearly tripled population that represents 85% of Sydney's growth over the thirty year period. This growth corresponds with a decline in the population of the inner and middle LGAs of Sydney (see appendices 1 and 2). Western Sydney is the only part of the metropolis which is without the orientation to the coastline and harbour that dominate Sydney's psyche and international image. Of all the urban fringe areas it has the lowest socio-economic profile, and is the most culturally diverse - accommodating many migrants who enter the country through Sydney or Melbourne and coalesce into communities of overlapping ethnic groups. The Hawkesbury-Nepean River forms a natural arc that wraps itself around the Sydney Basin. The Sydney Basin is comprised of the three small coastal catchments (Port Hacking, Georges River and Port Jackson) draining east into the ocean (Conybeare, 1977:3). The Hawkesbury-Nepean River's Catchment is far larger, approximately 570 kilometres long and draining an area of more than 20 700 square kilometres (Rosen, 1995:viii). The catchment is comprised of a maze of tributaries that culminate in the Nepean River, and then the Hawkesbury River, which flows out to sea north of Sydney. While the westerly extension of Sydney constitutes a small proportion of the catchment as a whole, it has had a profound environmental impact. The demands associated with urban growth have an environmental multiplier effect - the need for housing and buildings, roads, kerbing and guttering, electricity, potable water supply, sewerage, industrial estates, retail and social services all ultimately point to the loss of native flora and fauna, erosion and siltation, air pollution, massive interventions in natural water cycles, and profound pollution of waterways. Dams on the Upper Nepean, Warragamba, Wollondilly Rivers and Mangrove Creek supply 97% of the potable water used in Sydney and Wollongong (DUAP, July 1996:19). At the same time as the river's flow is

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restricted by these dams, its water quality is dramatically altered by the outflow of sewerage treatment plants that receive the waste water of Western Sydney as well as the more diffuse sources of pollution from urban run-off. Just as the decline in water quality off Sydney's beaches formed a focus of complaint in Eastern Sydney (Beder, 1989), the river is a cultural icon for the catchment's varied population. Concern for its decline has unified the perspectives of agriculturalists, environmental activists, suburban residents, and the longstanding communities of the original colonial settlements. The western side of the river, still largely free of intense urban development, make it a kind of a line drawn in the sand - no more.8 Public agitation over socio-environmental degradation arose first in Eastern Sydney during the building boom of the 1960s and 1970s, the green ban period that is the subject of Chapter 4. This contestation led to the enshrinement of a consultative strategy in the Environmental Planning and Assessment (EP&A) Act (1979), viewed at the time as a paradigmatic innovation in Australian law and governance and the subject of Chapter 5. Ironically the EP&A Act and pollution statutes that resulted from Eastern Sydney's socio-environmental discontent facilitated the export of pollution and urban development into the Hawkesbury-Nepean catchment. For example, the Waste Disposal Bill (1970) established the Waste Management Authority and set its first task of establishing a liquid industrial waste landfill. This was a response to Eastern Sydney dissatisfaction over land and water pollution. The resulting landfill, Castlereagh Depot (the subject of Chapter 7), centralised Sydney's liquid waste disposal within six kilometres of the Hawkesbury-Nepean River and is now confirmed as leaking into the water table (see Map 1.1). Public unease and agitation over the socio-environmental degradation of the WS/HN region did not reach the threshold of political impact, that is, become a topic for concern in the NSW parliament, until the 1990's. This postdates the EP&A Act's institutionalising of a consultative strategy, and the WS/HN contestation can thus be viewed as a kind of critique of its coherence, effectiveness and adequacy. The WS/HN case study, presented in Chapter 6 constitutes a policy dilemma productive of significant diagnostic insight into the ills plaguing the NSW state.

8 Another major socio-environmental issue in the region is air pollution. The Hawkesbury

air shed is the sink for considerable air pollution generated by Eastern Sydney and blown west by prevailing winds.

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1.4 Literature Reviews

I began reviewing the theoretical literature looking for a bridge between the radical insight of the Sociology of Scientific Knowledge (SSK)9 and the mainstream disciplines dealing with the political (political philosophy, political science and political sociology). Detailed investigation of scientists' endeavour inside their laboratories and disciplinary communities by SSK scholars has yielded a picture of fact crafting rather than discovery. The general conclusion of the field is that technoscientific constructions are conditioned by their prevailing social, economic and political context. Scientific knowledge, from this point of view, is a kind of knowledge possessed of extraordinary power, not only because it is evidently leads to the technological restructuring of the world, but also because it is typically regarded as the truth (Bachelard, 1984, Barnes and Edge, 1982, Bloor, 1983, Bowden, 1995, Callon, 1995, Edge, 1995, Hesse and Arbib, 1986, Jasanoff et al, 1995, Knorr-Cetina, 1981, 1995, Knorr-Cetina and Mulkay, 1983, Kuhn, 1970, Latour, 1986, 1987, 1993, 1996, Popper, 1963, Radder, 1992, Woolgar, 1988). Externalist SSK scholars have detailed how outside rarefied settings expertise, technologies and scientific facts tend to unravel under the duress of socio-political debate and contestation (Jasanoff, 1990, McDonell, 1997, Martin and Richards, 1995, Wynne, 1989, 1992, 1996). Public debates about technoscientific consequences, such as global warming, loss of biodiversity, genetic interference and chemical overload, raise the question of how democratic the decisions were that distributed such bads along with the good of higher living standards. A broad political question, it has to be said, which is largely unexplored within SSK (Radder, 1992, Richards and Ashmore, 1996). Moreover, as SSK's links with the broader disciplines are weak (Breslau, 2000), it is a question only sporadically taken up by the latter.10 The obvious starting point for a SSK-politics bridge is the work of German and English sociologists Beck (1992, 1994, 1995a, 1995b) and Giddens (1984, 1990, 1994), both of whom examine the legitimative dimensions of the relationship between expert communities and the lay population. Beck views expert

9 Institutionalised in journals such as Social Studies of Science, Minerva, MetaScience, and

Knowledge and Technology in Society.

10 See the narrow focus of Social Studies of Science's Special Issue - "The Politics of Sociology of Scientific Knowledge" (for example, Ashmore, Martin, Richards and Ashmore, 1996) which concentrates on whether SSK scholars should take sides in technoscientific controversies. SSK's constructivism tends to align it with postmodernist thought, keeping it aloof from mainstream disciplines (Radder, 1992, see also the exchanges between Pels and Bogan, 1996 and Breslau and Pickering, 2000).

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hegemony as a core building block of economic growth. A hegemony that systematically produces serious side effects that add up to a Risk Society - societies that produce and attempt to legitimate threats they cannot monitor or control. For Beck, conflicts over risks add up to a subpolitics, a politics driven by the lay community unfolding outside the formal structures of the liberal democratic state (1992, 1994, 1995a, 1995b). Giddens is very close in his focus to Beck. Giddens analyses the relationship between experts and laypeople through his conceptualisation of expert systems as disembedding mechanisms that 'lift out' social relations from local contexts of interaction and restructure them across indefinite spans of time and space such that everyday life is restructured (1990:21). Giddens argues that unavoidable technological webs (power, food production, transport) imply an attitude of blind lay trust. He suggests experts have taken the role of authoritative figures, replacing traditional forms of authority, like religion, without being able to offer either reliability or certainty. When expert systems break down this lay trust is exposed and eroded (Giddens, 1984, 1990, 1994). Giddens describes modernity, now global, as radically dynamic because knowledge has become reflexive:

The reflexivity of modern life consists in the fact that social practices are constantly examined and reformed in light of incoming information about those very practises, thus constitutively altering their character ... Modernity is constituted in and through reflexively applied knowledge, but the equation of knowledge with certitude has turned out to be misconceived ... we can never be sure that any given element of that knowledge will not be revised (1990: 38-9).

Beck's identification of a extra-institutional politics thematising the open experiment unconstrained technoscientific activity forces us to live in points to the denial of reflexivity by liberal democratic states. The epistemological indeterminacy that lies at the heart of modernity is a bone of contention in the modernity/postmodernity stand-off which has dominated sociological debate in recent years. In repudiating the 'paralysis of political will' (Beck, Giddens & Lash, 1994:viii) typical of postmodernist thinkers, Beck and Giddens advocate a project of 'reflexive democratisation' (Beck, Giddens & Lash, 1994). According to Beck, reflexive democratisation means the state is impelled to abandon the command and control style of decision-making, that shields experts from public debate, in favour of an inclusive and open-ended negotiation model. Like Beck, Giddens' prognosis points to a reconfiguration of democracy, what he calls 'dialogic democracy' stretching from a 'democracy of emotions' in

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personal life to the outer limits of the global order" (1994:107). Emphasising the medium of social trust, Giddens maintains that dialogic democracy is not an extension of liberal democracy but a reconstruction of social solidarity. Beck and Giddens here point to the structural problem social reflexivity poses for liberal democracies given their reliance on authoritative expertise, but provide broad visions of reform rather than engage in institutional analysis. Nonetheless, social reflexivity as a two-part concept - the constant review of social practises in light of new information and the ironic reliance on routinely superseded knowledge - seemed crucial. While the social reflexivity concept made the dissatisfied lay public side of the case study material coherent, it was not obvious how it related to mainstream democratic theory. Thus I started my literature trawlings with the question: if liberal democracies devoted to economic growth are invested in the authoritative elevation and democratic unaccountability of the technoscientific, and community consultation opens up space for socially reflexive themes critical of that investment, what will this mean for the political and administrative arrangements found in NSW? The literature reviews were driven by the search for the analytic tools begged by this question. My first foray was into literature on Australian and international local governance (Ashford, 1982, Blunkett and Jackson, 1987, Boddy and Fudge, 1984, Brown, et al, 1992, Chapman and Wood, 1984, Colebatch and Degeling, 1986, Gray, 1991, Jones, 1981, 1993, Mitchell and Brown, 1992, Parker, 1978, Power et al, 1981, Wild, 1978). These readings were instructive largely in that they did not explain how the issues first came about that local governments were expected to manage. Local governments in NSW bear minimal responsibilities, attracting the tag 'rates and rubbish' services. While they deal with development assessment, how they deal with development applications is prescribed by state governments. Structurally, they are cognisant of the make up and moods of their local government areas but whatever jurisdiction they have over their administration can be removed at whim by the NSW government. While socio-environmental controversies are inherently local phenomena, their genesis and resolution lie elsewhere. More normatively, local discontents are understood by a range of related theorists to point towards a need for a more participatory democracy. Classical democratic theory maintains that the private vices of individuals are enlarged into public virtue through participation in political life (Arendt, 1965, 1972,

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MacIntyre 1988, Pateman 1970, Rousseau, 1913). I found a substantial literature that used this premise to sustain a communitarian critique of possessive, individualist liberalism as impoverishing democracies and their citizens by denying the political relevance of common identity, cooperation, and shared purposes (Benhabib, 1992a, 1992b, 1994, Barber, 1984, 1988, Baynes 1988, Botwinick 1985, Breiner 1989, Dahl 1989, Etzioni, 1993, Goodin 1990, Gutman 1985, Harrison 1993, Hirsch 1986, Lawrence 1991, Morton, 2000, Oldfield 1990, Parry 1989, Pateman, 1970, 1979, Sandel, 1982, 1984, 1996, Schwarzenbach, 1991, Thigpen and Downing 1987, Walzer 1990). From this perspective, consultation constitutes a corrective to liberal democracy's defects by engaging its citizenry so as to enrich democracy. This argument that can be found in administrative literature and its critiques (Arnstein, 1969, Baldry and Vinson, 1991, Cotgrove and Duff, 1980, Dunleavy, 1982, Ficher, 1993, Griffin, 1991, Loveday, 1972, Poisner, 1996, Renn et al, 1993, Robinson, 1993, Runchie, 1978, Sandercock, 1975, 1986). In the small ecopolitical literature, community consultation is seen as indispensable to the achievement of ecologically sustainable development, a way of reversing the addiction of political elites and consumers to economic growth (Doherty and de Geus, 1996). However, the understanding of consultation as participatory contrasted sharply with that articulated in parliamentary debate and policy documents where it appears as a strategy to satisfy the concerns of local groups within limits tolerable to the mandated political representatives of the majority (Wilenski, 1977). The participatory understanding of consultation, while crucial for understanding the normative orientation of many socio-environmental groups, did not fit the case study material as a whole. A review of urban sociology literature proved an excellent companion to the task of reviewing and characterising urban policy and its conflicts in Sydney. This literature moves from the optimistic view that urban social movements have the potential to achieve equitable socio-political transformations to more recent work emphasising the weakness of 'locational conflicts' in the face of global economic patterns (Castells, 1983, Davison, 1978, Dunleavy, 1980, Halligan and Paris, 1984, Katznelson, 1981, Kilmartin et al, 1985, McLoughlin and Huxley, 1985, Mullins, 1977, Paris, 1983, Parker and Troy, 1972, Parkin, 1982, Pickvance, 1976, Saunders, 1981, Troy, 1981, Williams, 1983, Zukin, 1980). The field has generated solid national and regional analyses of Australian urban policy that analytically connect economic processes to the spatial form of cities. These analyses fit the WS/HN region very well, demonstrating that rapid urban development has polarised Sydney into the wealthy east and

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impoverished west (Berry and Huxley, 1992, Fagan, 1986, Gutjahr, 1991, Humphreys and Walmsley, 1991, Morgan, 1987, Sandercock, 1974, Stillwell, 1989, Toon, 1988, Urwin and Searle, 1991). The urban sociology literature also underpins analyses of the green ban movement that arose in Eastern Sydney in the 1960's and 1970's (Mundey, 1981, Roddewig, 1978) pivotal to understanding how the consultative strategy came to be embedded in the EP&A Act. However, the urban sociology literature fails to thematise this translation of urban protest into administrative law, a reflection of the limitations of Marxist styles of analysis. I consequently looked for a theory examining the patterns of negotiation between interest groups and states in liberal democracies. The corporatism literature presented itself, analysing tripartite arrangements between state, capital and labour limiting industrial conflict (Birnbaum, 1982, Cox et al, 1987, Crouch, 1983, Fulcher, 1987, Gerlich et al, 1988, Gerritsen, 1986, Gobeyan, 1993, Hearn, 1985, Jordan, 1981, Lijphart and Crepaz, 1991, Loveday, 1984, Martin, 1983, Panitch, 1980, Parsons, 1988, Rhodes, 1985, Schmitter, 1983, 1989, Stewart, 1991, Streeck and Schmitter, 1985, and Streeck, 1992). Despite its economic focus, the corporatist framework has been extended to analysis of relatively stable national negotiations concerning ecologically sustainable development (McEarchern, 1993). My case study material typically featured resident action and environmental groups, groups with low levels of organisation and little discipline over its members. Such group behaviour is beyond the reach of the corporatist ideal. Corporatist literature, constituted in opposition to pluralist political theory, essentially describes cases where interest group member preferences are able to be aggregated and represented in a negotiation. An account that does fit socio-environmental groups can be purchased by viewing them as new social movements (Eyerman and Jamison, 1991, Offe, 1985a, 1985b, Tarrow, 1988, Touraine, 1981), analysed in neomarxist crisis theory as a product of late capitalist societies. According to crisis theorists the incompatibility of liberal representative democracy and capitalism is revealed in the entrenched dilemmas of the post WW2 Welfare State caught between dependence on volatile economic growth and the limits to legitimation procured with economic benefits. In this analysis, the appearance of new social movements, driven by identity and ecological concerns, is indicative of the rigidity of the capitalist liberal polity (Habermas, 1988, O'Conner, 1987, Offe, 1984). Neomarxist crisis theory is reminiscent of Beck and Giddens' warnings about the side effects of technoscientific hegemony but reads social unease over

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socio-environmental degradation as displaced class struggle. This critique is neatly countered by conservative crisis theorists who argue that the welfare state is overloaded - driven to unsustainable levels of public spending by extortionist interest groups encouraging a handout mentality among the general population (Buchanan and Wagner, 1977, 1978, Crozier et al, 1975, Olson, 1971). The commonality between Marxist and conservative crisis theory lies in their emphasis on structural flaws embedded in our political and economic arrangements suggestive of catastrophic futures. Crisis literature is compelling but polemical, pointing to either the rejection or reassertion of liberal capitalism, positions that lined up with the polarised understandings of the democratic role of consultation I had set out to analyse. I then read social and public choice theory along with political history and philosophy in the effort to grasp both the relentless success and woeful shortcomings of liberal democracy. I clarified that an alliance exists between the individualist strand of liberal philosophy that emphasises the prioritisation of private (economic) life over the potentially coercive state (Ashcroft, 1986, Bramsted and Melhuish, 1978, Hamilton et al, 1970, Pocock, 1975, Poggi, 1978, Sabine and Thorson, 1973, Somers, 1993, 1995, Uhr, 1998), and the positivist idea arising out of economic theory that individual preferences can be aggregated to form a basis for political authority (Arrow, 1951, Brennan and Buchanan, 1985, Brennan and Lomasky, 1989, Elster, 1986, Goodin, 1986, 1990, Riker, 1982, Sen, 1982, 1986, 1987, 1995, 1997, 1999, Tullock, 1987). This constellation of liberal and aggregative ideas is normatively minimalist, in sympathy with the 'realist' or sceptical view that mass democracy can only be secured by relying on competing political elites (Schumpeter, 1961). This democratic paradigm is implacably apposed to the participatory promotion of civil virtue, seeing individual preferences as derived from private life, requiring minimal representation and coordination so as to prevent the formation of overbearing states. Inglehardt's widely cited thesis that a competition has developed between materialist and postmaterialist values arises out of this theoretical framework (1977). This constellation of economic theory, aggregative democratic principles, and representative institutions supporting administrative practises heavily dependent of aloof expertise, has become entrenched in the post World War Two period. It is a paradigm that supports the accusation that socio-environmental groups attempt to subvert electorally secured political mandates to pursue economic growth policies. An accusation that is a pivotal component of the case study material.

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While the categories of individual, preference and aggregation are dogmatic and reductionist, easily deconstructed and contextualised, the fact of liberal -aggregative democracy's success remains. Reading German system's theorist Luhmann (1979, 1982, 1989, 1990, 1993) as a political sociologist was instructive at this point. Luhmann argues that the fictions supporting the aggregative conception of liberal democracy are an evolutionary achievement - the point not the problem. Luhmann arrived at this conclusion by cybernetically overhauling Talcott Parsons' functionalist body of work so as to reject action theory. He denies that modern society can be grasped as the aggregation of personal encounters. He argues that modern society, in contrast to stratified (feudal) society, is differentiated according to function. Distinguishing between consciousness and communication, Luhmann asserts that: "Society is not composed of human beings, it is composed of the communication among human beings " (1990:30). He argues that as communication has become dense, areas of functional specialisation, such as upholding law, securing government, pursuing profit, form systems: "a plurality of social systems have come into being that combine intense sensibility to specific questions with indifference towards everything else" (1990:31). Luhmann makes a set of mutually reinforcing propositions about these social systems: • every system, constituting itself by focusing on its particular topic,

perceives everything around it, including other systems as environment;

• this environment is always more complex than the system; • the system represents its environment to itself according to its own

needs for information and orientation; • a system constitutes itself and deals with its environment through its

code that frees a system to act decisively but precludes thought outside of its dichotomy:

Table 1.1 Systemic Codes System Code

science true/false law legal/illegal politics government/opposition economy profit/loss • systems are closed to one another (autonomous in the sense of being self referential), reacting to rather than perceiving each other.

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Luhmann's analysis of the political system fits the behaviour of liberal-aggregative democracies while dispensing with their liberal individualist baggage. For Luhmann, legitimation cannot be a matter of social consensus but is only a question of the popularity of the current government as compared to the popularity of its political opponent (1990:16). Aggregations of electoral preferences and public opinions in terms of the government/opposition code performs the function of radically reducing the complexity of the political system's environment, without which democracy could not survive. The participatory utopia is dismissed not because it contradicts the sanctified picture of liberal individuals, but because participation interferes with the ability of systemic domains to function. I found a political sociology in Luhmann's body of work that integrates SSK's findings. Science, for Luhmann, is a system, internally differentiated into disciplines and subdisciplines, but differentiated as a whole from everyday knowledge. In Luhmann's scheme, scientific analysis doesn't solve problems, it multiplies them by producing more truths, falsehoods and technical realisations. He observes, along with SSK scholars, that society and technology have interpenetrated, having a simultaneous rather than causal relationship (1993:100), crucial phenomena routinely ignored in conventional socio-political thought. He agrees with Beck and Giddens that conventional notions of political steering and administrative control are naive in the face of the political system's confrontation with the unintended consequences of its, and other systems', former actions. However, dismissing the relevance of everyday social life and lining up with the conservative crisis theorists, Luhmann sees the complex interdependencies in system environments as aggravated by the welfare state's sensitivity to transient public opinion that allows new topics to be politicised. The resulting expansion in decision-making converts dangers into risks, making undesirable outcomes attributable to decision-making (rather that God, luck or nature). What is for Beck and Giddens social reflexivity requiring political mediation, is for Luhmann impotent protest against differentiated society's nature as an open experiment. Luhmann's dense concept of complexity - systems built on the reduction of complexity though dyadic codes productive of further complexity in their interacting effects - offers significant analytic advantages. Like the concept of social reflexivity, the systemic complexity concept makes significant aspects of the case study material biddable. Seeing multiple systemic domains only dimly perceptive of each other, makes poor communication and coordination

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between the technoscientific, economic, legal, political and administrative domains explicable and predictable. Luhmann's scheme is ideal for considering the outlook of public administrative agencies which are organised around topic/tasks (The Water and Sewerage Board, The Department of Planning, the Waste Management Authority, The Environmental Protection Agency). However, Luhmann's scheme is blind to the world of everyday life and its relationship to systemic domains. I would have to disregard social reflexivity entirely if I were to agree with Luhmann that people manifest no social existence beyond the system roles that they play. There is no shortage of company in the disputation of Luhmann's reduction of the social to the undefined muddle of systems' environment (Benhabib, 1994, Cohen, 1988, Habermas 1987). Looking for a more dynamic and contemporary framework to understand the rise of the consultative strategy than that offered by participatory democratic theory, neomarxist crisis theory or urban sociology, I explored debates centred on the democratic role of civil (associational) society (Berman, 1997a, 1997b, Cohen, 1988, Cohen and Arato 1992, Foley and Edwards, 1996, 1997, Latham, 1988, Putnam, 1993, 1995, Schudson, 1994, Seligman, 1992, Walzer, 1991), along with debates on 'social capital' - networks of civic engagement - (Cox, 1995, Norton et al, 1997, Onyx and Bullen, 1997). These literatures bring out the central role of civic groups in democracies alluding to both their conservative role in maintaining social integration and their radical role of voicing emergent social themes. This conservative/radical tension is resolved in deliberative democratic theory into which the civil society and social capital literatures naturally lead. Naturally, because when civil society, the 'plurality of voluntary associations and groups' turns to reason giving in front of a 'gallery of citizens', we move into the realm of deliberation in the public sphere (Bohman, 1996:136). The deliberative democracy literature, building on an elided deliberative element in representative democracies, is careful not to overburden 'virtuous' citizens as participatory theory does, but maintains the critique of the liberal-aggregative democratic paradigm's unrealistic thinness (Bohman, 1996, 1999, Benhabib, 1994, Cohen, 1989, Cohen and Rogers, 1993, Dryzek, 1987, 1990, 1995, Elster, 1998, Fishkin, 1991, Gutmann and Thompson, 1996, Habermas, 1989, 1994b, 1995, 1996, 1998, Honneth, 1998, Ingram, 1993, Knight and Johnson, 1994, McCarthy, 1994, Manin, 1987, 1994, Miller, 1992, Rawls, 1971, 1993, 1995, Rosenfeld and Arato, 1998, Sanders, 1997, Schudson, 1994, Shelly, 2001, Sunstein, 1988, Uhr, 1998, Wolin, 1993). Important for the interpretation of my case study material, the deliberative

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literature is attuned to social reflexivity - capturing the resolution of social unease into issues championed by civic organisations. Themes which ultimately circulate in public spheres - realms supporting discourse about matters in common11 - as political topics of general relevance (Brooke, 1998, Calhoun, 1992, Fraser, 1992, Habermas, 1989, 1996). I found deliberation to be a flexible and athletic concept, serving to link local, regional, and general debates, with the responses of the political executive (including law making) and its administration. Furthermore, the notion of debate as means of informing, cleansing and generalising preferences, before their aggregation and representation, clarifies the contours of the conflict between participative and liberal aggregative democratic principles as part and parcel of the project of mediating between them. Consultation can then be defined as deliberative and retrieved from its polarised understanding as an unfortunate deformation of preference aggregation or an inroad into a participative utopia. Three strands within deliberative democratic theory can be differentiated: Rawls' precommitment model, Habermas' procedural model, and the dialogical model (Bohman, 1996:24), the latter a camp into which we can place Giddens and Beck's project of reflexive democratisation. Rawls and Habermas dominate debate concerning the deliberative framing and reform of modern democracies. Rawls attempts to modernise democratic theory from within the liberal tradition. He takes religious conflict, the reformation, as his point of reference, asking "how is a just and free society possible under conditions of deep doctrinal conflict with no prospect of resolution?" (1993:28). The answer: accepting a 'veil of ignorance' that privatises deep conflicts so as to concentrate on developing an overlapping consensus on justice to guide public debate. Pluralism has to be made 'reasonable' (Rawls, 1993:25, ftn 27). Even if this theory could cope with the religious and cultural pluralism characteristic of modern, multicultural societies, it cannot cope with the depth of contestation involved in questions of socio-environmental amenity, which raise entwined epistemological and legitimative questions. Widespread reflexive critique of modernity's core institutions is denied in the very notion that a precommitment concerning the content of political discourse constitutes a viable way forward.

In contrast to Rawls, the dialogical deliberative theorists demonstrate an

11 The print and electronic media, and more recently the Internet, form the networks of

pubic communication that support these public discourses.

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affinity for the SSK perspective in their canny, green grasping of social reflexivity. Dialogical theorists point to the outing of experts as 'powerful tribes' (Knorr-Cetina, 1995:141) viewing both expert and lay perspectives as essentially parochial, disputing that 'truth' can arbitrate political conflicts. The relationship between knowledge and power is unpacked by Bohman who points out that social constructions become facts as part of the entrenchment of power relations and their institutions: "[t]he public activity of the critic is to point out new patterns of relevance (Bohman, 1996:229). Access to political dialogue by emergent or suppressed groups is viewed by dialogic theorists of deliberation as crucial to the replenishing of political legitimacy (Bohman, 1996, Dryzek, 1990), a position that aligns with the views of Beck and Giddens. Despite this radical (and I believe realistic) epistemological stance, dialogic deliberative theory does not offer a satisfactory explanation of either the success and tenacity of the liberal-aggregative conception of democracy or the precariousness of deliberative reforms such as community consultation. Luhmann's thesis that modern society is the outcome of differentiated systemic domains that are by nature indifferent to alternative viewpoints is either misunderstood12 or ignored. Both reflexivity and complexity must be captured if a deliberative analysis is to bear fruitfully on the polarisations evident in the WS/HN case study material. Habermas' procedural version of deliberative theory comes closest to fitting this bill. Habermas overcomes the polarisation between liberal-aggregative and participatory (radical) democracy by emphasising the co-originality and mutual conditioning of private and public autonomy. He argues that private, liberal rights to free speech and association enable the broad and inclusive discussions capable of legitimating the coerciveness of the resulting laws (1996). His distinction between system and lifeworld (Habermas, 1987) in large part captures social reflexivity and systemic complexity within the one frame. Against Luhmann he argues that the lifeworld is that organic, communicatively organised social world that systems differentiated out of. Systemically organised spheres of action achieve independence from the lifeworld by replacing reliance on the discursive achievement of mutual understanding with abstract mechanisms of co-ordination - money and power. These media have facilitated the development of complex, self-referential domains of activity that are now independent from, and indifferent to the need 12 See, for example, Bohman's chapter on social complexity (1996).

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of the lifeworld to maintain its communicative integrity. System and lifeworld cannot completely separate, systemic differentiation is dependent on extensions of communicative action and vice versa. For example, the system of universal schooling has, by generalising literacy and numeracy, produced a large, flexible and skilled workforce as well as a far more inclusive and informed polity. Universal schooling and skilled workforces are intertwined socio-economic developments. Political legitimacy is understood by Habermas as deriving from the lifeworld, the social bedrock in which systemic domains are ultimately anchored, in the context of the often ambivalent interaction between system and lifeworld (Habermas, 1987). The system/lifeworld schema contrasts with Luhmann's distinction between system and environment which collapses the lifeworld into the undifferentiated muddle that is environment, so denying any depth, or anchor, to political legitimacy. Habermas, moving on from his earlier neo-marxist crisis theory (1988), argues that the political system functions to mediate between system and lifeworld, picking up and developing the constitutionalist and civic republican strands of the liberal tradition within his theory of communicative action. Unlike Rawls, no restriction is placed on topics of discussion feeding into the political domain. Habermas is instead focused on the procedural provision of spaces (public spheres) in which any issue (including constitutional ones) can be raised and discussed by new and established civic and political actors. Habermas (in response to Fraser, 1992) distinguishes between weak publics, that do not have direct access to the levers of government, and the strong publics constituted by the centralised forums of parliaments able to codify the results of their discussions into binding law. While centralised public spheres are delimited by parliaments, there is in principle no limit to the number and extent of discourses circulating throughout a society. His answer to Luhmann's challenge to reinterpret legitimation and political steering in the light of the self-referentiality of systems is law, which he interprets as the codification of normative messages into a legal/illegal format to which the systemic domains can react. This procedural view of deliberation encourages attention to how issues that arose in the social domain were then transformed into political deliberation, legal encoding and administrative application. However, Habermas' point of reference, as is well known, is the enlightenment - how to preserve its gains and ameliorate its costs. Building a scheme that can provide criteria to assess the successes and shortcomings of modernity has led Habermas to make strong judgements as to the 'universalist' or 'particular' and

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'irrational' potential of social movements. Habermas' rationalistic focus tends to ignore the insights of SSK, Beck and Gidden's insights concerning the social construction of technoscientific 'truth'. Consequently, Habermas relies on a troubled notion of epistemological neutrality despite the reservations of even his sympathetic critics (Rosenfeld and Arato, 1998). The categories, disciplines, knowledges, professional groups and agencies assumed by Habermas to be unproblematically available for the deployment of the legally encoded normative commitments are not clearly understood as congealed power relations.

Table 1.2 Schematic of Literatures

Liberal-Aggregative Democracy Participatory (Radical) Democracy Liberal-Aggregative Democratic Paradigm -possessive individualist strand of liberalism taken up in economic (public choice) theory emphasising public opinion and electoral processes - corporatism an extension within paradigm - conservative crisis theory, interest groups as extortionist and welfare state as overloaded, an argument within paradigm

Deliberative Democratic Paradigm - constitutionalist and civic republican strands of liberalism taken up to argue that deliberation cleanses and informs preferences re-emphasising civil society, public spheres and parliaments 1/Rawls - precommitment restricting debate 2/ Dialogic deliberative theorists (Beck, Giddens, Bohman) - debates construct truths 3/ Habermas - private rights enable debates that culminates in public law

Participative Democratic Paradigm - classical democratic theory - communitarianism and green communitarianism - social capitalists - radical, transformative participation of urban and new social movements

Consultation as adjunctive - within limits tolerable to elected representatives

Consultation as deliberative - preface and aid to decision making

Consultation as corrective - to impoverished liberal polity

Systemic Complexity Social Reflexivity - Luhmann's theory of system differentiation - functionally specialised systems built on the reduction of their environments' complexity through dyadic codes are productive of more complexity in their interacting effects

SSK, Beck, and Giddens - epistemological indeterminacy generative of social unease over modernity's side effects points to a politics of knowledge and implies a need for widespread dialogue and negotiation concerning technoscientific choices

These reviews, as shown in the above table, resolved themselves into an interpretive frame - three democratic paradigms, aggregative, participative and deliberative, yielding three views of community consultation's democratic role. The deliberative paradigm occupies a mediation position between the

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competing aggregative and participative democratic principles. Systemic complexity and social reflexivity, themselves begging political mediation, pose contemporary challenges to these democratic paradigms.

1.5 The Interpretive Frame

The story of New South Wales in the Post World War Two period generally, and of the WS/HN region specifically, can be summarised as one of rapid population and economic growth, underpinned by interconnected technoscientific commitments, that resulted in the following chronology: 1) rapid expansion of the built and industrialised environment causing

the degradation of the socio-environment; 2) a rise in contestation characterised by competing views of appropriate

land-use driven by pervasive social unease concerning this degradation;

3) a crisis of governance as a result of this contestation that made the established practises of liberal-aggregative, representative democracy problematic;

4) a resurgence of belief in the necessity of participative democracy resulting in the legal provision of an institutional space for citizens to influence and challenge socio-environmental decisions;

5) the instability of this subordinated participative solution apparent in the spectacle of stalemate over socio-environmental issues played out in simultaneously legitimative and concrete guises - 'steering-legitimative' dilemmas.13

This chronology, as Beck's quote opening this chapter implies, is unexpected, unanticipated and unintended. This case material, in short, constitutes a realisation on the ground of the aporias of conventional social and political

13 "As steering problems become more complex, irrelevance, misguided regulations, and

self-destruction can accumulate to the point where a 'regulatory trilemma' results. On the other side the political system fails as a guardian of social integration if its decisions, even though effective, can no longer be traced back to legitimate law. The constitutionally regulated circulation of power is nullified if the administrative system becomes independent of communicatively generated power, if the social power of functional systems and large organisations (including the mass media) is converted into illegitimate power, or if the lifeworld resources for spontaneous public communication no longer suffice to guarantee an uncoerced articulation of social interests. The independence of illegitimate power, together with the weakness of civil society and the public sphere, can deteriorate into a 'legitimation dilemma' which in certain circumstances can combine with the steering trilemma and develop into a vicious circle. Then the political system is pulled into the whirlpool of legitimation deficits and steering deficits that reinforce one another" (Habermas, 1996:386).

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theory of modern industrial democratic society. It highlights the wider, indeed global, interconnections between (communicated) public dissatisfactions, socio-environmental degradation, technoscience, economic growth, administrative systems, positive law and democratic governance that are suppressed, eclipsed or elided by the dominant socio-political idiom. Broadly speaking, conventional socio-political theory has been taken by surprise by developments on two fronts. On the one hand by the emergence of non-economic themes that register politically such as socio-environmental degradation, ecological endangerment and technoscientific risk.14 Themes that I place under the banner of social reflexivity about the negative consequences of modernity. And on the other by accelerating, self-referential domains of scientific, technological and economic activity that revolutionise social life behind the back of the legitimative apparatus of the state. Themes which I place under the banner of systemic complexity facilitative of modernity. The spiralling negative dynamic of these twin developments threaten to overwhelm governance. I argue that ultimately there is a need for an account of representative democracy capable of mediating between systemic complexity and social reflexivity. Armed with such an account, an analysis (necessarily normative) could be made of the relationships between socio-environmental politics, the consultative strategy and representative governance capable of mediating between the polarised epistemological (lay versus expert) and legitimative (participation versus aggregation) disputes that socio-environmental contestation has ignited. Systemic domains constitute themselves and view their environment from the point of view of their task - to win government, administer a program, secure profit, prosecute legal breaches, establish scientific truth etc. They distinguish between relevant and irrelevant information arising from their environment with the use of dyadic codes: government/opposition, client/non-client, profit/loss, legal/illegal, true/false. The effect of functional differentiation on the conditions of everyday life is complex, chaotic and ironic. A resident in the Hawkesbury-Nepean region concerned about its dying river is confronted with competing jurisdictions, contradictory organisational goals, destructive interconnected technological webs, a self concerned political system, and powerful economic forces all conspiring to 'eat the ecological future' (Flannery,

14 The other main group of non-economic themes revolves around identity issues such as

sexuality, gender, ethnicity and multiculturalism.

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1994). On the reflexive front, the relative freedom, peace and affluence of the post World War Two western democratic world has ironically led to a more critical citizenry and volatile electorates. Against Luhmann's contention that protest is impotent (because it typically rails against the logic of systemic differentiation (1989)), publics critically reflecting on the systems, practices and institutions structuring the conditions of their everyday life have forced the creation of institutional spaces for the voicing of their discontents. The consultative strategy, embodied in law in New South Wales (albeit precariously and temporarily) is a case in point. Civil energy, as my case material demonstrates, is capable of inspiring new laws, government agencies, ministries and departments, and of giving life and death to political figures and parties. Reflexive publics (Beck et al, 1994) may not be able to destroy systemic codes, but they are certainly capable of unpacking and interrogating the socio-environmental effects of such codes: how should costs (side effects) be distributed? Do scientific 'truths' and standards live up to their pretensions under the duress of local circumstances? How and by whom is technological success defined? Who benefits from the distribution of legal burdens of proof? And perhaps most fundamentally: how fair is the distribution of burdens and responsibilities implied by definitions of what is public and what is private? Such questions add up to a pervasive and subversive politics of knowledge deeply disturbing for conventional administrative procedure which thrives by bracketing such questions as irrelevant or meaningless. Consultations over specific controversies and policy questions in the WS/HN region have led to lay people probing and contesting expert orthodoxies, on which administrative decision making procedures are reliant, with wide political consequences. The political institutions that maintain a centre of power (previously dominated by monarchies) while facilitating mass suffrage and the spread of capitalism developed in the eighteenth and nineteenth centuries. These institutions do not currently possess the cognitive underpinnings capable of understanding, or action systems able to deal with, increasingly dense, multifaceted policy arenas characterised by systemic domains conditioning each other and everyday life in unforeseen ways. Reflexivity and complexity overwhelm the configuration of institutions and practices expressed in the liberal-aggregative democratic paradigm upon which modern western democracies are founded. A core inadequacy is the idealised notion that individuals possess private preferences that are amenable to ranking and

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aggregation. This notion underpins our current notions as to how collective choices are derived that can be politically represented, authorised and administered. This simplistic picture is belied on multiple fronts. It ignores the rich context of preference formation formed by the public interaction between emergent and entrenched political, social and economic actors and organisations. It denies the necessity to negotiate between minority and majority interests. And it denies the ambivalent and recursive nature of administering 'collective choices', administration that routinely leads to unintended consequences provocative of new rounds of protest. A participative reading of the consultative 'corrective' serves only to underline the incoherence of the liberal democratic paradigm's individualist dogma. The participative democratic principle, clinging to the classical notion that the private vices of individuals can only be transformed into public virtue via political participation merely inverts the aggregative democratic paradigm. While an ostensibly attractive framework in which to interpret the rise of social reflexivity, the participative utopia denies the necessity for professional political representation as a means of corralling social dissatisfaction into effective programs of action that can be read by functionally organised systemic domains. It implies a set of propositions adding up to a recommendation that society be de-differentiated, and one that Luhmann labels an exercise in futility. The polarised incoherence of the aggregative and participative paradigms of democracy in the face of reflexivity and complexity frames my approach to the analysis of the relationships between consultation, democracy and environmental politics. This interpretive framing, undertaken in Chapter 2, leads to the conclusion that liberal-aggregative democratic theory needs an overhaul and one that reconnects public, parliament, executive, administration and law15 in full view of the political system's role of mediating between the systemic and the social in today's conditions of 'radicalised' modernity (Giddens, 1990).

1.6 The Interpretive Scheme

The key elements of the interpretive scheme, an overhaul of democratic theory

15 Five elements of the political system which I read functionally as systems, historically as

institutions and phenomenologically as practises.

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in light of social reflexivity and systemic complexity, needed to be: 1) a theory of social evolution that comprehended the historical

development of complex, differentiated capitalist democracies and the regions within them, that have provoked such discontent and the avenues through which to express it. This theory needed to capture the differentiation of self-referential systems of action such as law, politics, science and economy as well as the rise of social reflexivity, percolating out of everyday life into civil society, and voiced through public spheres. It needed to place in a historical context the form which modern, western political institutions have taken, in particular, their dependence on economic growth;

2) a theory of democracy that transcended the persistent polarity between participative and aggregative democratic principles preventing reconciliation of professional representative politics with the political participation of an uneasy, critical citizenry - the systemic complexity of modern political institutions with the reflexivity of its clientele and electorates. In particular, this democratic theory must:

a) afford an account of the genesis and contestation over modern, positive, administrative law; and

b) facilitate analysis of an ambivalent, contested consultative strategy; and

3) an account of the politics of knowledge, the breaking open of certainties that formerly depended on distance between lay and expert. Contestation of technoscientific expertise infects the authority and legitimacy of administrative decision-making and is invariably found in socio-environmental controversies and the consultations convened in appeasement.

As to 1) and 2), I have placed my main bet on the current controversial champion of critical theory Jürgen Habermas in view of his long, critical engagement with Luhmann's theory of social differentiation.16 With the publication of Between Facts and Norms (1996), the German philosopher and sociologist has turned to considering how the concrete dilemmas of modern democracy might be understood and resolved by developing a more dynamic theory of jurisprudence. Aside from its roots in critical theory, this work sits

16 This engagement is incomplete. At the nub of the Luhmann/Habermas dispute is an

unworked through relationship between communicative and strategic co-ordination of action. However, pursuing the issues and literatures involved does not further my thesis.

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within an emergent literature on deliberative democracy which deals dialectically with the polarised aggregative and participative democratic principles. The deliberative paradigm makes the legitimacy of aggregation contingent on the adequacy of deliberations by the public, of representatives with the public and of representatives in public (not necessarily by or with all of the public). It asserts that the mutually informing and enriching divergent perspectives enables the formulation of mutually acceptable (if only because of their openness to revisitation) courses of action. Habermas' argument that deliberation in public spheres, codified into law, mediates between system and lifeworld is a defence and (more concrete) elaboration of his theory of communicative action. It rests upon his thesis that social evolution can be explained in terms of system/lifeworld interaction. The systemic media of power and money are insensible to action oriented to mutual understanding and are capable of irritating, disrupting and colonising the communicative rhythms of the lifeworld. It is such intrusion that provokes protest, the identification of legitimative 'deficits' and deliberation over reforms that, in effect, recalibrate system/lifeworld boundaries. Habermas rejects Luhmann's collapsing of all social phenomena into system environments, emphasising the grounding of the political in the lifeworld that justifies constraining systemic domains such that their activities are rendered trustworthy enough to be socially tolerable. By identifying law as the hinge connecting normative deliberation with the limits placed on the behaviour of the systemic domains (1996:56), Habermas derives a renewed logic for the separation of powers: all legitimacy is derived from the lifeworld, the themes of which are initiated in civil society, circulated in public spheres, debated in parliaments, and ultimately codified in laws which protect lifeworld values from corruption from illegitimate interests. Such corruption is viewed as illegal and illegitimate because it cannot be traced back to the expressed needs of the lifeworld. This integration of Habermas' theories of communication, deliberation and jurisprudence enable me to recast community consultations as exercises in deliberation and connect them with a formal theory of representation. That is, I conceptualise consultations as the creation and structuring of specific public spheres allowing the strands of public dissatisfactions to be untangled. The conclusions of such consultations are consequently taken up administratively in local/regional contexts and/or discussed further in parliament in view of its legislative and public accountability functions. This formulation yields the

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distance necessary for analysis and resolution of the controversy between viewing consultation as an illusory road into a participative utopia and consultation as the illegitimate and disruptive elevation of vocal minority groups. However, reliance on Habermas' theories also entwines me with his assumption that systemic domains are ends neutral and always amenable to re-programming in the light of new norms (Habermas, 1987, 1996 & 1998). Habermas' assumption that administrative systems have access to firm epistemological bases for action is unrealistic. In particular, it is an assumption that eclipses that (substantial) part of reflexivity that unpacks technoscientific encoding of truth, thereby ushering in a politics of knowledge. This unpacking is obscured by the self-understanding and public image of scientists as engaged in objective discovery of facts as opposed to the painstaking crafting of facts by expert communities revealed by SSK scholars. The SSK findings undermine important aspects of the legitimative foundations of post World War Two liberal democracies. The true/false code that scientific communities use to make sense of their struggles to 'black box' (Latour, 1986, 1993) a theory/fact/technology - seal it off from competing theories/facts/technologies - is an important component and tool of administrative systems. When a techoscientific black box fails to hold up in the face of competing framings, local circumstances or unwanted impacts, the authority of the administrative system invested in it is radically undercut. SSK's vivisection of the true/false code is generalised in lay critique of technoscientific black boxes provoked by socio-environmental insults to everyday life. The politics of knowledge pointed to by Beck and Giddens, raises acute questions about the universalising tendencies of Habermasian thought which go to the heart of the modernity/postmodernity dispute. However, I use the simple fact of the existence and purported function of the institutions of representative governance - their inescapable confrontation with policy dilemmas - to step around this meta-theoretical debate. I argue that it is worth extending Habermasian deliberative theory to consider the need for institutional mediation of lay/expert contestation, in light of its strengths as a mediating scheme between social reflexivity and systemic complexity. Habermas' strategy of deliberatively reworking the liberal doctrine of the separation of powers is a suitable way of approaching Beck's and Giddens' advocation of an institutionalised role for the critical lay public. I thus propose that community consultation be thought of as facilitative of, and of linkages

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between, local and regional deliberation, enriched centralised deliberation and positive law making; and that these interactions are activated, sanctioned and protected through public environmental rights. These three dimensions of consultative processes can be set out in the separation of powers logic as: 1) any process that allows citizens to instigate and/or participate in

debates that interrogate and elaborate on norms and their operationalising principles which ultimately conclude in parliament with legal codification;

2) public rights to initiate legal procedural review of contested decisions and processes so as to protect and enforce these legal codifications; and

3) any process facilitating dialogic debate of specific socio-environmental impacts, and of the expertise claiming to predict, manage and prevent them.

This definition has four advantages: 1) It allows consultative mechanisms to be read constitutionally, that is, to

understand that debate about what the rules should be and debate about the impact of the rules, have a relationship anchoring democratic legitimacy by encouraging conflict (that could otherwise threaten socio-political destabilisation) to inform deliberative law making and reform;

2) It integrates consultative mechanisms with representative government by emphasising their deliberative elements, strengthening the linkages between local, regional and state wide debates;

3) It places consultation at the centre of a democratically anchored jurisprudence that comprehends the connection between private and public autonomy - that the initiation of legal proceedings by individuals ensures the protection of politically negotiated common goals; and

4. It acknowledges the increasingly pervasive politics of knowledge, ceding a space within which laypeople can expose and hold accountable powerful subcultures of expertise - a necessary building block of an unfolding debate about how to hold technoscience accountable in view of its capacity to rewrite socio-environmental realities.

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1.7 Statement of Thesis

I here bring the formulation of consultation as the deliberative mediation between social reflexivity about socio-environmental degradation and the systemic complexity generative of that degradation to bear on the WS/HN case study material. This analytic strategy affords a subtle account of the recent history of the NSW State as it grapples with the rise of socio-environmental contestation, and yields an insightful diagnosis of the illnesses plaguing the liberal-aggregative democratic state in NSW. In this account, public unease and contestation about socio-environmental degradation thematise the repressed costs and compromises of 'progress' secured through economic growth. As the underwriter of industrial and urban expansion, the NSW State is implicated in socio-environmental degradation. Employed as an adjunctive solution to social unease over this degradation, the consultative strategy, enshrined in the Environmental Planning and Assessment Act (EP&A Act (1979)) has accelerated the unravelling of the configuration of theories, doctrines, institutions and practices of liberal-aggregative representative democracy in NSW. The consultative strategy has inflamed competition between aggregative and participative democratic principles, destabilising the political and administrative arrangements resting on the coherence of liberal-aggregative democratic propositions. This competition was embedded in the EP&A Act, keeping consultation out of the way of the political executive by making it conditional on the exercise of ministerial authority. The responsibility for undertaking consultations was pushed into state administration, a responsibility supervised by a new (Land and Environment) court. In systemic terms, an incompatible democratic principle was exported into another division of the (internally differentiated) political system. This contradictory institutionalisation of consultation, an attempt to parcel off the problem of the side effects of economic growth and leave intact the aggregatively anchored institutions and practices welded to economic growth, subsequently rebounded. This rebound has been experienced by the political executive, political parties and administration. Persistent controversy over the cancelling of consultative rights with ministerial discretion whenever they threaten to clutter the business of governance has dogged the political executive. Major political parties face an increasingly cynical, suspicious and volatile electorate. Socio-environmental issues reassert themselves through more, and more marginal,

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seats. Local and regional demands on political representatives, furthermore, undermine party discipline over its members, and are more likely to result in the election of independent members of parliament. Consultations have accelerated lay critique of the social contingency and unlegitimated riskiness of technoscience, and the administrative action that employs and regulates it, by providing forums in which laypeople can confront regulators and their experts. Administrative authority has been undermined the more its knowledge bases are revealed to be underdetermined and poorly legitimated. The increased contestation driven by tension between the consultative strategy and the aggregatively underpinned political system has culminated in a loss of clarity concerning the respective roles of, and pathways of, accountability between public, executive, courts and administration. This loss of clarity has since been 'resolved' by gutting the participative provisions by amendment. The original liberal-aggregative democratic configuration has been restored on the basis of an explicit assertion that economic growth is paramount, its socio-environmental impacts can be overseen administratively, and that the political and economic uncertainties the consultative provisions have wrought therefore need to be sacrificed in the public interest. This reassertion takes place in front of a reflexive audience, participants in, and observers of, the consultative experiment who have critically confronted the shortcomings of the political system in the face of socio-environmental dilemmas for twenty years. The controversiality of this legislative overwriting indicates that this matter is by no means settled and is likely to be played out in marginal seats and party/independent contestations in the houses of parliament. This analysis points to the possibility of institutionalising consultation, not as competing democratic principle the political executive is protected from, but as an indispensable component of reforms that reconfigure our democratic institutions and practises deliberatively. In such a realignment, consultations can be envisaged as sites of legitimate mediation between complexity and reflexivity that marshal and focus lifeworld responses to the side effects and blind spots of the systemic domains. In this envisagement, deliberation would result in legislation forcing systemic domains to recognise the socio-environmental limits to economic growth and establishing the public environmental rights to police this recognition. To the extent that such a reconfiguration of representative democracy does not occur, the entrenchment of inter-related steering and legitimative dilemmas such as that constituted by the WS/HN region, and ultimately the loss of the socio-environmental amenity

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lifeworld actors are fighting to preserve in such regions, would be predictable.

1.8 Map of Thesis Argumentation - Parts and Chapters

This dissertation is divided into four Parts. Part A, containing this introductory chapter explains the main research issue, that consultation over socio-environmental degradation cannot be analysed separately from democratic commitments and arrangements. It serves to orient the reader to the WS/HN case study material and explains how the literature reviews led to the framing of, and choice of an interpretive scheme brought to bear on, that material. An interpretive frame and scheme that yields the thesis that consultation over socio-environmental degradation has further destabilised a liberal-aggregative political regime under duress from the interrelated development of social reflexivity and systemic complexity . Part B concerns the relationship between democracy and socio-environmetnal degradation. Chapter 2 frames the dissertation by summating the histories, traditions and debates forming the polarised aggregative and participative democratic paradigms, and the deliberative democratic paradigm that reconciles their warring principles. Systemic complexity and the politics of knowledge are presented as book ends to these 3 democratic paradigms - contemporary challenges that neither the aggregative or participative paradigms of democracy are able to come to terms with. Arguing that only Habermas' procedural version of deliberative democratic theory is potentially robust and subtle enough to mediate between these challenges, I then develop the interpretive scheme in Chapter 3. After summating Habermas' theses on modernity, I review his argument that deliberation in the public sphere, codified in law, mediates between system and lifeworld. I then employ a dialogic extension to compensate for Habermas' neglect of the epistemological indeterminacy driving the politics of knowledge that makes unrealistic the notion that solutions can be simply technically formulated and administratively applied. The discussion then proceeds, in Part C, over two chapters, to deployment of this interpretive scheme to consider socio-environmenta debate and its legal codification in NSW. Chapter 4 characterises the liberal-aggregative architectonic of the NSW state, and its entry into urban planning that resulted in the 'green ban' socio-environmental contestations of the 1960s and 1970s in Eastern Sydney. I review the public and parliamentary debates triggered by

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these contestations and their legislative outcome - the EP&A Act (1979). Chapter 5 uses the procedural-dialogic deliberative interpretive scheme to analyse the tension between participative and liberal-aggregative democratic principles embedded in this Act and the struggles that ensued over them during the following twenty years. Part D presents the case study material, an entrenched steering/legitimative policy dilemma, narrating the stories and experiences of the same forty years from regional (WS/HN) and local (the Castlereagh controversy) perspectives. The history of socio-environmental degradation in the WS/HN region demonstrates how unresolved socio-environmental dilemmas were pushed west provoking a new wave of contestation. I thus demonstrate that the EP&A Act's consultative provisions did not alter the captivity of administrators to the liberal-aggregative democratic paradigm which locates authority in the representative executive. Nor did it substantially alter the tide of administrative momentum supporting urban and economic growth despite its effect on amenity. The case study on the Castlereagh Regional Liquid Waste Depot contamination controversy and the scientific investigations commissioned, and community Monitoring Committee convened, to resolve that controversy affords a concrete example of lay interrogation of administrative and technoscientific certainties. This interrogation revealed the fundamental epistemological indeterminacies of, and impoverished legitimative bases for, these certainties. The dissertation concludes in Part E, Chapter 8 by matching the diagnosis of a consultative strategy institutionalised in tension with liberal-aggregative representative governance, productive of entrenched steering/legitimative dilemmas, with a prescription. I envisage a deliberative role for community consultation capable of strengthening a deliberatively conceived representative democracy in our system mediated, reflexive society.

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Part B Democracy, Consultation and Socio-environmental Degradation

Ch 3 Interpretive SchemeAccount of the Habermas' theses on modernity, deliberative democracy and jurisprudence. A critique of Habermas' notion that administration is neutral given in terms of the politics of knowledge justifying a dialogic extension of Habermas' procedural deliberation.

Part C Socio-environmental Debate and its Legal Codification

Ch 4 Provocation of Socio-en. Contestation and Debate

NSW's liberal-aggregative regime is characterised. An account is given of State's entry into urban planning and its underwriting of socio- environmental degradation resulting in green ban contestation and parliamentary debates of a legislative solution.

Ch 5 The Environmental Planning and Assessment ActThe procedural-dialogic deliberative scheme is used to analyse the embedding of competing liberal-aggregative and participative democratic principles in the EP&A Act's consultative strategy that drove the strategy's controversiality and curtailment.

Part D Steering/Legitimative Dilemmas: The WS/HN Region

Ch 6 Dumping Ground: the creation of the west

Account of displacement of socio-environmental dilemmas into the WS/HN region via urban sprawl. Demonstration of the failure of consultative strategy to resolve the interlocked steering and legitimative problems the region's socio-environmental degradation posed.

Ch 7 Castlereagh Comunity Monitoring Committee

Analysis of a consultative forum conducted in conjunction with an environmental audit. This confrontation between lay/expert knowledges revealed the indeterminate knowledge bases and inadequate legitimative underpinnings of administrative actions.

Part E ConclusionCh 8 Democracy, Sustainability and Consultation

The consultative strategy has failed to arrest the unravelling of liberal-aggregative representative democracy in NSW in the face of contestation over socio-environmental degradation. The integration of consultation with representative democracy on deliberative grounds is prescribed on the basis that it would enable mediation between the reflexive and systemic necessary to address socio-environmental dilemmas.

Ch 2 Which Democratic Paradigm?Outline of the aggregative, participative and (precomitment, procedural and dialogic) deliberative paradigms of democracy. The challenges posed by the politics of knowledge and systemic complexity for democratic theory ground choice of Habermas' proceedural deliberation.

Part A An OrientationCh 1 The Thesis Outlined

Research problem, outline of Western Sydney/Hawkesbury-Nepean region, literature reviews, summary of interpretive frame and scheme, statement of thesis and chapter outline. Spatial, chapter and conceptual maps.

Figure 1.1 Outline of Chapters

A review of democratic theory and its relation to complexity, reflexivity and socio-environmental degradation grounds the choice of scheme through which to interpret the case study material.

The interpretive scheme is deployed to describe the factors driving contestation over amenity loss, their debate and embedding of polarised democratic principles in the EP&A Act.

The incoherant consultative strategy failed to arrest amenity loss in the WS/HN region, rebounding in further contestation

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Consultation and its analysis is inseparable from commitments to democratic principles

Interpretive Scheme (Ch 3) • Habermas' theses on modernity - system/ lifeworld interplay account of rise of systemic complexity and legitimation deficits.

Procedural deliberation (Habermas) mediates between social & systemic - law as outcome of deliberation

• Indeterminate knowledge bases of administrative action necessitates dialogic extension of procedural deliberation

Unstable institutionalisation of consultative strategy in EP&A Act.

Regional Case Study (Ch 6) 1961 - 2000

Local Site Case Study (ch 7) 1993 - 1995

Entrenchment of socio-environmental steering/legitimative dilemmas in WS/HN region despite EP&A Act's consultative strategy

Castlereagh CMC confrontation between local and expert knowledges reveals underdetermined knowledge and legitimative bases of administration

NSW's liberal-aggregative architectonic has unravelled in the face of contestation over socio-environmental degradation, a reflection of increasing systemic complexity and social reflexivity. The integration of a deliberatively understood consultation and representative governance prescribed.

Public Debate (Ch 4) 1945 - 1979

Statute Analysis (Ch 5) 1979 - 2000

Research Problem (Ch 1)

Interpretive Frame (Ch 2)

Aggregative democratic paradigm

Deliberative democratic paradigm - reconciliation of participative and aggregative principles

Participative democratic paradigm

• Habermas' deliberative democratic and legal theory links public debate, mandated governance, law and administration

Conclusion (Ch 8)

- Characterisation of NSW's liberal-aggregative architectonic - implication of NSW State in socio-en. degradation - Green Ban thematisation - Debate of legislative response

FFigure 1.2 Conceptual Outline

Social diff- erentiation Systemic complexity

Social reflexivity Politics of knowledge

Dialogic deliberation

Precommitment as to content of deliberation (Rawls)

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Part B

Democracy, Consultation

and Socio-environmental

Degradation

37

Chapter Two Which Democratic Paradigm - Aggregative, Participative, or Deliberative?

Liberal democracy may be taken to refer to the set of institutions - free elections, competing parties, freedom of speech - that make up the political system with which we are familiar in the west; or it may refer to the conception of democracy that underlies and justifies that system. The relationship between institutions and regulative ideals is not necessarily simple or one-to-one. The same institution may be justified from different points of view, although characteristically those who favour contrasting regulative ideals will aim to shape the institution in different ways (Miller, 1992:54).

2.1 Introduction

Contemporary debate over how democracies are best framed abreasts both emergent and established democracies, as it is preoccupied with the flourishing of civil energy outside conventional political and administrative structures. Civil opposition to totalitarian regimes in Eastern Europe and civil unrest over 'bads' systematically produced in western liberal democratic regimes have emerged simultaneously. In the west, the long term prospects of the dominant political parties born of labour/capital compromise are being debated in light of the rise of new social movements.17 Discussions about citizen/state engagement are increasingly taking place outside the terminology of elections, rank and file pressure groups and major political parties. These developments have refocussed attention on democratic theory and its dilemmas. It is prudent to fit the consultative strategy that arose in NSW into this context as there is no clear or obvious relationship between consultative mechanisms and representative political institutions. Indeed, as the cases detailed in Chapters 4 through to 7 demonstrate, consultation is in tension with the logic of representation mandated by aggregated individual preferences. Ironically, the literature on community consultation sheds little light on this tension because it does not rise far enough beyond the descriptive.18 Arnstein's paper of 1969, still

17 There are now many indications in the Australian literature relating to the politics of

the environment concerning this unsettling of conventional legitimation (Marsh, 1995). Politicisation is evident in the emergence of the green vote (Papadakis, 1990,1993, 1996) and survey findings showing support for government intervention over environmental amenity (ANOP , 1991).

18 For example see the collection of articles introduced by Rich and Rosenbaum (1981), or that edited by Munro-Clark (1992).

38seminal, listed seven levels of consultation which could all be considered valid depending on one's democratic precommitments.19 It is my contention that in order to develop a clear account of the relationship which consultation has to a changing legitimative landscape, debates about the constitution of democracy need to be brought to the foreground. Five relevant literatures converge on democratic theory: 1) discussion within the still dominant liberal-aggregative paradigm,

largely expressed in the language of public choice; 2) resurgent classical-participative critiques of liberal-aggregative

democracy; 3) the recent conceptualisation of democracy as deliberative, drawing on

the civic republican and constitutionalist strands of liberal thought and synthesising participative and aggregative principles;

4) exploration of the implications of the politics of knowledge, linking the interpenetration of technoscience and society to the emergence of critical and uneasy publics; and

5) Luhmann's idiosyncratic theory of modernity as a story of functional differentiation that draws attention to systemic complexity and also affords explanatory analysis of restless publics.

In what follows I consider the heritage, logic, shortcomings and quarrels of three democratic paradigms. The liberal-aggregative paradigm is dominant, currently providing the legitimative framing of the institutions of representative democracy. The participative paradigm harks back to the Athenian ideal and is unsympathetic to political representation per se. Having sketched this dichotomy in Sections 2.2 and 2.3, I turn in Section 2.4 to a theory and model of democratic governance that attempts to reconcile and transcend this polarisation. The emergent deliberative paradigm is founded on debate arising out of civil society rather than aggregated private interests or public participation, and suggests a reformist rearticulation of representative democratic architecture inclusive of consultation. Its main proponents, Habermas and Rawls, as well as the dialogic deliberative theorists, are compared. Section 2.5 lays out two challenges for any democratic theory -

19 There are numerous examples in this literature of authors taking and justifying a

position from this ladder (manipulation, therapy, informing, consultation, placation, partnership, delegated power and citizen control). Maywald (1988) and Richardson (1983), for example, conclude that the contentiousness of Arnstein's scheme is irresolvable.

39systemic complexity and the politics of knowledge. This interpretive framing of three democratic paradigms and two contemporary challenges to them functions to ground my choice of Habermas' recent procedural deliberative theory of democracy and jurisprudence.

2.2 Democracy as Aggregation

The liberal-aggregative democratic paradigm holds that collective choices are legitimately derived by ranking and aggregating individual preferences. The relationships between public, parliament, executive, administration and law are defined by the act of voting which provides both a political mandate to the winning party to legislate and administrate, and the means by which a government is held accountable. This paradigm is anchored normatively in the tradition of liberal individualism but conceptually in economic theory as is reflected in the term economic liberalism. It is unquestionably the dominant of the three paradigms considered, tying the doctrines, institutions and practices of representative governance into a coherent configuration with deep seated assumptions concerning human, social and political nature.20 The liberal paradigm takes as its point of departure Hobbe's assumption that a pre-political state of nature in which individuals existed in a war against all, necessitating a permanent, irrevocable contract with an absolute state - Leviathan. In their struggle against the monarchal-feudal system of government, post-Hobbsian thinkers - Althusius, Milton and John Locke in the seventeenth century, Rousseau, Christian Wolff and Thomas Paine in the eighteenth century (Bramsted and Melhuish, 1978:7) - posited a "fully formed pre-political civil society" (Somers, 1995:247) whose members have chosen to enter into a contractual arrangement with one another in order to gain protection of their selves and their property. In this story, representatives (space 3) are delegates only, tolerated for the purposes of collective decision making that will protect individuals and their property from one another. The 'other' of the coercive state is then perceived as a threat to the freedom of individuals, the spectre of what would happen if the State were allowed to develop its own agenda and interests (Somers, 1995:248).

20 There is a large literature concerning this history, including Ashcroft (1986), Bramsted

and Melhuish (1978), Hamilton, Madison and Jay (1970), Pocock (1975), Poggi (1978), Sabine and Thorson (1973), and Uhr (1998).

40Margaret Somers offers the following cognitive diagram of the political sociology of liberal individualism:

Figure 2.1 - Cognitive Diagram of Liberal-Aggregative Democratic Paradigm

Private Public

Space 3

Spatial "other"

Space 1

Space 2

"State of Nature"

A Priori Space Abstract Space Theological Space

Institutional State

(Absolute State) Coercive "other'

[Civil] Society

English People as sociological entity Autonomous

Representative Government Common Law De-institutionalised StatePrepolitical commerical/

propertied society

Direction of Power and Authority Foundational Direction

x xx

x

x

x xx

x xx

x

(Somers, 1995:245).

Liberal democracy has been extended conceptually from the historical - legitimative allegiances Somers summarises through the field of public choice, the application to politics of social choice theory, that was established in the post world war two period.21 This extension has revealed some conundrums inherent in the notion of prepolitical, private preferences. Public choice is understood by its practitioners to concern the "use of economic tools to deal with the traditional problems of political science", and is "a model in which voters, politicians and bureaucrats are assumed to be mainly self interested" (Tullock, 1987:1040-1041). It is structured around the use of mathematical representations and analyses that assume subjects conform to the postulates of

21 It is thus the democratic paradigm of a very particular period in which mass-

consumerist society, the dominance of parliament by mass political parties and capital-labour compromises evolved. An evolution that took place within the broader context of global partitioning into communist/capitalist and coloniser/colonised economies and socio-political orders.

41predictable, self interested behaviour.22 The rational choice framework excludes what Habermas calls communicative rationality - the co-ordination of individuals' actions through mutual understanding. It is the assumption that preference formation is grounded in strategic self interest that defines the liberal aggregative paradigm of democracy because it traces political action to the private rather than public domain:

... social choice theory, as an instance of a wider class of theories ... share the ... view that the decisive political act is a private rather than a public action, viz the individual and secret vote. With these usually goes the idea that the goal of politics is the optimal compromise between given, and irreducibly opposed, private interests (Elster, 1986:103).

2.2.1 Rationality and Preferences

The conception of political action as private and individual is vulnerable to objection that ordered private preferences, if not completely fictional (the purely economic man has been described as a social moron by Sen (1982:102)), exacerbate rather than resolve democratic dilemmas. Exclusion of the effect political debate has on preference formation23 means that conflict between individual liberty and collective choice cannot be eased. An example of tension between longstanding individual rights and emergent majoritarian values would be the offence Australian agriculturalists have taken to land clearing controls, introduced to limit habitat and species loss, considering it a violation of their right to make a living out of their property. While some theorists tackle this problem by advocating preference 'laundering', excluding harmful preferences from aggregation (Goodin, 1986), the rational choice framework does not possess the normative language to account for such interventions. Elster objects that the rational choice framework is simply not up to the task of grounding a democracy, that it:

... embodies a confusion between the kind of behaviour that is appropriate in the marketplace and that which is appropriate in the

22 The parent-field of social choice is concerned with the derivation of social choice

through the aggregation of individual preferences and originates in Arrow's seminal work Social Choice and Individual Values of 1951. I should point out that it is easier to defend the aggregation of individual preferences as a methodological framework than as a normative position on democracy as the latter involves more, and more tenuous, assumptions.

23 Arrow structured his theorems to exclude the dimension of discussion (1951:7). Sen, explains that "... economists came to be persuaded by arguments presented by Lionel Robbins and others (deeply influenced by 'logical positivist' philosophy) that interpersonal comparisons of utility had no scientific basis..." (1999:352).

42forum. The notion of consumer sovereignty is acceptable because, and to the extent that, the consumer chooses between courses of action that differ only in the way they affect him. In political choice situations, however, the citizen is asked to express his preference over states that also differ in the way in which they affect other people. This means that there is no similar justification for the corresponding notion of the citizen's sovereignty, since other people may legitimately object to social choice governed by preferences that are defective in some of the ways I have mentioned. A social choice mechanism is capable of resolving the market failures that would result from unbridled consumer sovereignty, but as a way of redistributing welfare it is hopelessly inadequate ... the task of politics is not only to eliminate inefficiency but also to create justice - a goal to which the aggregation of pre-political preferences is a quite incongruous means (Elster, 1986:111).

Brennan and Buchanan attempt to extend the normative reach of public choice theory by drawing a distinction between ordinary and constitutional politics, to use their metaphor, between the rules constraining the game and the game itself. In their contractual constitutionalist scheme, they argue, it is easier to reach agreement about rules because their generality means they are distant from one's immediate material interests (1985:28-29). However, Brennan and Buchanan acknowledge that such a constitutional moment cannot be accounted for within rational choice assumptions:

It should be evident, however, that the basic analytics of 'positive public choice' cannot be readily extended to explain changes in the basic rules of political order that are necessarily 'public' in scope. The individual actor in the positive public-choice model does not act contrary to his defined self-interest, even if it is not so easily defined as some of the simplistic exercises might suggest. To the extent that 'investment' in institutional analysis, design, argument, dialogue, discussion, and persuasion is costly in a personal sense, the individual of the orthodox model will forgo such investment in favour of more immediate gratification of privately directed desires. Why should anyone do 'good'? There is no way that economists who stay within the strict limits of the discipline can respond to such a question; they cannot manipulate utility-maximising actors so as to offer a satisfying response (1985:145-146).

A further problem with the rational choice framework concerns the indeterminacy of aggregations: "... there is no rule for aggregating individual preferences that is obviously fair and rational and thus superior to other possible rules..." (Miller, 1992:59). This indeterminacy forms an important caveat to discussions about environmental groups and 'issue movements' as

43electoral phenomena. The political representation of green votes is dependent on the electoral system's receptivity to minority interests. The German Greens have achieved sufficient numbers in parliament to be required as a coalition partner because of two institutional conditions: that proportional parliamentary representation is achieved when a party receives five per cent of the national vote; and electoral campaign costs are refunded to parties receiving more than half of one per cent of votes (Detlaf, 1997 and Wiesanthal, 1998).24 In a first past the post, winner takes all system, such as that in the UK, green interests are unlikely to achieve parliamentary representation. Secondly, the placing of economic and environmental 'values' on a single preference ordering for the purposes of surveying is open to the charge of distorting the phenomena sought to be measured. Inglehardt's thesis that societal values are evolving from being 'materialist' to being 'post-materialist' (1977) is widely quoted in literature and debates permeated with rational choice language. Significantly, this thesis has neither been proven or disproved as no definite trends have emerged in electoral behaviour (Marsh, 1995:117-118). The absence of a definitive trend suggests that something other than an evolution of values is taking place. Increased electoral volatility may indicate a frustration with political and administrative arrangements that preference analysis is ill equipped to capture. More detailed surveying suggests that green interests register strongly in the population when placed in the context of a long time frame (ANOP, 1991).

2.2.2 Hostility to Groups and the State

Emphasis on individual preferences make interest groups appear problematic, suggestive of undue advantage and sectionalism. The classic public choice work on interest groups is Olson's The Logic of Collective Action (1971). According to Marsh:

Olson's theory had wide-ranging, even explosive, political implications. It implies that interest groups are irredeemably factional and self-seeking. It implies that interest groups possess no larger interest than the preservation of sectional privileges and that the motive for group formation is selfish and exploitative. It presumes as an ideal a 'frictionless ' state in which groups would be absent (Marsh, 1995:165).

24 These conditions are set out in the special electoral law that expands on the 1949 basic

law (constitution) drafted under the supervision of the occupying allied forces.

44Olson's central thesis is "that large or latent groups have no tendency voluntarily to act to further their common interests" (1965:165). That is, it does not serve the interests of most voters/citizens to lobby because, logically, the personal cost of providing part of a collective good exceeds the benefit of receiving it. Olson argues that unless groups are very small, they attract members only by offering incentives and/or exercising coercion such as making membership compulsory. Thus, Olson's argument implies that special interest groups systemically exploit the unorganised masses.25 The environmental correlate of Olson's analysis originates with Hardin's (1968) argument that the 'tragedy of the commons' is a result of individual self-interest in exploiting common resources and neglect of their stewardship.26 These tragedies certainly exist and are systematically produced. The classic modern example is the relationship between rising levels of car ownership and corresponding neglect of public transport systems. however, resident action groups (RAGs) and environmental groups so not sit easily on the continuum Olson presents. To the extent that they are placed at the small group/special interest end, one can indeed argue that the values espoused in a local controversy are highly particular. Virtually all socio-environmental controversies exhibit this characteristic - wetlands, forests, rivers, estuaries are all located somewhere. However, the values appealed to in a localised controversy can be simultaneously local, regional (affecting a catchment), national (affecting ecotourism), international (affecting the biosphere), and futuristic (affecting intergenerational equity). The concerns of a local group can attain international significance if they can be successfully interlinked with national and international interests. Civil energy over environmental degradation cannot be captured using the self-interest postulate as it is not exclusively selfish or self serving:

Environmental politics ... is less dominated by economically self-interested individuals and groups ... [and is] refreshing evidence that principles still have a place in politics ... Because environmentalists are advocates on behalf of future generations and other species, not just themselves, they frequently occupy the moral and political high ground (Paehlke, 1998:152).

25 Olson acknowledges that his argument only holds for strategic, rational behaviour.

Outside of this framework, Olson refers only in passing to non rational, irrational and ideologically driven behaviour (1971:161-165).

26 A widely quoted analysis of a major social question which is entirely asocial. See Ostrom (1990).

45The liberal-aggregative paradigm ignores the role movements and groups play in bringing issues into the public domain that have been eclipsed by prevailing political and administrative arrangements. As Somer's distillation of the components of the liberal paradigm indicates, liberalism has profound difficulty accounting for the welfare state's size, influence and responsiveness to economic inequality. Liberal hostility to the welfare state has enjoyed a resurgence as arguments advocating a dramatic reduction of the functions governments have accumulated in the post World War Two period have been embraced. This global economic liberalist turn has grown out of the agendas of the representatives of global capital triggered by the economic downturn of OECD countries during the 1970s and 1980s, and deep concern about the 'ungovernability' of the (western) democracies (Crozier, Huntington and Watanuki, 1975).27 Economic recession has been attributed to the overblown functions of the state by public choice theorists who believe Keynes' economic theory legitimised the abandonment of prudent fiscal policy, unleashing constraints on pork barrelling (Buchanan and Wagner, 1977, 1978). Economic liberals recommend off-loading government functions onto markets where interactions are to be between individuals, enforcing a 'level playing field' between individuals who are encouraged to insure against ill health, negotiate their labour contracts, pay for their children's education etc. The self-interest postulate here culminates in the diminution of the state as an agent for addressing collective needs (Pusey, 1991). The solution to the tragedy of the commons according to this logic is to force individuals to pay for the public environmental amenity they consume through environmental taxes and privatisation of the ecological commons.28 Anderson counters that the environmental policy domain is mis- rather than over-regulated (1998:13), observing that bureaucratic and industrial objectives tend to reinforce each other at the expense of environmental quality. More fundamentally, Gundersen disputes the claim that privatising environmental amenity will in fact relieve demands on the state:

27 The Crisis of Democracy, commissioned by the Trilateral Commission, is described by

Frieden as "the executive advisory committee to transnational finance capital" (1980:69), a powerful international lobby group comprised of representatives of business, academe and trade unions from Western Europe, North America and Japan, that has pushed for open borders for capital flows and the liberalisation of trade.

28 Goodin articulates the moral repugnance many feel about trading in pollution by comparing it to the sale of religious indulgences by the catholic church (1998).

46[Environmental] externalities can, with some difficulty, be internalised in the price structure, but only by political means... Even if economists were to succeed in integrating all environmental externalities into price schedules by pricing trees, clean air, species, and views of the Grand Canyon, all the affected buyers and sellers would have to agree collectively that those 'scientific' calculations are fair or acceptable. Such agreement presupposes an institutional framework; it presupposes politics. Hence, the more markets are expanded, the more environmental externalities are produced and the greater the need for political intervention. Environmentally, markets are in this sense parasitic on politics (1995:34).

"Free market environmentalism" (Anderson and Leal, 1998) fails to appreciate that individual choice is constrained by an already structured world. Sociological analysts point out that entrenched technological systems operating without regard for environmental amenity are difficult for individuals to disengage from (Giddens, 1984, 1990, 1994), and are frequently beyond or tenuously connected to political choice (Beck, 1992, 1994, 1995a, 1995b). Choice and preference are far less momentous when placed in this context.

2.2.3 Underdetermination of Aggregations

The aggregative paradigm of democracy aligns with the 'realist' view of democracy associated especially with Schumpeter who argued that the absence of widespread political participation and the existence of highly formally organised groups of competing political elites is the only possible political landscape and should therefore be regarded as normal (1961:250-284). The scepticism of the 'realist' view of democracy, in combination with the analytical athleticism enabled by public choice theory's mathematical formalism, have culminated in Riker's view that democratic action is not possible:29

Social choice theory seems to undermine the liberal view of democracy in a systematic way, regardless of the precise function that is assigned to the act of voting in elections (Miller, 1992:60). Indeed, public-choice theorists are often charged with professing profoundly anti-democratic sentiments (Brennan and Lomasky, 1989:8). Starting with Arrow's (1951) famous essay, a steady stream of theorems has emerged proving that aggregative collective decisions

29 Mackie (1998) vigorously disputes Riker's findings. On the significance of Riker's

findings, see also Knight and Johnson (1994), and Miller (1992).

47do not satisfy the most rudimentary and innocuous normative axioms one might with to impose (Mueller, 1989:87-88).

Preference aggregation is an insufficient grounding for a democracy. The Weimar republic of Germany, ending in the triumph of fascism, exemplifies this democratic underdetermination. No stable majority was able to be formed in the federal parliament30 and by 1932:

The speed with which elections and dissolutions followed each other lowered further the prestige of the overworked democratic machinery. This was the seventh election for the Reichstag since 1920; there had been two elections (with altogether four ballots) for the President, there were state and local elections, and for those who cared a number of popular initiatives. The weariness of the public, when no government seemed capable of coping with the unemployment of over seven millions, helped to increase rapidly the numbers of those who fled to one of the mutually hostile extremist parties (King-Hall and Ullmann, 1954:101).

Exclusive emphasis on strategic rationality and preference aggregation results in a bracketing of the institutions and practises that pre-structure preferences, such as political parties, trade unions, and prevailing accords as to what constitutes social progress. Once these prestructurings start to fray, a democratic paradigm illuminating politics within rules at the expense of debate about the rules governing politics obscures the issues at stake. The debate in corporatist literature over the arrival of 'issue movements' exemplifies confusion in the face of fraying arrangements.31 These theorists resolve the contradiction between interest groups and individual interests by focusing on broadly based economic interest groups - workers, consumers and producers - that play a pivotal role in general socio-economic aspirations. They have failed to come to terms with the nature of interest mediation between state and new social movements as the latter do not exhibit the representative and

30 The Weimar constitution has been judged as poorly designed in this regard (Berman,

1997, King-Hall and Ullmann, 1954 and Hucko, 1987).

31 Literature that analyses tripartite arrangements between state, capital and labour limiting industrial conflict. See, for example: Birnbaum (1982), Crouch (1983), Cox et al (1987), Fulcher (1987), Gerlich, et al (1988), Gerritsen (1986), Gobeyan (1993), Hearn (1985), Jordan (1981), Lijphart and Crepaz (1991), Loveday (1984), Martin (1983), Offe (1985(a)), Panitch (1980), Parsons (1988), Schmitter (1983,1989), Stewart (1991), Streeck and Schmitter (1985), and Streeck (1992).

48disciplinary characteristics ceding a capacity to compromise that corporatists place in the centre of their analyses.32 Thematically unavailable within the aggregative paradigm is acknowledgment of the factors that simplify and streamline preferences, making their aggregation feasible. As Offe explicates in the case of Western Europe, post World War Two democracies are founded on three elements: 1) investment decisions instituted as the space of action of owners and

managers acting in free markets and according to the criteria of profitability;

2) capitalism as a growth machine complemented by organised labour as a distribution and social-security machine;

3) a form of political democracy that was representative and mediated through party competition (Offe, 1985(a):822-3).

Ultimately, Offe says:

The implicit sociological assumption underlying the constitutional arrangements of the liberal welfare state was that 'privatistic', family-, work-, and consumption-centred patterns of life would absorb the energies and aspirations of most people, and that participation in and conflict over public policy would for that reason be of no more than marginal significance in the lives of most citizens (1985(a):823).

These arrangements are now fraying. In the Australian context, Marsh confirms that the major parties have lost their interest integrating function and their capacity to set the strategic political agenda - the electorate no longer responds predictably to their socio-economic cues (1995:128). Slippage between the political system and its electorates cannot be analysed with the limited conceptual palette of the liberal-aggregative democratic paradigm.

2.3 Democracy by Participation

I use the term 'participationist democratic paradigm' to link a family of literatures: classical democratic theory, communitarianism (the eulogising of the democratic virtues of 'communities'), and recent debates concerning civil society and social capital. Participationist theory inverts the liberal-aggregative emphasis on private preferences, viewing citizenship in terms of the development of public virtue, and seeing civil society, rather than the vote, as

32 See McEachern's comments (1993) on an Australian case study of state-environmental

movement interest mediation.

49the key democratic institution. Lying at the core of the paradigm is a psychological theory that participation is educative:

As a result of participating in decision making the individual is educated to distinguish between his own impulses and desires, he learns to be a public as well as a private citizen (Pateman, 1970:25).33

The aggregation of private preferences is from this standpoint an inadequate and inappropriate foundation for the democratic polity. While failing to gain a firm institutional foothold in modern times, the participationist paradigm has a long heritage that is regularly renewed as critique:

This argument goes back to the Greeks, but we are most likely to recognise its neoclassical versions. It is Rousseau's argument or the standard leftist interpretation of Rousseau's argument. His understanding of citizenship as moral agency is one of the key sources of democratic idealism. We can see it at work in a liberal such as John Stuart Mill, in whose writings it produced an unexpected defence of syndicalism (what is today called 'workers' control') and, more generally, of social democracy. It appeared among nineteenth- and twentieth-century democratic radicals, often with a hard populist edge. It played a part in the reiterated demand for social inclusion by women, workers, blacks, and new immigrants, all of whom based their claims on their capacity as agents. And this same neoclassical idea of citizenship resurfaced in the 1960s in New Left theories of participation, where it was, however, like latter-day revivals of many ideas, highly theoretical and without much local resonance. Today, perhaps in response to the political disasters of the late sixties, 'communitarians' in the United States struggle to give Rousseauian idealism a historical reference, looking back to the early American republic and calling for a renewal of civic virtue. They prescribe citizenship as antidote to the fragmentation of contemporary society ... (Walzer , 1991:294).

Habermas considers the persistence of the participationist critique as highly significant, stating that the "dialectic between liberalism and radical democracy that was intensely debated during the French Revolution has exploded worldwide" (1996: 472).34

33 Pateman adds that two subsidiary theses in Rousseauian thought are that participation

enables individuals to accept collective decisions more easily, and increases the sense of belonging to one's community (1970:27).

34 This debate can be found in: Arendt, 1965, Barber, 1984, Baynes, 1988, Benhabib, 1994, Botwinick, 1985, Breiner, 1989, Cohen and Arato, 1992, Dahl, 1989, Dryzek, 1990, Etzioni, 1993, Goodin, 1990, Gutman, 1985, Harrison, 1993, Hirsch, 1986, Lawrence, 1991, MacIntyre, 1988, Morton, 2000, Oldfield, 1990, Parry, 1989, Pateman, 1970, 1979, Sandel, 1982, 1984, Schwarzenbach, 1991, Thigpen and Downing, 1987, Walzer, 1990. See also Special Issue of Philosophy and Social Criticism on "Universalism Versus Communitarianism: contemporary debates in ethics", Vol. 14, No. 3/4, 1988. The end of the Cold War and fall of Communist political orders has added to the urgency and

50Participationists characterise liberal-aggregative democracies as 'thin' - fickle, uninformed masses ruled by remote political elites (Arendt, 1965, Barber, 1984, Benhabib, 1994). The American polemicist Barber defends participation as a workable set of mechanisms for deriving political programs in the face of the complexity and pluralism of modern democracies. Barber argues that:

Strong democracy is consonant with - indeed it depends upon - the politics of conflict, the sociology of pluralism, and the separation of private and public realms of action. It is not intrinsically inimical to either the size or the technology of modern society and is therefore wedded neither to antiquarian republicanism nor to face-to-face parochialism (1984:117).

The terms of the participationist democratic paradigm encourage a reading of the institutionalisation of consultative mechanisms as an overdue step towards deepening citizenship that serves to enrich liberal democracy. However, as I argue below, there are several inter-related incoherencies embedded in the participationist democratic paradigm that caution against such a reading.

2.3.1 Civil Society- the problem of pluralism

Two interpretations of the role of citizens in public life can be found under the participationist umbrella. The first, referred to by Foley and Edwards as 'Civil Society 1', ".. puts special emphasis on the ability of associational life in general and the habits of association in particular to foster patterns of civility in the actions of citizens in a democratic polity" (Foley & Edwards, 1996:39). This communitarian reading of civil society is influential in America, and growing in influence in Australia (Morton, 2000).35 The linear measurement of poverty/wealth of social capital is typical of exercises set within this framework (Onyx and Bullen, 1997). This harmonious vision of civil society is also employed by that strand of environmentalist literature which holds that in order for a society to be sustainable it must be communitarian (Goldsmith et al, 1972, Kenny, 1996, and Sale, 1984). The second conceptualisation, referred to by

relevance of the liberal/participationist democracy debate. See for example, Claus Offe (1991)and Habermas (1990). As Habermas comments, what remains of socialism is radical democracy (1994(a):26).

35 The main exponent of Civil Society One is Robert Putnam who contrasts the virtues of a strong civil society in Italy (1993), with the disbenefits of what he sees as the erosion of civil society in America since the 1960s (1995). There is a substantial body of literature along these lines. See, for example, Fukuyama: (1995). In the Australian context, see federal parliamentarian Mark Latham (1998, especially pp 259 - 312).

51Foley and Edwards as 'Civil Society 2' arises from the experience of newly formed democracies in Eastern Europe and "... lays special emphasis on civil society as a sphere of action that is independent of the state and that is capable - precisely for this reason - of energising resistance to a tyrannical regime" (Foley and Edwards, 1996:39).36 This latter emphasis embraces constitutional moments such as those analysed by Arendt' - the formation of spontaneous council government in the early stages of the French, Russian and American revolutions.37 These contrasting readings of civil society's democratic role yield markedly different boundaries on 'desirable' associational activities and groups by theorists:

Proponents of 'Civil Society Two' wish to include groups that enable citizens to mobilise against tyranny and counter state power. In doing so, they rightly emphasise new forms of association, because political and traditional associations are often tainted by cooperation with the regime. Proponents of 'Civil Society One' likewise define 'civil society' in ways that fit their particular context. Thus for Putnam, civil society includes chiefly groups whose activities generate the desired ''networks, norms and trust' at the heart of 'social capital' ... he emphasises traditional secondary associations [such as sporting clubs, parent and citizen groups etc], organisations not noted for their conflictual character or political weight (Foley and Edwards, 1996:43, italics added).

This schism replaces the liberal-aggregative blanket suspiciousness of groups with a confused vision of the democratic role of groups in civil society. The understanding that participation in civil society facilitates social cohesion and integration has culminated in a communitarian convergence from the political left and right (Morton, 2000). Commonality is found in the idea that both social problems can be addressed and the welfare state reduced by strengthening social connectedness within communities. This idea is haunted by authoritarian undertones. It is "risky politics" (Sandel, 1996:321), because it does not necessarily make use of the safeguard of individual rights promoting tolerance and respect for different views of the good life. The possibility of fundamentalism is left open:

A renewal of civil society could prove dangerous rather than emancipatory. For it might encourage an upsurge of fundamentalisms, coupled to an increased potentiality for violence (Giddens, 1994:125).

36 Foley and Edward's distinction resonates with those made by Adam Seligman (1992).

37 Arendt (1965) emphasises the 'public happiness' of revolutionary political participation.

52It is prudent, in light of twentieth century tragedies such as the Holocaust, to regard pluralism as a social good. It was the robust insularity of civil society which facilitated Hitler's rise to power under the Wiemar republic.38 Martin Krygier argues in his Boyer Lectures that civil society is a liberal, not a participationist, category:

'... community' and 'civil society' have become interchangeable in public debate, whereas in fact they denote quite different things. Community is 'warm': its members are bound together by ties of affection, loyalty and tradition. Civil society, by contrast, is 'cool;': it is governed by law rather than tradition, and its social cement is respect rather than affection, a respect that must crucially be given to strangers as well as members of our 'community'. Civil society... is the 'predicament of modernity': it is what enables us to live together without sharing the same moral values (Morton, 2000: 11).

Further to these problems of confusion over the democratic role of civil groups and the potential for authoritarianism, the conflation of community with civil society precludes systematic analysis of inequality between classes, ethnic groupings, localities, age groupings or genders. Hence direct appeals to participationist and communitarian arrangements are frequently criticised on the grounds that they exacerbate inequality:

... participatory arrangements may sometimes only worsen social inequalities and cultural conflicts, especially when they reinforce existing inequalities of social influence, community-wide biases, and shared unreflective assumptions (Bohman, 1996:243).

Consultative mechanisms are commonly criticised on these grounds.39

38 "The vigour of German civil society actually developed in inverse relation to the vigour

and responsiveness of national political institutions and structures. Instead of helping to reduce social cleavages, Germany's weak and poorly designed political institutions exacerbated them; instead of responding to the demands of an increasingly mobilised population, the country's political structures obstructed meaningful participation in public life. As a result, citizens' energies and interests were deflected into private associational activities, which were generally organised within rather than across group boundaries. The vigour of civil society activities then continued to draw public interest and involvement away from parties and politics, further sapping their strength and significance. Eventually the Nazis seized the opportunities afforded by such a situation, offering a unifying appeal and bold solutions to a nation in crisis. The NSDAP drew its critical cadres precisely from among bourgeois civil society activists with few ties to mainstream politics, and it was from the base of bourgeois civil society that the party launched its swift Machtergreifung" (Berman, 1997(a):424 - 5).

39 See Cotgrave and Duff (1980), Fogg (1981), Munro-Clark (1992), Parry (1989), Richardson (1983), Robinson (1993), Sandercock (1986).

53Finally, the core proposition of the participationist democratic paradigm - that individualistic behaviour precludes a sense of civic responsibility - tacitly accepts the liberal emphasis on individuals:

... every theory of rights, every theory of democracy, implies a model of society. Unfortunately, communitarians and liberals also agree that the societal analogue of the rights thesis is a civil society construed as the private sphere, composed of an agglomeration of autonomous but egoistic, exclusively self-regarding, competitive, possessive individuals whose negative liberty it is the polity's task to protect. It is their assessments and not their analysis of this form of society that diverge (Cohen and Arato, 1992:22, second emphasis added).

This analytical shallowness can be recognised in the green critique that is more a demonisation than analysis of consumerism. As Gundersen points out, in the American context:

We are often reminded that American culture contains within it the seeds of continued environmental despoliation in the form of individualism, consumerism and a worldview hopelessly incompatible with long range environmental stability. As attractive as these cultural critiques occasionally seem, they often suffer from important conceptual flaws. Some are woefully short of evidence (1995:112).

Thus not only is the participationist characterisation of civil society confused, have authoritarian tendencies and deal inadequately with inequality, it is, at root, parasitic on the liberal-aggregative paradigm's conception of civil society, not its alternative. Like the aggregative paradigm's reduction of the political to rational, private preference aggregation, the participationist paradigm, in its rejection of political professionalism, diminishes the role of the state in structuring democracies. However, it is the state's representative institutions that enable debates arising out of social and cultural cleavages to be focused and mediated. Parliamentary institutions provide local, regional and national forums capable of conditioning and structuring debate through federated, hierarchised jurisdictions. While it is true that parliaments can easily deteriorate into majority tyranny, the legal and quasi-legal institutions of representative democracies - constitutions, avenues of appeal, the rule of law - also function to protect minorities. The state is capable of building the institutions that provide neutral umpires in the settling of disputes - whether industrial, environmental or marital - that could otherwise spiral out of control. Morton argues that as public services in Australia are increasingly outsourced to community and religious groups, we are also witnessing a withdrawal of government from its

54liberal-democratic role of protecting individual rights and enforcing the rule of law (2000:10-11). Furthermore, the state's administrative machinery is capable of effecting policy across diverse communities and systemic domains. Not all environmental problems are caused locally, and the loss of overarching political structures could make them insoluble (Gundersen, 1995:47). Indeed, environmental problems such as greenhouse emissions require a global policy response.

2.4 Democracy as Deliberative

Literature on deliberative democracy attempts to bridge the divide between private preferences and public political participation sketched above.

Recognising that aggregating preferences, determined in isolation, is not in itself a meaningful way to arrive at a political accord, the deliberative theorists highlight part of the participationist thesis - that speaking together about political issues improves the quality of individual preferences. The deliberative paradigm emphasises interaction through discourse rather than the development of virtue in the citizen, rejecting the direct application of the participationist thesis. Deliberation is instead conceived as a " 'public' rather than a 'collective' or a group-specific activity" (Bohman, 1996:8) rejuvenating the civic republican tradition (Uhr, 1998).40 This abridgment requires the rejection of the aggregative reading of the liberal tradition:

The opposition between liberal and republican thought in the context of the framing [of the constitution] ... singles out a relatively marginal species of liberalism - possessive individualism or modern Lockeanism - and treats them as representative and central. But most of the great liberal thinkers did not take interests as prepolitical. Indeed, they placed a high premium on deliberation and discussion, and on the capacity of political dialogue to improve outcomes and to undermine unjustified disparities in power (Sunstein, 1988:1567).

40 Habermas argues that participationists ignore the pluralism of modern society: "All the

radical varieties of Rousseauianism labour under this moral overburdening of the virtuous citizen. The assumption of republican virtues is realistic only for a polity with a normative consensus that has been secured in advance through tradition and ethos ..." (1996:473). He maintains that: " ... the normative tension between equality and liberty can be resolved as soon as one renounces an overly concrete reading of the principle of popular sovereignty" (1996:475).

55The core thesis of the deliberative democratic paradigm can be articulated in rational choice language as the assertion that deliberation launders or transforms preferences:

Largely under the influence of Jürgen Habermas, the idea that democracy revolves around the transformation rather than simply the aggregation of preferences has become one of the major positions in democratic theory (Elster, 1998:1).

Miller nominates three ways in which deliberation may "enlarge actors' interpretive perspectives" (Habermas, 1995:117): 1) by correcting false empirical beliefs; 2) by silencing morally repugnant preferences difficult to advance in public;

and 3) by exposing narrowly self-regarding preferences to public debate

(1992:61). As long as preferences are formed deliberatively, mainstream deliberative democratic theory has no objection to their aggregation. Thus the image of civil society for mainstream deliberative theorists such as Rawls and Habermas is of individuals and groups capable of communicativeness and reason in discourse. Whereas civil society in the aggregative paradigm is conflated with private life and in the most recent articulation of the participative paradigm has become conflated with community. The rejection of possessive individualist liberalism means that representatives can no longer be thought of simply as delegates, as the following statement by MP Edmund Burke, to the Bristol electorate in 1774 spells out:

Your representative owes you, not his industry only, but his judgement; and he betrays instead of serving you, if he sacrifices it to your opinion ... Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates, but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole (Elster, 1998:3).41

Similarly, in the American context, Sunstein refers to

41 Elster calls modern deliberative theory revivalist, and traces the paradigm's lineage from

Athenian democracy (the starting point also of the participationist tradition), through the rise of democracy in the United States, Britain and France, the thinking of John Stuart Mill in the Nineteenth Century and the thought of Hume (Elster, 1998:1-5).

56... a remarkable series of debates after the founding, [in which] early Congresses rejected a constitutional amendment that would entitle constituents to 'instruct' their representatives about how to vote. In those debates , Madison and others made it clear that the representatives' task called for deliberation ... (1988:1559).

In Manin's terminology, the early period of representative government is best characterised as deliberative, because representatives were independent agents, typically trusted notables from the community (1994:147-148), who promoted parliamentarianism:

Since representatives are not bound by the will of those who elect them, parliament can be a place of deliberation in the full sense of the term; that is to say, a place where politicians determine their positions through discussion and where the consent of a majority is reached through the exchange of arguments (Manin, 1994:149).

Emphasis on debate possesses the advantage of accommodating both the normal and extraordinary political moments in democracies, allowing one frame of reference to encompass debate within rules and debate about rules. Three deliberative models of how debate should function to connect the ordinary and extraordinary aspects of modern democracy have been developed - precommitment, procedural and dialogical (Bohman, 1996:24). Rawls and Habermas are the primary precommitment and procedural theorists.42 The work of dialogic theorists come from a number of disciplinary directions and is under-theorised by comparison.

2.4.1 Rawls and Habermas - precommitment versus proceduralism

Habermas and Rawls dominate the German and Anglo literatures concerning deliberative democracy. Despite their differences, they share the "assumption that the institutions of liberal democracies embody the idealised content of a form of practical reason" (Benhabib, 1994:27).43 Their differences can be highlighted by considering their relative historical and cultural preoccupations. Habermas is a neomarxist whose work as a whole constitutes a repudiation of Horkheimer and Adorno's pessimistic Dialectic of Enlightenment (1972) and

42 The deliberative literature ranges from practical suggestions for increasing

deliberativeness of existing political processes (see Fishkin, 1991, and Gutmann and Thompson, 1996, and Uhr, 1998), to works that align with these paradigmatic models.

43 Habermas is careful to frame his criticisms of Rawls as part of a familial dispute: "Because I admire this project, share its intentions, and regard its essential results as correct ..." (1995:110).

57seeks firm foundation for the notions of reason and freedom (White, 1995:3-4).44 Rawls resists the scope of such a project: "Whether there is or ever was such an Enlightenment project we need not consider; for in any case political liberalism, as I think of it, and justice as fairness as a form thereof, has no such ambitions" (Rawls, 1993:18). Rawls instead makes the Reformation his point of reference:

The Reformation had enormous consequences. When an authoritative, salvationist, and expansionist religion like medieval Christianity divides, this inevitably means the appearance within the same society of a rival authoritative and salvationist religion ... Luther and Calvin were as dogmatic and intolerant as the Roman Church had been (1993:23).

Absolutist religious beliefs inform Rawls' rather old fashioned understanding of pluralism:

For this reason, political liberalism assumes the fact of reasonable pluralism as a pluralism of comprehensive doctrines, including both religious and non religious doctrines. This pluralism is not seen as a disaster but rather as the natural outcome of the activities of human reason under enduring free institutions. To see reasonable pluralism as a disaster is to see the exercise of reason under the conditions of freedom itself as a disaster (1993:24-25).

Thus, the relevant question for Rawls is - "how is a just and free society possible under conditions of deep doctrinal conflict with no prospect of resolution?" (1993:28).45 Consequently, Rawl's version of deliberative democracy is highly delimited compared to Habermas', elaborating the contours of an idealised precommitment about the form and content of deliberation (Rawls, 1995:134 - 135). McCarthy contends that "... Rawl's strategy is to discount the pluralism in

44 Baynes, 1988, Benhabib, 1994, Jean Cohen, 1988, and Ingram, 1993 have worked to

build democratic theory on Habermas' work on discourse ethics (1987 and 1991), predating his definitive statement of 1996. Ingram favours the Habermasian version of deliberative democracy (1993:305), but is inclined also towards economic and workplace participation, not being convinced that debate in the public sphere is an adequate foundation for a democratic political system (1993:312-16). The same point is made by Axel Honneth through an advocation of the democratic theory of John Dewey (1998). Both are uncomfortable with the jettisoning of much of the Marxist heritage which the deliberative democratic paradigm represents.

45 Habermas' response here is to ask, in an Enlightenment tone: "... could the religious conflicts have been brought to an end if the principle of tolerance and freedom of belief and conscience had not been able to appeal, with good reason, to a moral validity independent of religion and metaphysics?" (1995:126).

58advance, so to speak, by restricting public reason to the ambit of an overlapping consensus" (McCarthy, 1994:58).46 Rawls advocates that:

... we leave aside how people's comprehensive doctrines connect with the content of the political conception of justice and regard that content as arising from the various fundamental ideas drawn from the public political culture of a democratic society. We model this by putting people's comprehensive doctrines behind the veil of ignorance. This enables us to find a political conception of justice that can be the focus of an overlapping consensus and thereby serve as a public basis of justification in a society marked by the fact of reasonable pluralism (Rawls, 1993:25, ftn 27).

As Benhabib puts it, Rawls restricts the deliberative agenda (to constitutional questions and those to do with basic justice); restricts content, as Rawls views public reason "not as a process of reasoning among citizens but as a regulative principle imposing limits upon how individuals, institutions and agencies ought to reason about public matters"; and restricts the spaces within which deliberation occurs - locating the public sphere not in civil society but in the state and its organisations (1994:36-7). Rawls does not depart from the liberal-aggregative paradigm's commitment to viewing preferences as essentially private, making the contentious pre-political.47 This thin notion of civil society is unsympathetic to my subject matter. Manin denies that Rawls' project is deliberative: "... what Rawls calls deliberation is nothing but the calculation of the classical economic agent ..." (1987:348). Habermas, in contrast, sees civil society as a site of innovation - the necessary breeding ground for new political issues, terrain supporting dialogue between particular perspectives potentially generative of norms in common:

Voluntary associations represent the nodal points in a communication network that emerges from the intermeshing of autonomous public spheres. Such associations specialise in the generation and dissemination of practical convictions. They specialise, that is, is discovering issues relevant for all society, contributing possible solutions to problems, interpreting values, producing good reasons, and invalidating others. They can be

46 Habermas believes that it is Rawls' use of social choice theory that leads him to conflate

norms governing political behaviour (meta-rules) with values, that is, ways of life that may or may not have implications for public life (1995:111-115).

47 While Sunstein points out that the restriction of deliberative topics may well lead to injustices: "The notion that, for example, disadvantaged groups must put their interests to one side in the political process hardly seems likely to lead to just outcomes. Universalism ought not to be understood as a desire to obliterate social differences in politics" (Sunstein, 1988:1564).

59effective only indirectly, namely, by altering the parameters of institutionalised will-formation by broadly transforming attitudes and values (Habermas, 1996:485).

By public spheres, Habermas is referring to the networks of communication that support public discourses, the most obvious forum being the print and electronic media, the most recently famous being the Internet. Nancy Fraser, in her discussion of Habermas' conceptualisation of the public sphere, offers this definition:

It designates a theatre in modern societies in which political participation is enacted through the medium of talk. It is the space in which citizens deliberate about their common affairs, and hence an institutionalised arena of discursive interaction (1992:110).

Habermas views the political system and civil society as distinct yet linked by the public sphere. Issues are worked up and out of private life via civil society, discussed in the public sphere such that opinions are formed and terminate in legal codifications that anchor administrative programs. Habermas is a proceduralist, suggesting that the legitimative buttressing of liberal-aggregative democracies requires, among other things, the reform and expansion of public spheres, and strengthened linkages between public spheres and the political system.48 Habermas' procedural deliberative approach yields a very different view of civil society to the liberal-aggregative or participationist (communitarian) tacks on democratic legitimacy. The following schematisation makes the point that unless the mediation of pluralism is made the basis of general interests, coercion cannot be eliminated effectively from democratic theory:

... Habermas' participant-centred conception of public justification offers, I think, a considerable advantage. It leaves the task of finding common ground to political participants themselves. I should say, of finding, creating, expanding, contracting, shifting, challenging, and deconstructing common ground; for to suppose that the stock of shared political ideas and convictions is in some way given, there to be found and worked up, or that it could somehow be fixed by the theorists, is to hypostatise or freeze ongoing processes of public

48 Benhabib is very positive about Dryzek's work as a concrete elaboration of the

Habermasian project (1994:44). However, Dryzek uses a two not three part scheme, distinguishing between liberalism and participationism, aligning his conceptualisation of the discursive' with the latter. This is justified through a critique of objectivism (instrumental rationality) such that Dryzek asserts that "classical politics, practical reason, critical theory, Horkheimer's objective reason, and communicative rationality form a coherent set" (1990:13).

60political communication whose outcomes cannot be settled in advance by political theory (McCarthy, 1994:61).

Figure 2.2 Two Views of Civil Society

Selfish, particularistic and private individuals

Diverse groups (conservative and innovative)

Particular interests

General interests

1. Aggregation - deriving public choice mathematically 2. Participation - turn private vice into public virtue 3. Precomittment as to what can be publicly discussed

Public debate - broadening particular perspectives through dialogue to derive new norms in common

Co-ordination

Coersion

DemocratisationOutcomes

View of civil society

However, dialogical deliberative theorists, zeroing in on the public confrontations between standpoints of views, argue further to Habermas, that deliberation can only be successful if groups:

engage the other from within its own cultural perspectives, epistemic resources and social positions - because the uneven social distribution of knowledge and the moral boundaries created by cultural difference make procedural neutrality unachievable (Bohman, 1999:182).

Bohman's dialogic vision of deliberation therefore develops the notion of revisability to fortify the claim that a common outcome is not by definition coercive, weakening the requirement for social consensus into a requirement that ongoing co-operation of groups be secured. Claiming that "pluralism checks the coercive qualities of the general will" (1996:18), Bohman argues that:

... political unity ... does not require that there be "but one public reason". Rather, what is required in cases of deep conflict is a genuinely moral compromise in which plural public reason is exercised in the process of creating the framework for such an ongoing public consensus, now a minimal one that demands only the willingness to continue to co-operate (Bohman, 1996:84).

Bohman's analysis leads him to a platform of institutional reform concerned with deliberative opportunities and the ability to use them effectively, concentrating on the linkages between civil society and public spheres rather than public spheres and the political system. He coins phrases such as:

61"threshold of access to deliberative resources" (1996:110); "deliberative uptake" (1996:116); and a "floor of deliberative equality" (1996:123).49 This dialogic albeit to Habermas' procedural theory is best discussed in the context of two problems for any attempt to update democratic theory and resolve its longstanding disputes.

2.5 Two Crucial Challenges

Two issues that need to be carefully considered in an assessment of the liberal-aggregative, participative and deliberative paradigms of democracy are systemic complexity and the politics of knowledge. Both deserve consideration in any formulation of the relationship between consultation, democracy and environmental politics that hopes to have interpretive value for socio-environmental policy. Systemic complexity is given single minded attention by German theorist Niklas Luhmann. While Luhmann readily acknowledges that " ... political theory fulfils the function of bridging the difference between a need for guidance and the ability to act" (1990:112), he denies that society is now structured in such a way that the political system can be considered its apex or that politically secured control over future social states is possible. In the eclectic and animated field of the sociology of scientific knowledge (SSK) the core finding that scientific knowledge is crafted rather than discovered, undercuts the legitimacy of technoscience's exemption from processes of political discussion and consent. The politics of knowledge thereby ushered in, is taken up by Beck, Giddens and Bohman to question the rationalistic premises infusing democratic theory.

Figure 2.3 Bookends to the Three Democratic Paradigms

Sytemic Complexity

Aggregative Democratic Paradigm

Deliberative Democratic Paradigm

Participative Democratic Paradigm

Politics of Knowledge

49 Gundersen concurs with Bohman that economic poverty is related to deliberative and

political poverty in that "feelings of powerlessness and self-estrangement ... correlate with low socio-economic status" (1995:196).

62These two challenges to the conventional categories of socio-political theory can be thought of as bookends to the three paradigms elaborated above that inform my framing of socio-environmental politics.

2.5.1 Systemic Complexity

In undertaking a project of elaborating a theory of society adequate to modern conditions, Luhmann's starting point was the functionalist theory of Talcott Parsons (1951, 1977). Luhmann delivered Parsonian theory completely into systems theory using a 'cybernetic interpretation of the relationship between system and environment' and 'an autopoietic understanding of system organisation' (Luhmann, 1989:viii).50 We can orient ourselves to Luhmann's theory of society by considering the distinction between system and action theory (Schwinn, 1998). Luhmann downplays the relevance of the action paradigm (dominant in sociological and political theory), to understanding society in the Twentieth Century. He argues that approaching socio-political phenomena through a theoretical lense privileging the thinking, rational and acting individual has been uninformative since the end of the Eighteenth Century when society evolved from being stratified (feudal) to being differentiated according to function. He re-draws the boundaries between the categories of individual and society by stating that: "The self-observation of psychical systems involves consciousness. That of social systems involves communication" (1990:30). This definition allows him to assert that: "Society is not composed of human beings, it is composed of the communication among human beings " (1990:30), and that, therefore " ... one can understand social development to the present as the enhancement of communicative performance ... (1990:30). He describes the establishment and self-momentum of society's subsystems (law, science, economy, politics etc) as a consequence of communication:

... modern society ... is characterised by a primacy of functional differentiation with the consequence of an immense enhancement of highly specialised communication and communicational successes. In this way human potential for action can be organised, specialised, and co-ordinated as never before. Scientifically proven truth, money and power, that is politically organised and shared in the form of law, precipitate action when this concerns behaviour that a person of

50 Luhmann's notion of autopoiesis is derived from the work of biological theorists

Humberto Maturana and Francisco Valera (1980) that theorises the " ... unique capacity of living systems to maintain their autonomy and unity through their very own operations" (Luhmann, 1989:x).

63himself, viewed anthropologically, would never perform. That which is improbable becomes possible, indeed routinely expectable. It can increase in its effects, reinforce itself and, along with all this, have profound effects on the environment of society, on the ecosystem of the planet including man himself. As a result of this development a plurality of social systems have come into being that combine intense sensibility to specific questions with indifference towards everything else (1990:31).

Luhmann inverts the ubiquitous socio-political assumption that society is constituted by individuals and their actions. Instead: " ... modern society lets each individual participate in many or even all of its constitutive function systems, but none of them ever includes the individual as a full person" (Blühdorn, 2000:342). Without exception, Luhmann's theses, critiques and contentions ripple out from this formulation of society as structurally differentiated.51 These theses are that: • every system, constituting itself by focusing on its particular topic,

perceives everything around it, including other systems as environment; • this environment is always more complex than the system; • the system represents its environment to itself according to its own needs

for information and orientation (to past, present and future for example); and

• the system constitutes itself and deals with its environment through its code.

The systemic codes cited by Luhmann relevant to socio-environmental politics: are:

Table 2.1 Systemic Codes

System Code science true/false law legal/illegal politics government/opposition economy profit/loss While a code frees a system to act decisively, a system cannot think outside of the dichotomy it forms:

But no matter how 'responsive' the system may be structurally and no matter how sensitive its own frequencies, its capacity for reaction

51 A formulation that is artificial in the sense that in order to deploy it, and enjoy its

considerable analytic power, you first have to assume that it is true (Podak, 1986).

64rests on this closed polarity of its code and is sharply limited by this (Luhmann, 1989:40).

Political, economic, scientific and legal coding make it extremely difficult for systemic domains to respond to environmental degradation because it is diffuse and poorly articulated:

Coding is the condition that permits environmental events to appear as information in the system, i.e., to be interpreted in reference to something, and it causes this in a way that allows consequences to follow within the system. Of course, these chains of consequences are mediated by further conditions: by the system programs, for example, theories, laws, investments or party-political alignments. If ecological problems pass through this double -filter of coding and programming they acquire internal relevance for the system and possibly far-reaching attention - but only in this way! (Luhmann, 1989:116).

As Luhmann sees it, the only steering, manoeuvrability or rationality that is available to us is through systems and their codes. Respectful of the societal complexity and diversity that has been achieved via codes, he questions what can be effectively achieved by attacking this foundation for differentiation.52 Luhmann's analysis of the political (sub) system dovetails in many ways with the aggregative democratic principle. The binary code for the political system is government/opposition which interacts with its environment is through reference to public opinion - political parties orient themselves to public opinion in their quest to obtain or retain government (Luhmann, 1990). For Luhmann, this means that legitimation cannot be a matter of consensus (1990:19) but "is a question of the popularity of the current government" (1990:16). Luhmann believes the logic of societal differentiation means the future of democracy is the future of its code. The participatory utopia is dismissed not because it contradicts the sanctified picture of liberal individuals, but because participation allows system environments to violate their boundaries, interfering with the ability of systemic domains to function. Luhmann does not endorse the fictions concerning individuals and their preferences covered in Section 2.2.53 Rather, his point is that aggregative

52 Although Luhmann does concede the possibility that the ultimate price of ecological

sustainability may be de-differentiation, for example, the return to nature through regional political and economic communities (Luhmann, 1990:33).

53 Luhmann is not vulnerable to deconstructive critiques of the liberal individual, 'rational' individual preferences or aggregations (deployed in Section 2.2) in that he denies the relevance of the individual (a system of consciousness) to socio-political theory in the first place.

65democracy's ability to reduce the complexity of its environment, freeing itself to act, deserves respect. Consequently, Luhmann is very critical of the participationist rhetoric of green political actors:

Politics is thereby coded according to government and opposition ... As long as political movements, like the 'Greens', do not adjust to this either/or alternative, but prefer to operate in government and the opposition at the same time, they act without any understanding of the structural conditions of the system and the best they can do is make trouble (1989:86).54

Wiesenthal provides confirmation of Luhmann's critique in his analysis of the cleavage between the German Greens' fundis (fundamentalists) and realos (realists). A succinct account is given of both the attractiveness of the participationist paradigm in light of the environmental destructiveness of everyday practises, and the incoherence of participationism when it comes to the practicalities of achieving ecological modernisation - the "simultaneous radicalisation of problems and deradicalisation of the means available for solving these" (Wiesenthal, 1998: 171). The participationist mechanisms that the German Greens use to organise their parliamentary and party endeavours include rotation of official posts, vetoing of the re-election of office holders, prohibition on the simultaneous holding of a number of offices, use of imperative mandates, voluntary, unpaid staff in preference to professional staff (Wiesenthal, 1998: 174). These mechanisms had the effect of preventing "the accumulation of experience and the building up of stable informational and communication links with other actors inside and outside the party (Wiesenthal, 1998:175). Wiesenthal concludes:

If the well considered balancing of different democratic principles (such as representation, participation, pluralism, accountability) is abandoned in favour of one single principle, this may satisfy participatory desires but it also frustrates participatory motives. The motives of those who wish to participate not so much for reasons of self-fulfilment, but more in the interests of long-term collective goals

54 Although the door is ajar to the possibility that mass parties could be organised along

socio-environmental rather than socio-economic lines: "Hitherto problems have been created by bringing environmental themes into party rivalries themselves ... this procedure still seems to risky to the so - called 'peoples' parties' who regard voter - swings of even small percentages as catastrophic. It is possible that this is changing and that ecological themes, with their own harsh demands, are supplanting the old sociopolitical ones ... But it is by no means settled that competitive democracy and the coding of politics have to ruin themselves with ecological themes by keeping access to the government open" (1989:92-93).

66remains unrealised ... the things that would be efficient, the fostering of creativity, the ability to communicate and co-operate, the delegation of responsibility for a fixed term, the acknowledgment and corroboration of successful work, are considered illegitimate (1998: 176-177).55

Further to his critique of participationist politics as a viable means of addressing socio-environmental degradation, Luhmann questions whether ecological/technological risks can in fact be anticipated, regulated or controlled. His cybernetic analytic style allows him to make the acute observation, routinely ignored in conventional socio-political thought, that society and technology have interpenetrated:

... structural couplings between the societal system and technical realisations become routinely coordinated. Society comes to terms with the existence of technology. It proceeds on the assumption that technology works (1993:98).

Luhmann points out that this is a simultaneous and non-controllable (in the linear, causal sense) relationship that:

... causes highly unstable reactions aptly captured by Perrow's formula of 'normal accidents'. There is no longer a uniform formula for the overall effect of these different consequences of structural couplings, let alone an ideal of how to go about solving them (1993:100).

This causally unpredictable socio-technological mixture which constitutes the political system's environment, the increasingly "complex, interdependent states of affairs outside system boundaries" (Luhmann, 1990:57), necessarily implies that the political system's relationship with its own goals will be "fractured" (1990:24). The state is:

... confronted with a self-created reality whose basis is still valid and valued, but whose consequences, mediated by extensive interdependencies, have already started to become unacceptable (Luhmann, 1990:58).

The conventional notions of political steering and administrative control in this analysis are naive because:

55 If Gundersen is correct in his analysis that "...the central barriers to the continued

progress of American environmentalism are primarily conceptual: an inability to see the deeply political nature of environmental problems and their solutions and the predominance of single-issue thinking" (1995:146), then the exhortations by environmental radicals for doctrinal purity can be interpreted as a causative factor in the general lack of social responsiveness to the challenge of engaging in ecologically sympathetic behaviour.

67Problems cannot be treated at their source. Instead, they have to be treated elsewhere. One cannot remove them by going back to their causes. They are only passed on, transformed and deferred (Luhmann, 1990:57).

Luhmann then argues that the increasingly complex interdependencies in system environments is aggravated by the welfare state which he characterises as "a gigantic and uncontrollable machinery for increasing risk" (1993:145) because its sensitivity to transient public opinion makes it vulnerable to newly politicised topics.56 The resulting expansion in decision-making converts dangers into risks, making undesirable outcomes attributable to decision-making (rather than a wilful God or nature) (1993:46). In Luhmann's view, the dark side of modern, differentiated society is its nature as an open experiment that forces us to live "without much confidence in secure prospects for the future" (1993:143). What the deliberative democratic paradigm understands as the discursive themes of civil society becomes in Luhmann's eye protest that repeatedly and impotently confirms this fundamental lack of control (1993:143). Luhmann denies that what we are witnessing is the more or less rational discussion of ecological dangers, contending rather that ecological communication expresses, and generates more, anxiety (1989:127). Defining protest as " ... communications addressed to others calling on their sense of responsibility" that "... criticise practices or states of affairs without offering to take the place of those whose job it is to ensure order" (1993:125), he argues that protest movements should be thought of as a new system rather than a new social movement (1993:125):

In this sense protest movements can be described as autopoietic systems. The protest is the form, the topic is the content, and the two of them together set off a process of reproducing related communication, thus permitting the system to distinguish between relevant and irrelevant activities" (1993:126-7)

We are left with a picture of unprecedented, unfolding crisis:

Crisis thus becomes a structural feature of modern society rather than a normative standard for its critique. What exactly this implies for the development of modern society and the human individuals

56 This critique of the welfare state dovetails with the neo-liberal critique of the budgetary

effects of self-interested groups, but again, without being anchored in the individualist liberal heritage.

68living in it can neither be foreseen nor controlled. It has to be left to evolution (Blühdorn, 2000:345).57

Unsurprisingly a common response Luhmann's excoriating analyses has been to reject his proposed sociological reformation altogether (Blühdorn, 2000, Podak, 1986). Nonetheless, Neo-marxist theorists (Habermas foremost among them) now acknowledge the reality of systemic complexity: "The requirements of the State's and the economy's steering mechanism must be respected in order for them to function efficiently. This, as is well known, militates against total democratisation of either along the lines of direct participatory models" (Cohen, 1988:329). They do not, however, believe that critique is an exercise in futility. Benhabib has bluntly responded on this point that:

... the presentation of the political system as a self-immunised closed circuit, in which the government and opposition merely observe each other in self-reflective mirrors, is simply untrue. Beginning with the 1970s and well into the 80s, all over the US and Europe, one has observed the rise and decline of new social movements, great citizens' coalitions ... as well as radical changes of course from welfarist economics to free market ideologies and possibly a swing back to welfarism as we enter the 90s. It is hard to see what empirical value this thesis of the 'self-immunisation of the political system' has (1994:42).

Habermas has undertaken a long engagement with and critique of Luhmann's propositions, taking both the threat to critical theory's emancipative impulse and the strengths of Luhmann's work seriously. Despite the abstract position from which Luhmann's commentary issues, his analyses have an undeniable purchase of on the recent phenomena of intractable social unease and conflict characteristic of green politics. Certainly, the participative democratic paradigm's failure to engage with the functional differentiation that made modern liberal democratic nation states and the world economy possible to begin with is a fatal analytic flaw. After all, these are the processes that gave rise to an institutionalised drive for continuous

57 Which does not mean that Luhmann fails to appreciate the problems posed by socio-

environmental dilemmas: "The system 'flies blind' (instrument flying) depending on proven, internally controllable indicators. This may proceed well when the formation of indicators - in this case, the politicisation of themes - functions well. But how can we control this? And what are the standards for good and not so good functioning? Postponing the discovery of failure?" (1990:59). It is just that, in its denial that a space exists for cognating individuals or political processes, the theory leaves no point from which to deal with these dilemmas.

69economic growth and are thus deeply implicated in socio-environmental degradation. Luhmann's scheme renews the attractions of the aggregative democratic paradigm - its individualist fictions could be cybernetically dispatched and used to frame consultation, democracy and environmental politics so as to deliver a sermon to environmentalists concerning political realities. However, my second bookend, the politics of knowledge, also bearing on my topic of how best to conceptualise the relationship between democratic theory, environmental politics and the consultative strategy, points to an opposite conclusion.

2.5.2 The Politics of Knowledge

The Sociology of Scientific Knowledge (SSK) is a research angle that arose out of the discipline of Science and Technology Studies (STS). SSK, like Luhmann's thesis of a differentiated society, calls into doubt pervasive understandings of ubiquitous phenomena. STS developed out of the disciplines of history, philosophy, sociology and anthropology in the mid 1960s, bringing contextualist analyses of science and technology to bear on a mixture of academic, policy and pedagogical concerns to 'humanise' and control science (Bowden, 1995:72, Edge, 1995:4). Driving this specialisation was the undeniable influence of technoscience on the social and economic realities of the post World War II industrialised world.58 Thirty five years of STS 59 have, at least for its practitioners, demolished the positivistic view that science's interrogation of nature takes place unsullied by social, economic and political imperatives. SSK, woven with strands taken from history, sociology, philosophy, anthropology, cognitive psychology and linguistics, emerging within STS after ten years with a radically relativistic edge (Edge, 1995:7), has been pivotal in this project. STS and SSK have undercut the ideal of instrumental rationality, compromising accounts of democracy that take for granted the idea that political action involves a selection among neutral, technical means to a legitimated end. SSK initially arose out of work such as Kuhn's notion of normal and extraordinary scientific paradigms (1970) that drew the careerist motives of scientists into the heart of an account of scientific theory formulation, and

58 The History and Philosophy of Science, examining science in isolation from its social

context, predated STS and was subsequently absorbed into it (Bowden, 1995:69-70).

59 Institutionalised in journals such as Social Studies of Science, Minerva, MetaScience, and Knowledge and Technology in Society.

70Bachelard's (1984) exploration of the ambiguous relationship between scientific theory and practise (experiment).60 This point of departure is summarised by Knorr-Cetina and Mulkay as the thesis that scientific theories are underdetermined by the evidence, and the thesis that observation is theory-laden (1983:3), both of which suggest that "scientific products are unlikely to be reproduced in the same way under different circumstances" (Knorr-Cetina, 1981:6). In this internalist guise (inside scientific communities) science is treated as sociocultural practice (Callon, 1995:42), deploying the linguistic finding that statements derive meaning from their context.61 Such work is emphatically empirical - claims are anchored in the 'thick description' of ethnomethodologies, historical investigations, and discourse analyses. The picture yielded of science is "an adventure that depends on local know-how, on specific tricks of the trade, and on rules that cannot be easily transposed" (Callon, 1995:42). As far as controversies within scientific communities are concerned, SSK thematises the social processes that "mediate scientists' accounts of the natural world", demonstrating that:

... where closure of a controversy has been achieved, it has not resulted from rigorous testing but from the pressures and constraints exerted by the adjudicating community (Martin and Richards, 1995:513).

You could say that internalist investigators are SSK's 'core group'. Externalist SSK scholars investigate scientists' complex interactions with the lay community as well as the political, administrative, commercial, and legal (systemic) domains.62 Outside the laboratories and specialist journals, scientists, alongside technical brethren such as engineers, are more accurately thought of as experts, and scientific theory as reified into black boxes. Black boxes include products (for eg. medications), services (for eg. risk assessment or expert legal witnesses) and technology (anything from cars to toxic sludge eating designer bugs). Experts are vulnerable away from their communities' shared languages and practises, as are black boxes away from the laboratory's tight control over 'nature'. On the first count, experts are confronted with

60 Kuhn's work, in turn, drew inspiration from Popper's falsifiability thesis that all

scientific knowledge is only propositionally true (1963).

61 Following (mature) Wittgenstein's notion of forms of life (1968). See Bloor (1983) for the SSK reading of Wittgenstein.

62 Edge points out that the internalist SSK perspective is typically European, arising out of the more specialised approach to undergraduate education, whereas externalist SSK has more of a hold in America, Canada and Australia (1995:10-13).

71alternative world views. Rules governing conflict in non-scientific contexts, such as the adversarial structure of a court case or the sensationalist terms of the mass media, highlight the fragility of scientific consensus. On the second count, the black boxes' claim to universal validity can unravel in the face of real world diversity: medications' unforseen side effects; risk assessment's insensitivity to local meteorology; hydrology and land use; and technological failures such as a nuclear power plant meltdown. Where experts are prey to a positivistic self understanding (and this is often), they lack the resources for explaining their, and their black boxes', parochialism and find themselves involved in public confrontations. Brian Wynne's analyses of such confrontations are seminal (1989, 1992, 1996). Wynne deconstructs the polarisation of lay and expert knowledge that elevates science as a neutral, unproblematic means of gaining truths about the physical world, and stereotypes lay people as subjective and irrational. Wynne exposes the fact of technoscience's social construction (while internalist SSK scholars describes the process of technoscience's social construction) by detailing its limits in the real world. Wynne contrasts expert knowledge claims with accounts of lay (routine, taken-for-granted) knowledge, contextualising both within the administrative and political contours of disputes. Such analyses draw attention to the role social trust plays in sustaining institutions, the lack of accountability of technoscientific institutions to the broader populace and suggests a need for lay-expert dialogue. The internalist/externalist divide is not particularly coherent - SSK's finding that social processes are constitutive of scientific truth claims implies that the science/society dichotomy has no epistemological standing (Knorr-Cetina, 1981:16). Indeed, one way of reading the dichotomy is as a political ploy scientists use to defend their cognitive independence and authority. An innovative attempt to overcome the internalist/externalist split worth mentioning is the 'extended translation' (Callon, 1995:50) approach of Latour which extends the ethnographic laboratory study into analysis of technoscience in society (Radder, 1992:150-151). Latour refuses to utilise the conventional distinction between the animate and inanimate, describing scientists, equipment and theories as allies (actants) recruited in order to make a scientific account work both inside the laboratory and outside in society. The notion of actant:

...is sufficiently supple to account for the proliferation of entities that all contribute to scientific production: electrons and

72chromatographers, the president of the United States and Einstein, physicians with their assistants, the cancer research campaign, electron microscopes and their manufacturers - are all actants (Callon, 1995:54).

Latour's work links scientists, material resources, laboratory equipment, research programs, political debates and struggles and the process of black boxing into facts, services and products (1986, 1987, 1993, 1996). While Latour's strategy allows us to see clearly "how context and content are simultaneously reconfigured" (Callon, 1995:51), one could also argue that it is merely descriptive saying little about the political and economic institutional biases governing the resourcing of technoscience that make some alliances more viable than others.63 The germane issue, from our point of view, is that the 'normal' view of science is misleading:

...science cannot simply be assumed to be an independent, external agency, pumping expertise into the social order. Considered as an empirical entity, which is how sociologists must consider it, science is a sub-culture, or set of sub-cultures (Barnes and Edge, 1982:8).

The "widespread acceptance of explanation at the level of thick description" (Bowden, 1995:72) in STS and SSK contrast dramatically with Luhmann's eschewal of empirical research altogether. But SSK too raises an urgent question about current understandings of political legitimacy. That is, if technoscientific knowledge is socially constructed by 'powerful tribes' (Knorr-Cetina, 1995:141), should it not be overseen by the broader community? That this is a crucial question is understood:

... the authority of science is ultimately political, resting as it does on the ability to hide assumptions and worldviews behind a veneer of objectivity that is taken for granted by billions of people in their everyday lives (Jananoff et all, 1995:528);64

63 Although Latour does point to SSK's political implications: "My hypothesis ... is that we

are going to have to slow down, reorient and regulate the proliferation of monsters [the nature/society hybrids found in technology] by representing their existence officially. Will a different democracy become necessary? A democracy extended to things?" (1993:12).

64 This also makes problematic the status of the SSK findings "... those SSK scholars who have (scientistically?) maintained that they are advancing an essentially objective, empirical ("factual") account of scientific practice have, for some time, been open to attack ... what is at the heart of these discussions is a dispute over whether or not any scholarly 'picture' can claim to 'stand outside' the political arena and offer reliable guidance from a 'detached' stance ... The reflexivity that SSK has itself spawned comes home to roost here" (Edge, 1995:17). An approach making the subjectivity of SSK investigators explicit can be found in Woolgar (1988).

73Cognitive authority and political authority are inextricably intertwined: the recognition of technical expertise, of whatever kind, is fraught with political significance (Barnes and Edge, 1982:9); Experts claim more than they do know and can prove, and they also make judgements about values. They decide which action is appropriate in a given situation. Their mandate is a political one and it remains so, as long as expertise is not contested (Nowotny (translating Van den Daele), 2000:6-7).

However, it is a question that has on the whole languished within SSK.65 The Special Issue of Social Studies of Science - "The Politics of Sociology of Scientific Knowledge" (1996) and replies (April 1998) manifests this languishing despite the misgivings of its referees (Richards and Ashmore, 1996:220). Failing to reach beyond the immediate political implications of controversy studies, the debate is framed by an argument for neutrality (Collins, 1996) on one side and intervention (Martin, 1996) or commitment (Ashmore, 1996) on the other.66 Radder has claimed that SSK scholars have neglected an important responsibility:

Making choices more democratically and more justly, anticipating possibly hazardous or undesirable consequences and critically assessing the role and meaning of technoscience, remain important regulative ideals, even though (or better: especially when) we rightly do not believe in the scientific ideal of straightforward historical progress through science and technology, or in the modernist ideal of the full controllability of society (1992:166).

One barrier to exploration within the field of SSK's political implications is its empirical bent:

... richly detailed observational studies of scientific practice sometimes went hand-in -hand with a drastically over-simplified view of the world outside the laboratory (Jasanoff et al, 1995:528).67

65 There are exceptions - see, for example, McDonell (1997) who uses an Australian

controversy over the attempt to site a high temperature incinerator to explore exactly this question.

66 Wynne and Jasanoff go beyond this opposition only to put forward sociology of scientific studies as a resource to "imbue such processes with greater insight" (Wynne, 1996:380), and provide "insights that help us refashion the rules we live by" (Jasanoff, 1996:413).

67 One can also discern among internalist accounts an identification with and protectiveness towards their object of study. There is an ambivalence about turning a constructivist blowtorch on technoscience when it seems dependent on its positivistic self-understanding.

74Another is the standoff between SSK and the mainstream disciplines. The social sciences are by and large oblivious to the mutual reconfiguration of technoscience and society so evident to Callon and Latour (Breslau, 2000). For SSK, this raises the question of the degree of the social sciences' problematic investment in a modernist heritage which includes the idea that progress can be achieved by deploying science and technology as 'tools'.68 An obvious insight SSK yields about liberal-aggregative democracy is that the entrenched idea that policy development and policy implementation are separate is substantially fictional. The fact/value, nature/society dichotomy embedded in liberal democracy, as Cozzins and Woodhouse state, has led to "pockets of technocracy within systems of representative democracy that are otherwise more permeable", that are, in any case, "regularly ripped open by conflicting interests (1995:541-2). Their conclusion that:

... because science is socio-politically constructed and constructing, knowledgeable societies need far more sophisticated processes for steering science democratically (Cozzins and Woodhouse, 1995:553),

dovetails with the work of Beck, writing out of Germany, and Giddens, writing in the English context, both of whom emphasise reflexive democratisation (Beck, Giddens and Lash:1994). Beck, a sociologist, puts forward the thesis that industrial society has been replaced by a risk society:

Societies that first conceal and then, during the shock of an industrial disaster, confront the historically new phenomenon of the socially produced but unaccountable possibility of destroying all life, are what I call risk societies (Beck, 1995a:85).

Beck views expert hegemony as a core building block of the institutionally congealed socio-political accord on the desirability of technologically driven capitalist economic growth. After vividly dissecting the modern state's veiled relationship with its driving engine of technological endeavour, devoid of accountability,69 Beck concludes with rather vague foreshadowings of the collapse of current institutions under the weight of their inadequacies and contradictions and the emergence of a reflexive State and society:

This sort of reflexivity, for Beck ... is already becoming operative in the critique of science developing not just in the Green movement, but in the broad masses of the lay public (Lash and Wynne, 1992:2).

68 See exchanges between Pels and Bogan (1996) and Breslau and Pickering (2000).

69 An analysis foreshadowed by Langdon Winner (1977) and the early work of Habermas (1971(a), 1974)

75 For Beck, instrumentalist rigidity means the state is impelled to abandon command and control decision-making in favour of a negotiation model:

... the demand is for forms and forums of consensus-building co-operation among industry, politics, science and the populace. For that to happen, however, the model of unambiguous instrumental rationality must be abolished. First, people must say farewell to the notion that administrations and experts always know exactly, or at least better, what is right and good for everyone: demonopolisation of expertise. Second, the circle of groups to be allowed to participate can no longer be closed according to considerations internal to specialists, but must instead be opened up according to social standards of relevance: informalisation of jurisdiction. Third, all participants must be aware that the decisions have not already been made and now need only be 'sold' or implemented externally: opening the structure of decision-making. Fourth, negotiating between experts and decision-makers behind closed doors must be transferred to and transformed into a public dialogue between the broadest variety of agents, with the result of additional uncontrollability: creation of a partial publicity. Fifth, norms for this process - modes of discussion, protocols, debates, evaluations of interviews, forms of voting and approving - must be agreed on and sanctioned: self-legislation and self-obligation (Beck, 1994:29-30).70

Very close in his focus to Beck is Giddens (both were initially unaware of each other's work) who elegantly analyses the contours of risk and trust in this period of 'radicalised modernity'. Giddens analyses the relationship between experts and laypeople through his notion of 'disembedding', "the 'lifting out' of social relations from local contexts of interaction and their restructuring across indefinite spans of time-space" (1990:21). He gives detailed attention to the disembedding mechanism of expert systems which influence, indeed structure, our everyday activities - for example an electricity grid, which extends from

70 Thus, laypeople get a sympathetic reading as the bearers of reflexive consciousness.

This idea of the critical lay person as a revolutionary green subject has purchase in various quarters. NIMBY (not in my backyard) syndrome, originally a bureaucrat's label for the 'unreasonable obstruction' of their activities (Farkas, 1982), has become a positive banner. Bullard (1990) and Dobson (1995) go beyond (the often middle class) NIMBY groups to consider the emancipative potential of new social movements, the environmentally disadvantaged, and the persistent underclass in western democracies as the new historical (post-proletariat) agent that could bring about a sustainable society. Beck distances himself from such 'philosophy of the subject' (1994:12).

76coal mines to power plants into the home.71 According to Giddens, such systems imply an attitude of trust on the part of lay people because they cannot understand the system in its entirety. Such trust is necessarily blind as opting out of expert systems has become near impossible. When expert systems break down and experts prove unreliable, the fragility of this lay trust is exposed, a problem for which there is no immediate or obvious remedy. Like Beck, Gidden's prognosis points to a reconfiguration of democracy:

Yet we can discern clear prospects for a renewal of political engagement, albeit along different lines from those hitherto dominant. Breaking away from the aporias of postmodernism, we can see possibilities of 'dialogic democracy' stretching from a 'democracy of emotions' in personal life to the outer limits of the global order" (1994:107, emphasis added).

But like Beck he resists detailing the relationship dialogic democracy might have to existing institutional arrangements. Sticking to generalities, he emphasises instead the medium of social trust:

Dialogue should be understood as the capability to create active trust through an appreciation of the integrity of the other. Trust is a means of ordering social relations across time and space (Giddens, 1994:115 - 116).72

Bohman's dialogic deliberative theory aligns well with Beck and Giddens' views.73 Bohman advocates pragmatic, case by case deliberation on problematic situations that bring expert and lay actors into dialogue, arguing that "If expert authority is a problem, it is because the political institutions in which it is embedded are no longer open to the publics that are affected by them" (1999:190).

71 Giddens here deploys his thesis of time-space distantiation describing the restructuring

and formalisation of the categories of time and space, inherent in the development and spread of capitalism and colonialism, and facilitated through the technologies of clocks, cartography, international money markets, telecommunications, and so on. See also Lash and Urry (1994).

72 Although, Giddens' work has been an influence upon the Blair government (Giddens, 1993:20).

73 Dryzek also fits well within the dialogical strand of the deliberative camp in that he gives a positive account of policies agitated for by socio-environmental activists that promote deliberation such as right-to-know legislation, strong community input into environmental impact assessment and the granting of legal standing to community groups to challenge the legality of decisions on environmental grounds (1987, 1990, 1995).

77While Bohman pays attention to the construction of knowledge and its relationship to power, he fails to adequately take up the gauntlet of complexity thrown down by Luhmann. SSK scholars, Beck, Giddens and Bohman do not engage with the problem of attaining social accountability and control over extremely complex domains of action that react to their environments with dogmatic and reductionist dyadic codes - the domains generating environmental degradation. In the final analysis, decisions affecting the systemic domains will have to be, and will be, made.74 What happens post deliberation? How will norms be circulated throughout the systemic domains in terms they can respond to? Only Habermas addresses this question, and his answer, explicated in the Chapter 3, is law.

2.6 In closing

I have given accounts of the aggregative, participative and deliberative understandings of democracy to provide the context for polarisation over the democratic role of the consultative strategy analysed in Parts C and D following. The accounts of two challenges to any neat resolution of this polarisation, systemic complexity and the politics of knowledge, were then set out. Thus armed, I now turn to the elaboration of the interpretive scheme used to analyse the thematisation of socio-environmental degradation, and political and administrative responses to that thematisation, in NSW in the post world war two period. I take Habermas' integrated theories concerning the relationship between system, lifeworld, democracy and law as the only available framework capable of mediating between both aggregative and participative democratic principles and the challenges posed by systemic complexity and the politics of knowledge:

74 Papadakis in his necessarily pragmatic consideration of the potential for political-

institutional change in Australia in response to the rise of environmental politics (1996) introduces the Habermas/Luhmann debate by page 4. Many of the above-mentioned theorists tend to downplay Habermas' insistence that central, co-ordinating debates are necessary and do not engage with Luhmann at all.

78

Figure 2.4 Interpretive Frame and Scheme

Systemic Complexity

Aggregative Democratic Paradigm

Deliberative Democratic Paradigm

Participative Democratic Paradigm

Politics of Knowledge

Deliberatively anchored law mediates between system and lifeworld

Interpretive Frame

Interpretive Scheme

Social Reflexivity

Functional Differen- tiation

This model is capable of these mediations because Habermas seeks to give a central democratic role to the themes raised in civil society and discussed in public spheres in light of long engagement with Luhmann's thought. While Habermas has not, in his recent works, engaged with the issues raised by the politics of knowledge, the framework he offers is, I believe, rich enough to be extended to encompass them. The key text, Between Facts and Norms, presenting Habermas' deliberative theory of democracy and law, arises out of a body of work spanning thirty years which engages and reconstructs an extraordinarily broad range of theoretical traditions and debates. To make a brief condensation of the relevant themes of this body of work and extend it to consider the politics of knowledge is the purpose of Chapter 3.

79

Chapter Three The Interpretive Scheme

To say that all government rests upon consent is true enough. But it is true for all governments. The concept is mere rhetoric if we use it to put the cart before the horse: first there is always the fact of being governed; only then do we begin to question the manner in which we are governed. We do not consent to be governed. We grow up into a world in which we are governed (Crick, 1967:1).

3.1 Introduction

Having framed the problem of the contested role of consultation in Chapter 2, I now turn to the construction of a scheme through which to interpret the empirical cases set out in Chapters 4 to 7. This scheme is in large part Habermasian. However, the relevant shortcomings and indeterminacies of Habermas' set of theories relating to modernity and democracy are addressed with the SSK insights concerning technoscience, Beck and Giddens' work regarding social reflexivity and Bohman's dialogic deliberative theory. Habermas' early work, published in German in the 1960's and 1970's ([1962] 1989, [1968 & 1969] 1971(a), [1968] 1971(b), [1971] 1974, [1973] 1988, [1976] 1991), established him as a critical theorist, the heir to the Frankfurt School. However, in the two volume treatise The Theory of Communicative Action [1981] 1991(b), [1981] 1987),75 Habermas mediated the Marxist emphasis on work and materialism with other perspectives and grounded the emancipatory promise instead in the possibility of intersubjective understanding. It was in this work that his distinction between system and lifeworld was developed, an elaboration of the distinction between productive and social forces, but one which incorporates the formulations of functionalist theorists (particularly Luhmann).76 These innovations were received with deep scepticism as to their practical application.77 These criticisms were answered with the more institutionally focused Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, ([1992] 1996). Habermas here returns on an

75 Preceded and anticipated by the essay Communication and the Evolution of Society,

([1976] 1991(a).)

76 Calhoun notes that "Habermas' social theory is often interpreted as moving over the years from a Hegalian-Marxist orientation to a sort of Kantian orientation" (1992:1).

77 Habermas was criticised for apparently advocating the ideal speech situation (communication from which no-one is excluded leading to consensus) as a solution for political problems.

80optimistic note to the ideas developed in his post doctoral work ([1962] 1989)78 which argued that the emancipatory potential of the emergent public sphere of eighteenth century England was overwhelmed by mass suffrage.79 In Between Facts and Norms (BFN), Habermas' "first sustained engagement with normative constitutional-legal theory" (Michelman, 1996:307) communicative action is located firmly in modern public spheres, generating a post-liberal account of the role of democratic politics and law. While Habermas has reworked and revised his argumentative strategies over these thirty years, he has adhered to the same basic project: the attempt to diagnose both the disfunctions and destructiveness of modernity and identify the potential pathways facilitative of further communicative rationalisation. It is a rich body of work, containing considerable dialectical tension. The features of Habermas' earlier work on modernity are summarised and discussed under five subheadings in Section 3.2. Section 3.3 summarises Habermas' reconstructive theory of the deliberative nature of constitutional democracies. This theory analyses and reconciles the competition between the liberal-aggregative and participative paradigms of democracy. In Section 3.4, criticisms of Habermas' rationalism are cited. In Section 3.5 I extend Habermas' emphasis on procedurally anchored deliberation to the dialogic confrontation between state and civil society in light of the dilemmas posed by the politics of knowledge. This extension is pivotal to my analysis of the role consultation could play in resolving entrenched policy dilemmas in contemporary democracies.

3.2 Habermas' Theses on Modernity

3.2.1 System and Lifeworld

Habermas developed the system/lifeworld schema out of a critical engagement and synthesis of a wide range of theorists. Foremost among these theorists is Luhmann80 who maintains that society is better conceptualised as environment,

78 The German publication dates are given in square brackets, the English in round. From

here on, I use only the latter.

79 This thesis was influential. Calhoun's edited volume (1992) is based on a conference discussing it. See also Brooke (1998) on how cultural historians, such as Somers (1993, 1995), have utilised and critiqued Habermas' conception of the public sphere

80 The debate between Luhmann and Habermas over these issues resulted in their joint publication of Theory of Society or Social Technology: What is Achieved by Systems Research?, 1971 which unfortunately remains unavailable in English. Some of this discussion can be found in Habermas 2001 and Luhmann 1990(a).

81that which surrounds a system, whether that system is scientific, political, legal or economic. He maintains that "Environments have no clearly defined boundaries but only horizons that imply further possibilities while making it meaningless or inconvenient to pursue them indefinitely" (1982:230). Every time a more specialised system differentiates out of a less specialised system, that which it differentiated itself from then forms part of its environment:

Differentiation thus reproduces the system in itself, multiplying specialised versions of the original system's identity by splitting it into a number of internal systems and affiliated environments. This is not simply a decomposition into smaller chunks but rather a process of growth by internal disjunction (Luhmann, 1982:231).

Habermas argues, against Luhmann, that society should be conceptualised as lifeworld, the organic, communicatively organised social world out of which the systemically integrated subsystems of economy (co-ordinated via the medium of money) and the state (co-ordinated via the medium of power) are differentiated. Habermas uses the term lifeworld to refer to the irreducible cement of sociality - the quasi-natural monolith of traditions, practices, customs - facilitated and cemented through language. Habermas asserts that, at root, discourse is what makes mutual understanding and co-operation between people possible and is the medium of lifeworld co-ordination. The concept of lifeworld owes much to the hermeneutic sociological tradition, specifically phenomenology's reference to 'horizon',81 and the sociology of everyday life's articulation of the significance of 'taken-for-grantedness'.82 Horizon alludes to our unproblematic apprehension of the background that the social world forms for us: "This horizon is, in the natural attitude, precisely the world always pregiven as that which exists ..." (Husserl, 1970:145). Taken-for-grantedness allows us to 'bracket' what would be an overwhelming set of phenomena if we were to call into question too much at once. More technically, through the concept of lifeworld, Habermas seeks to integrate not only the analysis of culture (the work of hermeneutic theorists such as Schutz and Husserl), but also of social institutions (the work of institutional theorists such

81 Also employed by Luhmann to describe the nature of system environments.

82 The sociology of everyday life was an approach developed by Berger and Luckmann (1971). It was founded upon the earlier phenomenological work of Husserl (1970) and Schutz (1973). See also Bourdieu on the habitus (1990), Certeau (1984), Heller (1984), and Lefebvre on everyday life (1991).

82as Durkheim and Parsons), and of socialisation of the individual (such as Mead's symbolic interactionism) (Habermas, 1987:xxv). As a concept, lifeworld aims to achieve the conceptual unification of the categories culture, society and personality. According to Habermas, systemically organised spheres of action achieve independence from the lifeworld by replacing the latter's reliance on the discursive achievement of mutual understanding with abstract mechanisms of co-ordination: the economy is co-ordinated by money, and bureaucracy by power. As demonstrated in the two classic theses, Simmel's on money (1978) and Weber's on bureaucracy (1983), these self-referential co-ordination mechanisms have afforded an explosion in organisational complexity that would not otherwise be possible. The boundaries of lifeworlds, marked by shared languages, histories and norms, are thus burst with relative ease. For example, the power and reach of a transnational corporation is facilitated by its ability to take advantage of both the profit imperative and the bureaucratic form. Such systemic arenas, Habermas argues, become independent from, and indifferent to, the lifeworld:

Via the media of money and power, the subsystems of the economy and the state are differentiated out of an institutional complex set within the horizon of the lifeworld; formally organised domains of action emerge that - in the final analysis - are no longer integrated through the mechanism of mutual understanding, that sheer off from lifeworld contexts and congeal into a kind of norm-free sociality. Within these new organisations, system perspectives arise from which the lifeworld is distantiated and perceived as an element of system environments. Organisations gain autonomy through a neutralising demarcation from the symbolic structures of the lifeworld; they become peculiarly indifferent to culture, society, and personality (1987:307).

Habermas, in short, incorporates the strengths of the system/environment dichotomy, namely, the attention it draws to the indispensability of simplification and schematisation under the conditions of modernity (Luhmann, 1982:xxxi), but refuses to jettison the normative and hermeneutic dimensions of critical theory which he deploys in his characterisation of lifeworld. The system/lifeworld schema is analytically powerful, able to discern that unitary phenomena can be perceived and integrated differently. In interpreting the cases presented in Chapters 4 to 7, I have highlighted how the (ecological) environment is systemically viewed (administratively and economically), as

83both a source of resource inputs (land, minerals, water, timber etc) and an unlimited dump for unanticipated side effects and waste products. Whereas, from the lifeworld's point of view, apart from providing us with our most fundamental physical needs for clean air, soil and water, 'environment' refers to how our surroundings confer the familiarity and meaning that make everyday life unproblematic. The essential difference here, in Marxist terms, is between 'exchange value' and 'use value'. The term socio-environmental makes room in the concept of 'lifeworld' for the context of familiarity and meaning which the environment provides to social life. Unfortunately, Habermas has emphasised systemically organised over grass roots politics which inclines him to treat technoscience as an administrative and political tool. Such treatment fails to capture the peculiar nature of technoscientific communities which are both systemically organised, clearly separated from their (lay) environment, and communicatively organised into a coalition of specialised lifeworlds. They are, as SSK has demonstrated, communicative communities that construct facts and technologies with the power to affect entire societies and ecosystems. Luhmann suffers no disadvantage here, seeing all communication as coalescing into systems (1982:70), and able to afford subtle analysis of the ambivalent relationships between system goals and the motivation structures and roles of individual members (1982:24-45).83

3.2.2 Social Evolution

Habermas draws on historical and anthropological studies (for example, Durkheim's account of the evolution from organic to mechanical solidarity (1964)) to construct an evolutionary scheme that accounts for the gradual differentiation of the subsystems of economy and state out from the lifeworld. By social evolution Habermas means a two pronged, interrelated process of mutual stimulation and influence whereby the complexity of systemic domains

83 See also Johnson (1991) on Habermas' overdrawing of the opposition between strategic

and communicative action. Johnson argues that rational choice theory (the term encompassing social/public choice and game theories) and deliberative democratic theory are competing research paradigms. The question at the heart of this competition is whether strategic or communicative action should be thought of as quintessential to human behaviour. Johnson argues that both characterisations have holes in them: rational choice theory because it does not adequately account for the social context of strategic behaviour, and the theory of communicative action because it stereotypes strategic behaviour, implying that it is unsavoury (Johnson, 1991).

84and the rationality of the lifeworld grow (1987:153). This theory of social evolution is more dynamic than Luhmann's which focuses on the growth of system complexity only, denying the possibility for the lifeworld's growth in rationality (as well as relapses into fundamentalism and violence). Habermas utilises Marx's analysis of the highly dynamic influence of productive forces to argue that: "[t]he impulses toward a differentiation of the social system emanate from the domain of material reproduction" (1987:168). But he also maintains that growth in system complexity cannot take place without a corresponding growth of rationality in the lifeworld. Habermas views the lifeworlds of contemporary democracies as partially rationalised - that some social learning ('moral-practical consciousness') has taken place: insights developed and forms of social integration matured. In short, he seeks to recognise and protect the gains of the Enlightenment. By rationality, Habermas means a broadening of the scope of inter-subjective understanding, "an expansion in the domain of consensual action" (1991(a):120). Such increases in communicative rationality allow for new principles of social integration to develop:

The introduction of a new principle of [systemic] organisation means the establishment of a new level of social integration. This in turn makes it possible to implement available (or to produce new) technical-organisational knowledge; it makes possible, that is, an increase in productive forces and an expansion of system complexity. Thus for social evolution, learning processes in the domain of moral-practical consciousness function as pacemakers (Habermas, 1991(a):160).

If, for example, social integration is achieved through a mythology maintained by an all powerful caste of priests, then system complexity will be limited to what does not threaten that mythology and caste. For this reason, industrial capitalism could not emerge from an intact 'primitive' culture - what Habermas calls the 'linguistification of the sacred' (1987:77), a growth in secularity, is necessary for industrialisation to take place. This is often thought of as a wholly negative process, particularly by environmentalist theorists. For example, the work of Carolyn Merchant (1983) describes the process by which nature lost her status as being alive and sacred making it cognitively and culturally permissible to exploit and mechanise 'her'. Habermas suspects such theorists of indulging in nostalgia, believing that it is possible to retain the communicative content of dissolving traditions at a higher level (1987:329-330).

85Habermas' evolutionary scheme is important in the context of this dissertation because it explains how and why a background normative consensus or accord84 that was once widely shared, serving to legitimate a set of political and economic arrangements, can rapidly lose its justificatory force (its ability to convince) in the face of the expansion of system complexity that loosens dogmatic beliefs and thaws cultural traditions (1987:317). Linking Habermas' social evolutionism to Beck's thesis of a risk society, I can explore the attribution of unravelling legitimative arrangements to the unforseen side effects of production - risks that increasingly unsettle and undermine everyday life and the bank of social trust in the institutions claiming to manage those risks.

3.2.3 Colonisation of the lifeworld

There is no necessary, pre-determined pattern to how system and lifeworld relate to one another. However, there are, according to Habermas, limits to the degree to which system can intrude into the lifeworld before the integrity of the latter is compromised: "it is not a matter of indifference to a society whether and to what extent forms of social integration dependent on consensus are repressed and replaced by anonymous forms of system integrative sociation" (1987:186). Habermas asserts that meaning is a scarce resource growing ever scarcer because of two processes. Firstly, because the dominance of the economic domain enforces a utilitarian life attitude through pervasive imperatives to consume, perform, compete and possess. And secondly, because the systemically constituted political and administrative realms encourage the engineering of mass loyalty divorced form concrete forms of life (Habermas, 1987:325). However, Habermas contends, legitimation cannot be procured indefinitely:

The procurement of legitimation is self-defeating as soon as the mode of procurement is seen through. Cultural traditions have their own, vulnerable, conditions of reproduction. They remain "living" as long as they take shape in an unplanned, nature-like manner, or are shaped with hermeneutic consciousness." (1988:70).

84 I prefer the term accord to consensus because it alludes to both consent and conformity

- in respect of the fact that a background 'consensus' supporting a political regime may have been achieved by the subjugation and exclusion of some or many subjects (as in a colonial order), on the basis of a refeudalisation or retraditionalisation of the lifeworld, as well as by inclusive democratic debate, procedure and rule of law. Unlike a consensus, the antecedents of an accord are not entirely rational.

86Habermas concedes that the lifeworld is 'mediatised' - the lifeworld accommodates the presence of capillaries carrying the media of power and money - for example, the simplification and faceless extension of our interaction using the abstraction of money. However, when systemic domains intrude to the extent that our collective capacity to communicate in a manner that is meaningfully rooted in morally animated social life is actually eroded, colonisation can be said to have taken place. Habermas uses the example of the welfare state to illustrate his point. He argues that because the welfare state uses categories and strategies that are administratively convenient but socially destructive, an (unintended) "violent abstraction" which has undermined social networks and self-reliance, creating an increasingly dependent population whose dependency can only grow (1987: 363). In effect, Weber's and Foucault's one-sided analysis of the disenchantment modernity has wrought is reworked as the thesis of colonisation of the lifeworld by system (Arato and Cohen, 1988, Thompson, 1983).85 While lifeworld colonisation is a powerful proposition, it is tempered with the acknowledgment that the abstractions of markets and bureaucracies, experienced in everyday life as an injury, may ultimately provoke a reassertion, at a higher level, of communicatively derived forms of social integration that bring systems to heel. Habermas' colonisation of the lifeworld thesis can be employed to characterise social unease over the loss of familiarity and amenity afforded by our surroundings.

3.2.4 Displacement and Secondary Conflict

Habermas' analysis of the patterns and pathways of conflict in twentieth century liberal democracies (1987) draw on Offe's (1984) insights about the structural dilemmas of late capitalism, and built on the foundations of his earlier work (1988). The Marxist orthodoxy that capitalism is inherently anarchic is accepted by both authors as sound, but modified with acknowledgment that the state's provision of a welfare net to protect the most vulnerable and dampen the extremities of the capitalist boom/bust cycle have softened the wrenching inequalities experienced in the Nineteenth Century. Habermas calls the end result "the welfare-state pacification of class conflict", that "comes about under the condition of a continuation of the accumulation process whose capitalist drive mechanism is protected and not altered by the interventions of the state" (1987:348).

85 Michael Pusey (1991) operationalises this thesis in the Australian context, attributing

lifeworld colonisation to the impact of economic liberalist assumptions about the nature of the social world.

87Three notable consequences follow from this pacification. Firstly: "the class compromise weakens the organisational capacity of the latently continuing classes" (Habermas, 1988:69). Classes have become indistinct and less likely to inspire either our allegiance or our activism, as the decline of unionism in Australia over the last twenty years bears witness. Secondly, economic problems become displaced into administration:

... economically conditioned crisis tendencies are not only administratively processed, flattened out, and intercepted, but also are inadvertently displaced into the administrative system. They can appear in various forms there - for example, as conflicts between business-cycle policy and infrastructure policy, as an over-use of the resource 'time' (national debt), as an overloading of bureaucratic planning capacities, and so forth (Habermas, 1987b:344).

The state has adopted the role of underwriting the capitalist economic system, providing infrastructure, stabilising currencies, regulating markets, intervening in industrial disputes and so on. Thirdly, this displacement of the economic system's instabilities into administrative tasks and dilemmas has encouraged the state to develop a Janus like character. On the one hand the administrative arm of the state has focused on ensuring the economic system can support the state's fiscal requirements so as to be able to finance the welfare net. On the other, the political arm of the state has focused on the procurement of legitimation.86 In this synchronic analysis, and in contrast to the Enlightenment promise, the citizenry can be seen as compensated for the economic system making use of their labour with a relatively secure life organised around consumerism. The price of this compensation is the restriction of political participation to the periodic selection between dominant parties complete with pre-packaged policies unthreatening to the capitalist economic system. This arrangement is inflexible: the state will be restricted in periods of economic downturn in the range and scope of welfare services it can provide its clients, while at the same time consumers may well find materialist compensations beyond their reach. Furthermore, and from Beck's risk society perspective, the hidden price of

86 A fourth consequence of the welfare state compromise is the form lifeworld

colonisation takes in capitalist as apposed to bureaucratic socialist societies: " ... deformations of the lifeworld take the form of a reification of communicative relations only in capitalist societies, that is only where the private household is the point of incursion for the displacement of crises into the lifeworld ... [because] the monetarisation and bureaucratisation of the spheres of action of employees and of consumers, of citizens and of clients of state bureaucracies" (Habermas, 1987:386).

88economic growth is the unlegitimated production of a degraded, risk laden and technologically mediated environment. If we incorporate Beck's risk society thesis into the neomarxist analysis, we can see that also implied in the marriage between capitalism and liberal democracy is the exploitation of the commons of nature productive of unlegitimated side effects. These are risks that the political system cannot effectively address because such an engagement conflicts with its underwriting of continuous economic growth. This relationship can be diagrammatised as follows:

Figure 3.1 - Neomarxist Political Co-ordination and Environmental Subpolitics

Economic System (Capital)

Political Administrative System (The State)

Socio-cultural System (Shared traditions, expectations, norms)

Steering Performances

Social Welfare Performances

Fiscal Skim-off Mass Loyalty

EnvironmentInputs: resources

Outputs: amenity loss & risks

(Based on Pusey (1987: 94 ) and Habermas (1988: 5))

Conflict, as Habermas well perceives, is bound to reappear but, rather than arising in the now pacified roles of citizen and worker, conflict increasingly emerges through the roles of consumer and client (and resident) where debate is less hedged by corporatist compromises accomplished through political and economic elites. Habermas argues that conflict and dissent is no longer class based but has the character of 'scattered secondary conflict' with no obvious unifying theme or connection to class politics, occurring along the 'seam between system and lifeworld':

In the past decade or two, conflicts have developed in advanced Western societies that deviate in various ways from the welfare state pattern of institutionalised conflict over distribution. They no longer flare up in domains of material reproduction; they are no longer channelled through parties and associations; and they can no longer be allayed by compensations. Rather, these new conflicts arise in domains of cultural reproduction, social integration, and socialisation; they are carried out in subinstitutional - or at least

89extraparliamentary - forms of protest; and the underlying deficits reflect a reification of communicatively structured domains of action that will not respond to the media of money and power. The issue is not primarily one of compensations that the welfare state can provide, but of defending and restoring endangered ways of life. In short, the new conflicts are not ignited by distribution problems but by questions having to do with the grammar of forms of life (1987:392).

This framework offers a more thoughtful exploration of the relationship between the established political order and its green challengers than that offered by Inglehardt's material/post-material dichotomy (Habermas, 1987:392). It is capable of taking in Beck and Gidden's insights concerning increased social reflexivity to yield the conclusion that 'post-material' conflicts are driven by a critique of modernity:

That the values on which new social movements are based must be understood as a selective radicalisation of 'modern' values, rather than as a comprehensive rejection of these values, is also evident from numerous details of dynamics of the new paradigm of extrainstitutional politics. This paradigm depends as much on the accomplishments of political and economic modernisation as on criticisms of its unfulfilled promises and perverse effects (Offe, 1985(b):854).

3.2.5 Legitimation

Alterations in patterns of legitimation accompany growth in system complexity and lifeworld rationality. Feudalism, mercantilism, early and late industrial capitalism all have a pattern of productive forces corresponding to a matrix of social integration and legitimated by a matching level of justification. In a feudal order it is the legitimacy of an aristocratic landed class in the eyes of peasants that provides a convincing set of reasons for the order of things. But once the legitimacy of the landed class was undermined, the loss of conviction was irreversible:

Thus, by levels of justification I mean formal conditions for the acceptability of grounds or reasons, conditions that lend to legitimations their efficacy, their power to produce consensus and shape motives. These levels can be ordered hierarchically. The legitimations of a superseded stage, no matter what their content, are depreciated with the transition to the next higher stage; it is not this or that reason which is no longer convincing but the kind of reason. Such depreciation of the legitimation potential of entire blocks of tradition occurred ... in modern times with the retrenchment of cosmological, religious, and ontological modes of thought. My conjecture is that these depreciatory shifts are

90connected with social-evolutionary transitions to new learning levels ... (Habermas, 1991:184-185).

An example of such a 'depreciatory shift' is that signalled by Great Britain's Great Reform Act of 1832, regarded by historians as the first move towards a representative system based on general suffrage and electorates of mathematically equal proportions (Evans, 1994:5). Habermas considers that modern legitimation takes place at a 'post-traditional' level, meaning that:

... for the legitimation problems of the modern period, what is decisive is that the level of justification has become reflective. The procedures and presuppositions of justification are themselves now the legitimating grounds on which the validity of legitimations is based. The idea of an agreement that comes to pass among all parties, as free and equal, determines the procedural type of legitimacy of modern times (1991:185).

This diagnosis is a plausible reply to Giddens' contention that increased social reflexivity implies new legitimative burdens on the systems of representative democracy:

In an increasingly reflexive social order, where people are also free to ignore politics when they so wish, political legitimacy will not readily be maintained simply because a democratic apparatus of voting, representation and parliaments happens to be in place. To create and preserve such legitimacy, the principles of deliberative democracy are likely to become more and more significant. In circumstances of simple modernisation, where a population has relatively stable, and local, customs or habits, political legitimacy can depend in some part on traditional symbolism (1994:114).

3.3 Law, Legitimation and Democracy

In BFN, Habermas draws these argumentative strands concerning modernity into a reconstructive account of this emergent procedural legitimacy. Answering the powerful and pessimistic colonisation of the lifeworld critique that closed The Theory of Communicative Action, he offers an institutionally focused analysis:

... when Habermas turns from psychology to institutional configuration, his orientation shifts from the utopian and the ideal to the procedural and the pragmatic (Brooke, 1998:63).87

87 The way Cohen and Arato see it, discourse ethic's natural home is the political domain:

"We intend to defend discourse ethics as a political ethics and as a theory of democratic legitimacy and basic rights. We hold that it provides a standard with which we can test

91Engaging in a Durkheimian project of analysing social integration (Crook, 1996:126-127), and pursuing Weber's contention that the traditional sources of social integration cannot be maintained under conditions of disenchantment and secularisation (Wallace, 1998:622), Habermas poses the question (put succinctly by a Reviewer):

How do the diverse and distanced populations of modern, far-flung nation states manage to preserve, across their subcommunities of affect and interest, whatever felt sense of commitment to a life in common holds them together? (Michelman, 1996:307).

The answer for Habermas is law. Law is understood as having a necessary relationship with democracy. He states that: "in the age of a completely secularised politics, the rule of law cannot be had or maintained without radical democracy" (1996:xIii). The title of the book provides the leitmotif, that law is both normative (because its genesis was democratic) and factual (a set of rules we live by or fall foul of). At a functional level Habermas maintains that law and democracy fulfil functions for one another:

Before law and political power can take on their own functions, namely, stabilisation of behavioural expectations and collectively binding decisions, they must fulfil functions for each other. Thus law, which borrows its coercive character from power, first bestows on power the legal form that provides power with its binding character. Each of these two codes requires its own perspective: law requires a normative perspective, and power an instrumental one. From the perspective of law, policies as well as laws and decrees have need of normative justification, whereas from the perspective of power they function as means for and constraints upon the reproduction of power (1996:482).

Diachronically, this focus on law dovetails with Habermas' analysis of the waves of juridification88 that occurred as systemic domains differentiated out of the lifeworld and legitimative traditions were retrenched and superseded

the legitimacy of socio-political norms. Terms such as 'public dialogue', 'general interests', 'all those affected', and 'social norms' do in fact evoke the categories of political philosophy. The theory becomes unnecessarily overburdened when presented as more than this" (1992:351).

88 Juridification is defined by Habermas referring to: "... the tendency toward an increase in formal (or positive, written) law that can be observed in modern society. We can distinguish here between the expansion of law, that is the legal regulation of new, hitherto informally regulated social matters, from the increasing density of law, that is, the specialised breakdown of global statements of the legally relevant facts into more detailed statements" (1987: 357).

92(1987, Part VIII, Ch. 2:Section C). Habermas asserted that: "The social relations we call 'formally organised' are those that are first constituted in forms of modern law. Thus it is to be expected that the changeover from social to system integration would take the form of juridification processes" (1987:357). According to this line of argument, the differentiation of systemic domains out of the lifeworld was facilitated by legal codifications. These codifications are intelligible to both system and lifeworld because, although the law affords the simplification and schematisation of phenomena that would otherwise overwhelm systemic domains, by filtering it through the legal/illegal binary code, such codification is still normative, arising out of, and making sense within, the lifeworld. The metaphor Habermas employs to capture law's dual intelligibility is a hinge:

... law then functions as a hinge between system and lifeworld ... the law [has a] peculiar dual position and mediating function between, on the one hand, a lifeworld reproduced through communicative action and, on the other, code-specific subsystems that form environments for one another. The circuit of lifeworld communication is interrupted at the points where it runs into the media of money and administrative power, which are deaf to messages in ordinary language; for these special codes not only have been differentiated from a more richly structured ordinary language but have been separated off from it as well ... For translations into special codes, it [ordinary language] remains dependent on the law that communicates with the steering media of money and administrative power. Normatively substantive messages can circulate throughout society only in the language of law. Without their translation into the complex legal code that is equally open to lifeworld and system, these messages would fall on deaf ears in media-steered spheres of action. Law thus functions as the 'transformer' that first guarantees that the socially integrating network of communication stretched across society as a whole holds together (1996:56).

This characterisation of law draws part of its inspiration from Luhmann. For Luhmann, modern positive law (law that issues from the legislature, as apposed to common law (1982:93)), indeterminate by reason of always being open to revision, has replaced the 'old European' preoccupation with law as the means of ensuring justice (1982:118). Modern case law is positive also in the sense that it adapts, applies, selects and interprets laws in an indeterminate and creative manner: "The practise of the courts has destroyed the old unity of law

93guaranteed by doctrine ..." (Teubner, 1998:187).89 According to Luhmann, modern law instead functions to efficiently facilitate and manage complexity, and in this sense is no different from money:

Everyone realises that the number of possible consumer choices is enormously increased through the mechanism of money (the possibility of exchanging possibilities of further exchange). It is equally clear that more decisions can be made when we can decide in advance what decisions will be permissible (1982:100).

However, in contrast to Luhmann, Habermas maintains that while laws are codifications that are used instrumentally in systemic domains, they are nonetheless normative codifications that are ultimately derived from the hermeneutically co-ordinated lifeworld. In fact, it is the normativity of law that makes strategic action workable. As Rosenfeld points out, "without property, contract, or criminal laws penalising interference with property and contract rights, there could be no large - scale functioning market economy" (1995:1173). Having characterised laws as normative codifications, Habermas then points to conceptual dissonance in the prevailing understandings of the nature of that normativity. He identifies controversies in legal and democratic thought that arise out of an unresolved tension between private and public autonomy, where:

'Private autonomy' refers to the classic liberal commitment to the equal ability of all persons to act as they see fit so long as they do not prevent others from the same; 'public autonomy' refers to the Roussieauist-Kantian commitment to collective self-determination as an ineliminable dimension to human freedom (Wallace, 1998:624).

Habermas states:

Thus far no one has succeeded in satisfactorily reconciling private and public autonomy at a fundamental conceptual level, as is evident from the unclarified relation between individual rights and public law in the field of jurisprudence, as well as from the unresolved competition between human rights and popular sovereignty in social-contract theory (1996:84).

The polarisation between the liberal-aggregative and participative democratic paradigms, detailed in Chapter 2, flow from their differing emphases on political constitution and pre-political individual rights:

89 The 'legal positivism' flowing from this fact has, as Jean Cohen asserts, dominated

much of legal theory since the Nineteenth Century. Cohen states that: "legal positivism announces the denormalisation of law, its transformation into a set of empirical facts. Obligation is turned into prudent behaviour in the face of possible sanctions" (1988:319).

94Table 3.1 Polarisations Driven by the Private/Public Autonomy Opposition

conceptual dissonance private autonomy public autonomy contrast used in interpretive scheme

liberal-aggregative democratic paradigm

participative democratic paradigm

polarisations in democratic theory

liberalism individual rights

communitarianism republicanism popular sovereignty

polarisations in legal theory

human or private rights positive law public rights

Habermas' describes these two views on democracy in the following way:

The decisive difference lies in how the role of the democratic process is understood. According to the 'liberal' view ... the democratic process carries out the task of programming the government in the interest of society, where the government is represented as an apparatus of public administration, society as a system of market and labour relations among private persons. Here politics ... has the function of clustering together and pushing through private interests against an administration specialised in the employment of political power for collective goals. On the republican [communitarian] view, however, politics involves more than just this mediating function; it should be constitutive for the social process as a whole. 'Politics' is conceived as the reflexive form of substantial ethical life - as the medium in which the members of more or less naturally emergent solidary communities become aware of their dependence on one another and, acting with full deliberation, further shape and develop existing relations of reciprocal recognition into an association of free and equal citizens (1996: 268-9).

In the language of consultation and environmental degradation, the contrast can be stated the following way: is the involvement of resident action and environmental groups in a consultative process an offence to individual rights when not everyone is participating and participating in the same way, or does it represent the authentic beginnings of public autonomy? Habermas' thesis, aimed at settling these controversies, is that private and public autonomy are mutually conditioning. Without our rights to vote, to speak and to assemble freely, public autonomy is not possible. Reciprocally, it was our public autonomy, our constitution forging, that established our individual liberties. The two can be connected by emphasising the mode of exercising political autonomy - the discursive processes of opinion- and will-formation (1996:103). As Jean Cohen put it, seemingly in anticipation of this thesis: "By basing rights not on an individualistic ontology, as classical liberals have done, but on the theory of communicative interaction, we have strong

95reason to emphasise the cluster of rights of communication" (1988:327). The same point is made by Joshua Cohen: "the ideal of deliberative democracy is not hostile to free expression, it rather presupposes such freedom" (1989:29). This conceptualisation is more intellectually satisfying than the mythical story of a social contract.90 The thesis on the co-originality of private and public autonomy supports Habermas' strong emphasis on discourse in the public sphere:

... the logic of discourse yields the principle of political pluralism both inside and outside representative bodies. Parliamentary opinion- and will-formation must remain anchored in the informal streams of communication emerging from public spheres that are open to all political parties, associations, and citizens ... Only the principles of the guaranteed autonomy of public spheres and competition between different political parties, together with the parliamentary principle, exhaust the content of the principle of popular sovereignty. Consequently, this principle demands a discursive structuring of public networks and arenas in which anonymous circuits of communication are detached from the concrete level of simple interactions. An informal opinion-formation that prepares and influences political decision making is relieved of the institutional constraints of formal proceedings programmed to reach decisions. These arenas must certainly be constitutionally protected in view of the space they are supposed to make available for free-floating opinions, validity claims, and considered judgments (1996:171).

As Calhoun states: "The importance of the public sphere lies in its potential as a mode of societal integration" (1992:6). McCarthy makes it clear that "Independent public forums ... are for Habermas the basis of popular sovereignty" (1994:49).91 Having positioned the institutions of public spheres as democratically central, Habermas necessitates a substantial reconsideration of the liberal view of representatives' role as delegates of aggregated private interests. Habermas

90 Although, as Rosenfeld clearly states, it is still a counter factual device, like that of the

social contract (1995:1166-1167). Baynes calls it "a sophisticated version of consent theory (1995:206).

91 This revisitation of Habermas' earlier characterisation of the public sphere (Habermas, 1989), when: "... Habermas essentially argued that the public sphere collapsed as an autonomously functioning arena at the very point when many historians have found that public life began to become plural and democratic, and voices of class, gender, and race began to challenge the authority of propertied masculine whites" (Brooke, 1998:53), has benefited from subsequent discussions.

96sees elected representatives as playing different deliberative roles depending on the type of issue under consideration. He distinguishes between moral, ethical and pragmatic debates (1996:152). Conventional pragmatic discourses of bargaining are characterised as "negotiation between success-oriented parties who are willing to cooperate" (1996:165). Parties to pragmatic discourses may act as proxies and agree for various reasons. However, representatives involved in ethical-political discourses should not be thought of as deputies or proxies but must be adept at bringing the debates, issues and ideas circulating in the public sphere into parliament. Habermas places ecological issues in the ethical-political category as discourses about how we want to live (1996:165). Moral discourses "examine how we can regulate our common life in the equal interest of all" (1996:161) and are seen as requiring detachment from specific contexts. Seeking safeguards against lifeworld colonisation Habermas proposes a new logic for the separation of legislative, judicial and administrative powers, a logic explored more concretely in Chapter 5. The liberal idea that the separation of powers exists to protect individuals from the State by keeping the citizen's representatives accountable and replaceable is too narrowly based for Habermas' purposes.92 Instead, the political, legal and administrative spheres can, in his view, only maintain their legitimacy by drawing nourishment from the lifeworld. Accordingly, only the legislature should deal with the full range of discourses distilled in the public sphere, where the better argument has (ideally) prevailed, as it is the parliament's role in the constitutional democracy to debate, distil and legally encode norms that can then be administratively applied. The judiciary should not meddle with these norms, their role properly lies in the consistent application of law and the maintenance of the coherence of law as a whole. Administration should be limited even further to purely instrumental rationality, to selecting the technologies and strategies constituting the best means to ends expressed by the legislature. These are essentially a set of propositions about 'boundary maintenance:

He [Habermas] now sees these [systemic domains] as 'systemically integrated action fields' that cannot be transformed democratically from within. Instead of seeking transformation of the systems of administrative power and money, we should seek to prevent or limit their encroachment on the lifeworld by better boundary maintenance (Calhoun, 1992:45 ftn 36).

92 For an account of these conventional liberal views see Elster and Slagstad (1988).

97In short, the discursively worked up and distilled views of the citizens inform the legislature that authors laws and controls the administrative machinery (Habermas, 1996:168-193). As the whole machinery rests on the ventilation of views, Habermas effectively issues "a decided and emphatic call for the normatively guided rehabilitation of our apparently decrepit political public spheres" (Michelman, 1996:315). It also implies that once the results of public debates are codified in law, that codification should be protected. How this protection can be achieved and how the dynamism (constant amendment and interpretation) of law can handled is explored in Chapter 5 through a deliberative analysis of the EP&A Act. The contrast between Habermas' procedural deliberative vision and the aggregative and participative democratic paradigms is summarised below in table format:

Table 3.2 Aggregative, Participative and Deliberative Models93

Compon-ents

Liberal-aggregative democracy

Deliberative Democracy

Participative democracy

Citizens Atomised individuals oriented to private lives

Lifeworld inhabitants, discourse participants

Interdependent, community members

Rights Private - rights of the individual against the state

Public and Private rights reciprocal and co-original

Public - ethical self realisation through political participation

Law Law protects individuals and their property against each other and the state

Law protects individual rights facilitating common deliberation, and co-ordinates system/ lifeworld interaction

-

Political particip-ation

Private individual preferences - voting

Initiation of, and participation in, deliberation before voting

Direct political participation

Interests Private, partial and sectional purified by aggregation

Particular interests generalised through public deliberation

Particular interests generalised through participation

Repres-entation

Lay representation of aggregated private interests

Representatives facilitate deliberation

-

Separat-ion of powers

Protects individual against state

Protects lifeworld from system

-

Institut-ional arrange-ments

Minimalist state Inclusive, multiple public spheres and deliberative parliaments

Decentralised participatory arrangements

93 For the textual equivalent of this table, see Habermas (1994b), a succinct paper.

983.4 Habermas' Rationalism

The above discussion of Habermas' recent thinking on the relationship between law and democracy has so far omitted the voices of Habermas' critics. The common thread of these criticisms concerns his overly dogmatic conceptualisation of rationality.

3.4.1 Rationalism and the Public Sphere

Habermas, in BFN, engages with some postmodernist and feminist concerns regarding his earlier conceptualisation of the public sphere (1989). The overarching postmodernist critique of modernist thinkers such as Habermas is that the use of 'meta-narratives' to characterise 'reason' is inherently oppressive. Enlightenment values, it is argued, masquerade white, western, bourgeois and male worldviews as universal (Bauman, 1992, Foucault, 1980, Harvey, 1989, Lyotard, 1984). Socially evolutionary ideas are from this point of view offensive because the notion of 'progress' predetermines political and social ends (Bauman, 1992:189). This critique has its roots largely in Foucault's ground-breaking analyses of power:94

According to Foucault, the history of knowledge must not be written as the history of human reasoning and problem solving and must avoid such notions as subject, work, intention, meaning, development, tradition, influence, etc., all of which go back to the philosophy of the subject as it was inaugurated by Kant. Such concepts allegedly only make sense within a liberal humanist tradition which Foucault, specifically in his later genealogical work, wants to unmask as a particularly insidious exercise of power (Freundlieb, 1988:178).95

From this standpoint, the claim that the bourgeois public sphere can be so inclusive as to ground political legitimacy is unpersuasive:

The bourgeois public sphere is a frame of reference in which it is supposed that all particularities have the same status as mere particularity. But the ability to establish that frame of reference is a feature of some particularities ... Differences in such realms already come coded as the difference between the unmarked and the marked, universalisable and the particular ... The bourgeois public sphere has been structured from the outset by a logic of abstraction that provides a privilege for unmarked identities: the male, the white, the middle class, the normal (Warner, 1992:383).

94 Analyses that were preceded by those of Levi Strauss (1972, 1978) and Saussure (1959).

95 On the Habermas/Foucault debate see also Kelly (1994.)

99Feminist thinkers are less concerned with discrediting Habermas' entire project, than with reformulating Habermas' conceptualisation of the public sphere to be receptive towards women's experiences (Benhabib, 1992, Fraser, 1992, Somers, 1995, and Young, 1987). The core concern of feminists is that:

In general, critical theory needs to take a harder, more critical look at the terms 'private' and 'public'. These terms, after all, are not simply straight forward designations of societal spheres; they are cultural classifications and rhetorical labels. In political discourse, they are powerful terms frequently deployed to delegitimate some interests, views, and topics and to valorise others (Fraser, 1992:131).

As Fraser and others point out, the concerns of women (such as domestic violence and women's access to paid work) have had to push past the prejudice that they are merely private matters in order to initiate their public discussion.96 From the feminist point of view, as Deutsche asserts: "Conflict, division, and instability ... do not ruin the democratic public sphere; they are the conditions of its existence" (1996:289) Indisputably, Habermas' universalist modernism leads him to regard a single public sphere in which general interests are discussed, legislated and promulgated as the pinnacle of discursive achievement for which diverse and multiple public spheres form a heuristic. Habermas' contention in BFN is that local and partial interests require filtering and transformation by public discourse into general interests:

... Habermas is committed to the idea of fallibilism without, however, giving up the notion of validity claims which always transcend the concrete and local context in which they were raised (Freundlieb, 1988:172).

He argues that interests can only be considered general if they were reached through inclusive processes of dialogue guided by the ideal of consensus, pointing out that: "If they were not oriented toward the goal of solving problems by giving reasons, participants would have no idea what they were

96 It seems to me that Habermas' account of lifeworld-system interaction is a refutation of

this accusation. He sees the lifeworld as partly traditionally fixated and partly rationalised and that societal rationalisation (which is after all what feminists see their social project as having and continuing to achieve) as a possible evolutionary outcome. Social evolution is triggered by increased system differentiation tied up with shifts in legitimative modes and their accompanying regimes. The decline of patriarchal authority can be seen in exactly these terms, for example, the second world war involved a technological acceleration as well as necessitating the involvement of women in the workforce which contributed to the decline of the patriarchal family.

100looking for" (1998:396). Habermas' account of public spheres only appears monolithic on a superficial reading. Examined carefully, Habermas' account is of permeable, mediating institutions that play the plurality of lifeworld off against the complexity of system - "Opinion-formation is 'weak' where government is 'strong', but it is flexible and protean where government is rigid and rule-bound" (Brooke, 1998:60). White comments that:

The picture of politics in BFN ... is of a differentiated state whose multiplicity of sites for deliberation and decision-making is broadly warranted by communicative rationality. Each site, however, must be judged carefully in terms of 'the discursive level of public debates' occurring there. Discursive democracy thus requires a continual and variegated 'interplay' between a multiplicity of 'public spheres' emerging across civil society and a broad spectrum of formal political institutions (1995:13).97

There are two reasons to accept the spirit of Habermas' project and endorse the project of reforming and extending public spheres. Firstly, there has to be a point at which discourse outcomes are codified into laws that can by read by systemic codes if Luhmann's wholesale dismissal of the very category of societal norms is to be rebutted. And secondly, the postmodernist rejection of any attempt to reconcile the particular with the common, in its denial of the difficult realities of democratic endeavour in pluralist societies, is politically regressive. Postmodernism is silent in the face of warring particularisms, despite the known risks that fundamentalisms pose. Postmodernist thought is prey to political paralysis or alignment with participatory democratic principles that are incoherent and unworkable. Granted, discussion ending in reasoned co-operative decision making to take place implies the generalisation of norms about discussion, rationality and co-operation that, as postmodernist theory states, are associated with the Enlightenment (Gambetto, 1998, Sanders, 1997). But what alternative is there?

97 In BFN, Habermas engages with 'actually existing democracy' (Fraser, 1992), conceding

the need for multiple public spheres. He has taken up Fraser's contention that: ".. we need a critical political sociology of a form of public life in which multiple but unequal publics participate. This means theorising about the contestatory interaction of different publics and identifying the mechanisms that render some of them subordinate to others" (1992:128). As Benhabib comments: "The fiction of a general deliberative assembly in which the united people expressed their will belongs to the early history of democratic theory; today our guiding model has to be that of a medium of loosely associated multiple foci of opinion-formation and dissemination which impact each other in free and spontaneous processes of communication" (1994:35).

1013.4.2 Rationality and Administrative Neutrality

The polarised postmodernist/modernist debate has tended to eclipse literatures taking issue with Habermas' view that the administrative machinery of the state is relatively neutral, subsuming this issues under the contention that Habermas theories are oppressive.98 Neither has this issue been widely discussed, as mentioned in Section 2.5.2, the SSK scholars have not sought to connect the implications of their work to more mainstream debates.

In BFN Habermas has stepped back somewhat from the characterisation of protest over socio-environmental degradation as regressive because the solutions to socio-environmental degradation must be administered with technical and economic means (1987:393).99 An inflammatory statement considering that the socio-environmental degradation wrought by industrialisation came about through the systemic domains and was placed on the agenda via popular outrage, despite the state:

The socially most astonishing and surprising - and perhaps the least understood - phenomenon of the 1980s was the unexpected renaissance of a political subjectivity, outside and inside the institutions. In this sense, it is no exaggeration to say that citizen-initiative groups have taken power politically. They were the ones who put the issue of an endangered world on the agenda, against the resistance of the established parties" (Beck et al, 1994:18).

Habermas now acknowledges the challenges arising from the development of the welfare state and the risk society that overwhelm the strategies available to the state. He comments on the rise of complexity caused by the welfare state:

98 For example, Gray's polemic collapses the critique of diversity devouring tendencies of

technoscience into an aspect of what he presents as the compulsory westernisation of the world via enlightenment morality (1995).

99 Part of a rather crude distinction between offensive and defensive reactions to the colonisation of the lifeworld. Habermas argued that while defensive movements may well point effectively to problems, they do not point to solutions as solutions can only be implemented through systemic domains: "The intervention of large-scale industry into ecological balances, the growing scarcity of non-renewable natural resources, as well as demographic developments present industrially developed societies with major problems; but these challenges are abstract at first and call for technical and economic solutions, which must in turn be globally planned and implemented by administrative means. What sets off the protest is rather the tangible destruction of the urban environment; the despoliation of the countryside through housing developments, industrialisation, and pollution; the impairment of health through the ravages of civilisation, pharmaceutical side effects, and the like - that is, developments that noticeably affect the organic foundations of the lifeworld and make us drastically aware of standards of livability, of inflexible limits to the deprivation of sensual-aesthetic background needs" (1987:394).

102Due to the developments leading to state interventionism, more and more areas of law have been materialised, with the result that an administration geared for planning, services, and policy making is increasingly unable to limit itself to simply implementing general and sufficiently determinate norms in a technical manner unburdened of normative questions (1996:190).

And he comments on the risk society that:

These problems are aggravated by the expansion of the temporal horizon in which the state's social policies, and especially its preventive activity, must unfold. Whether actively or by omission, the state is increasingly involved in the production of new risks connected with science and technology. Risks such as those arising from nuclear technology or genetic engineering pose the problem of taking precautions for the sake of future generations ... In general, the dangers of the 'risk society' make such high demands on the analytic and prognostic abilities of experts, as well as on their readiness to act and the reaction time of the precautionary administration, that the problems of statutory control and legal certainty afflicting the regulatory state are dramatically exacerbated (1996:432).

Habermas is here saying that the welfare state and risk society make it difficult to come up with laws and administrative programs distilled, unitary and precautionary enough to be implemented without normative deliberation further to that of the legislature. He suggests that the answer is to realise the separation of powers in new ways. Participation is nominated as a way of preventing improper self-programming of administrative organisations (the phenomena of bureaucracies creating and maintaining their own formidable momentum), and ensuring that deliberation by citizens, rather than the experts, takes place where the regulatory domain requires discretion that is ultimately normative in character. Similarly, procedural law is presented as a 'legitimation filter' - a way of inoculating administration against arbitrariness when a decision cannot be kept completely technical. While this reformulation makes conceptual space in which to consider the proliferation of consultative forums, it does not discard a discredited picture of instrumental rationality.100 As Crooke states:

The possibilities that Habermas' rationalism cannot entertain, are, first, that validities are emergent properties of discursive or social fields whose reconstruction may not be 'rational', and second, that

100 In the more abstract language of Habermas' (sympathetic) peers, this shortcoming is

discussed as Habermas' refusal to acknowledge the arational roots of reason or that 'neutral' proceduralism is in fact value imbued (Rosenfield and Arato, 1998).

103judgements of validity are reflexively linked to their discursive or social context. Research programs that explore these possibilities without recourse to Habermas' rationalistic assumptions are either ignored, as in the sociology of scientific knowledge, or dismissed ... (Crook, 1996:132).

Crooke concludes that "Habermas' phobia about 'irrationalism' raises doubts about the minimalism of this procedural rationalism ... " (1996:128).101 The findings of SSK demonstrate that scientific communities proceed with their knowledge enterprises on the basis of shared assumptions drawn implicitly, and usually naively, from the scientists' social and political setting. Expert tribes and the black boxes they construct are consequently vulnerable in the face of conflicting world views. This means that collusion between these knowledge bases and the action systems of the state have potential consequences well beyond the strategic and instrumental. Namely, when relations sour between the lay community and black boxes along with their expert custodians, the state is implicated as instrumental in the imposition of the unlegitimated, nonconsensual outcomes of those technoscientific arrangements. Empirical investigation has borne this out, for example, Hajer (1993) explains how broadly warranted understandings of the United Kingdom's contribution to acid rain in Europe failed to alter policy because the cognitive commitments of the entrenched bureaucratic professionals posed insurmountable barriers to this discourse's institutionalisation. The privileging of the political centre cannot be supported by the simple assertion that the procedural state is a relatively neutral and pragmatic means of deploying any variety of agendas. This problem is simply evaded by Habermas:

Habermas congratulates Kant for having 'dissociated' moral justification from 'application and implementation of moral insights'. But the dissociation is analytical, not empirical-practical (Michelman, 1998:321).

In light of this failing, the question then becomes, by what mechanism in Habermas' theory would that part of the systemic domains that are socially and culturally integrated be harmonised with goals formulated outside the limits of their self-understanding?

101 A point reiterated by Baynes who calls this the "problem of liberal neutrality" (1995:221-

224), and Rosenfeld who states: "To the extent that pluralism cannot ultimately place all first-order value preferences on an equal footing, the proceduralist paradigm of law cannot fully reconcile legal and factual equality" (1995:1181).

1043.5 The Dialogic Extension of Procedural Deliberation

In the introduction to Beck's work Risk Society, Lash and Wynne suggest that Beck's "theory of reflexive modernisation can potentially provide the foundation for the rejection and recasting of Habermas' notion of modernisation as Enlightenment project" (1992:2). They argue that Beck's analysis of the dark side of modernisation makes Habermas' 'utopian evolutionism' questionable. Wynne and Lash contrast the sources the two theorists select for the solution of modernity's difficulties - Habermas' ideal speech situation, Beck's lay public critique of risks. Now that Habermas has spelled out how the ideal speech situation relates to the pragmatic reform of contemporary democracies in BFN, I feel confident that a recasting taking account of social reflexivity, including the specific case of lay critique of technoscientific arrangements generating a politics of knowledge, is sufficient. That recasting requires addressing the fact that if constructing norms with wide social purchase is half of the democratic challenge, the other half lies in their deployment. The categories, disciplines, knowledges, professional groups and agencies indispensable for deployment, if not neutral, are not in Habermas' scheme understood as requiring their particularity, their transgressive competence (Nowotny, 2000), to be exposed. The discussion of the politics of knowledge in Chapter 2 emphasised that rationality is always bounded - not merely within civil society's interest groups, but also within the locuses of authority - administration, technoscience and politics - by obscured normative pre-commitments, institutional inertia and self interest, and framings of truths. The boundedness of rationality can be engaged with without buying into the either/or logic of the modernist/postmodernist polarity.102 The liberal-aggregative democratic state, in both its political and administrative guises, curtails debate begged by increased social reflexivity in three ways. The tired liberal prejudice that interests are properly private and pre-political stigmatises the raising of issues through the organisations of civil society. Secondly, the dogmatic rational preference framework supports number crunching practises that are typically premature and reductionist, functioning to short circuit public debate. Thirdly, expert communities, obscuring their own tribalism with comforting

102 As Giddens puts it - "Living in a world of multiple authorities [is] a circumstance

sometimes mistakenly referred to as postmodernity ... " (Beck, Giddens and Lash, 1994:87).

105polarisations between fact/value, true/false and lay/expert, are treated as the unassailable custodians of truth. Habermas deals coherently with the first and second problems in his recent work but neglects the third. Bohman, the dialogic deliberative theorist introduced in Chapter 2, Section 3, focuses on the politics of knowledge, drawing out the political implications of the relativism and indeterminacy of knowledge. Bohman argues that deliberation about deep conflicts necessitates a disruption to the 'normal' way the world is viewed by dominant publics. He calls this disruption 'disclosure' - "an act of expression that opens up new possibilities of dialogue and restores the openness and plasticity necessary for learning and change" (Bohman, 1996:229). Disclosures are prior to truth, and concern what makes truth possible (Bohman, 1996:229). Bohman takes socio-environmental conflict as more emblematic than Habermas (or Rawls) because such conflicts thematise so reliably the relationship between knowledge, expertise and deliberation:103

Power can be expressed in the way in which problems are defined and thus 'framed', often in such a way that the participatory success of powerful groups is ensured. For example, technological and industrial accidents, such as those at nuclear power facilities, were for decades framed as 'engineering problems' to be settled by experts. This frame for the risks of nuclear power effectively removed the issue from public debate, excluding public deliberation about the advantages and disadvantages of such technologies and about the distribution of risks posed by their development and their use (Bohman, 1996:117-118).

Habermas' tends, in contrast, to marginalise this relationship between knowledge and deliberation.

103 Rawls' and Habermas' positions on environmental politics are very simular. Rawls

states that "... in a democratic society public reason is the reason of equal citizens who, as a collective body, exercise final political and coercive power over one another, in enacting laws and in amending their constitution. The first point, is that the limits imposed by public reason do not apply to all political questions but only to those involving what we may call 'constitutional essentials' and questions of basic justice ... Many if not most political questions do not concern those fundamental matters, for example, much tax legislation and many laws regulating property; statutes protecting the environment and controlling pollution; establishing national parks and preserving wilderness areas and animal and plant species ..." (1993:214). Like Rawls, "... Habermas readily concedes the anthropocentric framework of his discourse ethics but argues that the 'ecological problematic' can be dealt with satisfactorily within this framework" (Eckersley, 1990:759).

106Socio-environmental examples tell us that collapsing into a steering/legitimative muddle is a real danger if either the mobilisation of consent or its deployment through the implementation of policy fails to take heed of the in-situ nature of rationality and knowledge. No one parochial rationality should be allowed to dominate policy formulation and deployment if either is to be effective and legitimate. Consultation can be thought of as the provision of sites enabling civil society groups to engage and broaden the particularities embedded in the action systems of the state - as sites for confrontations between the prejudices of civil society and prejudices of the authoritative action systems of the state. Such disputes are necessitated by the fact that laws in themselves, as the following chapters demonstrate, are not in themselves adequate to the task of altering entrenched states of affairs, namely, the captivity of administrative authorities by older norms defended by established, articulate interest groups and traditionalised social mores. If we view these dialogues as taking as their themes the feasibility and appropriateness of legally codified norms and feeding back into centralised debates concerning further legal reform, then the dialogic and procedural visions of deliberative democracy can be bridged. This dialogic/procedural deliberative interpretive frame acknowledges the reality of both systemic complexity and social reflexivity, speaking to contemporary realities in tension with the NSW state's liberal-aggregative legitimative pathways. More specifically, the interpretive scheme facilitates analysis of emergent, contested public environmental rights that register as too strong in aggregative terms and too weak in participative terms. These rights are coherent in procedural-dialogic deliberative terms. The above discussions are summarised in the following scheme:

107

Figure 3.2 Interpretive Scheme

It is a consequence of modernity that the indeterminate and context bound nature of knowledge perculates into social consciousness and this social reflexivity spawns a politics of knowledge

The Politics of Knowledge

System/Lifeworld InteractionIncreased productive forces lead to social learning, increased systemic complexity, colonisations of the lifeworld, legitimative deficits and waves of juridification

Systemic Complexity

Functional specialisation results in the entrenchment of self referential domains of activity that expand in scope as they simplify and schematise their environments' inputs, a consequence of which is the proliferation of side effects

Deliberative democratic theory is capable of interpreting this legitimative landscape if procedural and dialogic elements are combined

System

Lifeworld

Civil Society

Parliament(s)

Political Executive

PetitionsDiscussion papers

Committee hearings

Court cases

Statutes

Courts

Depart- ments& agences Administrati

on

Consultations

Public spheres

Mass media

Techno- science

Controversies

Polling

ElectionsAggregation

Campaigns

Inquiries

Committees

public debate

Application

Parliamentary debate

Normative codification

Procedural Deliberation

Dialogic Deliberation

Inquiries

Lifeworld

Expertise

Black Boxes

I have extended Habermas' defence of public discourse as the appropriate legitimative anchor for contemporary democracies to acknowledge the indeterminacy of technoscientific knowledge informing administrative action. I now turn to the deployment of this interpretive scheme. In Part B, I analyse the provocation of socio-environmental debate and unpack the resulting incoherent legal codification. In Part C, I characterise the entrenchment of legitimative and steering socio-environmental dilemmas in the WS/HN region. These accounts, given over four chapters, demonstrate the elucidatory reach of the interpretive frame of competing democratic paradigms put forward in

108Chapter 2 and the dialogic-procedural deliberative interpretive scheme elaborated above.

109

Part C

Socio-environmental Debate

and its

Legal Codification

110

Chapter Four The Rise of Socio-environmental debate: an interplay of economy, state and lifeworld

4.1 Introduction

This chapter takes as its topic the provocation of socio-environmental debate by the NSW State's entry into the new field of urban planning in 1945. A policy foray that unsuccessfully confronted powerful economic forces and entrenched administrative arrangements. Debate stimulated by this policy failure reached a crescendo in the 1970s during an economic boom driven in part by high population growth, resulting in a unprecedented wave of juridification of environmental planning, assessment and pollution control. This story illustrates both the provocation of social reflexivity by systemic complexity, both economic and administrative, and the intensity of demands on the political system to mediate between economic and social imperatives. It demonstrates the inadequacy of the liberal-aggregative understanding of democracy in the face of this task of mediation. I relate this story through three sections. Section 4.3 tackles the urban policy debacles; Section 4.4 the resulting civil protest; and Section 4.5 the legislative debates that calmed these contestations. These sections are prefaced with an overview of the liberal-aggregative pattern the NSW political regime has settled into since Australia's federation at the turn of the nineteenth century. This account of NSW's political regime is facilitated by Habermas' theses on modernity and constitutes an important scaffolding supporting the interpretations given of the case study material in this and the following 3 chapters. I here lay out the historical context of NSW's political and administrative systems' dependence on economic growth.

4.2 The NSW State's Liberal-Aggregative Architectonic

Australian parliamentary government began in NSW in 1856 within the English tradition of responsible government.104 Responsible government, a set of English doctrines, is comprised of five elements:

104 NSW's fully elected lower house commenced proceedings guided by a constitution

drafted in 1853 that was based on British doctrine but left room for local conventions to evolve (Loveday, 1966:6).

1111) executive authority is vested in the ministry, particularly the inner

ministry - cabinet, who are in turn responsible to the parliament, then the electorate, for the performance of both individual departments the government as a whole;

2) executive authority is also held by an appointed head of state, the Governor General [the English monarch's representative];

3) the executive is dismissed by either losing an election or a vote of no confidence in the lower house;

4) the executive is supported and advised by an independent meritorious bureaucracy;

5) a concept of a chain of accountability running from officials to minister to cabinet, then from cabinet to parliament to the electorate (Emy & Hughes, 1991:338-9).

Until the turn of the century politics remained factional and fluid as representatives won office on the strength of local sentiment (Loveday 1966). The two-party system (Marsh, 1995) came into being as the electorate increased in size and became socio-economically polarised during the nineteenth century:

The faction system was slowly undermined from the mid-seventies onwards as economic development and diversification, accompanied by a steady growth in population, at once reduced the effects of the [NSW] colony's geographical fragmentation and differentiated the community more sharply into groups with identifiable and sometimes competing interests ... It took a sudden break in the boom during the mid-eighties to precipitate a crisis which laid bare the extent of accumulated social and economic changes. Now the traditional liberal ethos had a hollow ring in the face of distress and the urgent dissatisfaction of men moved by economic grievances to denounce the old politicians and to demand new policies to meet sectional needs (Loveday, 1966:152).

These sectional needs were addressed and settled in the pivotal turn of century period of 1901 to 1909 through debates about racial insulation (the white Australia policy which still haunts the Australian psyche), the freezing of class politics by institutionalising legal arbitration, the linkage of fair and reasonable wages to tariff based industrial development, and the launching of the welfare role by the new federal government (Marsh, 1995:18-26). Thus a broad social accord and division of tasks between national and state governments, what Marsh calls a political regime, was settled upon in a remarkably short space of time.105 Marsh summarises the Australian political regime as follows:

105 A 'political regime' is defined by Marsh as: "... as a structure of politics, [that] shapes the

political agenda, the mobilisation of interests, the pattern of policy making and political learning, and ultimately exercises a profound influence on the character of the

112Deakin, the primary author, himself consistently described it as his national program - a package designed to cement relations between the hitherto fractious and jealous colonies and to establish a positive foundation for national identity. The threshold requirement was conceived to be an inward-looking community, a polity protected from people who might further exacerbate already strained relations between trade unionists and proprietors ... the challenge became to realise the ideal of fairness whilst fostering scope for individual initiative. This was conceived to require quality jobs with wages for male bread winners sufficient to maintain an 'average' family in decent conditions. In turn, quality jobs were conceived to require industrial development since rural jobs required less education. Finally, fairness was interpreted to require equal levels of per capita grants for each State irrespective of its contribution to income, and pensions for those who, through no fault of their own, were poor. This was a coherent program which both Labor and the newly established Commonwealth [Federal] Liberal Party incorporated in their programs or platforms. This provided the substantive foundation of the two party regime (Marsh, 1995:27).106

Three points can be made concerning this accord and the administrative arrangements fostered by it. Firstly, like similar arrangements across the western world, it is premised on continual economic growth as a solution to inequality:

It is only the basis of a prevalent concern with growth and real income that both the preparedness of organised labour to give up more far-reaching projects of societal change in exchange for a firmly established status in the process of income distribution and the preparedness of investors to grant such status to organised labour can be explained (Offe, 1985b:822).

Economic growth is the primary concern of state governments which compete to attract investment and industries, regulate land use, and are responsible for the provision of utilities underwriting growth - power, water, roads and waste disposal.

surrounding society. Through a regime a social and economic order is constituted. The genesis of a regime displays statecraft at its highest and most creative ... level ... in contrast with the more familiar distributive or allocative activities of particular governments. A regime can embody both substantive and procedural elements - the former determining the tasks of government and the latter the distribution of power and influence and the modes of access and accountability in the formal structure of politics and policy making" ( Marsh, 1995:17, emphasis added).

106 This program was articulated by Deakin in the years 1905 and 1906.

113Secondly, it reduced the political resonance of local issues. In party democracy the personal relationship between represented and representative gives way to generationally stable party allegiance cemented by socio-economic status. Voters select the party and the party bureaucracy select the representatives (Manin, 1994:150-152). Local issues, and the civil society through which they are voiced, are marginalised, falling outside party platforms constructed by the party using statistical readings of the electorate. Marsh, while respectful of the ability of the two-party regime's to reduce complexity by schematising its political inputs, recognises this sacrifice of civil society to organisational machines:

... we see how liberal individualism, which nourished a formal ethos of individual political participation, was displaced for many social groups by collectivised identification, reflected in attachments to trade unions and mass political parties. In turn, collectivised social identities made more ambitious government possible. It allowed social interdependence and scale to attain a new level. The means was the bureaucratic state. The two party settlement in practice thus worked to reduce participation. Mass parties and mass organisations, in mobilising new political activists, displaced older patterns of local action which involved more opportunity for direct individual participation and influence. In retrospect, such a change was doubtless a necessary feature of a political order which pursued universalist and egalitarian goals. Such a concentration of political authority was a necessary condition for accomplishing the nation-building and redistributional tasks that government assumed (Marsh, 1995:32).

Thirdly, the party system fused with the hierarchical conventions of responsible government, the practices of which evolved out of the governance of a hierarchical, feudal society by means of a monarchy. The doctrine of responsible government is authoritarian:

Responsible government embodies half-hidden ideas about the nature of political authority and governance which derive from the pre-democratic era. The model has been a way of carrying over much older forms of rule into the age of democracy. Responsible ministers have in fact adapted for their own use many of the old prerogative powers and privileges claimed by the Crown. For example, the ideas of Cabinet secrecy, Crown Privilege, the exclusive responsibility of ministers for policy, various types of discretionary authority vested in ministers, the dicta of national interest or national security: all these reflect the long-standing beliefs of the British governing class that government is, properly, a mysterie, something not altogether fit for the uninitiated. Even the concept of voluntary resignation embodied in the doctrine of ministerial responsibility represents essentially the distillation of an

114aristocratic (and public school) code of honour. The model ... represents a particular way of grafting democratic ideas onto much older forms of government. As such, it harbours a theory and practice of government which can be used as a defence against some of the values of popular democracy, for example, open government. While responsible government provides a formal chain of public accountability, it also contains another chain in which political authority and initiative are seen as flowing downwards from the leaders to the people. The political executive can use the procedures of responsible government to resist accountability ... (Emy & Hughes, 1991:346, italics original).

The integration of responsible government with the party system lessened the strength and significance of the houses as sites of considered debate and review:

... if one is considering the effect of party and party discipline upon the institution of Parliament, the system of public accountability and the openness of politics, then one has to agree that the kind of adversarial, competitive struggle for power waged by modern parties is increasingly destructive of both parliamentary procedures and wider democratic values. The strength of party discipline has helped to consolidate executive power over Parliament, inverting the chain of accountability which is supposed to run downwards from the executive to Parliament to people. Instead, an executive, supported by party, virtually has the power to determine the terms and conditions on which it will be held accountable. It certainly controls all significant procedures in Parliament, all aspects of the legislative process (in the House at least) and substantially controls the release of, and public access to, official records, statistics and information (Emy & Hughs, 1991:349).

These three interrelated developments, the addiction to economic growth, eclipse of civil society and erosion of the deliberative elements of representative democracies, have culminated in the dominance of reductive aggregative approaches to political problems. The aim of the political game has become to attract sufficient swinging votes, often with purely financial incentives, to get over the line. It is an architectonic that implies disjuncture between the tasks of achieving political office and those involved in underwriting economic accumulation, between the content of politics and those of administration (Habermas, 1988:69-70). Beck argues that the tense juxtaposition wealth creation and legitimation has resulted in the evolution of "sub-politics". sub-politics, insulated from legitimation through democratic processes, pioneers the radical transformation of society under the banner of 'progress' - "a blank check to be honoured beyond consent " (Beck, 1992:203):

115Only part of the decision-making competencies that structure society are gathered together in the political system and subjected to the principles of parliamentary democracy. Another part is removed from the rules of public inspection and justification and delegated to the freedom of investment of enterprises and the freedom of research of science. Social changes in these contexts are displaced as latent side effects of scientific and techno-scientific decisions. People do something quite different: they assert themselves in the market, use the rules of profit-making, carry forth scientific and technical inquiry, and in so doing they turn over the conditions of everyday life. With the globalisation of industrial society, then, two contrary processes for organising social change interpenetrate one another: the establishment of political parliamentary democracy and the establishment of an unpolitical, non-democratic social change under the legitimating umbrella of 'progress' and 'rationalisation'. The two behave towards each other like modernity and counter-modernity. On the one hand, the institutions of the political system - parliament, government, political parties - functionally presuppose in a manner conditioned by the system the productive circle of industry, technology and business. On the other hand, this pre-programs the permanent change of all realms of social life under the justifying cloak of techno-economic progress, in contradistinction to the simplest rules of democracy - knowledge of the goals of social change, discussion, voting and consent (Beck, 1992:184).

The interpretation of the 1945 to 2000 period in NSW through historical, legal, regional and local lenses in the remainder of this chapter and the 3 following, demonstrates that this liberal-aggregative institutional architecture is now unravelling. This narrative begins below, looking back to 1945 in what is now Eastern Sydney.

4.3 The Brave New World of Urban Planning

Far from anticipating that it could become squeezed between socio-environmental, administrative and economic imperatives, the NSW government embraced the new policy domain of urban planning, assuming that amenity problems could be simply bracketed and addressed through the new 'science' of town planning. The first planning authority, the Cumberland County Council, was established in 1945 through the Local Government (Town and Country Planning) Amendment Bill enacted by a Labor Government led by Premier W. McKell. McKell visualised:

... a better post-war world, an integral part of which involved a social reformist approach to city planning. Slums would be removed, outer areas would be zoned for residential, commercial and industrial development, land would be preserved or resumed for parks and recreation areas, foreshores protected, and sites

116reserved for public buildings, educational and cultural centres. And above all, legislative authority would be given to town planning (Sandercock, 1974:294).

The Cumberland County Council (CCC), made up of local government representatives and professional staff, was to enact these policies through detailed plan preparation and development control modelled on British legislation and practice. Innocent of the potential for conflict between aggregative and participative democratic principles, the Minister for Local Government, J. Cahill, promised at the inaugural meeting in November 1945 that planning would be democratic, not imposed from above. He stated that "the people themselves shall join in the planning to the greatest extent possible" and advocated that the Council publicise the plan through the press, lectures and demonstrations to show that "the scheme is a considered measure for the welfare of the community as a whole and not a collection of arbitrary prohibitions and restrictions" (CCC, 1948:xvii). The CCC lived up to this vision, committing a public relations section to a policy of a two way information flow policy. 'Special staff' were appointed to consult regularly with local council officers, and officers were appointed to liaise with government departments and statutory authorities (CCC, 1948:14-15). However, the CCC had no authority to force other authorities or departments to comply with its directives or conform to its plans. The CCC's plan was published in 1948, prefaced with the claim that "the views of 125 associations and organisations have been sought and considered, as well as unlimited suggestions from private citizens" (CCC, 1948:xv). It was an idealistic document. Wilenski described the fruit of the CCC's efforts as follows:

The County of Cumberland Scheme, completed in 1948 and gazetted in 1951, proposed the establishment of a 'green belt' surrounding the city to limit the urban sprawl and to encourage the development of satellite towns on the other side of that belt. Within the city area, it aimed to redistribute the centres of employment in order to reduce congestion and facilitate home-to-work journeys ... The Cumberland County Council tended to place its faith in this Scheme as the mechanism which would co-ordinate the planning of other government departments and authorities (Wilenski, 1986:242).

118The proposed green belt would have linked the national parks to the north and south of Sydney and separated regions within Sydney with open space. If fully implemented, it would have stopped urban sprawl at Parramatta (now the geographical centre of Sydney). After urban infill had been completed, population increases would have been taken up on the other side of the belt in new towns such as Penrith and Campbelltown (now connected to the older suburbs by continuous urban sprawl). Major difficulties were encountered in putting the plan into action. A pivotal barrier was the inadequacy of linkages to government bodies largely responsible for public infrastructure and investment decisions. The "Departments of Transport, Lands, Industrial Development, and the Maritime Services Board consulted or ignored the council as they saw fit" (Sandercock, 1974:306). The parochialism of councils posed a further problem: "each council was reluctant to restrain development and resented curbs on possible future growth of their municipalities" (Sandercock, 1974:301). The plan was shaken by pressure to release greenbelt land for development, fuelled by the post-War immigration rate which doubled the population increase anticipated by the CCC. In 1959, the council lost its strongest advocate within government when the Premier and former Minister for Local Government J.J. Cahill died. The new Minister P.D. Hills' "response to pressures from the Housing Commission,107 the councils and private interests was immediate" (Harrison, 1972:75). Hills effectively destroyed the plan in 1959 by releasing 30 000 acres of green belt land for development.108 Consequently: "a swelling band of real estate subdividers and developers began to doubt the ability of the Council to continue to protect the Green Belt zoning, and were taking up options on large tracts of land in the Green Belt" (Sandercock, 1974:308). The decision was unpopular, evidence that the green belt concept, and the participatory philosophy underpinning its formulation, had garnered widespread social support:

Both press and popular reactions to this decision were markedly and unexpectedly hostile. The new Minister was apparently oblivious of the wide measure of quiet support that the Council had built up for

107 Responsible for building and renting out public housing to low income earners.

108 Following the recommendation of the Town and Country Planning Advisory Committee without referring this step to the CCC for comment

119the green belt idea and was probably unprepared for the agitation which his decision aroused (Harrison, 1972:75).109

Poor administrative coordination, rather than unconstrained market forces, were held responsible for this debacle: "The conclusion was therefore drawn that a body was needed which could deal with government departments and ad hoc authorities on an equal footing and which had positive and direct lines of communication to the Minister and hence to Cabinet" (Sandercock, 1974:308). The County was replaced by the State Planning Authority (SPA), incorporating representatives of transport and water/sewerage public utilities, in December of 1963. The SPA was subjected to the direction of the Minister and given responsibility for co-ordinating the development programs of public authorities, particularly land use, transport and public utility services (Sandercock, 1974:311-12). The Authority took up a new device, the strategic plan, and published a broad advisory sketch - the Sydney Regional Outline Plan, 1970-2000 (SROP) - in 1968, (Sandercock, 1974:315). SROP, abandoning the green belt concept, was primarily a guide to the future expansion of the city. Sandercock summed up the plan's two constraints: "the widespread acceptance of ... the primacy and therefore continued growth of Sydney and the role of the government departments and statutory agencies as virtual planning authorities in their own right" (1974:317). The corridors marked for expansion were south west, due west and north west. The growth corridors effectively segregated the city, with "the rich, nestling around the shores of the harbour and occupying the good land on its northern side, and the poor, stretching across the hot, flat western plain and forced further out by the influx of the 'new middle class' into the traditionally working class old inner suburbs" (Sandercock, 1974:317). SROP relied on the plans of the Department of Main Roads (DMR) to bring the people to their place of employment, abandoning the CCC's policy of aligning place of employment with place of residence through regionalisation. The DMR plans simply elaborated on the 1948 proposals for 200 miles of expressways in six directions plus distributor roads surrounding the central area. In 1968 350 miles of new freeways were proposed (Sandercock, 1974:322-3), making long hours of commuting and poor air quality inevitable.

109 The CCC did achieve the preservation of some 200 acres of foreshore lands around

Sydney Harbour and significant tracts of parklands in the western suburbs (Sandercock, 1974:303).

121Because the plan detailed the pattern of future land use, a politically humiliating speculative boom ensued. Thirty thousand blocks were withheld from the market to inflate the price of land. The Housing Commission was priced out of the market resulting in embarrassing publicity on the intractable problems of spiralling land prices and low income housing shortage (Political Chronicles, 1972:416).110 It was appreciated in the literature of the time that both statutory land use mapping and strategic planning were mediocre tools in the face of the economic forces unleashed by population growth:

The control of land use exercised by statutory planning attempts to deal with the consequences of population growth and economic expansion, manifested in buildings and works, private and public. It cannot touch the cause of growth, it can influence only the forms and direction of that growth (Harrison, 1972:96).

The rapid and radical socio-environmental transformation of Sydney made transparent the embedding of land use in the most speculative traits of the economic system. Planners possessed neither the conceptual tools nor the institutional power, to address this relationship:

Orthodox planners - many of whom would be shocked to hear themselves described as right-wingers - see their role as merely coordinating and economising the central urban reconstructions as efficiently as possible. They accept 'the people's' locational decisions and follow up with the transport 'the people' obviously want ... Such planning makes a drastic choice of a particular future. Its concentration of public investment onto inner-radial and central surgery actively encourages more and faster private surgery as well as rising rates of destruction and renewal made profitable by the land values of overbuilt office centres ... [S]uch policies ... work in favour of the interests of tiny minorities of central investors and developers ... Sensible schemes to limit and disperse central office building have been proposed since 1953 - and regularly murdered by the lobbies of the central investors (Stretton, 1970:245-6).

4.4 Restless Residents

The rending of Sydney's socio-environmental fabric by the booming residential, commercial and industrial growth generated widespread contestation by the 1970's. Many of the protesters were middle class. As Beck points out, it is not

110 The Land Development Contribution Act (1970) taxed 30% of the profit land owners

received from land rezoned for urban development but the tax was abandoned in 1973 (Sandercock, 1974:320-21).

122necessarily those objectively suffering the most environmental degradation that protest loudest (Beck, 1995b:54). Protest erupts when a valued form of life is threatened:

tolerance of despoliation and hazards ... wears thin only where people see their way of life jeopardised, in a manner they can both know and interpret, within the horizon of their expectations and valuations (Beck, 1995b:46).

The entry of government into the field of urban planning, the failure to establish a green belt, and the retreat from control to facilitation of urban and industrial development facilitated an understanding of the NSW State as the underwriter of socio-environmental despoilation. Government forays into new policy arenas are pinpointed by Habermas as productive of irreversible legitimative shifts:

At every level, administrative planning produces unintended unsettling and publicising effects. These effects weaken the justification potential of traditions that have been flushed out of their nature-like course of development. Once their unquestionable character has been destroyed, the stabilisation of validity claims can succeed only through discourse. The stirring up of cultural affairs that are taken for granted thus furthers the politicisation of areas of life previously assigned to the private sphere (Habermas, 1988:72).

Ted Mack's statement below bears out the validity of Habermas' thesis. Mack's concern as a resident inspired him to run successfully for the offices of councillor and mayor of North Sydney Council, and to subsequently become a NSW, then Commonwealth, independent Member of Parliament. He speaks of how the rate of socio-environmental transformation underwritten by local and state governments drove his reflexive perturbation:

In the late 1960s, the Warringah Freeway was completed, and change hit North Sydney with a vengeance. Bulldozers turned up and demolished the house behind mine. Suddenly they were blasting and rocks were bouncing off my roof. On digging deeper I found the council and the state government had re-zoned the houses for a seventeen-storey office block. I found that a new development of 175 bedsitters was occurring in front of me and just up the road there was a twenty-two storey development. Then I found that the council was considering re-zoning the whole area for eight-storey developments. I soon realised that this level of change was virtually typical of all other areas and it has continued since that time (Baldry and Vinson, 1991:226).

123Running for office was the only orthodox pathway available to express the reservations being articulated by newly formed RAGs. This lack of avenues for objecting to the rate, scale and form of development generated an explosive situation. Roddewig commented:

The RAG component of the green ban movement was unable to convince state parliaments because it did not coincide with the dominant interest group affiliations of the parliamentary parties. In pursuing its tactical goals ... it confronted a highly disciplined parliamentary form of state government with executive and legislative functions so fused that there was no chance to mobilise one against the other ... by necessity, it had to grope outside traditional politics for a new means to force a pause in which ill-advised policies could be reconsidered (Roddewig, 1978:51).

Neither could ready avenues for debate could be found within the administrative machinery which was feudalised by technical mandates. Nor did residents have rights of objection to developments at the local level - local councils were not required to give public notice that a major Development Application had been received.111 Roddewig commented that: "There was widespread disenchantment with local government failure to resist private developers' inducements" (Roddewig, 1978:15). Even if local councils were a reliable avenue for the expression of residents' concerns, this level of government had no control over developments initiated by the state government.112 The green ban movement developed out of a controversy over 'Kelly's Bush' - a parcel of Harbour foreshore bush in the upper middle class suburb of Hunters Hill that was approved by the SPA for use in high rise residential development. A group of local housewives attempted to reverse this decision but became frustrated when traditional political and planning channels did not work

111 Not until 1970 was there such a requirement in NSW. After much public clamour, the

state Parliament passed a minor amendment to the Local Government Act (s.324zA) so that notice was to be given of an application to erect a new residential apartment building. However, there was no right of appeal against a consent authority's decision and few local councils gave notice of other development proposals (Fogg, 1985:6, Roddewig, 1978:54).

112 "The state government, as the effective metropolitan government, initiates the most controversial public developments such as expressways and urban renewal projects. Technically, the Crown ... [had to] obtain local government approval like any other developer. However, local planning schemes ... [were] not approved by the state unless the local ordinance specifically restricts the local council's right to refuse Crown-initiated public developments or to attach conditions to a consent ... Local governments are treated no differently than individual citizens or RAGs when the state proposes a new project" (Roddewig, 1978:56).

124(Roddewig, 1978:15). Eventually it was suggested that they try approaching unions for help. The NSW Builders and Labourers Federation (BLF), a radical union under communist leadership, agreed to place a ban on the site on environmental grounds. This became the first of many such bans as group after group approached the Sydney BLF to side with them over disputed land uses.113 According to Roddewig: "... most of the major threats to neighbourhood environment which spurred the rise of RAGs in Sydney ... were state sponsored projects over which local government had no control" (1978:43). The NSW Liberal government had taken advantage of the boom conditions to position itself as entrepreneur in regard to substantial state property, most famously in the case of the commercial redevelopment of The Rocks. The public development projects that were green banned were more significant in terms of project size, cost and impact (Roddewig, 1978:56), and more controversial. The Askin Government was confrontationist, viewing the BLF and RAGs as unaccountable vocal minorities. While private developers were inclined to try compromise:114

... the state government believed that to allow any extra-legal compromise after formal planning procedures had been followed and exhausted would be a dangerous precedent. The government feared the consequences if local amenity groups and environmentalists were able to dictate regional planning policy by a green ban (Roddewig, 1978:13).

113 According to Roddewig there were 43 green bans placed by the NSW BLF:

Underlying Issue No Preservation of historic buildings, hotels and live theatre 10 Bans on development in the inner city 7 Housing standards - refusing to build flats 6 Retention of parkland and open space 5 No demolition for expressways 5 No demolition of homes for car parks and other uses 3 Inadequate compensation paid on compulsory purchase 3 Miscellaneous social issues 4 Total 43 (Roddewig, 1978:30)

114 "In the face of the union ban on Kelly's Bush ... The Battlers, Jennings and the unions discussed a possible compromise. Jennings would swap Kelly's Bush to the SPA for another piece of land more suitable for development. That appealed to Jennings as an honourable compromise, but by then the state government was bitterly opposed to any further compromise with the Battlers and their supporters ... So the first 'green ban' became a stand-off" (Roddewig, 1978:13).

125These issues came to a head over The Rocks redevelopment.115 The Sydney Cove Redevelopment Authority (SCRA) Act was passed in 1968 to facilitate the re-development of 53 acres of public land at The Rocks, a habourside suburb adjacent to the central business district, to take advantage of the commercial office boom. These proposals would have destroyed an established working class community, some of whom had resided at The Rocks for generations. SCRA's membership, appointed by the Minister for Local Government, did not include any residents. After sit-ins and confrontations to stop the progress of bulldozers and two weeks of protests in 1972, the scheme was modified. By 1974, the residents had won representation on an advisory committee. In 1975 the residents lifted part of the green ban to allow modified redevelopment that included the provision of low and middle income housing (Roddewig, 1978:22-26). Ultimately the green ban phenomenon rested on a combination of a fickle economic boom and labour shortage in the building sector exploited by the BLF, conditions which did not endure for long. In 1973 the Master Builders Association of NSW successfully instituted proceedings before the Industrial Court to have the NSW BLF deregistered and so exclude it from the arbitration machinery. Norm Gallagher, Victorian BLF leader and federal secretary of the union set up a new branch of the union in Sydney in 1974 (Roddewig, 1978:106). Many employees were willing to cooperate, and by March 1975 the Masters Builders Association agreed to give first preference to the new branch members and the Australian Council of Trade Unions gave it full recognition and support. In April of 1975, 24 members were expelled from the union including the former NSW BLF leaders. The underlying issue was jobs or green bans; the boom had finished and concern had grown that developers had been driven to other states by the activists. The scope of green bans was reduced to the preservation of historic buildings (Roddewig, 1978:107).116

115 A suburb of great historical significance, the site of the first white colony in Australia

and located at the southern foot of the Sydney Harbour Bridge.

116 Green bans only thrived in Sydney and to a lesser extent Melbourne. Even if unions could argue that they had a legitimate right to veto developments, a credible mechanism that could justify such a generalisation was never generated. For example: "The difficulties encountered by John Sinclair in his efforts to green ban Fraser Island mining exposed the arbitrariness of the green ban selection process. A small neighbourhood park in Sydney might be protected while an area indisputably of worldwide importance was not" (Roddewig, 1978:142-143).

126At the time, however, the green ban movement attracted international attention (Mundey, 1981).117 The role the BLF played in bringing the issues local controversies raised about amenity loss into the public domain has now been replaced by the environmental movement:

In retrospect, what the NSW Builders Labourers did was contain the building boom of the '60s and early '70s, which hit Sydney before it hit the other major capital cities. It stopped that boom from destroying the character and heart of Sydney and it certainly helped spawn the budding environmental movement (SMH, 18/3/95:34).118

4.5 The Regrouping of Liberal-Aggregative Politics

While engaged in this struggle over urban growth, the [Askin] NSW Liberal-Country party government undertook a legislative response to social unease and protest over Sydney's mounting industrial pollution,119 introducing three Bills to parliament in 1970: The Clean Waters Bill in October, and the Waste Disposal and State Pollution Control Commission Bills in November. The parliamentary debates of these proposals pinpoint the dilemmas inherent for a political system deeply invested in economic growth while needing to at least appear to be ameliorating the side effects of that growth. The Clean Waters Bill established an advisory committee of sixteen members, made up largely of administrative representatives,120 with the power to issue

117 Credit for stimulating debate about heritage and amenity is also due to the Whitlam

Commonwealth Government's inquiry into The National Estate, and its innovations in regional development through the establishment of the Regional Organisations of Councils.

118 Green bans are still placed today. For example in March of 1995 the Construction, Forestry, Mining and Energy Union imposed an interim ban on demolition work at the Darling Harbour sport and recreation centre to protect the CBD's only sports park from replacement with a proposed game arcade (SMH, 24/3/95:6). However green bans today do not seek or evoke the level of confrontation with government seen in the early 1970's.

119 Protest that is not as well documented as the green bans, although research material is available in media archives, local council records and Hansards.

120 Who were proposed to be: the Director-General of Public Health, officer of the Department of Public Works, officer of the Chief Secretary's Department, a representative of the Water Conservation and Irrigation Commission, Maritime Services Board, Metropolitan Water Sewerage and Drainage Board, Hunter District Water Board, State Planning Authority, Local Government Association of NSW, Shires Association of NSW, and six Ministerial nominees representing primary industry, conservation of the natural environment, recreational pursuits, and two nominees with appropriate technical qualifications (NSW, Legislative Assembly, 1970, Debates, Vol. 88:7362).

127licenses specifying the conditions under which discharges to waterways would be tolerated, impose fines for pollution offences, and undertake a classification of all waters. The Waste Disposal Bill established a statutory authority to take over responsibility for the disposal of liquid industrial wastes, (then being dumped illegally or legally in municipal tips resulting in their saturation and the contamination of nearby land and waterways), and to oversee the disposal of solid wastes to systemise haphazard local councils operations. The State Pollution Control Commission Bill established a commission, again dominated by administrative interests,121 supported by a technical advisory committee that:

... will not replace those authorities having specific responsibilities under the Clean Air Act, the clean waters legislation ... and the proposed Waste Disposal Act - rather will it co-ordinate and review their activities and those of other Government and local - government bodies concerned in the prevention, abatement or control of pollution and work largely through them to achieve its aims and objectives (NSW, Legislative Assembly, 1970, Debates, Vol. 90:8093).

The Labor opposition was scathing about these proposals. Many of the opposition members who spoke against the Bills represented electorates with severely degraded waterways and spoke at length about these local problems.122 Dissatisfaction was expressed at the dominance of government polluters and industry representatives on the proposed Clean Waters Committee and Pollution Control Commission: "Nine of the fifteen members [of the Clean Water Committee] ... are polluters. This will be a great unwieldy committee. I can see that at many of its meetings there will be dogfights between the polluters and the anti-polluters" (NSW, Legislative Assembly, 1970, Debates, Vol. 88:7537). It was objected that a long term amnesty was being offered in the Clean Waters Bill to polluters (NSW, Legislative Assembly, 1970,

121 Comprised of a part-time chairman nominated by the Premier, a full-time director and

deputy chairman, the under secretary of the Department of Local Government, the under secretary of the Department of Public Health, the president of the Metropolitan Water Sewerage and Drainage Board, two representatives nominated by the Premier from a panel submitted by the Local Government Association and Shires Association, and five members nominated by the Premier representing primary and secondary industry, commerce and conservation and recreational interests (NSW, Legislative Assembly, 1970, Debates, Vol. 90:8096).

122 Such as the Illawarra, Georges, Cook's and Parramatta Rivers, Botany Bay, the Harbours, Myall Lakes, the South Coast's Allen Creek, Kembla's coalmine discharges and Wollongong's Coniston beach (NSW, Legislative Assembly, 1970, Debates, Vol. 88:6961 - 6962).

128Debates, Vol. 90:8168). The Labor opposition alleged that the government had failed to come to grips with its own contribution to pollution. Members argued that "The Government has a responsibility, not to government and semi-government departments, to the polluters or to industry, but to the community" (NSW, Legislative Assembly, 1970, Debates, Vol. 90:8097). Labor pointed out that while an appeals board was provided for by the Clean Waters legislation, its membership was not specified and challenged the government to use the supreme court as the institution of appeal (NSW, Legislative Assembly, 1970, Debates, Vol. 88:7643-4). It was argued that public authorities were being provided with a loophole by being able to appeal to the Premier when a dispute arises:

It is like saying that if Caesar has a row with Caesar's wife, Caesar will decide it. It is a sham to say the [Cleans Waters] Act could go to bind the Crown, when the Premier is to be the arbiter. Why should the Crown be any different from private enterprise? If the clean waters advisory committee tells Crown instrumentalities that they must achieve certain standards, why should they be in a position different from that of private enterprise? (NSW, Legislative Assembly, 1970, Debates, Vol. 88:7373).

The Opposition argued that a single authority should be established to correct current and avoid further fragmentation: "Pollution should be dealt with by a single over-riding authority, clothed with sufficient administrative and disciplinary powers to enable it to control the whole range of pollution in New South Wales" (NSW, Legislative Assembly, 1970, Debates, Vol. 90:8171). Here the opposition was anticipating the same difficulties that arose when the CCC clashed with older, more powerful bureaucracies and statutory authorities and lost. These debates pinpointed how the state, in attempting to address environmental side effects, confronted itself as a barrier to change. The government members defended the Bills by invoking the established accord concerning the necessity of economic growth:

We all know that the preoccupation with pollution is a product of an era of full employment and that is tolerable and maintainable only in an atmosphere of full employment. Industry is a creator of this atmosphere of affluence and full employment. It is from industry, its technology, the inventive genius of people of this and other western countries and the hard work of the labour force of this and other western countries that a climate has developed in which we can afford to talk about the luxury of pollution control, bearing in mind the enormous expense involved (NSW, Legislative Assembly, 1970, Debates, Vol. 90:8098).

129The Minister for Health pointed out that the Opposition was in effect attacking the core doctrine of responsible government in disputing that the administrative apparatus constituted a neutral instrument of the government of the day:

At one stage of the debate an honourable member cast an adverse reflection on public servants. Where would this State and this Parliament be if we were not able to operate through the public service? ... To whom else do we commit for administration the decisions in this Parliament and elsewhere? (NSW, Legislative Assembly, 1970, Debates, Vol. 88:6965).

The Askin government, being in possession of an absolute majority in both houses passed the three Bills without the substantial amendments put forward by the Labor opposition. By 1974 the government was so harried by action groups and green bans that it admitted its urban planning laws required overhauling. Roddewig called it a tacit admission that many of the charges levelled by the green ban movement were valid. The studies and proposals published in 1974 and 1975 by the Askin government, discussed below, concluded by bowing to departmental and statutory authority autonomy but initially fielded a participatory strategy. In 1974 the SPA was replaced by the NSW Planning and Environment Commission (PEC), a literal acknowledgment of the environmental consequences of urban planning (O'Neil, 1987:3). In the first reading of the PEC Bill, the Deputy Premier spoke to "a need ... to divorce the state planning organisation from local planning leaving it [the State] to concentrate on the preparation of guidelines, policies and procedures for structure and master plans", and asserted the "wish to encourage a greater degree of community involvement in planning processes at the local level" (O'Neil, 1987:13). PEC was briefed to undertake a wide ranging study of land use planning in NSW within a year. However, the Minister for Planning and Environment also set up a task force under Special Adviser N. A. Ashton. Ashton produced two documents before the PEC produced its report (O'Neil, 1987:14). The first document was released in December, 1974. Entitled Towards a New Planning System for NSW, it was popularly called the 'Green Book'. Some fifteen thousand copies were distributed throughout the state inviting public comment. The green book suggested strengthening local decision-making, establishing regional planning authorities, greater emphasis on environmental considerations, and greater attention to the social and economic consequences of planning (Minister for Planning and Environment, 1974).

130The document advocated two participatory mechanisms. Firstly, that the planning process be open to public at three points - when the plan's objectives were formulated; when the alternatives were formulated and when the draft plan was completed (Minister for Environment and Planning, November 1974:13-21). The basis of this recommendation was that:

The planning system provides for public involvement only in the form of a statutory public exhibition, which takes place after the proposals have been formulated and when the draft planning scheme already represents a lot of work on the part of its authors. Existing legislation does not prevent planning authorities from exhibiting their plans at all stages of preparation or indeed from soliciting public involvement to help in the formulation of their ideas. However, because the system does not include any formal procedure for this, involvement has been more the exception than the rule (Minister for Environment and Planning, November 1974:10).

The second participatory suggestion put forward in the Green Book was that third party appeals be broadened,123 allowing civil groups and individuals to mount legal challenges to consent authority decisions. The floodgate argument124 was dismissed with the conclusion that only those substantially affected or intensely concerned about a proposal would undergo the exacting experience of appearing before a tribunal. This innovation was framed in rationalistic rather than deliberative terms: "there is much to be said for channelling opposition which now often manifests itself in uninformed publicity into the [NSW Local Government Appeals] tribunal where it is subject to rational and expert examination" (Minister for Environment and Planning, November 1974:21).125 Ashton's second report contained detailed suggestions for a new planning system. The 'Blue Book' advocated regional PEC offices be established rather than independent regional planning authorities (Roddewig, 1978:111). The recommendation that the public be offered involvement in planning and third

123 The first party to a dispute is the developer, the second the consent authority.

124 That if third party standing was unrestricted, the courts would be flooded with frivolous and vexatious cases delaying and increasing the costs of development. The litigiousness of American society is often pointed to as an undesirable and inevitable result.

125 Eighty five meetings to discuss the Green Book proposals were held throughout NSW and 281 written submissions were received.

131party appeals remained. However, the Blue Book was careful to make council decisions conditional on wide ministerial discretion, hierarchising powers mandated by the responsible government doctrine over local control (Minister for Environment and Planning, 1975:112). While the Blue Book circulated for public discussion, PEC fulfilled its charter and produced the final report - the 'White Book'- which retreated from the Ashton report innovations, reaffirming the pattern of governance that had prevailed since the turn of the century. The White Book recommended against devolution to regional groupings of local councils and in favour of advisory regional planning bodies (Roddewig, 1978:113). While acknowledging that many submissions stressed a need for greater co-ordination among State authorities with statutory responsibilities for planning and construction, it was stated that: "the concept that the Commission should have the power to co-ordinate fully all the activities of those State Departments concerned with environmental management, transport, social welfare and related planning matters, is neither desirable or realistic" (PEC, 1975:79). Rather, the Commission advocated it should act as a catalyst among the State organisations via a "process of communication and information exchange" (PEC, 1975:79). While the Blue and Green Books had acknowledged the validity of RAG concerns, the PEC report undercut any such validity, averring to aggregative, majoritarian methods of determining the general will: "views and actions by small pressure groups cannot be taken necessarily as indicating the wishes of the majority of the community" (PEC, 1975:91). The White book stated that voting at local council elections: "must continue to be the best means in this democracy for enabling the local community to decide who will be responsible for making the final decisions on local planning matters" (PEC, 1975:91). Nor did the White Book propose that full third-party rights of appeal be granted to objectors to development applications, another fundamental objective of the green ban movement, arguing that: "to confer such rights would well increase both the time taken, and the costs of the development control process in many cases" (PEC, 1975:76). The only participative provisions supported were, firstly, the need for more public participation in the preparation of both regional and local planning schemes, and secondly, the extension of public notification of development applications from apartment buildings to all "major" development proposals so that any person could submit written objections. In short:

132The only major change in the NSW planning system would be that local councils would now bear the burden to see that their local statutory land use plans ... were in conformity with the planning directives of PEC. Each local council would have to certify that its plan was in compliance with the PEC directives. And those directives are likely to seriously restrict the discretion of local councils to plan their own futures (Roddewig, 1978:114).

4.6 In Closing

The PEC and Ashton reports were prepared in competition with each other, no doubt contributing to their inconsistency (O'Neil, 1987:71). However, it seems a credible conclusion to draw that the Ashton reports were based on public opinion, while the PEC report was based on what the departments and statutory authorities considered feasible. Statutory authorities,126 constituted to provide services such as roads, water, electricity and sewerage, enjoy substantial autonomy from the political executive - able to raise their own revenue and forming entrenched expert communities. The legitimacy of such an arrangement has rested on technical interpretation of the tasks at hand and the responsible government doctrine that the neutrality of the bureaucratic machinery requires insulation from political 'contamination'. Despite the loss of environmental amenity having turned this institutional remedy into a political liability, statutory authorities and government departments successfully fought off subordination to socio-environmental objectives. It was commented at the time that:

This distinctiveness of state politics is a general phenomenon, and not just linked with particular contemporary issues. State governments lose office or retain it depending on the success with which they maintain a level of satisfaction over the distribution of highly specific benefits to a multitude of sectional groups. Pork barrelling is more pervasive at the state than federal level. Electors are consumers of more state than federal public goods. The steady and efficient flow of these goods is the prerequisite for political success by state governments. Hence we find a tendency to 'routinise' political decision-making by writing into statutes a large range of sectionally oriented political agreements ... or by handing over an area of administration to a statutory authority. This routinisation carries with it the danger of complacency and a decay in the lines of political accountability. State governments lose their

126 The oldest authority of which is the Metropolitan Water and Sewerage Board

constituted in 1880 (Fry, 1972:14), renamed Sydney Water when corporatised in 1994.

133capability to react swiftly to changing circumstances. Moreover, as the life of an administration lengthens, the list of disappointed supplicants increases - the pork is not in endless supply, and changes in economic and social conditions make old established systems of distribution redundant ... the fragmented planning system that results from delegation of functions to specialist authorities makes it hard to react in order to change priorities. Social changes create new demands and issues such as 'the environment', in which the pork is of a very different kind to the old certain winners of jobs and local development (Political Chronicles, 1976:404).

After the "resolution of differences between the Commission and the Minister's Special Adviser", the Environmental Planning Bill was introduced to parliament in March 1976 (O'Neil, 1987:14). However, the Wran Labor government came to power127 and introduced the Environmental Planning and Assessment (EP&A) Act (1979). The green ban movement ended in agitation for public rights to contest and participate in the administration of industrial and urban growth. These demands were partially met with the codification of the consultative strategy in the EP&A Act. It is to the coherency of this codification that I now turn.

127 Wran had campaigned strongly on environment and planning issues. He condemned

the precedent of taking The Rocks re-development out of the hands of Sydney City Council, and vowed to introduce strong environmental protection laws with provision for strong public participation in planning (Mundey, 1986:90). Wran did abandon portions of the planned inter-urban freeways on his election. Much of this land was zoned residential and demolition threats on existing residential areas were removed (O'Neil, 1987:29&45).

134

Chapter Five The Environmental Planning and Assessment Act: a Deliberative Reading

The aim of public participation in decision-making, then, is to provide a forum outside formal elections which will allow the needs of minority groups to be met as nearly as possible by the development of relevant public policies, within limits acceptable to the political representatives elected by the majority ... public participation in decision-making is thus no panacea for the ills of society. Indeed it is important that the elected Government should set down the policy objectives and make the important decisions about allocation of resources among competing objectives. The major decisions about the distribution of costs and benefits in the community are the responsibility of the Government and not of individual groups pressing for sectional interests (Wilenski128, 1977:303, emphasis added).

5.1 Introduction

The results of the public and parliamentary debate stimulated by the green ban contestation were converted into the rules and regulations of the Environmental Planning and Assessment (EP&A) Act (1979), arguably the foremost achievement of the Wran government.129 This chapter concerns the coherence and stability of this attempt to restore calm and re-knit the fraying fabric of NSW State's liberal-aggregative architectonic. The Act's reputation as the standard bearer for environmentally sensitive urban planning in Australia was largely due to its provision of consultative and participative mechanisms. However, the hope that the EP&A Act's articulation of socio-environmental goals would re-orient urban development was simplistic on two counts. Firstly, it skated across the problem of knitting socio-environmental objectives into the established accord on the desirability of economic growth. Secondly, it ignored the potential for tension between participatory mechanisms and the administrative arrangements fostered by that accord. Public participation in the planning and assessment of

128 Wran's administrative analyst and reformer.

129 The review of environmental planning legislation, including an additional and three months of public consultations, preceding the EP&A Act was continued under Ashton, who was retained as Special Adviser to the Minister (O'Neil, 1987:16).

135development as a means of improving of socio-environmental amenity remained at odds with a democratic and administrative machinery heavily invested in economic growth, and run along liberal-aggregative lines. The EP&A Act simultaneously centralised the political executive's control over development and created public forums and rights. This centralisation was evident in the decision not to establish regional planning bodies so that local land use plans must still comply with plans written by the Minister or Department; the replacement of the Planning and Environment Commission (PEC) by the Department of Environment and Planning (DE&P), bringing environmental planning under of ministerial control; and the wide discretionary powers given to that Minister. On the other hand, the EP&A Act provided for a series of participative mechanisms, namely: public comment on draft local and regional planning schemes; the advertisement of major development applications (DAs); and the consideration of written objections as part of consent authority deliberations. Furthermore, The Act provided unrestricted judicial review and delimited merit appeal rights to citizens, establishing a Land and Environment Court to oversee the Act's administration. A public inquiry mechanism to adjudicate controversial cases was also provided. This simultaneous centralisation of power and citizen involvement opened the door to tensions between participative and liberal-aggregative democratic principles. I argue that the Act's participative provisions constituted a strategy - an attempt to have the cake of economic growth while answering socio-environmental unease with public socio-environmental rights. The hierarchising the powers afforded the Minister and the State instrumentalities implicated in the production of socio-environmental degradation over the rights afforded residents, RAGs and environmental groups, ultimately drew attention to the dependence of the political system on economic growth. Reading the Act deliberatively allows navigation of the competition between liberal-aggregative and participative competition democratic principles embedded in the Act. The interpretive scheme is used to attain a relatively neutral position relative to the dialectical tension between systemic complexity and social reflexivity driving this competition in Section 5.2. I here give a deliberative interpretation of the legitimative function of the EP&A Act's participative

136provisions. Section 5.3 employs this relatively neutral position to examine the tension between the participative provisions and the mechanisms for authority mandated by aggregative means. Section 5.4 summarises the pattern of amendment of the Act that arose out of this tension. These amendments culminated in a controversial rewriting of the Act in 1997 that gutted the participative provisions and entrenched the minister's discretional powers in an invocation of "the grand old shibboleth of 'red tape' (NSW, Legislative Council, 1997, Debates, Vol. 262:3345). Section 5.5 takes up Section 5.2's procedural-dialogic deliberative interpretation of the Act to argue that the dominance of liberal-aggregative democratic premises undermined the legislation's potential to develop, clarify and fortify linkages between local, regional, state-wide and parliamentary debates that could have culminated in amendments that increased the legitimacy of administrative action.

5.2 A Procedural-Dialogic Deliberative Reading of the EP&A Act

Brook sums up Habermas' thesis on the relationship between democracy and law, that the:

... deliberative mediation of facts and norms ... requires a layered set of procedures and institutions, grounded in a basic system of rights that simultaneously guarantee private autonomy; individual rights of legal protection and living condition; and public autonomy - the right and opportunity to participate in public deliberation (Habermas, 1996:118 - 131). These rights allow individuals to participate in the law-making process as governed by the discourse principle ... (Brooke, 1998:59).

Two core principles flow from the thesis that law is simultaneously coercive and legitimate: 1) law's authority and legitimacy derive solely from the wellspring of

lifeworld thematisations; and 2) "... law ... represents ... the medium for transforming communicative power

into administrative power" (Habermas, 1996:169). This second principle is entirely procedural in tone. My third anchor, obscured by Habermas' rationalistic emphases, is procedural and dialogic and implies that confrontations between 'lifeworld thematisations' and 'administrative power' generate a politics of knowledge requiring constant legal reform: 3) law, under the dual pressures of systemic complexity and social reflexivity

provides the dialogic forums necessary to debate its inadequacies on a case by case basis.

137This third principle is implicit in BFN. Habermas observes that the rise of the welfare state and risk society make it difficult to come up with administrative and legal programs simple, unitary and precautionary enough to be implemented or applied without further deliberation. The proponents of dialogic deliberation contend that this need for further deliberation is inherent because the in-situ nature of knowledge and rationality makes the ideal of neutral deployment a fantasy. Habermas suggests that the answer is to realise the separation of powers in new ways that protect the wellsprings of lifeworld thematisations and debate at a more local level:

Procedural law does not regulate normative-legal discourse as such but secures, in the temporal, social, and substantive dimensions, the institutional framework that clears the way for processes of communication governed by the logic of application discourses (Habermas, 1996:235)

I argue that in the case of socio-environmental planning and development assessment in capitalist societies, what Habermas calls the 'application discourses' of administrative law can be realistically considered dialogic debates in which the prejudices of civil society are permitted to confront the prejudices of administrative authorities, expertise and economic actors. Furthermore, these debates allowing the interrogation of specific socio-environmental impacts, and the experts claiming to predict, prevent and manage them, should end in the percolation of procedural and substantive issues back into general discourse informative of further codification into law. Constant rearticulation and reform of administrative law in response to dialogic debate is necessary if the deliberative genesis of law is to remain meaningful.130 Viewed in light of these procedural-dialogic deliberative principles: 1) the objects of the Act codify the normative upshot of the green ban period's

debates; 2) the standing given to citizens and groups to initiate judicial review of the

legality of consent authority decisions function to ensure the protection of that codification: and

130 Deliberative analyses of constitutional and statutory law, and the balancing of procedural

and substantive elements involved in it, are becoming more established (see for example, Estlund, 1993, Freeman, 1990-1991, Michelman, 1988, and Sunstein, 1988).

1383) the Act's mechanisms facilitating administrative engagement with citizens'

views on plan making and development assessment provide forums for dialogic deliberation about specific cases, controversies and stand-offs.

The following three sections elaborate on this reading of the Act's participative provisions.

5.2.1 Codification - the Act's Objects

According to my interpretive scheme, legitimate law expresses general interests. Without legislative activity being rooted in public discourses, laws have no democratic genesis and no legitimate grounding:

The political will-formation organised as a legislative branch of government would destroy the basis of its own rational functioning if it were to block the spontaneous sources of autonomous public spheres or shut itself off from the input of free-floating issues, contributions, information and arguments circulating in a civil society set apart from the state (Habermas, 1996:183-184, emphasis added).

The reviews given in Chapter 4 bear out the cogency of this interpretation. The EP&A Act is the outcome of civil protest that stimulated public and parliamentary debate and conditioned the electoral campaigns of the Wran and Askin governments. The resulting objects of the Act remain lofty despite 20 years of amendment of the Act's contents. They set out the social goals which the rules and regulations following are meant to achieve: (a) to encourage:

(i) the proper management, development and conservation of natural and man-made resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment131;

(ii) the promotion and co-ordination of the orderly and economic use and development of land;

131 Environment is defined in Part 1, Section 4 (definitions) of the EP&A Act as including "all

aspects of the surroundings of man, whether affecting him as an individual or in his social groupings".

139(iii) the protection, provision and co-ordination of communication and

utility services; (iv) the provision of land for public purposes; (v) the provision and co-ordination of community services and facilities;

and (vi) the protection of the environment;

(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State; and

(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment (EP&A Act (1979), Section 5).132

Public rights to environmental amenity, alongside private economic (development) rights (and governmental underwriting of such development through the provision of infrastructure and utilities) have found expression within the first object of the Act, while the third allows for participation. The third object, public involvement and participation reinforces the first, making the achievement of socio-environmental amenity more likely:

... the effectiveness of any substantive environmental rights presupposes the establishment of a wide range of environmental procedural rights, which would facilitate the practice of ecological citizenship. Such procedural rights would need to include rights to know (i.e., a right to environmental information, including rights to government records and to independent ecological and health research which has a bearing on the ecological welfare, rights to be informed of development proposals); rights to participate in the determination of environmental standards; rights to object to ministerial and agency environmental decisions; and rights to bring actions against departments, agencies, firms and individuals that fail to carry out their duties according to law (Eckersley, 1996(b): 230).

The tenor of the Act, in promoting the reconciliation of economic and environmental goals, is proceduralist, rather than prohibitive. No class of development is absolutely prohibited,133 rather, the proper assessment must take

132 This language has not taken hold in administrative language. The term community

consultation is preferred and now dominates discourse, as Chapters 5 and 6 make evident.

133 Although the category 'prohibited development' does exist, the Minister may give consent to such a development.

140place before a development of potentially high socio-environmental impact may legally proceed.

5.2.2 Separation of Powers - Civil Enforcement

Laws, according to Habermas, both apply and defend normative codifications by dictating administrative tasks and the legitimate parameters of those tasks:

In contrast to the legislature and judiciary ... the administration is not permitted to deal with normative reasons in either a constructive or reconstructive manner. The norms fed into the administration bind the pursuit of collective goals to pregiven premises and keep administrative activity within the horizon of purposive rationality. They allow officials to select technologies and strategies only under the proviso that - in contrast to subjects of private law - they do not follow their own interests or preferences (Habermas, 1996:192).

From this perspective the EP&A Act constitutes a rule book for the NSW administration, setting out: 1) the procedures that consent authorities and planning bodies (the

Department of Planning (DOP)134 and local councils) must follow in assessing development proposals and in formulating and enacting planning documents; and

2) the procedures that the statutory agencies - the proponents of public developments (for example the Waste Authority, the Water Board, the Roads and Traffic Authority) must follow in initiating and carrying out publicly funded infrastructural developments.

Where administrative authorities disregard this rule book they act illegally and third parties have the right to institute proceedings against them. Section 123 of the Act provides that any person can initiate proceedings over a breach of the Act. This section effectively places the enforcement of the Act in the public's hands. This provision is an Americanised experiment.135 Formerly, because a traditional liberal

134 Later entitled the Department of Urban Affairs and Planning (DUAP).

135 The public enforcement of environmental law was pioneered by the National Environmental Policy Act (1970). O'Riordan comments that "The pulse of change in environmental law has come from the United States, where the judiciary enjoys the constitutional freedom to scrutinise the workings of both Congress and the executive agencies" (1981:264).

141tenor imbued the functioning of statutory law, a citizen could not allege a breach of an Act unless they could demonstrate a private interest:

Under the common law rules of standing in relation to the enforcement of public environmental statutes (such as Britain and Australia), such provisions represent a democratic and an environmental breakthrough. Under the common law rules, environmentally concerned plaintiffs could bring an action to uphold environmental laws enacted for the benefit of the public only if they could show some personal stake in the outcome (usually the infringement of some pecuniary interest or proprietary right). The ostensible reason for this rule was to prevent a flood of litigation. The rule assumed that any 'implementation deficits ' in general laws would be filled by the Attorney-General acting as guardian of the public interest - by taking action ex officio or by relation (i.e., granting permission to an individual to bring proceedings in the name of the Attorney-General). Rarely, however, have Attorneys-General exercised their discretion in this way in Australia (and their discretion is effectively beyond reproach by the courts). Indeed, as high-ranking members of Cabinet, Attorneys-General in Australia have usually been more concerned to legitimise rather than challenge the exercise of state power (Eckersley, 1996(b):264).136

Because it is the legality of an activity that is in question, s123 proceedings are judicial, meaning that the Court "is unable to express a merit opinion on a challenge to the lawfulness of a decision" (Stein, 1992:17):

The rules of evidence apply and the challenge may only be determined by a Judge. Common Law principles of judicial review apply. Questions arise such as, has there been a breach of the statute? Was the decision manifestly unreasonable? Was an irrelevant consideration taken into account? Was a relevant consideration ignored? Was natural justice accorded where those principles are applicable? However, giving excessive weight to a material factor is generally irrelevant. Weight is a matter for the decision-maker and not for the Court. The Court's jurisdiction is supervisory only (Stein, 1992:17). 137

136 The same point is made by Bonyhardy (1993:70).

137 Which may result in the reversal of a decision. For example, Leichhardt Council (an inner west municipality of Sydney) won proceedings on appeal ending a six year fight against the loss of its planning powers over three Harbour side industrial sites tagged for redevelopment. The case was won on the basis that the Minister's regional plan, permitting low and medium density housing, was invalid as it differed significantly from the draft plan. A previous plan had been overturned in the Court on the basis that consultation with the community had been inadequate (SMH, 18/5/95:2).

142An example of common civil enforcement cases are so called 'Section 90' cases. Section 90 of the EP&A Act outlines the matters for consideration a consent authority is obliged to take into account in determining a DA. These logic of the constraints on judicial review cases are often poorly understood. Environmental activists find judicial review powers weak because what is perceived as a poor decision can not be directly overturned. Judicial review equally irritate economic actors because they create 'unnecessary' delays, expense and uncertainty. Habermas' rearticulation of the separation of powers, yielding the view that administrative law enforces our collective commitments, in contrast, suggests that judicial review maintains the integrity and intent of laws governing how administrative power may be used.

5.2.3 Dialogic Deliberation

Habermas comments that involving the public in administrative programs and decision-making processes offers a way of preserving the new logic he suggests for the separation of powers under conditions of complexity:

Only when one approaches these functions at an abstract level, in terms of the disposition over different kinds of admissible arguments and corresponding forms of communication, can one assess the adequacy of the various ways in which the principles implied by the logic of separated powers have been institutionalised. For example, insofar as the implementation of programmatic goals requires the administration to perform organisational tasks that at least implicitly require a further development of law, the legitimation basis of traditional administrative structures no longer suffices. The logic of the separation of powers must then be realised in new structures, say, by setting up the corresponding forms of participation and communication or by introducing quasi-judicial and parliamentary procedures, procedures for compromise formation, and so on (Habermas, 1996:193).

Theorists engaged with social reflexivity theory venture further down this track to suggest that as is no such thing as objective knowledge, administrative activity is always imbued with narrow, potentially intolerant and obsolete knowledge and expertise. The only legitimate way to proceed in the face of the in-situ nature of knowledge and rationality, then, is to bring into dialogue the fresher perspectives arising out of civil society with those entrenched within administrative institutions.

143As it was originally written, the Act made detailed provision for "involvement and participation in environmental planning and assessment". In a deliberative reading emphasising the necessity for constant dialogue, the following mechanisms provide avenues to challenge the mindsets of departments and agencies: 1) public comment on planning instruments and the environmental studies

that preceded them; 2) public comment during the assessment of individual DAs by consent

authorities; 3) third party138 appeals against consent authority decisions concerning

designated developments in the Land and Environment Court on the merits of those decisions; and

4) the opportunity to put concerns about a proposed development before a Commission of Inquiry.139

I expand on these four mechanisms below. The Act requires that the public be offered structured opportunities to comment on the socio-environmental shortcomings of State Environmental Planning Policies (SEPPs), Regional Environmental Plans (REPs) and Local Environmental Plans (LEPs). The Act specifies that submissions must be considered and that substantially amended regional and local environmental plans should be re-exhibited. REPs and LEPs must be preceded by publicly exhibited environmental studies (RESs and LESs). The legality of regional and local plans is contingent on the adequacy of their preparation, public exhibition, and consideration of submissions. The level of public involvement allowed for during DA assessment by the consent authority is stipulated in the planning instruments and their subordinate Development Control Plans.140

138 Third parties is a residual term that sees development proponents and consent authorities

as the principle stakeholders and residents, RAGs and environmental groups as the third set of stakeholders, coming from outside the decision making process.

139 I here exclude judicial review appeals which are decided on purely procedural grounds and disallow discussions of the merits of a particular proposal, decision or plan.

140 For the public to submit written objections and comments on a development application they first have to be aware of it. So, in this sense, the amount of likely public comment is dependent on the quality of the advertising of the fact that a DA has been made and is available for inspection by the public. It is in the LEPs and their ordinances (written explanations) that any other statutory requirements for DA advertisement and environmental assessment are laid down. How individual councils treat DA advertisement varies widely.

144Table 5.1 Planning Instruments and Public Participation

Planning Instrument Provision for Public Participation SEPPs - authored by the DOP or Minister (eg on urban consolidation)

Exhibition of finalised document

REPs and subordinate Development Control Plans (preceded by RES) - authored by the DOP or the Minister if s/he considers it to be of state significance

Draft RES exhibited Draft REP exhibited Substantially amended REP exhibited An Inquiry can be held at the Minister's discretion

LEPs and subordinate Development Control Plans (preceded by LES) - authored local governments (the Minister can direct that a LEP be prepared) but must be consistent with SEPPs and REPs (must be submitted to the DOP and a certificate issued before exhibition)

Draft LES exhibited Draft LEP exhibited along with relevant SEPPs and REPs Substantially amended LEP exhibited A Public Hearing can be held by the local government

The Act stipulates that Designated Developments (developments listed in Schedule Three of the regulations) must be lodged and exhibited with an Environmental Impact Statement (EIS).141 The Schedule Three list142 concentrates on 'bad neighbour' noxious or nuisance industries such as waste management facilities, sewerage systems or works, mining operations, livestock intensive and livestock processing industries, chemical industries etc. Any person who makes a submission to the EIS may appeal to the Court and have the case heard on merit. Merit appeals involve:

... a factual assessment of the environmental impacts - often including the evidence of a number of relevant expert witnesses. In these proceedings the EIS itself does not play an overly prominent role although it is often a convenient reference point ... [It is] a purely administrative appeal. The Court becomes the consent authority and

141 The EIS is an American innovation enshrined in the National Environmental Policy Act

(1970) which requires an EIS for federal projects. Serge Taylor, in his analysis of the NEPA act, summarises it as: "a formal requirement that the regulated organisation analyse the 'impacts' of its proposals on the social value of concern, and an informal expectation that this will lead to the installation of 'analyst advocates' for this value inside the organisation and increase the political resources of private and public groups that favour the regulatory goal" (Taylor, 1984:296).

142 The first list was made in 1980 and was not reviewed until 1994. The review of the schedule listing designated development was a response to submissions to a departmental discussion paper (DOP, 1991(d))

145has all of its powers and functions. The rules of evidence do not apply and the Court may inform itself as it thinks fit, and to this end can call its own expert witnesses. The issues are merit and not legal ones. The Court operates with as little formality as necessary. The hearing may be by a technical assessor and not a Judge. In other words the adversary system is modified (Stein, 1992:17).

Inquiries are used to mediate on disputes and contentious issues that do not fall easily into the established avenues for resolving matters under the Act (Woodward, 1984:317).143 Inquiries enable: "environmental issues to be canvassed and debated in a forum specially designed to promote public involvement in the decision-making process" (Woodward, 1984:320). It is also possible to hold an inquiry in relation to disputes between public authorities or objections to a draft plan. Procedures are relatively informal and are often held in the vicinity of their topic to make them more accessible to participants (Taylor, 1989:158). Theoretically, an inquiry is conducted independently of the Minister (s119(5)). The four dialogic mechanisms detailed above are, in themselves, generous. In the case of DD, the public's ability to challenge decision making is targeted towards potentially serious socio-environmental impacts. The inquiry mechanism covers cases that may fall outside typical categories. And public access to both planning and development assessment processes are provided for. However, the above discussion of the participative provisions of the Act has not commented on how they function in relation to the powers of the Minister or statutory authorities. The following section details how the conditionality of these participative provisions on the exercise of controversial ministerial and statutory authority discretional powers embeds a tension between participative and aggregative principles in the Act.

5.3 Tension between aggregative and participative principles

Despite one of the major aims of the 1979 Act being to:

... dismantle the centralised system of planning that, according to the Honourable David Landa, had been 'nurtured, encouraged and

143 John Woodward was Chairman of the statutory office of the Commissioners of Inquiry in

1984.

146extended' by coalition governments" (NSW, Legislative Council, 1996, Debates, Vol. 252:3705),

the Act pragmatically provided a series of exemptions and exceptions to its participative provisions triggered by the exercise of ministerial discretion. The Minister was empowered by s101 to 'call in' any DA or class of DAs on the basis that the development/s were considered to be of state or regional significance, or that such action was in 'the public interest'. The Minister then becomes the consent authority for the DA or class of DAs, removing the case or cases from local jurisdiction and any merit or judicial review appeal rights. This power is quite aside from the ability of the government to pass a piece of legislation exempting a development from the Act altogether. The level of ministerial discretion permitted by the Act was controversial when it was read in parliament and is seen by many commentators as a fundamental flaw. Opposition MP Fisher objected to the bill because the centralisation of power in the Minister carried connotations of political patronage. He cited a passage from the Bar Association's submission on the proposed legislation which denied:

... the appropriateness of a member of the executive finally to determine individual rights under that legislation, particularly when he may do so without personally hearing the parties and without giving reasons. The use of this power will inevitably cause scepticism, and, however unjustifiable, suggestions of bias and even corruption (NSW, Legislative Assembly, 1979, Debates, Vol. 150:3123, emphasis added).

The Wran Government's response was that:

The exercise of these ... powers by the Minister is ... sustainable when policy considerations require him to take the final decision whether a particular DA should be approved or rejected. Clearly such intervention by its nature will be the exception but there will always be cases, though past experience indicates that they are few in number, where the Minister must make the final decision on policy grounds (NSW, Legislative Assembly, 1979, Debates, Vol. 150:3259).

Ministerial discretion can also be exercised by using SEPPs and REPs for highly specific purposes. No regional bodies were established that could have been given responsibility for REPs and there is no definition, ecological, social or otherwise, as to what should be considered a 'region' nor any stipulation that an area must be of a minimum size or prescribed characteristics to be considered a region. Thus, a small area of land can be defined as being 'of state significance' and removed from

147local jurisdiction. The controversiality of this discretion was anticipated by the opposition:

... the legislation does not promote the concept of regionalism, but rather ... defines [a] region as any land that the Minister declares to be a region. That gives the Minister tremendous power to declare any land within a local government area to be a region ... A region should be of a much greater area, embracing at least two local government areas, if it is to conform truly to the concept of a region and is not to be used as an instrument by which the Minister may impose his will on a small section of a local government area (NSW, Legislative Assembly, 1979, Debates, Vol. 150:3122).

Similarly, not only have SEPPs have been used to control what will happen on a particular site, (such as the Castlereagh Regional Waste Depot, the subject of Chapter 7), they have also been used to force reluctant councils to observe locally unpopular State government policy. For example the Liberal Greiner Government's SEPPs on urban consolidation and dual occupancy removed local government powers to refuse or modify certain development proposals regardless of their impact on neighbourhood aesthetics or infrastructure.144 Unlike REPs, the Minister is not obliged to publish a SEPP in a draft form or preface it with an environmental study (see Table 5.1). Commentators have also criticised the Commissions of Inquiry on the basis that they are not independent of the Minister. Theoretically independence is guaranteed: the Commissioner is not subject to directions by the Minister or any other person in relation to the contents of their findings and recommendations (s119(5)).145 Woodward concedes that there have been few development application refusals following inquiries and contends that this is because: "often a development project has been through a lengthy process of scrutiny and assessment before a public inquiry is initiated" (Woodward, 1984:323). He asserts that: "Conditions are of vital importance because through them the detailed

144 The Labor Carr Government of 1995 announced in May that it will repeal these SEPPs and

that "A single SEPP, covering dual occupancy, integrated housing and lot sizes will be introduced within 12 months with exemptions being granted to councils showing an active commitment to sensible urban consolidation" (Glebe and Inner City News, 10/5/95:5).

145 However, information put to a Commissioner can be withheld from the public domain: "where the Commission is satisfied that in the public interest, or for any other reasons, it is desirable to withhold or restrict publication of information put before the inquiry ..." (Woodward, 1984:319).

148environmental control of the projects is prescribed" (Woodward, 1984:323). However, according to Taylor, inquiries are hardly a brake on ministerial discretion as: "the Minister is bound to do no more that 'consider the findings and recommendations of the Commission of Inquiry' and is under no legal obligation to implement those findings" (1989:158):

... the theory is that he or she is setting up a forum in which environmental issues may be debated and, in so doing, is promoting public scrutiny of, and involvement in, the decision-making process ... In truth, the Inquiry is not a decision-making body at all, though its participants often have the expectation of a decision. To illustrate the point, no Commission of Inquiry has ever published its recommendations before the Minister has made a decision. In practice, developers often have private meetings with the Minister before a decision is made ... Two of the most common criticisms of Commissions of Inquiry are that they are an expensive charade so as to give the appearance of fulfilling the public involvement objectives of the EP&A Act; and that they are an expensive means of enabling participants to 'let off steam' (Taylor, 1989:158).

The Act's segmentation of public from private developments is also controversial. Part V of the EP&A Act creates a class of developments that may significantly affect the environment but do not require a DA, a classification that has no socio-environmental rationale. Rather, the exemption of Part V developments from consent authority oversight is an implicit assumption that public authority activities are by definition in the public interest and are adequately overseen using the doctrine of ministerial accountability for government authorities. In general, the proponent of a public development is also the determining (consent) authority. However if the consent authority is a local government, under s91 of the Act consent cannot be refused or conditions imposed without ministerial approval. The Part IV and Part V division is open to the complaint that public developments are given special treatment. Environmental lawyer Michael Mobbs attacked the economic liberalist Greiner Government for its failure to explore the link between an efficient, honest public sector and environmental protection pointing out that:

... public, not private, developers cause more damage to our environment ... And they own more of it. The biggest landowner in NSW, for instance, is the Roads and Traffic Authority. And the public sector giants - the three Water Boards, the State Rail Authority, Elcom, the Forestry Commission, for example - own, build and sell most of our trees, roads, drains, water, sewerage, electricity and land ... Instead of a 'level playing field' there remain two fields, one occupied exclusively by

149the public sector (and when they get so-called 'one-off legislation', by some of the big boys from the private sector) and one by the private sector. And access to the publicly owned resources is not given in the market place but by government dispensation (Mobbs, 1990:7).

Environmental assessment of Part V developments is provided for under s111 and s112. Under s111, an authority considering undertaking an activity must "examine and take into account to the fullest extent possible all matters, affecting or likely to affect the environment by reason of that activity". However, the authority is not required to consult the public in that assessment. Section 112 states that an authority must not undertake a "prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment" unless they undertake or obtain an EIS, exhibit it and consider the submissions to it. Merit review being unavailable, it is under these two sections that some of the best known cases of civil enforcement challenges to developments have been undertaken. Third parties can allege the Act was breached because not all relevant matters were considered in an EIS, or that an EIS should have been done.146 Barrister Brian Preston points out: "... a fundamental problem with Part V ... [is] that there is no intermediate position between the strictures of a full, publicly exhibited EIS and an unseen internal assessment by the determining authority" (1990:149). Undermining the doctrine of ministerial responsibility is increasing awareness that the autonomy and institutional momentum of statutory authorities constitute a major barrier to the achievement of socio-environmental goals. In Habermas' theoretical language, self-referential domains of action sheer off from the lifeworld, becoming indifferent to competing framings of a task or problem (1987:307). Democrat MP Jones has commented:

The fact in 1979, when the EP&A Act was passed, a government agency which was the proponent of an activity likely to have a significant effect on the environment could escape external assessment, is an indicator of the power of the bureaucracy. They did not want to give up any of their power or territory. As a result of that, over the past 14 years the EIS process has fallen into disrepute (NSW, Legislative Council, 1993, Debates, Vol. 239:5187).

146 For example, the Water Board's decision to pump water from the Shoalhaven River into

Warragamba Dam (the water storage facility for metropolitan Sydney) without first conducting an EIS was unsuccessfully contested by the Environmental Defender's Office on behalf of an environmental group (SMH, 28/2/94:3). This program has now been stopped because of the rapid drop of ground-water flowing into the Shoalhaven River.

150The division of developments into designated and non-designated has also been criticised on the basis that many of the latter are more socially and environmentally significant than the former. Submissions from environmental groups and some local councils during the 1980 review of the Schedule Three list (unsuccessfully) advocated designation of urban development in order to tighten environmental assessment and obtain third party appeal rights on merit.147 Large urban developments have severe environmental impacts and as Chapter 6 demonstrates, public involvement in the formulation of planning instruments is widely seen as delivering a level of socio-environmental degradation commensurate with that from the pre-EP&A Act era.

Table 5.2 Development Assessment and Consent Variables

Type of Development

Environmental Assessment

Ministerial Discretion Third Party Avenues of Appeal

Part IV If DD, a DA is necessary

Public Environmental Impact Statement compulsory

• If Minister calls in a designated development (s101), an inquiry must be held if requested by an applicant, consent authority or objector after which minister decides case

Could appeal against decision on merit grounds if no ministerial intervention

Part IV of Act Non-DD DA necessary

Level of assessment, eg EIS or statement of environmental effects, stipulated in the relevant EPI

• Minister could direct that an inquiry by held (s.119) after which minister decides case • Minister could call it in (s101) but must afford applicant and consent authority but not objector an inquiry if requested

Could appeal on judicial review grounds if no ministerial intervention eg. s90 appeals - failure to consider relevant matters

Part V public agency developments DA not necessary

Either an internal assessment or a public EIS

The Minister may hold an inquiry (s119)

Could appeal on judicial review grounds if no ministerial intervention eg. s111 failure to take into account to fullest extent possible, or s112 failure to prepare an EIS

Furthermore, While merit review is only available for designated developments, this avenue can be removed by the Minister exercising his or her discretionary

147 220 submissions were received (DOP, 1991(d)).

151powers (although an inquiry must be held if requested by an objector, developer or consent authority). Wran's defence of the necessity of unfettered ministerial discretion to facilitate intervention on policy grounds proved less convincing as a pattern of exempting large scale, lucrative developments became established: the Parramatta Sports Stadium, Leura Resort, Darling Harbour, the Harbour Tunnel.148 Nicola Pain, a then solicitor of the NSW Environmental Defender's Office, pointed to: " ... widespread criticism of the NSW Labor [Wran] Government's decisions to exempt certain projects from the planning legislation ... The Government's actions are in part blamed for disenchantment on the part of urban voters in NSW and the result of that disenchantment was felt at the State election in March [1988] ..." (Pain, 1989:28). An argument echoed by Roslyn Taplin:

Many facets of the Wran Government's record exhibit an outright disregard for the environment in the pursuit of unchecked development. This contradictory record backfired on the ALP in NSW by contributing to the Unsworth electoral defeat. The lesson from the ALP's defeat for any future government is that there are deep-seated contradictions in promoting unrestrained urban development on the one hand and environmental protection on the other. Environmentally concerned citizens in the electorate are aware of these contradictions and until governments seriously address such contradictions they cannot hope to rely on their votes (1989:29).

However, these practices have become entrenched under subsequent coalition and Labor governments - the redevelopment of the working class Harbour-side district Pyrmont (SMH, 26/10/1993:7), the transformation of the Sydney Showground into a film studio and entertainment complex (SMH, 7/5/1996:6), the developments for the Sydney 2000 Olympics (SMH, 16/12/1995:1), and a series of coal mines in the Hunter valley (SMH, 6/6/1996:3) have all been exempted from the provisions of the EP&A Act through either SEPPs, s101 intervention, the creation of highly specific planning bodies, or the passing of development specific legislation. These decisions continue the tradition of exempting large public and private projects from the usual planning and consent processes. Both sides of politics, furthermore, have amended the Act, often in response to civil enforcement litigation, to further

148 See the Sydney Harbour Tunnel (Private Joint Venture) Act 1987; Darling Harbour

Authority Act 1984; Blue Mountains Land Development (Special Provisions) Act 1985; and the Cumberland Oval Act 1981.

152centralise planning authority and erode opportunities for dialogic deliberation over contentious developments as well as public enforcement of the Act, as I detail in the following section.

5.4 Twenty years of Amendments - a 'Developer's Charter'149

The tension between aggregative and participative democratic principles embedded in the Act inevitably led to conflicting understandings of how contentious developments should be handled. The pattern of amendment resolved this tension by substantially sacrificing the participative provisions. Amendments to the Act150 in 1985 made the Minister the consent authority for developments prohibited by a planning instrument,151 removing the third party rights to initiate judicial review cases. Formerly, the Minister's discretionary powers had extended only to permissible development. James McClelland152 commented:

This was the result of the Government using the local government's argument that it should not be subjected to supervision by the Court and to resident action groups' resistance to the flexibility envisaged by prohibited development provisions because they claimed they could not trust local councils. Thus, by setting one group off against another, the Government has taken over the whole matter with the result that local government now has no control over prohibited development and resident action groups have no rights of appeal to the Court (1986:13).153

Ministerial discretion was also enhanced by giving the Minister power to make LEPs:

149 Democrat Elizabeth Kirby's description of 1997 amendments to the Act during Legislative

Council debate (NSW, Legislative Council, 1997, Debates, Vol. 262:3338).

150 The following account of amendments relating to public participation cover the major, contentious amendments that registered in the media as well as the planning and legal literatures.

151 Prohibited development are defined in s31 of the Act :" [an] environmental planning instrument may provide that a development specified therein is prohibited".

152 Appointed by Premier Wran as the first Chief Judge to the Land and Environment Court.

153 From a local government point of view: "The [amended] Act conveys to local authorities the machinery to receive the application, advertise it and deal with the public submissions but not to determine the matter. This means that local government will be handling the procedural matters and for that matter embroiling itself in the controversy yet not having the capacity to decide the application" (Newport, 1986:10).

153The original Act stated that the Minister may make an LEP, with such alterations as he thinks fit relating to the relationship between the plan and any other environmental planning instrument ... Now the Act declares that the Minister may make alterations on 'any matter which in the opinion of the Minister is of significance for a State or regional environmental planning study'. This is the catch-all clause which goes further to cement the almost unlimited discretion available to the Minister (Newport, 1986:8).

Part V of the Act was also amended to alter the formerly widely defined 'activity' to equate with 'development'. James McClelland spells out the implication of this alteration:

'Activity' is now defined in the same way as development with the result that there is now no legal requirement to undertake an environmental impact statement prior to the resumption of land for any purpose. It is, of course, common knowledge, that the decisions of the Court displeased such bodies as Elcom, The Water Resources Commission and the Forestry Commission. One might be forgiven for being a little sceptical about the objectivity of an EIS prepared by a government instrumentality that has already invested millions of dollars in the resumption (1986:14).

In contrast to the 1985 amendments, amendments to Part V in 1993 upgraded accountability under conditions of considerable public pressure. It was foreshadowed by the Timber Industry (Interim Protection) Act, which made the Minister of Planning, rather than the Forestry Commission, the consent authority for logging operations for which an EIS was prepared (NSW, Legislative Council, 1993, Debates, Vol. 236:2563). The bill grew out of protracted controversy over the Forestry Commission's decisions and repeated challenges to the Land and Environment Court under both s111, that an EIS should have been prepared, and s112, that the EIS prepared was inadequate. The Liberal Government acted to bring the EP&A Act into line with the Timber Bill by making the Minister the consent authority for a public sector project once an EIS was done, and compulsory for the Minister to use s111, duty to consider all environmental impacts, to assess these applications. While the amending bill did not alter the conditions of internal assessment, the decision not to conduct an EIS remained appealable (NSW, Legislative Council, 1993, Debates, Vol 236:2835).154 The then Minister for Planning 154 It was also decided that the Department of Planning would draft, within a year, 'best

practice environmental impact assessment guidelines' to provide state agencies and local governments with criteria for whether to prepare an EIS (NSW, Legislative Assembly, 1993, Debates, Vol. 239:5428).

154Robert Webster, admitted, during the reading of the amendment, that "it is fair to say that there has been considerable resistance from some of the bureaucracies to this initiative" (NSW, Legislative Council, 1993, Debates, Vol. 239:5188). It is important to note that this concession was wrought by when three independent MPs held the balance of power in the Legislative Assembly, a situation that only held during the hung fiftieth parliament (1991 to 1995). Clover Moore for Bligh, Dr Macdonald for Manly, Mr Hatton for the South Coast became instrumental in pushing for reforms on the environment, parliamentary processes,155 police corruption and gay rights. In forming a minority government, Premier Greiner to signed Charter of Reforms in return for the independents' support156. The independents' power declined towards the end of the parliament when the Fahey government grew increasingly hostile to the constraints the agreement imposed on the executive (SMH, 4/11/94:15).157

By 1994 amendment of the EP&A Act had returned to the dominant trend - resolving repeated litigation by removing the basis for initiating it. A 1994 amendment followed conflict between the Minister and Leichhardt Council along

155 The Political Editor of the Sydney Morning Herald commented in 1994 that holding the

balance of power had placed the three independents: " ...in a unique position to achieve changes which neither Liberal nor Labor Governments have been willing to make previously because they meant giving up an advantage over the Opposition (SMH, 5/3/94:S5a). The SMH consistently expressed admiration for the independents' achievements and responsible exercise of power (5/3/94:S5a, 21/3/95:14, 22/3/95:16, and 23/3/95:17).

156 A Memorandum of Understanding concerning: 1) constitutional reform and the protection of the independence of the parliament, 2) reform of the procedures of the parliament, 3) reform of the legislative process, 4) scrutiny of the election process, 5) guaranteeing open and accountable government, and 6) rights of citizens (NSW, Legislative Assembly, 1991, Debates, Vol. 225:4004 - 4033).

157 Despite the efforts of the trio, the collusion of the major parties have prevented any extension of the EP&A Act's participative provisions to the environmental protection statutes. In terms of participative provisions, the pollution control statutes - instituted between 1961 and 1991 - are weak, despite a promise made by Wran in 1976 (Bonyhardy, 1993:71).

155with a resident organisation158 over the future of 23 hectares of former industrial sites on the Balmain peninsula which the Minister earmarked for high density housing. There was contestation over height restrictions, public transport, traffic congestion, overshadowing and the proportion of open space to development. The minister used both a SEPP and a REP in the attempt to obtain compliance from the council but their legality was successfully challenged on the basis that consultation with the council was inadequate. Section 45 was subsequently amended to eliminate the legal implications of the term consultation:

... it may be argued that the new version of s45 adopts a more limited process, one of provision of information by one party and response by another, instead of a more free-ranging deliberation contemplated within the term 'consultation' (Pearson, 1996:360).159

This issue of legal challenges to environmental planning instruments (EPIs) hampering executive authority was met by more detailed and determined amendments in 1996. These amendments to Part III of the Act were presented as clarification of the power of the Minister or Director to make changes of substance to EPIs, whether or not in response to submissions and to make development assessment and control more certain, predictable, flexible and efficient (NSW, Legislative Assembly, 1995, Debates, Vol. 248:3984 - 3986). Pearson commented that:

Far from providing clarification, the Act makes a number of fundamental changes to the EP&A Act, some of which dramatically alter the balance between local and State planning functions, and continue the move away from objectives 5(b) and (c) of the EP&A Act, that is 'to promote the sharing of responsibility for environmental planning between the various levels of government in the State', and 'to provide increased opportunity for public involvement and participation in environmental planning and assessment (1996:343).

These amendments: • changed s45, from consultation with councils, the Local Government

Liaison Committee and other public authorities over the preparation of an

158 This organisation comprised of some 350 residents and successfully challenged the

Minister's appointment of a planning administrator to Liechardt Council in response to its failure to undertake his direction to prepare an LEP (see s55 and s118) (Pearson, 1995:354).

159 Senior lecturer in law at Macquarie University, Sydney.

156environmental study or REP to notification of the same and reduced these organisations' time to comment from 40 to 28 days;

• allowed an RES, itself made optional (s74(2)), to be prepared at the same time as the REP rather than to form the basis of the latter (s 41(1));

• allowed SEPPs and REPs, in the event of any inconsistency, to prevail over LEPs (s36)

• allowed developments to be fast tracked by exhibiting a DA along with an EPI amended to permit it (Part 2, Division 4a);

• allowed the Minister to alter substantially environmental planning instruments without obligation to re-exhibit them (s49, s70);

• allowed commissions of inquiry to be into particular aspects of a development rather than environmental aspects generally (s119 (1)).160

Australian Democrat Senator Jones commented on the amendments that:

... years of hard work have been invested in constructing and improving the NSW planning system; in raising environmental awareness and increasing public participation in decision making. All of this effort and progress is now being destroyed before our very eyes ... the bill does not seek to amend aspects of the EP&A Act; it seeks to completely reverse them (NSW, Legislative Council, 1996, Debates, vol. 252:3705).

Part Four of the Act was rewritten in 1997 along similar economic rationalist lines using the banner 'integrated development assessment' in the attempt to legitimise both ministerial discretion and increase efficiency. The Minister defended the legislation by invoking the virtues of economic growth and the mandate of the executive:

... the reality of what is sought ... goes to the heart of responsible government ... This is sensible legislation that goes one step further to ensuring a world-class planning system in a country that now has an international focus ... We cannot expect international investors to consider investing in this state if they are frustrated for years over piddling matters that everyone understands are nothing more than attempts to frustrate and delay (NSW, Legislative Assembly, 1997, Debates, Vol. 258:9560).

160 This list is derived from Pearson, 1996:344-345, and the Honourable RSL Jones' (Australian

Democrat Party) comments in the Legislative Council (NSW, Legislative Council, 1996, Debates, Vol. 252:3705-3707).

157The amendments strengthened the codification of ministerial discretion by differentiating between 'State Significant' s76A (7, 8 & 9) and 'local' development s76A (1, 2 & 4), elaborating on the minister's power to call in a development or class of developments so as to take over as consent authority. The need for this distinction was justified in the following terms:

Provisions for the State government to determine major projects are a well established feature of the present development assessment system. However, there is a need to be more explicit regarding the process under with the State government exercises its legitimate role in decision making. At present, two separate processes apply for the assessment of projects of State and regional significance. For example, the Minister uses his 'call-in' powers to assess new coal mines under section 101 of the EP&A Act. However, the Minister is the outright consent authority for new gold mines considered under State Environmental Planning Policy No. 34 - Major Employment Generating Industrial Development (SEPP 34). Although both types of development proposals are identified in advance for the Minister's determination, under section 101 the development application is lodged and processed by the relevant local council. This is confusing for both the applicant and the community ... [The new process will make it] clear from the outset that the Minister is the consent authority for development identified as being of State or regional significance ... The Minister will be responsible for the processing of all steps of the DA. The DA will be lodged directly with the Minister. The Department of Urban Affairs and Planning [DUAP] will be responsible for carrying out appropriate procedures such as public notification and exhibition, and integrated assessment (DUAP, 1997:15 - 17, emphasis added).

The assumption evident here is that controversy over ministerial discretion is driven by confusion over administrative processes. A submission from the peak environmental groups161 described this notion as patronising (NSW, Legislative Council, 1997, Debates, Vol. 262:3327). The amended Part Four also distinguishes between exempt, complying, integrated and designated development. Exempt development, defined in an EPI as development of minimal environmental impact, is not subject to any assessment (s76). Complying development, defined as development without significant effect on the environment, is assessed against predetermined development standards

161 The Nature Conservation Council of NSW, Total Environment Centre, Friends of the Earth,

National Parks Association, Australian Conservation Foundation, Greenpeace, Ocean Watch and the North Coast Environmental Council.

158specified in EPIs (s76A (5,6)). Consent is given in the form of a complying development certificate issued by either Councils or accredited certifiers.162 Public participation concerning complying development is also defined in the relevant EPI but as a rule is restricted to notification (Darbas, Interview, 15/2/2001).163 The reasoning behind the creation of these two categories of development was that consent was too slow and excessive vexatious litigation was occurring. Public participation was pushed back into the strategic plan-making stage. The Minister argued that:

Communities will be able to have a real input by getting involved at the strategic end of the process instead of reacting to individual development applications. Currently communities have very few rights to influence such decisions and no appeal rights at all ... The intention is that by removing some minor development from the assessment system and by allowing accredited certifiers to deal with others, consent authorities will be able to focus attention on and devote resources to more complex development proposals and other functions such as strategic policy making (NSW, Legislative Assembly, 1997, Debates, Vol. 260:827).164

The controversiality of the exempt and complying development categories became clear in the upper house where the Greens and Democrats articulated the peak environmental, social and professional groups' anger over the amendments. Green MP Cohen pointed to the limits of residents' capacity to conform to administrative processes: "Most people do not realise that to have input they have to participate at the strategic planning stage" (NSW, Legislative Council, 1997, Debates, Vol. 262:3312). He pointed out that while exempt development is not allowed in areas of critical habitat or wilderness, it is allowed in other environmentally sensitive areas (NSW, Legislative Council, 1997, Debates, Vol. 262:3321). Cohen also asserted that notification and participation over a complying development is effectively disallowed by the limit of 7 days for determination (NSW, Legislative Council,

162 Standards and accountability mechanisms for accredited certifiers have been set out under

Part 4A of the Act.

163 See also Section 85A, subsection 2.

164 The Minister's reference to 'no appeal rights' is misleading. While it is true that for minor development, the public had no right of appeal on merit, under the original Part IV of the Act, the public had access to judicial review of consent given to development. By removing council discretion, the legal platform to challenge consent is also dispensed with.

1591997, Debates, Vol. 262:3321). The leader of the Opposition in the upper house conceded that: "There will be neighbourhood wars in the suburbs. The safety valve to resolve disputes between neighbours has been turned off (NSW, Legislative Council, 1997, Debates, Vol. 262:3335). The peak environmental groups argued that: "all that will be offered is a cruel hoax of participation with the notification of non-challengeable applications (NSW, Legislative Council, 1997, Debates, Vol. 262:3321). Many of the submissions Cohen tabled165 disputed that the exempt and complying development categories, or the use of certified accreditors, would save either time or money and pointed to the failure of such policies in Victoria and the ACT. For DAs still requiring assessment by councils, the legally binding s90 matters for consideration were reduced to a minimal procedural list supported with non-binding best practice guidelines (s79C(1)). Thus the former scope for third party initiated judicial review appeals that enforced the consideration of merit issues by the consent authority was degraded. The democrats pointed to a loss of hard won expertise as a result: "A body of law has built up around ... [s90], so that councils and lawyers know fundamentally what they can expect as a result of an action (NSW, Legislative Council, 1997, Debates, Vol. 262:3347). Furthermore, it was argued that rather than watering down the list, what was required was a meaningful review of the list incorporating new criteria such as cumulative impacts and ecologically sustainable development (ESD) (NSW, Legislative Council, 1997, Debates, Vol. 262:3348). Integrated development was defined as development requiring consent conditional on gaining approval (concurrence) from bodies administering related Acts (s1A (4)).166 If the Minister takes over as consent authority for an integrated

165 Cohen ensured the main points made through letters, submissions and media releases were

incorporated in the Hansard transcripts. The organisations quoted were: Manly Council, Local Government and Shires Association, the Australian Consumers Association, Health and Building Surveyors Association, Dunhill Madden Butler Solicitors, the peak environmental groups (see ftn 161), the Environmental Defender's Office, the Young Lawyers Environmental Law Committee, and the NSW Aboriginal Land Council (NSW, Legislative Council, 1997, Debates, Vol. 262: 3313 - 3333).

166 These related Acts are the Fisheries Management Act (1994), the Heritage Act (1977), the Mine Subsidence Compensation Act (1961), the National Parks and Wildlife Act (1974), the Protection of the Environment Operations Act (1997), the Rivers and Foreshores Improvement Act (1948), the Roads Act (1993), and the Water Act (1912) (EP&A Act (1979), Reprint No. 9, Section 91).

160development, while obliged to seek the approval of relevant concurring bodies, he or she is able to take any resulting dispute to the Premier (s92 (4)). Essentially the matter can be settled between Ministers, within Cabinet. MP Cohen disputed that the system would be efficient, pointing out that the responsibility of developers to gather the concurrence approvals was now added to the administrative burden of councils (NSW, Legislative Council, 1997, Debates, Vol. 262:3334). A larger concern was that the concurring authorities were obliged to give indicative approval in the absence of information yielded by public submissions, or in the case of designated development, an EIS. This indicative approval could not be later withdrawn. If no indication was given due to time constraints, this was to be taken as approval and could not be later withdrawn. Peak social, professional and environmental groups argued that this arrangement was likely to lead to increased litigation on the "basis that the body has fettered its discretion at the earlier point in time" or on the basis that there was a failure "to comply with fundamental principles of administrative law" (NSW, Legislative Council, 1997, Debates, Vol. 262:3322-3). The debate in the upper house went into the daylight hours, its bitterness due to the fact that although the Greens and Democrats had prepared more than 70 amendments (NSW, Legislative Council, 1997, Debates, Vol. 262:3337), the Minister had

... suddenly truncated the consultations and negotiations on this bill only hours before the resumption of the second reading debate ... The Minister, in an appalling and unprecedented breach of trust, cut off negotiations with key stakeholders in midstream and shredded up to one dozen written commitments to amendments ... (NSW, Legislative Council, 1997, Debates, Vol. 262:3343).167

Reduced to venting their frustration, the Democrats concluded the debate with a review of the pattern of amendment since the Act's inauguration in 1979:

... the former coalition Government was attempting to prevent people from challenging decisions that, in the minds of the people challenging, should never have been made in the first place ... the genesis of some of the things that have been put in the current legislation ... have been around ... for many years, under different governments ... the key driver

167 The opposition passed the bill stating that: "The concern is that stakeholders still have

concerns about this bill. However, those concerns cannot be considered because of [the Minister] Mr Knowles' threat [to withdraw the bill]. The Opposition believes that the good in this bill outweighs the bad" (NSW, Legislative Council, 1997, Debates, Vol. 262:3336).

161in these proposed changes ... was the deregulation thrust of economic rationalism ... (NSW, Legislative Council, 1997, Debates, Vol. 262:3351-2).

It is obvious from my brief survey of past attempts to change the EP&A Act that governments, at the behest of developers, have been eroding community rights to participate for more than 20 years. No wonder it is so hard to obtain environmentally responsible development - the doors are shut on the community and the environment and are opened for developers. It is the tyranny of small decisions that causes so much damage to the environment and the quality of life... After 20 years of attempts by various governments to diminish community rights to participate, the party which originated the EP&A Act is taking the axe to it (NSW, Legislative Council, 1997, Debates, Vol. 262:3353).168

The supremacy of the accord on economic growth that was birthed as a solution to class conflict at the turn of the Nineteenth Century is reasserted in the 1996 and 1997 amendments to the EP&A Act. The socio-environmental matters raised by the green ban movement in the 1960's have been thus repressed.

5.5 Conclusion

The EP&A Act's original participative provisions were made conditional upon the exercise of Ministerial discretion in order to protect the liberal-aggregative reading of responsible government underpinned by economic growth. Because of this conditional framing, I called the attempt to have economic growth and public input into its impacts a consultative strategy. However, the over-riding of participative provisions to facilitate economically significant development undermined the coherence and stability of the legislation as a whole. What started as an attempt to balance aggregative and participative democratic principles in the EP&A Act ended in a reassertion of the primacy of the mandate derived from aggregations of votes in a mass party dominated polity. More specifically, the EP&A Act's consultative strategy failed to pave credible links between participative and aggregative mechanisms, ending instead in their polarisation.

168 These MPs, warning of the amendments' electoral consequences, later submitted their 70

amendments to the upper house as a separate piece of legislation - the Environmental Planning and Assessment Amendment (Public Participation and Environmental Protection Bill) (NSW, Legislative Council, 1998, Debates, Vol. 266:7312), which was defeated 30 to 9.

162Underlying such polarisations is the pressure placed on democracies by the mutually incomprehensible needs of systemic complexity and social reflexivity. From a socially reflexive viewpoint, socio-environmental goals are not easily expressed in the two-party vote. They depend instead on the interest and advocacy of resident and environmental groups highlighting the side effects of economic growth. Such advocacy is both misunderstood and marginalised by our systemically constituted democratic processes:

Environmental protection largely depends on public interest advocacy that is able to defend long-term, generalisable interests rather than short-term particular interests. However, liberal democracies presuppose partisan political competition between selfish actors in the struggle for 'who gets what, when and how'. Such partisan competition places groups and organisation that are well resourced, well organised and strategically located at a distinct advantage to poorly resourced, poorly organised and dispersed groups, such as community environmental groups. Those taking up public interest advocacy, such as environmental organisations, also become vulnerable to liberal democratic framing devices (employed by the media, political opponents and the state) that 'reduce' environmental claims into a format that is susceptible to compromise. That is, within the political bargaining processes that takes place between government and organised political elites, environmental organisations are characterised, like private lobby organisations, as merely pursuing the 'sectional' or 'vested interests' of their members. Such interests must therefore be 'balanced' against the claims of other interest groups in the corporatist negotiations, political compromises, and incremental policy shifts that characterise liberal democracies. The upshot is that the longer-term public interest in environmental protection is systemically traded-off against the more immediate demands of capital and (sometimes) labour (1996(b):215).

There is no ledge available within the liberal-aggregative framing of democracy from which to point to either the potential relevance of local perspectives to more general policy questions or of the prejudices, narrowness or rigidity of political and administrative framings of policy tasks. What is lost in the aggregative framing, as MP Dr Macdonald stresses, is acknowledgment of the public nature of resident and environmental group interests:

It is not about profit, it is about altruism and I think it is about time the community started to recognise that there are groups out there in the community which in fact seek to be advocates not for themselves, not for

163their shareholders, not for their companies, but for another generation. (NSW, Legislative Assembly, 1991, Debates, Vol. 226:5994).169

Without the pause forced by the consideration of other viewpoints that challenge narrow policies, the fostering of reflexivity, legitimation deficits steadily accrue. From this perspective, the degradation of consultative mechanisms is catastrophic From the viewpoint of systemically constituted domains of action, which require the reduction of their environments complexity, constant litigation makes development assessment and consent slow and unpredictable. The economic domain requires clear and timely yes/no, legal/illegal codes that make the pursuit of profit feasible. This need is at odds with protracted debate about socio-environmental goals. From this angle, the EP&A Act amendments were necessary, legitimate and overdue. However, the amendments are facilitative of disengagement from the problem of unintended side-effects such as socio-environmental degradation and sidestep the political implications of that disengagement. A deliberative framing of democracy and jurisprudence, comprised of procedural and dialogic elements, could have mediated in this dialectic between systemic complexity and social reflexivity by affording linkages between public and parliamentary debate, legislating and administration of statutes. Concretely this would mean resolving repeated litigation and contestations by addressing its reasons rather than cutting off avenues for litigation and contestation. This only occurred for the 1993 EP&A Act amendments when independents held negotiating power in a hung parliament. In general, the EP&A Act's consultative strategy failed to mediate between the debates concerning socio-environmental amenity that arose out of local and regional civil societies and the priorities of the political centre dependent on economic efficiency and growth. From local and regional perspectives, consultative avenues are often disconnected from political and administrative powers making many political and administrative decisions illegitimate. The most disturbing interpretation of the resulting legitimative instability is that it has interacted with concrete socio-environmental problems in

169 To which National MP Mr Cochran promptly retorted: "We are talking about the greenies,

the long-haired layabouts that have been in the southeast forest for the past 15 years" (NSW, Legislative Assembly, 1991, Debates, Vol. 226:5999).

164such a way that both problems have been reinforced, a scenario anticipated by Habermas:

As steering problems become more complex, irrelevance, misguided regulations, and self-destruction can accumulate to the point where a 'regulatory trilemma' results. On the other side, the political system fails as a guardian of social integration if its decisions, even though effective, can no longer be traced back to legitimate law ... The independence of illegitimate power, together with the weakness of civil society and the public sphere, can deteriorate into a 'legitimation dilemma' which in certain circumstances can combine with the steering trilemma and develop into a vicious circle. Then the political system is pulled into the whirlpool of legitimation deficits and steering deficits that reinforce one another (Habermas, 1996:386).

It is to the project of outlining such a legitimation/steering deficit that the following two chapters - on the socio-environmental degradation of the WS/HN region, and the Castlereagh Regional Liquid Waste Depot contamination controversy within that region - now turn.

165

Part D

A Steering/Legitimative

Dilemma:

The Western Sydney/Hawkesbury-

Nepean Region

166

Chapter Six Dumping Ground: The Creation of the West

6.1 Introduction

The EP&A Act (1979) arose out of the green ban contestation in Eastern Sydney, a reaction to the unconstrained development facilitated by SROP marking the abandonment of the CCC 's green belt policy in 1968. For Western Sydney, SROP meant that Sydney's urban sprawl was permitted to follow the three train lines inland into the Hawkesbury-Nepean River Catchment. The history of socio-environmental degradation in the Western Sydney/Hawkesbury-Nepean (WS/HN) region can be said to be one of unresolved socio-environmental dilemmas being pushed west. Population growth was translated directly into urban sprawl because the restraint of market forces was deemed politically infeasible. The intrusion of Western Sydney into the Hawkesbury-Nepean Catchment has created what Beck calls a 'loser region':

No matter how abstract the threats may be, in the long run their concretisations are irreversible and regionally identifiable. What is denied collects itself into geographical areas, into 'loser regions' which have to pay with their economic existence for the damage and its unaccountability (Beck, 1995(a):29).

That locals understand this phenomena is evident in their reference to the region as a 'dumping ground' (SMH, 13/2/1991:7, Hughes, 1991:126). Western Sydney is the only part of the metropolis which is oriented to a river system rather than the coastline and harbour that dominate Eastern Sydney's psyche and image, and has the lowest socio-economic profile of the urban fringe areas:

... it is not simply the long distances from the Central Business District and the Sydney Harbour that make Western Sydney stand out in the fabric of the metropolis. With the single exception of Baulkham Hills, all of its LGAs in the 1980s are below the metropolitan averages on common indicators of social well-being (Fagan, 1986:14).

The concentration of disadvantage in Western Sydney was anticipated by Sandercock in the 1970's:

[I]n the absence of decisive government action to curb and provide alternatives to the continuing expansion of the Sydney region, and given the political and economic powers of the rich to protect their immediate environments, the only place for 'undesirable' elements of urban growth (like polluting industries, low-income housing estates etc) to go will be out west where they will further increase

167the disadvantages already suffered there by the poor (Sandercock, 1974:361).

By 1976, the NSW National Trust symposium on the Hawkesbury River Valley heard that "... the single activity which is most likely to have a significant and possibly irreversible effect on the [Hawkesbury River] valley is urban growth and its associated demands" (Conybeare, 1977:6). These demands - the need for roads, kerbing and guttering, electricity, unlimited water supply and sewerage, industrial estates, social services etc - constitute an environmental multiplier effect. Such service and infrastructure provision destroy native flora and fauna and cause erosion and siltation, air pollution, interventions in water flows and profound pollution of waterways. The westerly extension of Sydney in the Hawkesbury-Nepean River Catchment, has become an increasingly intractable steering/legitimative dilemma since 1968. However, WS/HN regional contestation over socio-environmental degradation did not impact upon the NSW State until the 1990s, ten years after the EP&A Act came on line. This contestation is therefore treated as a kind of critique of the EP&A Act's consultative strategy. I examine the effectiveness of the Act in mediating between the social reflexivity generating socio-environmental unease and the systemic complexity productive of that socio-environmental degradation. The boundaries of this regional case study, the overlap between the Hawkesbury-Nepean River Catchment and Western Sydney, are defined in Section 6.2, while Section 6.3 reviews SROP's impact on the region. Section 6.4 demonstrates that the EP&A Act's environmental planning, assessment and consultative provisions have, in the decade of the 1980s, laid bare the extent of the region's social disadvantage and environmental degradation. Section 6.5 covers the politicisation of the WS/HN region residents and the impact of that politicisation on the NSW political system. The policy response purchased by this political pressure is related in Section 6.6 - the maintenance of poor water and air quality alongside the withdrawal of consultative forums. Section 6.7 details my conclusion that the regional case study demonstrates that the legal codification of the Green Ban debates in the EP&A Act failed to alter the liberal-aggregative framing of democratic processes locating legitimacy exclusively in the political executive's electoral mandate, or administrative momentum facilitating urban and economic growth.

1686.2 Definitions and Delineations

The case study is defined by the overlap between Western Sydney and the Hawkesbury-Nepean Catchment (see Map 1.1). Western Sydney, usually spoken of in terms of aggregations of local government areas (LGAs), is here defined as being comprised of the WSROC (Western Sydney Regional Organisation of Councils) LGAs - Baulkham Hills, Blacktown, Blue Mountains, Fairfield, Hawkesbury, Holroyd, Liverpool, Parramatta and Penrith, plus the MACROC (Macarthur Regional Organisation of Councils) LGAs - Camden, Campbelltown and Wollondilly (WESTIR, 1993:i).170 These LGAs were transformed from small settlements with a primarily agricultural focus in the nineteenth and early twentieth centuries into anonymous suburban adjuncts to Eastern Sydney with poor socio-economic indicators of well being. The Hawkesbury-Nepean River Catchment is defined by water flow. While the catchment culminates in the Nepean River and then the Hawkesbury River which flows out to sea, it is actually comprised by a maze of tributaries.171 The Hawkesbury-Nepean River forms a natural arc that wraps around the Sydney Basin. The Sydney Basin is comprised of the three small coastal catchments (Port Hacking, Georges River and Port Jackson) that drain east into the ocean (Conybeare, 1977:3). The Hawkesbury-Nepean River's Catchment is far larger than the Sydney Basin - approximately 570 kilometres long and draining an area of more than 20 700 square kilometres (Rosen, 1995:viii). The catchment supports dams on the Upper Nepean, Warragamba, Wollondilly Rivers and

170 Apart from the obvious geographical connotation, definitions of Western Sydney are

driven by the priorities of particular administrative programs. The ROC's (regional organisations of councils) are groupings originally formed to facilitate the regional development policies of the Whitlam Government in the 1970's. Western Sydney is defined by WESTIR (a Western Sydney information service) as including the easterly rather than westerly Bankstown LGA on the basis that Bankstown is defined as part of Western Sydney by WSAAS (Western Sydney Area Assistance Scheme) (WESTIR, 1993:i).

171 The following summary is merely of the major tributaries: "The headwaters of the Nepean lie to the south of Sydney and are fed by the Avon, Cordeaux and Cataract rivers while the Hawkesbury River rises near Goulburn as the Wollondilly River. The Cookbundoon, Nattai and Wingecarribee rivers join the Wollondilly as does the Cox's River from west of the mountains. After the juncture with the Cox the river becomes the Warragamba, and prior to the construction of Warragamba Dam, joined the Nepean at Mulgoa. Flowing in a northerly direction, the Nepean is joined by the Grose River near Richmond and at Windsor by South Creek. From the junction with the Grose the river is known as the Hawkesbury, and the Colo and the Macdonald rivers both flow into it. At Wisemans Ferry the Hawkesbury turns east and flows into the sea via the drowned river estuary of Broken Bay" (Rosen, 1995:viii).

169Mangrove Creek that supply 97% of the water used in Sydney and Wollongong (DUAP, July 1996(b):19). The 11 fully and partly urbanised Western Sydney LGAs partly or fully within the Hawkesbury-Nepean Catchment and making up the regional case study are: Baulkham Hills, Blacktown, Blue Mountains, Camden, Campbelltown, Fairfield, Hawkesbury (formerly Colo and Windsor), Ku-ring-gai, Liverpool, Penrith, and Wollondilly.172 Of these LGAs, Blue Mountains, Hawkesbury, Penrith and Wollondilly are fully within the H-N Catchment. The LGAs partially in the H-N Catchment include Baulkham Hills (89%), Blacktown (86%), Camden (99.6%), Campbelltown (12%), Fairfield (25%), Ku-ing-gai (39%) and Liverpool (47%). The balance of the latter LGAs falls into the Sydney basin catchments (See Appendix IV). I have included the entire population statistics for the case study LGAs in the discussions following because although part of the urban run off of LGAs partially within the Hawkesbury-Nepean Catchment flows away from the catchment, their sewerage and air pollution flow into it.173 Although not as easily defined, the Hawkesbury airshed correlates roughly with the overlap between Western Sydney and the Hawkesbury-Nepean River Catchment. The air shed is also an important part of the story of socio-environmental degradation in the WS/HN region. This is because easterly sea breezes push pollution into the south-west, where, stopped by the barrier of the Blue Mountains, regional wind patterns transfer pollution to the north west where it can sit undissipated for some days. It is consequently misleading to restrict analysis to the population strictly within the catchment's borders. By the same logic, I have excluded the rural LGAs within the Hawkesbury-Nepean Catchment because it is the intense urbanisation within the catchment that has caused its recent dramatic environmental degradation. The rural population

172 Not part of the case study are: Warringah, Ku-ring-gai, Hornsby and Gosford to the

north-east, Holroyd and Wollongong to the south-east (part of the catchment but not of Western Sydney), and Parramatta and Bankstown to the east (part of Western Sydney but not within the catchment).

173 A STP catchment map is not yet available from Sydney Water. I was informed that "For those residents west of Blacktown the sewage is treated at one of the inland plants. For most residents this means the effluent will be discharged into the Hawkesbury-Nepean and surrounding tributaries" (Email communication with Elizabeth Walter of Sydney Water 13/3/2002). However, Liverpool sewage is generally transported to the coastal Malabar STP where it is discharged to a deep water ocean outfall. Wet weather overflows are discharged into the Georges River (Sydney Water, www.sydneywater.com.au/html/environment/stp-georges-river.cfm, 13/3/2002).

170has an environmental impact that is both different in kind and order of magnitude.174 In terms of its electoral and political impact, the WS/HN region's population is distinct, expressing a mixture of social and environmental resentments. Oriented to the amenities (or lack of them) within the Hawkesbury-Nepean Catchment, a substantial part of the Western Sydney psyche is preoccupied with the catchment and its issues. The River, in its aesthetic, historical and recreational offerings, is one of the few positive cultural understandings for Western Sydney residents to draw nourishment from. Something of the regard with which the river is held locally can be found in the following tribute given by Conybeare at the 1976 National Trust symposium:

It is an environment that is deeply embedded in our historical evolution as a Nation. The seeds of our agricultural heritage were literally sown in the Hawkesbury Valley. Soon after the arrival of the First Fleet, early explorers followed its meandering path, crossed its banks and climbed the eastern scarp of the seemingly impenetrable Blue Mountains ... The special enchantment of the valley may be attributed to the rewards that it holds for the lover of nature and the outdoors, the richness of its man made environment, its town and streetscapes, its public monuments and the elegance of its architecture and building details, the vernacular tradition and the reminder of times and lives that have passed, and the breathtaking scenery of panoramic landscapes and distant views which we can see in every corner of the watershed (1977:3).

6.3 SROP - Socio-environmental Displacement

The NSW State in the post World War Two period was focused on utility provision in the lightly populated LGAs surrounding Sydney. Roads, electricity, water and sewerage and their enabling technologies were normalised by the 1940s - an expected and taken-for-granted part of everyday life. It was the provision of these utilities that initiated the socio-environmental processes that now possess formidable momentum: the hard surfaces of roads and buildings generate urban run-off; privatised transport results in amorphous air pollution; the provision of water and sewerage necessitates withdrawal of pure water from the Hawkesbury-Nepean's headwaters and its return to the river's lower reaches laden with nutrients and bacteria.

174 The rural Hawkesbury-Nepean River Catchment LGAs, not part of the case study,

include Singleton, Rylstone, Greater Lithgow, Greater Cessnock and Wingecarribee.

171

Table 6.1 Basic LGA statistics circa late 1940's

WS/HN LGAs

Popul-ation

Dwell-ings

StreetsRoads

Elect-ricity Water Sewer-age

Area (sq. miles )

Camden 3500 525 40 yes yes yes 12 Campbelltown 4000 7-800 107 yes yes yes 96 Castlereagh 1500 500 120 32,922 # Penrith 5000 1100 52 yes yes yes 8.75 Richmond 5000 500 38 yes yes 13,362 # St Marys 7000 900 164 53 Windsor 4000 900 126 yes yes yes 23,186 # Nepean 4000 888 259 173 Blue Mountains

9500 2200 300 500

Katoomba 12000 3336 103 yes yes yes 17 Wollondilly 7800 1785 491 1004 Baulkham Hills 16000 3000 543 147 Blacktown 16000 4100 440 yes yes 106 Colo 5200 1500 514 1200 * dwellings and shops # acres (Based on Rosen, 1995:118)175 These socio-environmental processes were dramatically accelerated when the NSW State pondered the problem of housing a migration fed population surge in the post World War II era. The NSW State turned its gaze westwards, perceiving not an ecologically rich and fragile river catchment, but unoccupied space:

In 1976 more than 102,000 hectares of the 2,200,000 hectare Hawkesbury-Nepean catchment area were covered by towns, roads or water, leaving the remainder - in the view of at least one planner and many government departments - 'unencumbered' ... A report prepared in the mid 1970's concluded that there were 176 600 hectares of 'urbanisable land within an eight kilometre radius of Sydney, lying within the Hawkesbury catchment ... capable of accommodating a population of over 5.5 million people' " (Rosen, 1995:137).

The census statistics demonstrate that the thirty years between 1961 and 1991 witnessed spectacular population growth in the WS/HN region alongside a corresponding decline in the population of Sydney's inner and middle LGAs. The annual growth rate for the 11 case study LGAs (see Appendix 1), is 5.5%, an increase of one million residents from nearly 600,000 in 1961 to close to 1,600,000 in 1991, a tripled population representing 85% of Sydney's growth

175 Castlereagh and St Marys are now part of Penrith LGA. Windsor, Colo and Richmond

are now part of the Hawkesbury LGA. Katoomba is now part of the Blue Mountains LGA.

172over the thirty year period.176 In contrast, the annual growth rate over this thirty year period for Sydney's established urban area, is .03%.177 This population surge was facilitated by SROP, published in 1968 by the CCC's succeeding institution the SPA, marking the abandonment of the CCC's greenbelt plan (see Maps 4.1 and 4.2). While the CCC plan "... recognised a need to secure the long term recreational and environmental values associated with the Hawkesbury and at the same time create a buffer zone between the intensive urban development to the east and the wilderness areas to the west" (National Trust, 1977:8), SROP declared that "new areas must be opened up for industrial and residential development on a major scale as rapidly as possible" (SPA, 1968:1). Key assumptions were that there would be continued high immigration and therefore population growth, little of which could be accommodated within the existing residential areas because an increase in housing density was publicly unacceptable (SPA, 1968:9). A major component of the Green Ban contestation was objection to the construction of flats in Eastern Sydney. To counteract the commuter driven traffic congestion in the CBD that would result from the dispersed, low density pattern of development a matching objective that commerce and industry be dispersed was adopted (SPA, 1968:12).178 The ambition that new cities, with their own identity, employment opportunities and social facilities, be established, was retained from the CCC's policies, but without the rider that such cities be separated by a green belt. The greenbelt concept was replaced with:

176 The figures are less dramatic if restricted to the population within catchment borders

rather than the overlap between Western Sydney and the catchment. The estimate given of the population within the draft REP for the Hawkesbury-Nepean Catchment boundaries (generally the catchment south of Warragamba Dam) in 1993 is 688,000 (DUAP, 1996(b):39).

177 Excluding the high growth LGAs on the fringe of Sydney of Wyong to the north (with an annual growth rate of 14.41%), and Sutherland to the south (with an annual growth rate of 2.16%) between 1961 and 1991 (see Appendix II).

178 The SPA essentially bowed before the trend towards privatisation of transport. SROP acknowledged that public transport usage had dropped 10% while motor vehicle registrations almost doubled over 10 years. The response was twofold - to encourage the use of public transport where practical, by extending the electric railways and developing rapid transit systems along the major urban corridors, and where it was too expensive and difficult to do this, to yield to the seemingly inevitable and provide high capacity roads (SPA, 1968:46). A highway grid to reduce the dominance of the radial road and rail system emptying into the CBD was endorsed (SPA, 1968:15).

173The principle of linear extension along communications corridors with high intensity activities, such as commercial and industrial centres, and universities, located on the rail system where possible. The main railway lines to Melbourne (via Campbelltown), to Newcastle, and to the Blue Mountains, provide an existing skeleton on which this concept can be built (SPA , 1968:15).

The strong interventionist policies needed to achieve regionalisation never materialised and Sydney's continuous, often ugly, sprawl was gestated (Boyd, 1980). Eighty per cent of Sydney's projected population increase of 2.32 million (Sydney's estimated 1968 population) to 4.9 million by 2001 was to be housed in the WS/HN region:

Table 6.2 SROP's proposed population distribution

Local Government Area

Actual Population 1966

Proposed within urban area

Proposed outside urban area

Estimated Population 2000

Actual population 1991

Partly in urban area

Warringah 121 500 38 000 120 000 280 000 171 992Hornsby 81 170 17 000 15 000 115 000 127 672Baulkham Hills 33 500 30 000 225 000 290 000 114 059Blacktown 111 470 25 000 250 000 290 000 211 710Fairfield 101 190 7 000 75 000 185 000 175 099Liverpool 68 910 5 000 75 000 185 000 98 203Sutherland 134 090 23 000 40 000 195 000 184 399Remainder urban area

1 780 000 105 000 - 1 885 000 1 769 203

Outside urban area Campbelltown 25 700 - 295 000 320 000 137 879Camden 8 660 - 95 000 105 000 22 473Penrith 46 330 - 160 000 205 000 149 630Blue Mountains 30 720 - 50 000 80 000 69 420Hawkesbury 19 330 - 70 000 95 000 51 319Wollondilly 11 340 - 80 000 90 000 30 267Gosford 42 870 - 275 000 320 000 128 956Wyong 24 630 - 225 000 250 000 100 468Minor extension towns/ villages

- - 20 000 20 000

Total 2 641 410 250 000 2 070 000 4 970 000 3 538 749Shaded areas = within case study

(Based on SPA, 1968: 24 (Table 2) and 1991 Census) Environmental concerns were not mentioned in SROP, which focused on developing those areas that posed the least formidable infrastructure costs. SROP did make reference to a proposed Hawkesbury-Nepean regional park that would be 1.5 kilometres wide and 45 kilometres long but even this limited

174protection did not eventuate. Disquiet over the environmental implications of SROP's 'promiscuous suburbanisation' (Spearritt and Demarco, 1988:23) emerged publicly in the 1970s:

At a National Trust sponsored symposium in 1976, concern was expressed about a number of planning proposals that envisaged massive urbanisation of the Hawkesbury-Nepean area and the likely impact these would have on the river system (Rosen, 1995:140).

In his opening address to the Symposium, Bunker, of the Department of Environment, Housing and Community Development conceded that an unwieldy and unco-ordinated plethora of twelve local councils and 18 government authorities and departments pointed to "a danger of continued unconsidered exploitation of the resources of the valley" (1977:2).179 Certainly, the environmental statutes of the 1970's (see Chapter 4, Section 4.5) rendered the river and its catchment a background consideration. The Clean Waters Act (1970) committee officiated over the project of using the headwaters of the Hawkesbury-Nepean as a fountain for Sydney generally, and the River's lower reaches as a sewer for Western Sydney. At the National Trust Symposium, the SPCC cited the monitoring and defining of point sources of pollution, such as Sewerage Treatment Plants (STPs), rather than controlling and minimising these impacts, as its achievement (National Trust, 1977:31). Similarly, the Waste Disposal Bill (1970), a response to Eastern Sydney land and water pollution, established the Waste Management Authority and set its first task of establishing a liquid industrial waste landfill. The resulting landfill centralised Sydney's liquid waste disposal within six kilometres of the Hawkesbury-Nepean River and, it is now confirmed, leaks into the water table (see Chapter 7). The Clean Air Act, legislated in 1961 to deal with factory air emissions, foreshadowed recognition in the 1970's of the need to place controls on the emissions of a burgeoning motor vehicle population. The resulting Sydney Oxidant Study of the mid 1970s restricted research to the meteorology, atmospheric chemistry and pollutant loading in the eastern part of the Sydney air shed despite the flurry of development being undertaken in the west (Hyde, 1990:75-6). Social indicators now confirm SROP's myopia. The Housing Commission's policy of using cheap land rezoned through SROP to cut down on a public

179 However, he opposed the motion, passed by the symposium participants, that a single

co-ordinating authority be established and a regional plan be prepared (National Trust, 1977:70-72).

175housing backlog resulted in the establishment of low-income ghettos. Housing Commission suburbs in the WS/HN region exhibit frightening statistical profiles, lending Western Sydney an unsavoury social reputation. Claymore, a Campbelltown Housing Commission suburb of 4,767 residents was reported in 1995 to have an unemployment rate of 45.7%, a youth unemployment rate of 55.9.% and a frightening reputation built around illicit drug use and violence (SMH, 21/11/95:11).180 The effects of structural economic change have reinforced the social disadvantage facilitated by SROP. Social disadvantage is demonstrated in Western Sydney's unemployment figures: "Since the mid 1970s, unemployment has loomed as one of the principal causes of social disadvantage in the western suburbs" (Fagan, 1986:15); in income comparisons:

Comparing the 1981 and 1986 data ... we can see that the fastest growth in the proportion of families living on low incomes ... has been in Campbelltown, Blacktown, Penrith, Camden and Liverpool. The relative deterioration of the whole of the western suburbs is strikingly clear (Stilwell, 1989:10);

and in the spatial pattern of increases in the value of dwellings over time:

Areas where dwelling price increases are significantly greater than increases in income can be assumed to be obtaining excess benefits from the urban system whilst areas where dwelling price increases are significantly lower than increases in income can be said to be experiencing disbenefits or costs. It is no surprise to find that the highest net excess gains are in the Eastern suburbs ... The greatest losses are in the western suburbs ... (Toon, 1988:5);

6.4 Post 1980 - Environmentally Conscious Administration

6.4.1 SROP's Review

As a result of the Green Ban contestation over SROP's policies, SROP was reviewed twelve years after its conception by SPA's replacement - the Planning and Environment Commission (PEC) in recognition that the metropolis' dramatic growth had sensitised the community to environmental problems (PEC, 1980:8). Although the politicisation of residents evident during the green ban movement occurred in Eastern Sydney, metropolitan growth was heavily skewed towards the urban fringe. The 1981 census shows the population of the WS/HN region had increased from 598 000 in 1961 to 1 300 000, an increase of 700 000 residents. The rest of Sydney accommodated an increase of less than

180 See also the SMH, 27/4/96:8, for a similar account of the Bidwill Housing Commission

estate near Mount Druitt in Penrith LGA.

176120 000 (see Appendix I). PEC's statement concerning its constitution gives the flavour of the chaotic impact of increased social reflexivity on the administrative system:

The early 1970s saw a major upheaval both in the substantive matters with which metropolitan planning dealt, and in institutional arrangements for State planning in NSW. There was unprecedented activity in residential development, commercial office building, construction of major regional retail centres, inner area redevelopment and rehabilitation, and local community involvement in environmental and planning matters. These factors imposed extraordinary loads on the planning administration. The new environmental consciousness, and a variety of initiatives from Canberra, severely extended the resources of the SPA. Throughout that turbulent period, the State Government itself was actively involved in reviewing administrative arrangements for metropolitan and State planning in NSW. This led to the establishment of the Planning and Environment Commission under a new Act ... in 1974 (PEC, 1980:1).

The SROP review acknowledged that the commercial office boom of the 1960s and 1970s in Eastern Sydney had distorted SROP's strategy of decentralising and regionalising employment to reduce commuting, pre-empting the development of other white collar employment centres (PEC, 1980:37). The State Government had furthermore failed to provide the money or machinery to implement decentralisation programs (PEC, 1980:4-5). SROP's urban development had resulted in car dependent commuting suburbs with a backlog of social services which were neither planned nor budgeted for. The review acknowledged that "self containment is not being achieved" and that concern was growing about "continuing low density development" (PEC, 1980:7). PEC advocated the management, conservation and enhancement of the natural environments and resources.181 Using SPCC reports, PEC identified the likely trends in air and water degradation as lying west and south-west (where the bulk of urban development had so far taken place), but not north-west (where

181 Other SROP review objectives included: the necessity of influencing urban land prices to

achieve reasonable housing costs and, with the post boom reduction of funds, a more economic use of resources. In response to the conflict the SPA's authoritarian approach had generated, a corporate approach to planning, drawing the community, planning and implementation closer was to be pursued (PEC, 1980:9). Attention was re-focused on the existing urban area by advocating policies to combat population decline in the inner and middle suburbs. Concern about the price of petroleum and its continuity of supply (following the 1970's oil shocks), as well as the increasing levels of air pollution caused by motor vehicle use, were seen as warranting renewed attention to public transport (PEC, 1980:4-5).

177further urban development was planned) (PEC, 1980:9). Urban development proposals were modified in light of a lower population growth rate: a new population estimate of 3.7 million (as apposed to 4.9 million) by the year 2001 was adopted (PEC, 1980:5). The revised population growth forecasts, not environmental considerations, were decisive for the urban development proposals. The development of the south-west sector (Campbelltown, Camden and Appin) for 460,000 residents was re-endorsed albeit with the deferral of the Appin development. The Fairfield/Hoxton Park expansion, in the south-western Fairfield and Liverpool LGAs respectively, for 160,000 was retained. Commitment to the Western corridor expansion, including the Blue Mountains, for 360,000 was reconsidered because of the limited accompanying growth in employment, communications and community facilities. The north-west sector proposals for Castle Hill/Rouse Hill/Maraylya in the Baulkham Hills LGA for 410,000 residents were deferred due to the reassessment of population growth (PEC, 1980:10-11).

6.4.2 The North West Development Sector

The deferral of urban development in the north west lasted only until the Labor NSW Government ordered that a Regional Environmental Study (RES) be conducted to evaluate the sector's potential to absorb projected population growth (DE&P, 1984:10), bringing the EP&A Act provisions on line (Wells, 1997:6). This development is a pivotal example of the impact ecological data required by the EP&A Act had on the planning process. The RES was published in 1984. The North West Sector (see Map 4) was targeted according to traditional economic priorities: the cost of utilities (water, sewerage and roads) were estimated at $1000 cheaper per lot than other areas; its attractiveness, proximity to water, parkland, recreation areas, and (relative) proximity to the city were cited; better prospects for attracting employment; and the proximity to the Richmond-Parramatta rail service were seen as advantageous (DE&P, 1984:11). Within the North West Sector, four urban capability areas were defined, one of which, the Rouse Hill Development Area,182 was chosen for initial urban development because of the lower service provision costs (DOP, 1989(b):12).183

182 Comprising 9,400 hectares and capable of accommodating 70,000 new dwellings - over

250,000 people.

183 The steady changes in planning authority titles - Cumberland County Council (CCC), State Planning Authority (SPA), Planning and Environment Commission (PEC), Department of Environment and Planning (DE&P), Department of Planning (DOP), and now Department of Urban Affairs and Planning (DUAP), obscures the continuity of the authority's function and, no doubt, staff.

178The two obvious environmental impacts, air and water pollution, were discussed in the North West Sector RES. While it was acknowledged that the sector was poorly ventilated, air pollution was dismissed as a major impediment: "it is unlikely that the study area ... would be affected by air pollution generated elsewhere within the Sydney Region" (DE&P, 1984:14). It was assumed that the sea breezes carrying pollutants from the Sydney CBD and Botany Bay along the Parramatta River Valley inland "little affected" the north west sector but rather impacted on the west and south-west (DE&P, 1984:14). The only air quality monitoring data available was the measurement of ozone in 1977-78 and 1980-81. It was inferred that the Eastern Sydney pollution would not reach the north west.184 Water pollution was better researched and understood. An SPCC study in response to public concern confirmed the correlation of water degradation with sewage discharges,185 commenting that:

Catchment population growth will lead to increased nutrient loads being discharged to the Hawkesbury-Nepean River from new or augmented sewage-treatment works. At the same time, recreational use of the river will increase. Existing water-quality problems in the river will increase unless remedial measures are taken (SPCC, 1983:xvi).

The SPCC report advocated the upgrading of effluent treatment at STPs, namely the nitrification of effluent,186 phosphorous removal to limit uptake by aquatic plants, with the more expensive nitrogen removal placed as the next priority.187 The North West Sector RES openly stated that this strategy would

184 " ... it appears that the study area is not a significant receptor of other types of pollution

and the State Pollution Control Commission (SPCC) has inferred that only local emissions could lead to a noticeable deterioration in air quality" (DE&P, 1984:82, emphasis added).

185 "Water quality and the quality of effluent from sewage-treatment works were monitored between 1978 and 1981, and measurements of flows enabled pollutant loads to be calculated ... Algal bioassays were used to assess the potential effects of increased pollutant loads and to indicate the nutrient limiting aquatic plant growth" (SPCC, 1983:xi).

186 Nitrification of sewage is performed to reduce the oxygen demand and increase the capacity of the receiving waters to assimilate nutrients.

187 Also recommended were the detention of urban stormwater runoff in settling ponds or recreational lakes to reduce wet weather pollutant loads; planning controls to minimise diffuse inputs of nutrients to the river and its tributaries, and the use of effluent for irrigation where possible. Ocean disposal was dismissed as too expensive and as requiring the removal of much of the river's flow which would permit increased saline intrusion. Banning the phosphate content of detergents was seen as too partial a solution, only able to reduce the current loads by 30% (SPCC, 1983:xiv-xvi).

179only conserve the existing poor water quality (DE&P, 1984:98) and only in the short term:

... as increases of catchment population generating greater quantities of sewerage effluent would result in an increase in total nutrient loading to the river. The SPCC estimates that the implementation of its recommended control strategy would effectively maintain existing quality of the Hawkesbury River, while the Hawkesbury-Nepean catchment population ... grows by about 400,000 over the existing population. An expansion of total catchment population over about 400,000 would necessitate implementation of further water pollution control strategies to maintain current river quality (DE&P, 1984: 93-4).

That the goal of maintaining already poor water quality while continuing urban development did not tally with regional sentiment was borne out by the fact that a "significant concern of many submissions" to the Rouse Hill Development Area RES was "the impact of development on the natural environment, especially the Hawkesbury-Nepean River" (DOP, 1989(b):6). Consequently, the REP for the Rouse Hill Development Area proposed a state of the art STP and innovative wetland design "agreed to between the SPCC and the Water Board" (DOP, 1989(b):20-22). The resulting STP provided for a dual water supply providing both potable water, and recycled water for flushing toilets, gardening, irrigation of open spaces, and industrial purposes (Hawkesbury Gazette, 28/10/1992:1). Artificial wetlands and riffle zones were also designed to further reduce the nutrient load of effluent before it was returned to the River (Hawkesbury Gazette, 25/5/1994:8). The expense of this proposal posed a problem for the Water Board which attempted to pass the cost on to the future Rouse Hill residents, employing an economic liberalist ideology: "Pay for use pricing, particularly in the form of up-front charges, is a necessary signalling device to enable consumers to make choices between competing needs" (Miller and Meeske, 1991:8). In late 1993, the Water Board, when submitting the proposed charges to the NSW Pricing Tribunal, admitted that the cost of the sewerage and drainage had been underestimated by more than 40%. The Board proposed "higher quarterly sewerage and drainage rates for Rouse Hill residents instead of a proposed once-off 'buy-in' fee, followed by quarterly rates on a par with the rest of

180Sydney" (SMH, 3/11/1993:4). The Pricing Tribunal did not accept this proposal and the prices were slashed by up to 66 % (Blacktown Advocate, 12/1/1994:4).188 The Water Board also aimed to recover 100% of major works and headworks costs through developer charges (Miller and Meeske, 1991:11). Consequently, the Rouse Hill development only went ahead because the major landowners formed a consortium to finance the promised sewerage treatment plant, dual reticulation, and wetland infrastructure (Nedeljkovic, 1991:13). Opened in May of 1994, the Minister of Planning called the STP "the centrepiece of a $285 million water management scheme which has been designed to the highest environmental standards" (Hawkesbury Gazette, 25/5/1994:8). SPCC's recommendations to reduce STP pollution (DOP, 1989(a):5) had at this time been worked up into a costed management strategy agreed to "in principle" by the Water Board and published in 1985.189 Another indication that the planning administration was engaging with the problem of the river's decline was the publication in 1988 of a draft REP for the Hawkesbury-Nepean Catchment - a partial fulfilment of the motion that concluded the 1976 National Trust Symposium.190 The REP was gazetted in 1989.191 One of REP 20's aims was to achieve environmentally sensitive urban expansion taking into account water quality.192 The REP was to be implemented through more detailed DA

188 Stage One of the project was calculated to house 40,000 people in 13,000 homes

(Hawkesbury Gazette, 28/10/1992:1). However, by July 1995, only 200 residents had settled at Rouse Hill, an insufficient number to generate enough effluent to recycle. So fresh water was being supplied through grey water pipes (SMH, 15/7/1995:5).

189 The STP treatment component of the pollution reduction strategy was costed at around 25 million to the year 2000, which at $28 per person was noted to be substantially lower than the estimated cost of $2,500 per person to provide the sewerage service to begin with (SPCC, 1985:i-ii).

190 This draft REP received 77 submissions resulting in more attention in the finalised REP to total catchment management principles, the provision of open space, and the prohibition of ribbon tourist developments (DOP, 1989(a):2).

191 The plan was restricted to that part of the Hawkesbury-Nepean Catchment that lies below Sydney's main water supply dams (Warragamba Dam) so as not to interfere with the jurisdiction of the Water Board, the statutory authority in charge of Sydney's water and sewerage services.

192 The other aims of the draft REP 20 were: to improve water quality in the river; to provide a wide range of recreational opportunities along the river; to protect and promote the economy of the river valley; to protect the significant vegetation and wildlife habitats of the river valley; to retain the farmland character of the river valley; to protect and enhance the scenic quality of the river and the river valley; to regulate the future extraction of sand in and around the river; to promote the principles of total catchment management and provide a framework for more detailed future planning by local and state government authorities (Rosser, 1989(a):5).

181assessment and preparation of river management plans, and planning controls over sand extraction and development affecting heritage items and wetlands (DOP, 1989(a):28). However, the plethora of implementors listed in the REP - agencies, departments, councils, commissions, working groups, services, developers and land owners - signalled no departure from the messy administrative situation with poorly developed lines of accountability deplored at the National Trust Symposium twelve years beforehand (DOP, 1989(a):29-33).193

6.4.3 The Metropolitan Strategy

DE&P replaced SROP with a metropolitan strategy in 1988. Sydney's linear pattern of development, entrenched by SROP, was re-endorsed while environmental protection was again advocated as a planning goal (DE&P, 1988). The strategy was based on a population forecast of 4.5 million by the year 2011 (DE&P, 1988:7) necessitating the accommodation of one million people. While the new metropolitan strategy acknowledged Sydney's population growth "will put increasing pressures on the limited air and water drainage", it was concluded that the "only practical recourse is for the growth of the Sydney Region to be undertaken in such a way that any effects on the environment are minimised" (DE&P, 1988:27). The impact of urban development on river systems was to be minimised by "high level sewerage treatment" and the " mitigation of the effects of urban stormwater runoff" (DE&P, 1988:27). While the Strategy conceded:

Where environmental impacts are likely to present special problems and it is practicable to avoid urban development, it would clearly be desirable to do so. Areas draining into the Hawkesbury-Nepean River system fall within this category (DE&P, 1988:27),

environmental constraints were not considered sufficient grounds to make land unsuitable for development (DE&P, 1988:29). The Strategy picked up the deferred SROP development proposals in the west, south-west and north-west.

193 I was told by DOP that this plan was considered quite radical at the time - a fact that led

to it being exhibited for twelve months and to sit in a cabinet committee for a further 6 months (Darbas, Interview:10/11/1994).

183A policy of urban consolidation was articulated. DE&P argued that a concentrated urban development scenario was "more cost-effective for government and the community, decreasing potential air and water pollution and conserving land for future urban, agricultural, and recreation purposes" (DE&P, 1988:40). Concentration was seen as requiring strong urban consolidation policies in middle ring suburbs, which possessed surplus infrastructural capacity, and increasing housing density from 8 to 10 lots per hectare at the fringe. These policies would require 32,000 hectares of residential land, 'saving' 13,000 hectares (DE&P, 1988:34-5). Planning analysts were not impressed by these goals. Gutjahr argued that "The current focus on the ills of urban sprawl as a cause, rather than as symptoms of our urban problems, is seen as a diversion and a recipe for confusion" (1991:35). Seeing the policies as diversionary and half hearted, he stated:

Increasing residential densities by up to a half only, in a country with a long history of well below average densities, cannot reverse urban sprawl, nor will it bring about the desired renaissance in public transport. Only gross residential densities of at least 100 to 150 inhabitants/ha will make fixed rail transport economically feasible (1991:36).

The census figures support this conclusion. The Sydney region's total population growth between 1981 and 1991 was 334,000. The WS/HN region absorbed 84.5% of this growth., an improvement of 1% on the comparable figures between 1961 and 1981. The Metropolitan Strategy's urban consolidation policies are now acknowledged as a failure in spatial terms. Council and DOP figures show that more than 40% of dual occupancy dwellings (given blanket approval through a SEPP) have been built in fringe areas instead of in the inner and middle ring suburbs that possessed spare infrastructural capacity (SMH, 20/5/95:2). The transport policies of the Metropolitan Strategy also lacked decisive administrative engagement with socio-environmental degradation. The Strategy concluded that a comprehensive road system was required to complement the heavy rail network as 65% of workers commute to work by car. The department effectively gave into the "trend to suburbanisation of population and employment away from the CBD and rail network" (DE&P, 1988:19), accepting the urban form created by SROP as an irreversible, immutable reality. The Metropolitan Strategy acknowledged that the major pressures on air pollution would be from both industry and vehicle emissions, with the latter posing the more serious threat in that they were amorphous. Optimism was expressed about the ability to control emissions because of the

184reduction in the number of days ozone levels exceeded NHMRC guidelines in the previous two years (within the then limited network of monitoring stations), and the reduction in brown haze achieved by banning uncontrolled refuse burning (DE&P, 1988:28). The tendency of Eastern Sydney's air pollution to travel and stagnate in the outer western and south western areas was mentioned (DE&P, 1988:28), reproducing the assumption that this problem did not extend into the north-west sector despite the lack of monitoring data to support such a conclusion. The proffered solutions, however, were at best vague: "the increasing use of lead-free petrol and catalytic converters will help to reduce some of the worst problems [but] further measures will be needed" (DE&P, 1988:27).

6.4.4 The South West Development Sector

Following publication of the metropolitan strategy, RESs were commissioned for South Creek Valley (DOP, 1991(a))and Macarthur South (DOP, 1991(c)) in the South West Development Sector. The preliminary results turned up air and water quality issues that the Department of Planning decided required resolution before committing to urban development, although an interim release of 12 to 15 thousand lots in South Creek Valley was allowed (DOP, 1990). The RESs were consequently expanded and their exhibition deferred until 1991. The expanded RES research included a pilot study into the impact of the proposed industrial and urban development on air quality,194 the findings of which exposed a long glossed over knowledge gap that proved politically explosive. The study concentrated on photochemical smog using the respiratory irritant ozone as an indicator of its presence, both produced by chemical reactions that occur in sunlight. Photochemical smog was characterised as: "the most complex and difficult to control form of pollution ... pervasive of whole regions and ... likely to give rise to the greatest concern for public health ...[and providing] data indicative of the outcomes expected for several other pollutants" (Hyde, 1990:15).195 The study debunked the distinction of convenience made by the SPCC and DE&P between the south-west and north-west in terms of air pollution, establishing that there was one

194 Commissioned by DOP, SPCC and the Commonwealth Department of Transport and

Communication.

195 Other reasons given for concentrating on photochemical smog included that smoke, dust and odours tended to arise from local sources best treated on a case by case basis; sulfur dioxide and acid rain are not generally considered to be a problem as the fuels used in Sydney have a low sulfur content; and that the use of unleaded fuel for new vehicles will eventually result in a reduction of atmospheric lead concentrations (Hyde, 1990:15).

186these precursor emissions sat in sunlight, the more photochemical smog formed. A stretch of hot and still summer days gave rise to dangerously high levels of pollution. The authors pointed out that the restriction of the monitoring network to Eastern Sydney meant "the data previously published by the SPCC seriously underestimates the current severity of photochemical smog in the Sydney region" (Hyde, 1990:1). Hyde and Robert's modelling led them to conclude that: "in the absence of further pollution controls, urban growth during the next twenty years is set to give rises of up to 50% in Western Sydney ozone concentrations" (Hyde, 1990:1) taking them well above recommended health limits. The authors argued that this situation "places a restriction on the total amount of development that can be sustained, or alternatively, pollutant emission controls appropriate to the extent of development must be implemented (Hyde, 1990:3). This blindspot in the monitoring data came about over forty years. Public concern about air pollution first affected the NSW political agenda in the 1950s and 1960s in response to the air pollution caused by power stations, gas, chemical and brick works, oil refineries, and manufacturers producing smoke, acid gases and particles. It was to these forms of air pollution that the Clean Air Act of 1961 was addressed, and the 1960s saw them brought under control. However, by the early 1970s Sydney's growing motor vehicle fleet introduced carbon monoxide, lead, hydrocarbons, nitrogen dioxide and photochemical smog to the region's atmosphere. Despite early controls on vehicle emissions, the lead content of petrol, and further industrial pollution controls, by the mid 1970s air quality in Sydney had noticeably worsened and the Sydney Oxidant Study was commissioned to research the meteorology, atmospheric chemistry and pollutant loading in the eastern part of the Sydney air shed (Niland, 1991:8). The findings resulted in the implementation of controls focused on restricting industry and motor vehicle hydrocarbon emissions and consequently ozone concentrations did fall in the eastern part of the airshed. But a side effect of hydrocarbon reduction was to slow the rate of smog production, enabling the dispersal of contaminated air before significant ozone was produced in the

chemical reactions between the nitrogen oxides and hydrocarbons that have accumulated in the air, producing photochemical smog ... The fate of this air after it reaches the Hawkesbury Basin is largely unknown ... " (Hyde, 1990:50-1).

187eastern airsheds, so that smog and ozone formation was displaced into the Hawkesbury airshed (Hyde, 1990:75-6).

6.5 The WS/HN Region's Politicisation

By the early 1990s, regional feeling that the WS/HN region was being used as a dumping ground had crystallised. Air and water pollution had become political realities by dint of the NSW State's own research. The causal relationship between state government policies and socio-environmental degradation was engraved on the public record in the SPCC reports, RESs, REPs and metropolitan plans and strategies. Percolated into local and regional understanding was the correlation between low density urban development unsupported by public transport, and urban run-off and sewerage discharge into the creeks and rivers; between increased numbers of vehicles and vehicle usage and air pollution; between the influx of a low income demographic strata unsupported by social services, and the spatial reinforcement of unemployment, disadvantage and criminality. Administrative emphasis on maintaining already poor water quality was a particularly sore point. To longstanding WS/HN region residents, the River used to be a source of beauty, trade, rich soil and abundant irrigation water. A place where they used to be able to swim and fish was now plagued by algae outbreaks making the water unfit for watering stock or crops (Rosser, notes: 20/1/94). 1991 to 1992 saw the issue break into the State - wide media.198 A 22 year old water skier fractured his leg in the river in August of 1991, probably on a submerged log. His leg became infected, gangrene ensued and amputation of his lower leg became necessary to save his life (Sun Herald, 26/4/1992:5). Public anxiety about the River's state was reinforced when a pilot study by the Water Board199, leaked to the press in September of 1992 found that those in contact with the river were almost 4 times more likely to get throat infections, diarrhoea and gastro-intestinal illnesses (SMH, 10/9/1992:1). The Hawkesbury Hospital then commented that the infection rate from wounds affected by river water was so high that they were treated as 'dirty', and left unsutured until the patient had been treated with antibiotics (SMH, 11/9/1992:5).

198 See, for example: SMH, 24/4/91:2, SMH, 11/12/91:5, SMH, 9/10/92:1.

199 Based on 1,212 interviews with river users and a control group.

188The region's residents do not accept that the River should be permanently maintained on the verge of biological death by continual trading off between population increases and underfunded technological fixes. A qualitative study of "community attitudes to the environment in the Hawkesbury region"200 found: "Most respondents ... gave us negative comments (referring mostly to the Hawkesbury...) ... Many people felt that water quality in particular had declined" (Hawkesearch, 1990:8). Sewage and urban run off were cited as the major contributors to river pollution. In my own research into general community attitudes in the Hawkesbury LGA, I found that river pollution was the only issue brought up unprompted by all participants (Rosser, 1993).201 Responsibility for the river's degradation is firmly placed by residents in the sphere of government and administration. For example, a confidential report commissioned by the Sydney Water Board by Reark Pty Ltd202 found that:

The Board scores highest on not keeping the public informed honestly and lowest on informing the public at all. Only 37 per cent of survey respondents trusted the board's information about water quality ... There is a consensus among the public that the Hawkesbury-Nepean water is polluted very badly and has become polluted in the past 20 years. The Government generally and the Water Board specifically are seen as responsible for improving the river (SMH, 11/3/93:3, emphasis added).

Air pollution became a second focus of discontent when extreme pollution episodes in May of 1991 underlined the South West Sector RES findings. By July, Premier Nick Greiner called a Summit on Air Quality in response to the "unprecedented levels of smog" (Greiner, 1991:5). In response to the concern in

200 Based on a questionnaire provided to 603 residents of the Hawkesbury-Nepean

catchment area. There were two groups of respondents: general - farmers, residents, professionals etc and - "those with particular influence over and/or interest in catchment management in the Nepean-Hawkesbury area", including employees of Agriculture and Fisheries, Sydney Water Board, Department of Water Resources, National Parks and Wildlife Service, State Pollution Control Commission, Soil Conservation Service, Hawkesbury City Council and local environmental groups (Hawkesearch, 1990, Appendix 1:2). The views of these two groups were not formally separated in the team's report.

201 This research involved attendance and detailed note taking at ten community consultations conducted by the Hawkesbury City Council in ten villages/regions within the Hawkesbury LGA, and undertaking six group interviews (with hobby farmers, professional agriculturalists, local business people, rural residents, suburban residents and aged people) aimed at capturing the diversity of the Hawkesbury region's population.

202 The report was leaked to the NSW opposition in March, 1993 and its major findings reported in the SMH

189the WS/HN region he reiterated that apart from the interim release, urban development in the south-west was on hold (Greiner, 1991:6, & Kibble, 1991:14). In 1992 a revised South Western Sydney Strategy was released which proposed no new zonings be made until the air and water pollution problems were resolved - cancelling the interim release in South Creek Valley. The threshold at which environmental amenity difficulties affected development consent was altered in this revised strategy. While avoiding urban development with a high environmental impact was advocated where practical in the 1988 metropolitan strategy, the revised South Western Sydney Strategy stated that: "... the government is committed to ensuring future development in the south-west is carried out in an environmentally sound manner" (DOP, 1992:3, emphasis added). It was decided to pursue urban development at Hoxton Park, outside the Hawkesbury-Nepean Catchment, despite the expense and inconvenience that the multitude of small lots and landowners involved posed. The third focus of public discontent in the WS/HN region was waste disposal. The Waste Management Authority released an EIS in early 1991 recommending that a regional waste depot be established at Londonderry (the semi-rural suburb in Penrith LGA which has reluctantly hosted the Castlereagh Regional Liquid Waste Depot since 1974). That the EIS was conducted in the first place was a credit to the Penrith City Council which had challenged the site's selection in the Land and Environment Court, and then in the Supreme Court of NSW on appeal, on the basis that the proposed development was an extractive industry making it a designated development (SMH, 12/12/1990:6; Meagher and Handley, 1991). The proposal was greeted with outrage by the local community. A RAG was formed called 'No Tip For Londonderry'. Paul Gibson, MP for Londonderry, campaigned against the depot for a year and claimed to have received 36 000 letters and to have collected petitions against the proposal with more than 100 000 signatures (Sun Herald, 3/3/1991:18). Penrith Mayor at this time, Ms Faye Lo Po commented that:

Penrith is the only LGA that supports three jails, has a toxic waste dump, has had its gravel raped and pillaged by the quarry masters, and will be near an airport.203 We feel we have carried our share of social responsibility far and above any other LGA (SMH, 13/2/1991:7).

203 A second international airport site (the first, Kingsford Smith Airport, is located within

Eastern Sydney on Botany Bay) had been selected at Badgeries Creek in Western Sydney. The site was within the highly polluted South Creek subcatchment.

190In the lead up to the NSW election, three liberal MPs - Anne Cohen, Kevin Rozzoli and Guy Matheson from the adjoining electorates of Minchinbury, Hawkesbury and Penrith - broke party ranks and joined Paul Gibson's protestations against the proposal embarrassing the Greiner government (Sun Herald, 3/3/1991:18). By late March, the Government had abandoned the plan in what the Labor Opposition described as an "about-turn ... designed to shore up Western Sydney seats in the forthcoming State election" (SMH, 27/3/1991:2). This back-down reflected the power of increasingly trenchant WS/HN region residents.204 The formation of a regional peak environmental group in 1989 was instrumental in converting public unease about the loss of socio-environmental amenity in the WS/HN Region into strategic political pressure. David Hughes, a representative from the group - the Coalition of Hawkesbury and Nepean Groups for the Environment (CHANGE)205 - articulated the mood of Western Sydney and Hawkesbury region residents at the Air Summit in 1991, weaving social and environmental dissatisfactions into a coherent statement:

... the residents of Western Sydney have been on a steep learning curve over the past few years. I have already indicated that far from all who have moved west are now happy with their lot. As their children become teenagers, or they themselves become older, they find the lack of general services, employment opportunities, hospitals and access to urban centres a continual drain. The impact of a recession has further taken its toll as with often one spouse is not working, one [of] the family's cars are off the road. At this point isolated housing estates become a major social and domestic problem. It is issues such as these that have become one of the major focuses of political perceptions [as] the urban dream change[s] into

204 The Londonderry 'supertip' proposal was only one of a series of siting controversies. In

Sydney's southern Sutherland LGA, the Waste Service's huge Lucas Heights landfill, established in 1985, inspired a long campaign of resistance by the council and residents who resented the fact that the tip was used by 23 councils when the original proposal was for the waste of seven. Sutherland Council thwarted plans to extend the Lucas Heights tip in 1992, spending $300 000 in the Land and Environment Court and a Commission of Inquiry. The Waterloo incinerator in inner city South Sydney LGA disposed of the waste of wealthy Woollahra and Waverley LGAs since the early 1970s. Local residents, many of which live in socially notorious high rise public housing, believe that the incinerator causes serious health problems. The Woollahra and Waverly councils the incinerator services are struggling to proceed with a $44 million overhaul of the incinerator (SMH, 25/7/1994:3).

205 The first objective of the group is "to foster increased awareness of environmental threats or successes throughout the Nepean-Hawkesbury catchment through both media and bureaucratic channels, at Federal, State, local government and community levels" (CHANGE, undated: objective a).

191frank political ill will. Somewhere during this process of increasing dissatisfaction, old resentments begin to rise to the surface. For many years the pejorative term 'westies' has been applied to residents of the regions west of Parramatta. This has led to a resentment at those public and political forces from further east which have seen fit to spend billions on coastal beaches and playgrounds such as Port Jackson, the Opera House and Darling Harbour, whilst at the same time insidiously degrading the region's major recreational and psychological icon, the Nepean-Hawkesbury River. The public is becoming aware that their increasingly flooded homes and roads are due to ever further urbanisation and runoff from upstream, and now they are being told that the air they breathe is becoming life threatening as well. The public of the Western Sydney Basin is increasing fed up with being seen as the naive recipients of mega tips, toxic waste facilities, and gaols, and they are beginning to see that the area has now reached the acceptable limits of its population growth ... The public is beginning to demand that existing inadequate transport, and social infrastructure, be improved before any further population increases strangle any chance of real improvements. They want degradation of their air and water quality halted, after all, it was the environmental amenity of the valley that provided some compensation for having to move out there in the first place. Even the rolling hills and nearby bushland of the urban developers publicity hype has been progressively buried in the inexorable spread of houses and roads ... we are told by water quality experts and the Water Board, that we stand to effectively lose Sydney's major river system due to urban runoff alone if one million people are allowed to move into the area soon (Hughes, 1991:125-6).

In 1993 CHANGE was comprised of 50 member groups, many of them single issue action groups (CHANGE, 1993:1).206 The Hawkesbury Rural Action Group, for example, was formed to oppose the urban development of a dairy farm adjacent to the Hawkesbury River in North Richmond. The group's Chairman plausibly argued that the Legends development would prove a catalyst for further development:

The damage that will occur with the development of a new city of 10000 people incorporated in The Legends proposal, will only be the start of the urbanisation of the Hawkesbury. For if it is approved, it will be quickly followed by other large land holdings in the area being turned very quickly into massive profits by the owners.

206 Some of the CHANGE member groups were formed as early as the 1960s (see Rozzoli,

1977:45).

192Already other projects of equal size have begun development proposals to Council (Hawkesbury Courier, 22/4/93:5).207

DOP instructed Hawkesbury Council to refuse consent (CHANGE, 1993:2-3). CHANGE has taken full advantage of the EP&A Act's consultative provisions, both writing submissions (for example to the Metropolitan Strategy), and participating in relevant committees and forums (including the Castlereagh Liquid Waste Depot Community Monitoring Committee). One of the coalition's objectives was "to seek to achieve the formation of an effective single river management body that has an ecological basis for the Nepean-Hawkesbury River system (CHANGE, undated: objective n). This ambition was fulfilled in July of 1993, 17 years after the idea was publicly fielded.208 The Hawkesbury-Nepean Catchment Management Trust (HNCMT), established under the auspices of the Catchment Management Act, was comprised of five full time and 10 part time members or trustees. Two of the full time trustees were members of CHANGE, regarded by the coalition as a coup (CHANGE, 1993:1). The HNCMT constituted a significant departure from the traditional arrangement of establishing a bureaucracy accountable to a minister relying on a state wide electoral mandate. The legitimative sources for the HNCMT drew on legislative authority, environmental groups, the catchment's local governments, expert committees, and the community directly through (sub)catchment management committees and regular public forums. It had, in short, a deliberative tenor, mediative of the systemic and socially reflexive sides of the WS/HN socio-environmental dilemma. Apart from its research and community mobilisation roles, the administrative thrust of the Trust was to be a pivotal role in the implementation of a redrafted Hawkesbury-Nepean River REP. Published late in 1994, the amended draft REP for the Hawkesbury-Nepean was responsive to the findings of a second Hawkesbury-Nepean River water quality study, commissioned by the Greiner government in response to public concern and undertaken by SPCC's succeeding institution, the Environmental

207 Another example of a single issue member group, CRADLE's (Concerned Residents

Against the Development of Longneck and its Environs) campaign against a proposed 4000 house development at Scheyville in Hawkesbury LGA for which consent was subsequently refused (Hawkesbury Gazette, 11/11/92:1).

208 Liberal MP for the electorate of Hawkesbury Kevin Rozzoli has also doggedly lobbied for twenty years in Parliament for a Trust to be established to overcome planning fragmentation (Collins, Interview, 19/8/1992)

193Protection Authority (EPA). The study assessed water quality ten years after the SPCC study and its resultant management strategy (EPA, 1994(b):4). The data, collected from 1990 to 1993, confirmed that sewerage effluent was a significant component of the river's flow,209 and that the increase in catchment population had cancelled out the benefits of the modification of STP processes. The amended draft REP was significantly strengthened by making the HNCMT a concurring authority210 for five development types: sewerage systems or works, waste management facilities or works, large marinas, maintenance dredging operations and developments affecting wetlands. It was also to be given a consultation role, obliging councils to refer certain proposals to the Trust for comment.211 The powers to refuse concurrence to environmentally insensitive developments and works addressed the absence of an authority with a sole focus on, and responsibility for, the environmental well-being of the catchment. The concurrence powers never materialised as this draft form of the Hawkesbury-Nepean REP was never gazetted.

6.6 Policy Stalemate

The establishment of the HNCMT expecting to oversee a strengthened REP marked the high point in administrative reform and the influence laypeople secured through the EP&A Act's participative provisions. This high point, it should be noted, coincided with the hung 50th NSW parliament (1991 - 1995). As the parliamentary landscape resettled into a liberal-aggregative interpretation of governance, a stalemate over the intractable policy dilemmas posed by the WS/HN region's socio-environmental degradation became entrenched. This stalemate corresponded with the pattern EP&A Act amendment that culminated in the 1997 gutting of the EP&A Act's consultative provisions. Subsequent metropolitan strategies, an air quality study and management strategy, the gazetted form of REP 20, the approval of a controversial urban development in South Creek Catchment, and finally the disbanding of the HNCMT altogether illustrate this trend.

209 In fact, in low flow periods (periods of little rainfall), the flow in the tributaries of South,

Eastern, Cattai and Matahil creeks consists largely of effluent from STPs (EPA(b), 1994:19).

210 This means that before the consent authority makes a decision on a development application, the application must be forwarded to the Trust for comment.

211 Intensive livestock keeping and horticulture establishments, caravan parks or camping grounds, manufactured home estates, small marinas and recreation facilities, water recreation facilities such as piers and wharves, and designated development generally (DOP, 1994(b):3).

1946.6.1 The New Metropolitan Strategy

An updated metropolitan strategy was published by DOP in 1995 after a lengthy period of consultation initiated with the publication of a discussion paper in 1993. Both the discussion paper and the strategy advocated "reduced new development in the Hawkesbury-Nepean basin" (DOP, 1993, 1995. Three policy developments were posited as enabling better management and preservation of the Hawkesbury-Nepean catchment. Firstly, considering the nearby cities of Wollongong to the south and Newcastle to the north as part of the Sydney 'region' and targeting Newcastle for large scale urban development. Secondly, urban consolidation policies to increase the population of the inner and middle suburbs of Sydney including the redevelopment of large industrial and government land holdings.212 And thirdly, a commitment to ecological sustainability. The strategy projections estimated that by the year 2021, Sydney's population would be around 4.48 million (DOP, 1995:29), and 520 000 new dwellings would need to be provided within the Sydney region. One hundred and forty thousand further new dwellings would be directed to Newcastle and Wollongong (DOP, 1995:74).213 The compact city concept required that the proportion of new dwellings built each year in a multi-unit form be increased (from 47% in 1993-94) to 65% of the total by the third decade of the 21st Century, and the dwelling density in greenfield developments be increased from 11 to 15 dwellings per hectare over the decade 1995-2005 (DOP, 1995:75). The distribution of these new dwellings was given in terms of the inner city, middle city and outer or fringe development. The latter is divided into the

212 Examples cited in the 1995 Strategy include the Olympic Village being built at

Homebush Bay to be sold off after the 2000 Olympics, Pyrmont-Ultimo, the ADI munitions factory site at St Marys in the South Creek Catchment, Eveleigh Railways in Redfern, and sites along the new CBD to Kingsford Smith Airport railway route.

213 The populations of Newcastle and Wollongong regions were forecasted to reach 556 000 and 409 000 respectively in 2021 (DOP, 1995:29). Thus the overall population growth, in what is now termed the 'Greater Metropolitan Region', was expected by the year 2021 to be 5.3 million. The number of new dwellings seen as likely to be required in Sydney, Newcastle and Wollongong was estimated at 640 000 (DOP, 1995:74).

195urban development program,214 (releases since 1981 and future releases), non urban development program (areas established before 1981 and small sites outside UDP program) and other (such as rural villages) in the following table: Table 6.3 - Notional Distribution of Future Sydney Region Housing

Number and Type of New Dwellings Geographic Area Houses Multi-Unit All New DwellingsInner 5 000 61 000 66 000Middle 19 000 98 000 117 000Outer - UDP 135 000 32 000 167 000 - Non UDP 61 000 79 000 140 000 - Other 26 000 4 000 30 000 Total Outer 222 000 115 000 337 000 Region Total 246 000 274 000 520 000

(DOP, 1995:75) The greenfield sites for the next 10 to 15 years will be provided for by the UDP - land currently rezoned can provide 80 000 dwellings and land yet to be rezoned can provide an additional 40 000 to 50 000 dwellings. Rouse Hill will account for 30% of these dwellings, and Fairfield, Liverpool, Campbelltown and Camden for 43% (DOP, 1995:82). Consequently, at least 73% of greenfield dwellings in the next 10 to 15 years will be built in the WS/HN region. The annual growth rate for the WS/HN region between 1991 and 1996, at .92% was still increasing at a faster rate than for the rest of Sydney's established urban area, at .63%.215 The Metropolitan Strategy thus maintains the status quo established by SROP albeit with more attention paid to the potential of other regions to absorb growth. This Departmental policy contrasts with CHANGE's position that there should be no new development in the Catchment as the limits of sustainability have already been reached. This policy of slowed urban sprawl is firmed in the 1998 Metropolitan Strategy:

... policies aimed at improving choice while reducing the need to expand the urban area have been very successful. Fifty four per cent

214 The Urban Development Program was established in 1981 as a corrective to the land

speculation (resulting in shortages and price inflation) of the 1970s. It aims at ensuring a sufficient supply of land and coordinates planning and servicing of areas identified by DOP. The decision to include land in the program is made at the Cabinet level by the Urban Policy Committee (DOP, 1995:48).

215 Excluding the high growth LGAs on the fringe of Sydney of Wyong to the north (with an annual growth rate of 3.09%), and Sutherland to the south (with an annual growth rate between 1991 and 1996 of 1.05%). See Appendix 2.

196of all new homes are multi-unit dwellings, a significant increase from 27% in 1987-88, and well on the way to the Government's target of 65% annually ... the population of inner suburbs increased by about 34 000 between 1991 and 1996. At the same time, middle ring suburbs experienced modest population growth. Reliance on the urban fringe for new housing has been reduced from 42% in 1993/94 to around 30% in recent years ... (1998:5).

The Rouse Hill Development Area, at a density of 15 dwellings per hectare, continues to absorb much of population growth within the WS/HN region Australian Defence Industries (ADI) munitions factory site, spread over 1500 hectares between Blacktown and Penrith LGAs within the South Creek Catchment,216 was facilitated by a REP in 2001. The heavily contaminated site was remediated by the Federal Government, sole shareholder of Australian Defence Industries. While the HNCMT recommended that the entire site was so significant as to warrant becoming a regional park (SMH, 16/4/01:5), the REP devoted around a third (630 hectares) of the site for a park and did not, in light of regional concern over air pollution, insist the site's existing rail track be connected to the Penrith line (DUAP, 2001). Water quality goals are restricted to the maintenance of existing poor quality through a new St Marys STP, duplicating the Rouse Hill STP technology, and requiring that the development "incorporate stormwater management measures that ensure there is no net adverse impact upon the water quality (nutrients and suspended solids) in South Creek and Hawkesbury-Nepean Catchments" (DUAP, REP 30:Section 28). Local activists subsequently used a federal election to make the site's preservation a campaign issue for the seat of Lindsay. They won a commitment to save all heritage listed land on the site. A further 250 hectares were saved, reducing urban use to 5000 homes. The activists are converting this instance of pork barrelling in the NSW land and Environment Court to challenge the use of 6 hectares of the site for a school. They will argue that the land contains federally sanctified Cumberland Woodlands (SMH, 5/9/2002:7). Campaigning to save the remainder of the ADI site at the forthcoming state election, the activists have formed a coalition with groups across Sydney fighting to save public land from redevelopment. This coalition plans to launch a bill contesting the right of governments to sell public land (SMH, 10-11/9/2002:27).

216 South Creek is the most degraded catchment in Western Sydney, the discharges of the

six sewerage treatment plants comprise 80% of its flow (SMH, 12/2/1996:2).

1976.6.2 Air Quality

The Metropolitan Air Quality Study (1996), 217 benefiting from an expansion of the air monitoring network provoked by the South West Development Sector pilot study into air quality, confirmed North West Sector air pollution:

Improved monitoring under MAQS confirms that photochemical smog, indicated by ozone, and brown haze are the primary current air quality issues for the region. New strategies to control particles and the precursors of photochemical smog in Sydney need to be developed for the region. Both the North West and South West areas of Sydney can be subject to elevated levels of ozone contained in the afternoon sea breeze on summer days when meteorology favours photochemical smog formation ... Peak ozone levels in the region are around .15 parts per million, exceeding the current NHMRC goal of .12 ppm on fewer than five days per year. When compared with the WHO goal of .08 ppm, current peak levels would need to be reduced by more than 45% to comply (EPA, 1996:3).

Petrol and diesel vehicles where identified as the major producer of oxides of nitrogen (80%), one of the major precursors for the production of photochemical smog. Diesel engines and wood fired heaters comprised the major sources of the fine particles that contribute to brown haze (EPA, 1996:4). The air quality study findings were front page news.218 A piecemeal response followed from the new Labor Government, a restatement of the south-west sector development moratorium and inner and middle ring land audit for potential redevelopment sites.219 Nothing was said about readdressing the balance between the private car and public transport by extending the rail network rather than building more tollways (the policy peak environmental groups support). The 1998 "Action for Air" policy, a 25 year air quality management plan promising better public transport, more emission reductions and public education about travel behaviours (EPA, 1998), similarly did not

217 Conducted over three years at a cost of ten million dollars.

218 "Sydney's air will degenerate to the heavily polluted levels of the 1970s within five years unless far-reaching new emission controls are urgently introduced ... the steady gains made through the introduction of unleaded fuel and emission controls during the 1980s have almost been cancelled out by the burgeoning population and car use" (SMH, 8/7/1995:1).

219 Other measures included tighter registration checks on smoky cars and trucks, stringent new emission standards for wood-fired heaters in private homes, the extension of transit and bus lanes on key roads, training 400 RTA inspectors to identify and report smoky vehicles and the introduction of roadside monitoring (SMH, 18/7/1995:1). Environment Minister Pam Allan and the EPA also announced that two power plants being built in the South West to take advantage of coal mine methane gas would have to cut emissions by 75% on high smog days (methane burning produces oxides of nitrogen, a precursor emission for the formation of ozone) (SMH, 19/7/95:5).

198commit to reversing the dominance of private transport or reducing the need to commute.

6.6.3 HNCMT and Hawkesbury-Nepean River REP

The concurrence role proposed for the HNCMT in the 1994 draft Hawkesbury-Nepean River REP was reduced to consultation, the consideration of written comments. This reversal was conditioned by a Carr (Labor) Government policy to streamline the approval process for developments, removing costs and delays for developers, that was itself symptomatic of an economic rationalist climate now dominant in Australia. The Premier issued a circular demanding the rationalisation of concurrence roles on the grounds that rather than constituting a value added activity, they delayed and slowed the approvals process. DUAP duly noted, in the review of REP No. 9 (extractive industry) that concurrences resulted in DA refusal in less than 10% of cases and concluded from this fact that the role was of little value (Darbas, Interview with DUAP, 8/7/1997). A review conducted in late 1995 by government appointed consultants recommended the Trust have a consultative rather than concurrence role in dealing with State agencies and local government (HNCMT, June 1996:1). The key issues for STP effluent standards are left in the care of Sydney Water and the EPA, outside the legal framework the REP 20 constitutes, and with no firm timetables (they are listed as ongoing or unscheduled) (DUAP, 1996(b):65-67). The public justification of the new REP was at best fuzzy:

Effective total catchment management for the Hawkesbury-Nepean requires attention to small and uncommon problems as well as major and common ones. Sub-catchment strategies are needed - so that the complexity of the Hawkesbury-Nepean can be addressed at a scale that allows the small, local problems to be identified. Once these are solved, a clearer assessment can be made of major problems (DUAP, 1996b:49).

In early 2001 the economic rationalist turn reached its logical conclusion and the HNCMT was disbanded, the Minister for Land and Water Conservation absorbing its staff and activities into his department. Premier Carr stated that it did not represent value for money, spending 60% of its income on salaries and wages rather than on-the-ground works (SMH, 16/4/01:5, NSW, Legislative Assembly, April 10, 2001, Debates, No. 35 (unbound serial):13447 - 13449). This conclusion was not supported by a subsequent Legislative Council Standing Committee Inquiry into the decision which found that "the Trust was highly

199successful at attracting additional financial or in-kind contributions from the Commonwealth and local governments, businesses and the community" and that "there was no independent evidence to support the Minister's view that the Trust was ineffective and failed to provide 'value for money' (NSW Legislative Council, 2002:xiii). Trustee and community witnesses to the committee suggested, in contrast, that the decision to abolish the Trust was linked to its advocacy position against the urban development of the ADI site (NSW Legislative Council, 2002:47-9). The former CEO of the Trust also believed the decision to be symptomatic of the statewide dilution of Total Catchment Management, stating that The Department of Land and Water Conservation had "dumbed-down the strategic planning process because it cannot handle too much complexity, it only wants a small number of targets to go for" (NSW Legislative Council, 2002:51). Social reflexivity concerning the socio-environmental degradation of the WS/HN region manifested in strong support for the HNCMT which attracted 7000 volunteers for catchment repair activities (NSW Legislative Council, 2002:28). The needs of administrative and political systemic complexity, expressed in an economic rationalist response to overloaded political and administrative systems, resulted in the execution of this deliberative regional institution. Along with the gutting of the consultative provisions of the EP&A Act, this action has resulted in the closure of pathways to act on discontent concerning the WS/HN region's socio-environmental welfare other than the vote.

6.7 Conclusion

The WS/HN regional case study constitutes a policy dilemma, comprised of mutually reinforcing legitimative and steering failures, that is diagnostic of the ills generated by the liberal-aggregative framing of governance in NSW. It is demonstrated in the reviews above that the legal codification of the Green Ban debates in the EP&A Act failed to fundamentally alter the administrative momentum supporting urban and economic growth (although this growth is now more diffused and socio-environmentally sensitive). The inability to do more than "reduce development" in the WS/HN region, without alteration of the bundle of technological commitments productive of development's environmental destructiveness (unlimited access to water, low density housing, prioritisation of private over public transport, discharge of STP effluent to rivers and their tributaries) ensures the region's continued socio-environmental impoverishment. The existing and promised STP and urban run off management in the Rouse Hill and ADI developments, aimed at maintaining

200already poor water quality, do not alter this fact. A restoration of the Hawkesbury-Nepean River is simply not on the NSW State's agenda. Urban development driven by land speculation, once set in train by SROP's bowing to economic forces, settled into a set of interlocking technological commitments that makes enormous demands on politics and administration. The reversal or redirection of these political and administrative commitments is overwhelmingly difficult:

One can assume that each of the technologies in question - systems of communication, energy supply, transportation, industrial production - was originally grounded upon some widely accepted purpose: the accomplishment of a particular goal or the continuous supply of a product or service. But the means to the end, the system itself, requires its own means: the resources, freedom and social power to continue its work. It needs, among other things, an atmosphere of laws and regulations to facilitate rather than limit its ability to act. The pursuit of means for the means - the provision of resources and enabling rules - may eventually lead the society to make decisions and take action far removed from its original purpose. At times these decisions can be onerous. They may promote a state of affairs that, although not in itself desired, constitutes a needed step in the development of a technical network society is committed to support. Decisions made in the context of technological politics, therefore, do carry an aura of indelible pragmatic necessity. Any refusal to support needed growth of crucial systems can bring disaster. The alternatives range from utterly bad service, at a minimum, to a lower standard of living, social chaos, and, at the far extreme, the prospect of lapsing into a more primitive form of civilised life. For this reason, technological systems that provide essential goods and services - electricity, gas, water, waste disposal, consumer goods, defence, air, rail and automobile transportation, mass communications and so on - are able to make tremendous demands on society as a whole. To ignore these demands, or leave them insufficiently fulfilled, is to attack the very foundations on which modern social order rests (Winner, 1977:259).

In NSW's case, these "foundations of modern social order" are in part constituted in a liberal-aggregative regime of politics built on an accord that social progress is secured through economic growth. This accord, an outcome of truncated class politics at the turn of the nineteenth century, has, via land speculation and technical framings of administrative mandates, translated into ecologically destructive urban sprawl.

201The reassertion of the liberal-aggregative framing of governance in NSW, foreclosing avenues (such as the EP&A Act participative provisions and the HNCMT) to pursue a restoration of socio-environmental amenity, shows indications of rebounding. This case study of the displacement of the side effects of economic growth from Eastern to Western Sydney provides an important context to the volatility of the Western Sydney electorates. Western Sydney electorates are now capable of deciding not only state, but national elections. In 2001 it was the Western Sydney electorates that ensured the re-election of a conservative government following a campaign dominated by internationally controversial vilification of 'boat people' (illegal immigrants). The relentless population growth that places such pressure on outlying regions such as the WS/HN is in part to do with a high immigration intake and more especially the tendency of new immigrants to settle predominantly in the more affordable areas of Sydney and Melbourne. The tensions and resentments thus generated in the 2001 election took a fundamentalist, and frankly racist turn. This chapter has been necessarily broad brush, concentrating on the regional themes while touching briefly on only a few of the specific controversies that nourished regional sentiment. The chapter following, concerning the Environment Minister's use of a community monitoring committee in the attempt to resolve the controversy around the Castlereagh Liquid Waste Depot, is a corrective to this deficiency while benefiting from the context given in this and the previous two chapters.

202

Chapter Seven The Castlereagh Liquid Waste Depot Community Monitoring Committee

7.1 Introduction

This site specific case study concerns the Castlereagh Community Monitoring Committee (CCMC), convened in conjunction with scientific investigations into the socio-environmental impacts of the Castlereagh Regional Waste Depot (CRWDD). The Castlereagh controversy is an important component of the WS/HN region's politicisation over the displacement of the side effects of economic growth from Eastern to Western Sydney. Public concern over the depot is high, and it is extensively covered in the local media. The disposal of industrial waste, like the transformations wrought by urban development, is socio-environmentally taxing. In group interviews (GIs) conducted in 1993, it was one of two issues mentioned by every group, the other being the state of the Hawkesbury-Nepean River (Rosser, 1993). The depot was the issue about which participants expressed the most anxiety. This anxiety revolved around a lack of confidence in the government agencies operating and regulating the site, concern about the health impacts of chemicals and toxic waste, and fear contamination will poison the Hawkesbury-Nepean River:

... this Castlereagh toxic waste dump, I am not convinced that the public is aware of what is going in there ... People say that stuff bubbles up in their back yard. Animals are dying. It has to end up in the river eventually. If it finds the water table. The people who dump that stuff don't care ... (Aged People Group Interview (GI), 22/4/93:5).

One of the recurring worries I have about the area is the toxic waste tip seeping through into the river ... I don't think the political people are really letting us know ... You only ever hear about water run off and ... farmers putting phosphates and things like that on their farms, and that affecting the river, but you don't (hear) about any toxic waste ... (Hobby Farmers GI, 6/5/93:5).

We don't really know what sort of chemicals that are actually put in there, you never find out the truth (Suburban Residents GI, 7/5/93:3).

The Castlereagh controversy also demonstrates the controversiality of the hierarchisation of ministerial and government authority discretionary powers

203over the EP&A Act's participative provisions. The depot was established, despite local protestations, by the NSW Government with an Interim Development Order (IDO), alongside an EIS. After the EP&A Act came on line, it was extended with a SEPP alongside a second EIS. As a Part 5 development, the Waste Recycling and Processing Service (WR&PS) granted itself permission to expand the depot after conducting an EIS. These EP&A Act mechanisms only served to increase local opposition to the depot, and following an environmental audit by the Environmental Protection Authority (EPA) and a parliamentary inquiry, the CCMC was established by the Environment Minister to legitimate another round of scientific investigations.220 The CCMC brought tension between state wide aggregative and local participative pathways of accountability to a head. The forum facilitated lay critique of the unlegitimated riskiness of industrial waste disposal that inevitably extended into lay critique of the administrative use of expertise underwriting operational and regulative decisions. The depot became a state election issue and a change of government resulted in a commitment to close the depot and remediate the site.221 The case study thus portrays a confrontation between the systemic complexity of political, administrative and technoscientific arrangements in NSW and local and regional social reflexivity concerning those arrangements. Using personal observations and notes of CCMC proceedings along with the documents tabled at the CCMC and the forum's minutes,222 the case study is progressed through four sections. Section 7.2 historically contextualises the case study, reviewing the administrative history and politicisation of the depot. Section 7.3 focuses on the CCMC's facilitation of a dialogic confrontation between local and scientific knowledges. Section 7.4 explores the disillusionment of the CCMC's community bloc with the EPA. Section 7.5 examines the relationship between the CCMC and the Environment Ministers. The conclusions, tying the case study into the overall thesis argumentation, are drawn in Section 7.6.

220 Other CMCs have been established by private and public polluters, for example by ICI

for a contaminated site at its Botany Bay plant and WR&PS' CMCs for the operations of specific waste disposal facilities.

221 Clashes between local and scientific knowledge in reactively conceived consultative forums, ending in political solutions, are typical in controversies involving toxic substances (Levine, 1982, McDonell, 1997, Rosser, 1992, Wynne, 1989, 1996).

222 This is not an ethnographic analysis: the formation and activities of the RAG, the history of community/WR&PS interaction, and detailed analysis of the construction of local knowledge and hypotheses are omitted.

2047.2 Historical Context

7.2.1 The Depot's Administrative History

Sydney experienced a waste crisis in the 1960's when council tips became saturated with liquid industrial wastes (Barton, 1970:9).223 As there were no alternative sites, illegal dumping of liquid wastes became a serious problem. A cabinet sub-committee commissioned an investigation which recommended that a single waste management authority be formed (Barton, 1970:19). The Waste Disposal Act was gazetted in 1970 and the Metropolitan Waste Disposal Authority (MWDA) was formed the following year. The MWDA's title was changed to the Waste Recycling and Processing Service (WR&PS) in the early 1990's when the EPA took over its regulative function and has since changed its name to the Waste Service. Penrith City Council (PCC) learned MWDA had obtained the approval of the relevant government departments and authorities to use an old Department of Main Roads gravel pit in Castlereagh State Forest, to dispose of tannery wastes in 1972.224 PCC was told that it "was a short term proposal and that within the foreseeable future it was hoped that a plant to deal with this sort of waste be constructed elsewhere" (PCC Town Clerk's Supplementary Report, Ordinary Meeting, 14/11/72:1-2). No application had been made to council. The Mayor telegrammed the Premier and Local Government Minister requesting their intervention and tried to obtain an injunction. MWDA abandoned the proposal (PCC Town Clerk's Supplementary Report, Ordinary Meeting, 14/11/72:1-2), subsequently submitting a DA to use 20 acres on a short term basis (PCC General Purpose Committee Meeting, Precis of Correspondence, 12/12/72:5). PCC requested an EIS by 'independent experts', although this was not a statutory requirement (Minutes and Report of the General Purposes Committee Meeting, 12/12/72:21). The land was zoned Existing Recreation 6(a), which made a landfill a prohibited use, however, PCC could not refuse or attach conditions to a statutory authority application without Ministerial concurrence (PCC General Purpose Committee Meeting, Precis of Correspondence, 12/12/72:6).

223 Many of these tips were situated in Homebush Bay (Barton, 1970:14-15), necessitating

decontamination and remediation before the area could be redeveloped for the 2000 Olympics.

224 A liquid waste depot operating at St Peters, an inner city suburb, had been closed through a legal challenge weeks beforehand, and "immediate action was necessary ... to keep ... industries in operation in the Botany area" (PCC Town Clerk's Supplementary Report, Ordinary Meeting, 14/11/72:1-2).

205An EIS was commissioned by MWDA which concluded:

Operation of a liquid waste disposal depot at Castlereagh is the best interim solution to the present crisis and such action will have very little chance of causing environmental harm provided the depot is operated according to the MWDA's plan (Rankine and Hill, 1973:33).

PCC nonetheless refused the DA. The Minister then suspended the existing zoning by introducing an IDO allowing the depot to operate for two years (PCC General Purpose Committee Meeting, Deputy Town Clerk's Report, 29/5/73:1-4). PCC resolved to take the case to the High Court if sufficient legal grounds could be found and that:

... all State and Federal members be asked to assist and give strong support and that this matter be introduced at the next meeting of the Western Metropolitan Municipal and Shires Assembly and that Council seek the assistance of the Department of Public Health, Water Conservation Commission, Australian Medical Association, Maritime Services Board, Department of Social Welfare, Forestry Commission, and the Australian Council of Trade Unions and that the assistance of all media be sought to bring this irresponsible decision to public notice and that Council inform the Premier and Minister for Local Government that it considers that the EIS proves that the establishment of the depot places the health of the public at grave risk, the possibility of pollution is high and that it is the responsibility of the Government to protect people and not to place them in jeopardy and that Council strongly suggests that in the interests of community health alternative arrangements should be made and the Castlereagh Depot not be proceeded with and that Botany Municipal Council be contacted urgently to determine what action they took to close the depot in their area and to obtain details of such action (PCC General Purpose Committee Meeting, Deputy Town Clerk's Report, 29/5/73:1).

No legal remedy against the IDO could be found (PCC General Purpose Committee Meeting, Deputy Town Clerk's Supplementary Report, 29/5/73:1) and operations commenced on the site in March of 1974 (Woodward-Clyde, May 1993:2.1). PCC considered an application from the MWDA to extend the depot from 24 to 124 acres in October 1974 and again requested an EIS. However, the Authority bypassed the Council, requesting the IDO be extended until 1977 when they expected a liquid waste treatment plant to be commissioned (PCC Ordinary Meeting, Precis of Correspondence, 22/10/74:17). At this time the depot was receiving approximately 400,000 gallons of waste a week, in contrast to the original estimate of 25,000 gallons a week given to PCC (PCC Minutes and

206Report of the Works Committee Inspection 19/11/74:1). The extension was granted in 1975. An announcement concerning the liquid waste treatment plant did not come until 1979 when a "comprehensive research and development program was undertaken to develop the process design" (MWDA, 1982:20). No departure from the pattern of government imposition in the face of local opposition ensued when the EP&A Act was gazetted. In 1981 a SEPP allowed for "the continuation and expansion of the Castlereagh Liquid Waste Disposal Depot to provide for part of the State's needs pending the selection of a new site and the construction on that site of an industrial liquid waste treatment plant" (DE&P, 19/6/81:1). Again, PCC was firmly disabused of any jurisdiction over the depot, the SEPP specified that the depot's operation conditions could only be set by the SPCC and the Director of DE&P. Development consent was not required for pollution monitoring or mitigation (DE&P, 19/6/81:2). It was not until 1982 that a DA and EIS was submitted to Fairfield City Council (FCC) to establish a liquid waste plant in an industrial zone. The design included a high temperature incinerator (HTI) to deal with the sludges from liquid waste treatment and intractable wastes (stockpiled toxic wastes). The application was withdrawn due to opposition from FCC and local residents (NSW, Legislative Assembly, 1993, Debates, Vol. 235:1128). An application to build the plant without the incinerator225 was made to Botany Council in 1983, but was again refused. The MWDA found that "The most common grounds for objection to the proposal was that it would lead to the construction of a HTI for disposal of intractable wastes" (MWDA, 1984:33). In late 1984 a Commission of Inquiry was established to site an Aqueous Waste Treatment Plant (AWTP). Auburn Council approved a DA to site the facility at Lidcombe in late 1985 (MWDA, 1986:34-35). The Plant commenced operations in 1988 (Woodward-Clyde, May 1993:2.1-2.2). The failure to gain community acceptance of a HTI effectively made the CRWDD a permanent facility. In late 1986 an EIS was prepared for its extension and to allow continued acceptance of wastes that could not be treated at the proposed AWTP, including industrial sludges, residues from the AWTP and non-aqueous liquid wastes. As a condition of planning approval, the Department of Lands required WR&PS to appropriate the entire site (357 hectares) to ensure responsibility for any environmental degradation would rest with the Authority (Woodward-Clyde, 1992:4.4). In effect, the area that

225 The high temperature incinerator proposal was advanced separately (McDonnel, 1997).

208The clay's depth varies from 5.1 to 16.2 metres and decreases towards the north-west corner of the site where the Rickabys Creek Gravels outcrop. The depth of the gravels ranges from nil to 12.3 metres and the regional groundwater table lies generally within the Rickabys Creek Gravels. The Bringelly Shale, comprised of soft to very stiff siltstone and claystone, lie beneath the gravels (AGC Woodward-Clyde, 1992:4.8 - 4.10). The depot itself sits between Rickabys Creek and the profoundly polluted South Creek, "predominantly within the Rickabys Creek Catchment" (Woodward Clyde, 1994(a):ES-3). Rickabys Creek discharges to the Hawkesbury-Nepean River at Windsor village, just north of the discharge point of South Creek.

7.2.2 The Depot's Politicisation

By 1990, the 'interim' depot had been in operation for 16 years. The surrounding residential community became politicised over the risks being taken with their health and pressed for action.226 A RAG, Residents Action Group for the Environment (RAGE), was formed and the community's concerns outlined in a Greenpeace report:

[There] have been reports of problems with personal health, livestock illness and death, and trees and crop deaths ... There are three factors common to many of these reports. The first is the intermittent appearance of a reddish-brown, oily film on dams, creeks, and water lying on the ground. Many of the reports claim that this film has often appeared after heavy rain. The second common factor is the presence in the surface soil of something which burns or irritates the skin ... The third factor is that the reported problems have almost all occurred in, or very close to, the areas where the Rickabys Creek Gravel emerges at the surface downhill from the dump (Greenpeace, 1990:7).

Local MPs assisted in a preliminary survey of environmental conditions in the Castlereagh district. The resulting 'Martyn Report' was submitted to the Environment Minister (Tim Moore) in October, 1990. It recommended a CCMC be established to provide public scrutiny of the Depot and investigate claims that the community's health had been affected (Hartcher, 30/10/92:6). The

226 Large (semi-rural) residential blocks begin 100 to 200 metres from the Depot borders.

Nearby urban residential suburbs, Windsor Downs to the east, Bligh Park to the north east, and the village of Londonderry to the north west, are approximately 1, 2 and 2.3 kilometres away respectively. These semi-rural and urban residential areas around the depot, cover an area of 42.9 square kilometres, and housed a population of 3 922 people at the time of the 1991 census, an increase from 2 922 people in 1971 (Williams and Jalaludin, 1995:22).

209Minister ordered an environmental audit be undertaken in response to community concerns in late 1991. The EPA commissioned consultants AGC Woodward Clyde to undertake the ' Stage I' audit. The main finding, that the ground water was significantly domed underneath the site, was interpreted locally as proof that the depot had already leaked.227 The report endorsed the recommendation that a community forum be established (Woodward Clyde, 1992:ES-2). The depot's controversiality was deepened by WR&PS proposal to overtop the depot with putrescible waste ostensibly as a way of re-contouring the site so as to minimise rain water infiltration.228 Residents were alarmed by the prospect of several metres of compacted waste placing pressure on waste cells which they believed were already leaking. The Environment Minister, Mr Hartcher, opted for a "Stage II Audit" to investigate groundwater movement as well as a CCMC, a human health survey, and a wildlife, crops and stock survey (SMH, 30/10/92:7).229 He later stated during debate of the overtopping proposal230 that: "the Government has determined that until the environmental audit of the site has been comprehensively executed and all implications for residents established, no overtopping of the site should occur" (NSW Legislative Assembly, 1993, Debates, Vol. 235:666).

227 The Stage I Audit report reviewed the available data, concluding that the: " ground

water level contours ... clearly indicated a doming water table under the Depot site. The maximum height of the water table reached 22 metres in the central area of the site falling to approximately 17 metres near the site boundaries" (Woodward-Clyde, 1992:8-5).

228 Critics of WR&PS were convinced that the overtopping proposal had nothing to do with re-contouring but was simply a convenient way of resolving Sydney's waste crisis (existing landfill space was expected to run out by 2000. Local member for Londonderry, Paul Gibson, introduced a bill concerning this overtopping in late 1992, which as the new Environment Minister, Mr Hartcher, understood it: "attempts to ensure that no further waste other than liquid waste is accepted at the Castlereagh waste depot until an EIS has been prepared and determined in accordance with the EP&A Act - which means it would be determined by PCC as SEPP No. 3 would no longer apply" (NSW , Legislative Assembly, 1993, Debates, Vol. 235:666).

229 WR&PS had already taken the initiative to establish a CMC using independent mediator Bill Henningham. This mediation process had commenced on November 12, 1992 but was superseded by the Minister's Committee.

230 The Fahey Government argued in Parliament in March 1993 that SEPP No. 3 incorporated an intention to "re-contour" the site by overtopping it with putrescible waste and the two major parties debated whether this interpretation of the SEPP was legal (NSW, Legislative Assembly, 1993, Debates, Vol. 235:673).

210

7.3 Local versus Scientific Knowledge

The Minister suggested the following terms of reference for the committee: 1) to serve as a community forum to the audit process, with formal access

to the relevant government agencies; 2) to meet monthly whilst the stage two audit is being conducted, and to

meet thereafter twice a year for a period up to and including five years after the depot ceases operation;

3) to serve as a public review of all information arising from the audit and associated activities;

4) to receive once monthly reports on the progress of the audit; 5) to provide the EPA and the auditors with community perceptions and

comments on the audit process; 6) to serve as a public scrutiny body for the operational activities of the

depot; 7) to collate and analyse community reports of contamination in the

region that are directly related to the operations of the depot; 8) to refer reports of contamination to the relevant survey groups under

the action plan, for example, health, veterinary and agricultural; 9) and to monitor the restoration of the site (CCMC Minutes, 14/1/93:3-4). At the first meeting of the committee on January 14, 1993, these terms were accepted with the following additions: 10) to provide advice to and receive information from the Minister; 11) To be involved in the health study and survey of effects of depot on

animals, crops and wildlife - in the same manner as the Committee is involved in the preparation of the Stage II Audit (CCMC Minutes, 14/1/93:4).

At the second meeting, these 11 terms of reference were adopted by the Committee (CCMC Minutes, 17/2/93:4). The Committee was comprised of a representative each from PCC, HCC (Hawkesbury City Council), EPA, WR&PS, DOH (Department of Health), DC&LM (Department of Conservation and Land Management), DOA (Department of Agriculture), RAGE, CHANGE, MOSES (Movement Opposing Senseless Environmental Sacrilege), the Bligh Park Enhancement Group, and 5 non-aligned community representatives. Council, resident, RAG and environmental group members formed a majority of the committee (11), and state administration members a minority (5). The latter apposed most

211resolutions, passed by majority vote.231 Much of the discussion too reflected the majority 'community bloc' concerns.232 The community bloc wanted the depot closed and this ambition conditioned CCMC debate until March 1995 when the new Labor government ordered the EPA to move to close and remediate the site (SMH, 22/4/95:7). Thus, debate from January 1993 until April 1995 concerned the impact of contamination on local people, wildlife and livestock, and the adequacy of scientific studies measuring that contamination. Far from adding certainty to CCMC debate, the scientific studies were the bones of contention in CCMC debate. The local hypothesis that chemically contaminated groundwater was surfacing on residential properties was the benchmark against which formal scientific claims were assessed. In contrast to this orientation to local experience and concerns, the groundwater study conducted by the consultants AGC Woodward Clyde, and animal health study conducted by DOA for the EPA can be characterised as examples of regulatory science. Jasanoff, an American analyst, contrasts regulatory with research science, however the more pertinent opposition in this case study is between regulative and 'popular' science. To this end I have added a (more speculative) column to Jasanoff's table. The orientation of regulatory science towards the priorities of government policy, protocol and guidelines results in a specific technoscientific culture: "Abstract scientific knowledge may seem universal, but in the real world, it is always integrated with supplementary assumptions that render it culture-bound and parochial" (Wynne, 1989:109).

231 I rely on my observations of CCMC proceedings to make this comment. The minutes do

not record who opposed specific motions. 232 There is no intent, in employing this convenience, to gloss over the difference between

the resident, RAG, Council and environmental group representatives which certainly existed. For example, environmentalists preferred an emphasis on remediation while some resident members of the CCMC wanted scientific evidence to underpin compensation claims. However, these differences do not alter the chapter's argumentation.

212Table 7.1 Regulatory, Popular and Research Science Regulatory Science Popular Science233 Research Science Goals 'Truths' relative to

policy 'Truths' relative to local fears and concerns

'Truths' of originality and significance

Institutions Government, industry RAGs, consultative bodies, environmental groups

Universities

Products Studies and data analyses, often unpublished

Publicised claims Published papers

Incentives Compliance with legal requirements

Desire for compensation and administrative action

Professional recognition and advancement

Time-frame Statutory timetables, political pressure

Social pressure Open-ended

Options Acceptance or rejection of evidence

Acceptance, rejection or pursuit of more evidence

Acceptance or rejection of evidence, waiting for more data

Accountab-ility Institutions

Parliament, Courts, Media

Media, resident action and environmental groups

Professional peers

Procedures Audits and site visits, regulatory peer review, legislative oversight

Informal collection of local complaints

Peer review, formal and informal

Standards Absence of fraud or misrepresentation, conformity to approved protocols and agency guidelines

Legal tests of sufficiency, threshold for media attention threshold for political/administrative response

Absence of fraud or misrepresentation, conformity to methods accepted by peer scientists, statistical significance

(based on Jasanoff, 1990:80).234

However, regulatory agents rarely understand themselves as parochial and culture bound. The administrative participants in the CCMC predictably saw themselves as assumption free and objective while viewing lay people as politicised, subjective and irrational. Lay people are often shocked by such characterisations of their priorities and knowledge, and can react by accusing bureaucrats and scientists of unstated bias and loyalties (Levine, 1982, Rosser, 1989, Wynne, 1989, 1996). The following exchange between CCMC residents and the EPA over an article published by the auditors on the difficulties of siting landfills conforms to this pattern:

233 See also Brown, 1993 and Irwin, 1995. 234 Jasanoff's original table paid more attention to legal restraints on regulatory activities.

this is less relevant in Australia because the emphasis here is placed on ministerial accountability rather than court oversight.

213Resident 1: [The article] accuses residents of getting together to fight. We're not out to fight, just concerned about a community. They're making us out to be housewives who harness the media and have some sort of festival. AGC are not independent when they support landfills - they go all out to get the public to support landfills. I want a comment on this from the EPA EPA: I disagree with your interpretation of this article. It is a fair article on how public support is won for landfills. I have tabled all the qualifications of AGC as the most suitable consultants to do the audit. They are an international company. I refute any suggestion that they are not independent. Resident 2: It is an example of facilities being forced on councils and communities as Castlereagh was forced on PCC. Whether they agreed or not was irrelevant. EPA: I don't see the relevance. Consultants don't make the decision - they are not involved in the decision-making process. Resident 1: But we have to live by the consultants' studies (CCMC, personal notes, 25/5/94).

When Brian Wynne considered the interaction of scientists, bureaucrats and sheepfarmers in the English Lake District faced with the problem of managing sheep grazing on pasture contaminated with nuclear radiation, he concluded that:

critical to the scientific experts' lack of credibility [with farmers] was their inability to recognise that the farmers held extensive informal knowledge about sheep habits, the local physical environment, and farming practises and decision-making, all of which needed to be integrated with more abstract and formal scientific knowledge to create an effective response framework to the Chernobyl fallout

A joint community/regulatory expert response to a problematic issue requires, according to Wynne, mutual acknowledgment of culturally rooted epistemological differences:

The social relations of routine decision-making and communication should allow negotiation between experts and the public to determine the appropriate levels of uncertainty and disaggregation in each particular case. This negotiation would result in an intercultural understanding about the expectations for knowledge or information: for example, how conclusive or how universal it is (Wynne, 1989:117, emphasis added).

Negotiation between lay and expert knowledge claims in order to achieve intercultural understanding is a difficult goal. It is difficult for systemic actors who treat rebellious publics as a chaotic threat to administrative order. And it is difficult actors located in civil society because inflexible expert/regulative

214distinctions between the relevant and irrelevant make little sense against the landscape of local beliefs. Mutual understanding necessitates dialogue:

Without engagement, confrontation, dialogue and even a 'struggle for recognition' in the Hegelian sense, we tend to constitute the otherness of the other by projection and fantasy or ignore it in indifference (Benhabib, 1992(a):168).

On the surface of it, the establishment of the CCMC to which the scientific consultants must periodically report meets dialogic criteria. However, a forum, in and of itself, does not overturn the pervasive assumption of both lay, regulatory and expert participants that a 'scientific' investigation will provide a set of neutral truths that can form a basis of action. The parameters of the Castlereagh audit's groundwater and animal health studies were not determined by the CCMC and, as the discussions following make clear, met political and regulative needs, not those of the community bloc. The EPA staked its claim to frame the investigations at the CCMC's first meeting: "the EPA must be the final arbitrator in selecting the consultant and setting the terms of reference. It has a statutory obligation to undertake this role (CCMC Minutes, 14/1/93:6). Although the CCMC was free to add to the original brief,235 even if the EPA and auditors agreed that the addition had merit, the question of resources was an immediate barrier.236 Should the resource hurdle be jumped, the additional tasks were considered separately. Under these conditions, a lay/expert divergence of perspectives ensued and deepened. The PCC and HCC Mayors tried to increase the community bloc's rapid loss of confidence in the groundwater study by successfully moving they be allowed onto its Steering Committee (CCMC Minutes, 21/4/93:3). This measure237 did nothing to bridge community and expert perspectives. Much of CCMC proceedings were taken up with conflict over the discriminatory dichotomy

235 The CCMC added two points to the groundwater study brief: that there be sampling of

sediments in water courses on and adjacent to the site to identify any pollutants; and that there be modelling to assess the effects of the overtopping proposal on the movement of contaminants from the site (CCMC Minutes, 14/1/93:6).

236 For example, RAGE was provided with groundwater samples so that a parallel analysis to Woodward-Clyde's could be performed. However RAGE could not obtain any funding to pay for the testing and had to raise the money from residents (CCMC Minutes, 14/1/93:6).

237 A HCC representative did attend an audit steering committee meeting and was satisfied that the process was transparent (CCMC Minutes, 25/8/93:6). The auditors also met with residents outside the CCMC to discuss their concerns on August 20 of 1993 (CCMC Minutes, 25/8/93:6).

215between objective, scientific/ subjective, lay perspectives and complaints of the uselessness of the findings to the community bloc .

7.3.1 The Groundwater Study

CCMC debate of local and scientific knowledge claims began with the Stage I Audit finding that:

ground water level contours ... clearly indicated a doming water table under the Depot site. The maximum height of the water table reached 22 metres in the central area of the site falling to approximately 17 metres near the site boundaries (Woodward-Clyde, 1992:8-5).

A response to RAGE and CHANGE questions was tabled, stating that surface water moves through the cells into the ground water but the wastes in the cell do not necessarily migrate with that water (CCMC Minutes, 14/1/93:8). The community bloc's response was sceptical, CHANGE called the report inadequate and requested a reasoned scientific analysis (CCMC Minutes, 17/2/93:7). The first bone of contention was thus clarified - the EPA and Auditors felt contamination was not proven while the community bloc felt it likely contamination had occurred, the issue being how far and where it had travelled. These points of view lend themselves to different avenues of inquiry and methodologies. The objectives of the groundwater study - to produce a contaminant migration (via groundwater flow) model, to identify the cause of the groundwater doming, and to provide an information basis for control programs (Woodward Clyde, 1994(a): ES-1 - ES-2) - ignored the community bloc's views. AGC's preferred methodology was to being sampling "at the site and move outwards in order to determine pathways, the hydro-geological environment and the fate of contaminants" (CCMC Minutes, 17/3/93:7). The community bloc believed exactly the opposite was required:

The Committee agreed that groundwater investigations should begin from the outer possible areas on contamination inwards towards the depot and that in particular, they should begin with outcrops of Rickabys Creek gravels (CCMC Minutes, 17/3/93:7).

The discussion revealed a disjuncture between community desire to explore any possibility of contamination and the EPA interest in limiting investigations to the depot:

The community, despite the scientific reasons against, strongly believe that testing should occur off site to establish whether there is contamination even if this contamination has not been caused by the Depot (CCMC Minutes, 17/3/93:5).

216A compromise was reached. AGC continued with their preferred methodology but the EPA funded 6 off-site boreholes. AGC tabled its assessment of the best location for the 6 boreholes and requested feedback. The CCMC decided one borehole should be moved north east of the depot (CCMC Minutes, 26/5/93:2). Two boreholes proved dry and the CCMC wanted them re-drilled (CCMC Minutes, 28/7/93:2). The EPA stated, after discussions with AGC, "that there was no benefit to be gained by sinking further bores ..." (CCMC Minutes, 27/10/93:3). Residents believed a contaminated plume of groundwater was travelling through the Rickabys Creek Gravel, surfacing on residential properties to the west and east of the depot. A hypothesis treated as plausible in the Greenpeace Report: "Any chemicals in this layer capable of migrating with the ground water towards Rickabys Creek or South Creek could in theory become exposed at the surface in the valleys of those creeks" (1990:6). The capacity of the community bloc to use this local hypothesis to unpack and critique experts' findings was demonstrated when a presentation was made to the CCMC by Environmental Research and Information Consortium Pty Ltd, engaged by the Waste Service to develop "an understanding of activities surrounding the Depot" (CCMC Minutes, 25/5/94:3). The consultants used satellite information, land use maps and statutory declarations of health complaints supplied by RAGE, to map saturation zones in Rickaby Creek and South Creek catchments. They concluded that high saturation was not due to the depot but to septic tanks and ponds, urban run-off, market gardens and dairy farms, and that the residents' complaints were almost all in these saturation zones. The consultants claimed to have confirmed AGC's finding, detailed below, that ground water flowed in a north-easterly direction (CCMC, 25/5/94, Notes) and concluded that the residents' complaints reflected a regional problem that the catchment's soils were unsuited for intense urban, industrial and agricultural uses. Resident CCMC members denied that the problem was regional, pointing out that none of the land uses cited would release chemical toxins. The same maps were reinterpreted to infer ground water movement to the west of the depot, where the ground water levels had been shown in the Stage I Audit to drop from 22 to 20 metres, pointing out that this hypothesis also correlated with the complaints (CCMC, 25/5/94, Notes). The findings of the draft final report were tabled and presented at the March 1994 CCMC. Of the 51 (pre-existing) deep boreholes (into the Rickabys Creek Gravels) within and adjacent to the Depot, 23 were sampled as part of the audit

217investigation.238 Groundwater contamination was found in 3 bores in depot areas used between 1974 and 1982 (Woodward Clyde, 1994(a):4-8). The contamination was "consistent with the types of material disposed of at the Depot and with the types of compounds expected to be most mobile within the soil profile and aquifer" (Woodward Clyde, 1994(a):8-16). It was confirmed that the groundwater levels beneath the depot were rising, and rising at the rate of 20 to 50 centimetres a year (illustrated in Map 7.1). This rise was expected to peak over a 50 to 100 year time period by which time the water table would be above the base of many of the Depot's waste cells (Woodward Clyde, 1994(a):12-3). Potential directions for groundwater flow (and a contamination plume) were determined to be to the north, north west and south of the Depot (as areas to the south west and north east are upgradient of the Depot). The modelling predicted that a contamination plume with chemical concentrations of less than 1% "of that occurring in groundwater beneath the Depot" would travel only 100 to 150 metres beyond the Depot borders after 100 years. The conclusion was drawn that chemical migration was slow and that the risk of exposure of people and animals negligible (Woodward Clyde, 1994(a):12-4). The conclusion that the contamination had not moved off-site, although the cells had leaked (the auditors at one point stated "there is a lot of storage capacity underneath the site"), was greeted with scepticism (CCMC, 9/3/94, Notes). The community bloc were not satisfied that the abstract models accounted for the depot's real life conditions, believing it possible the clay was more permeable than assumed, a belief reinforced by the perception that there had been inadequate off-site testing. A hypothesis was put forward that a pathway for contaminants could exist through perched water tables (isolated zones of saturation) and sandy lenses in the clay. It was argued " that the sandy lenses need only be contiguous rather than continuous to present a contaminant pathway and that as only one off-site bore was sampled, it was not reasonable to conclude that no contaminants had left the site" (CCMC Minutes, 23/3/94:7). It was established that what the consultants had done was a risk assessment not a risk analysis where one would look for weak links such as seepage through sandy lenses (CCMC, 23/3/94, Notes). A motion was carried at the 30/3/94 CCMC meeting calling for an 'actuarial risk assessment' to be performed on the depot (CCMC , 30/3/94, Notes).

238 The remaining 28 boreholes were not sampled as they were either dry, abandoned,

obstructed, too close to other bores or of unknown depth.

218The perception the probabilistic permeability figures were arbitrary was re-enforced when CHANGE pointed out that AGC Woodward Clyde gave a higher Bringelly Shale permeability figure for a proposed landfill EIS in Penrith LGA. PCC consultants, in reviewing the EIS, advised the shale's permeability may be even higher. Using the highest permeability figure, the time for contaminants to leave the depot could be reduced from 100 years to 6 months (CCMC, Minutes, 25/5/94:3-4). EPA's response was that the criticism was not relevant, a case of "one expert differing from another" (CCMC, Minutes, 25/5/94:4). This sudden move by the EPA to a relativist position concerning the certainty of scientific findings undermined the authoritativeness of the groundwater study findings. Offering neither certainty nor reconciliation of the various viewpoints, the remark was seen as unhelpful. The CHANGE representative replied that you could go to three different doctors and get three different versions of what was or was not wrong with you and still know that you are sick (CCMC, 25/5/94, notes). An apt remark at the close of an inconclusive eighteen month struggle between the EPA, their consultants and the community bloc over the objectives, methodology and findings of the groundwater study. A struggle reflected in the following list of motions. Table 7.2 CCMC Motions Regarding Audit239 • CCMC to be represented by two members on the Stage II Audit Steering Committee

21/4/93

• All data (even rejected data) to be provided to the CCMC 21/4/93 • That a proposed off-site borehole (1 of 6) be relocated to the North-east of the depot

26/5/93

• That the CCMC's questions on Audit task 3 be submitted to PCC to be addressed at the next Council meeting

23/6/93

• Request explanation of discrepancy in map survey points and provision of overlaying maps to CCMC

28/7/93

• Fit off-site bores with CCMC padlock to ensure the presence of CCMC members during sampling

28/7/93

• CCMC be provided with the hydro-geological maps to be used as the basis of Audit's mathematical model of groundwater and groundwater flow

25/8/93

• Request discussion and clarification in writing from AGC on the security of the depot's cells

27/10/93

• AGC to provide best estimates of the minimum and maximum time until cell contents reach: the water table, private properties, residences, urban areas and running streams

27/10/93

• CCMC recommends that the 100 series boreholes [into the perched water table] be tested for groundwater contamination

24/11/93

• AGC give written advice to the CCMC on whether the audit will identify to what extent cells are leaking; the range of contaminants in the groundwater; the pathways of contaminants and the speed at which they are travelling

24/11/93

239 Some of the CCMC motions concern more than one of the topics considered (the stage

II audit, animal and health study, human health study, EPA, and the Minister) and are therefore listed in more than one table.

219• That the draft audit report be submitted to the CCMC before it is sent to the Minister

5/1/94

• EPA seek an independent Risk Assessment expert to analyse results of the audit and withhold the audit until this analysis is prepared

23/3/94

• That the Minister direct that a recommendation that additional off site-bores for ongoing monitoring be included in the audit recommendations

23/3/94

• That the EPA seek independent, actuarial based assessment of the risks arising from the depot

30/3/94

• That the critique of AGC calculations of the Bringelly shale at Kemps Creek be extended to apply to the Bringelly shale at Castlereagh

25/5/94

• That the CCMC receive the exact coordinates and topographical details of the area within a 2 km radius of the depot

27/7/94

7.3.2 Animal and Plant Health Study

These lengthy debates did not go unnoticed by the DOA and DOH participants committed to undertaking animal and human health investigations. An ambitious but poorly thought out gambit to engage local hypotheses was made by DOA. DOA submitted an animal and plant study design, costed at $20,000, to the EPA in August of 1993 proposing a survey that would reconcile community concern with scientific method:

The structured collection, compilation and analysis of information of both an objective and subjective nature which will enable responsible decisions to be made so as to ensure a quality of life consistent with acceptable community standards for those people, animals and plants which live in the vicinity of the depot ... The overall strategy to be used is a process through which all stakeholders in the problem will be involved in the development of the questionnaire, its distribution, collection, compilation and analysis. The process is an empowering one which enables all stakeholders to develop a sense of ownership and commitment to the realisation of the objective. It also has the capacity to abate the increasing sense of outrage related to the depot issue (DOA, 1993:2).

A steering committee comprised of the 'stakeholders' to design and conduct the survey was proposed. However, within two months, disparity between scientific and lay perspectives on the steering committee had widened. The CCMC was informed that it was now considered necessary to conduct an epidemiological study to increase the study's scientific validity. Funds were also requested to conduct animal autopsies240 under intense pressure from residents concerned about animal birth deformities241 (CCMC, Minutes, 24/11/93:4, and notes).

240 Two autopsies were performed on horses, but the results were inconclusive . 241 Two deformed deer had been born at a farm 2.5 kms from the depot and a month

earlier birth deformities had occurred in puppies and a calf at a nearby property. Birth

220The animal and plant survey turned up only 32 complaints of which 26 met the criteria for inclusion in the survey (DOA, 1995:53).242 DOA commented "we gave the public the opportunity to come forward and that's what we based the study on - the public didn't come forward" (CCMC, 14/9/94, Notes). CCMC residents replied that: "people get discouraged, they don't believe anything will be done, so they don't come forward", and that "the people will not come to the council or the government, they come to RAGE members" (CCMC, 14/9/94, Notes). An argument ensued about the objectivity and validity of the RAGE list of 100 complaints submitted in the form of statutory declarations the year before. Although the DOA epidemiologist dismissed the list as largely anecdotal, unverified by veterinary records, and containing complaints over five years old, the CCMC passed a motion that it be incorporated in the study in some way (CCMC, Minutes & Notes, 27/7/94:2-3). A subsequent statement from DOA conveyed the epidemiologists' decision that the RAGE list be included as a list of anecdotal reports along with his request:

... that each case be gone through by a RAGE representative and condensed to name [or case number], date of occurrence, number and type of animals and a very concise description of the problem. Dr Jordan does not with to do this himself as there is the possibility of claims of bias being made against him if he did so. However, the information must accurately reflect the real situation as any hint of bias will prevent the information being included in the report (CCMC, Minutes, 14/9/94:3).

Ultimately, the epidemiologist's finding was that an epidemiological study was insupportable:

deformities in deer are considered to be rare. The deer were watering from a pool charged from the groundwater, and when restricted to town water ten perfectly formed deer were born (Penrith Press, 30/11/93:1). WR&PS announced that it would pay for soil tests on the property in December (SMH, 14/12/93:4). As of October 1994, the deer farmer had not been provided with the results of those tests (SMH, 27/10/94:4). However, having paid $2000 for his own soil and water tests, the farmer concluded that the deformities were caused by high levels of naturally occurring iron (Penrith Press, 21/6/94:2).

242 The animal health survey was conducted along with the human health survey. Advertisements were placed in three local weekly papers over five weeks inviting residents to write or phone to "discuss the impact of local environmental conditions on their health or the health of their animals or plants" (the Depot was not mentioned). A letter drop in the area was also used. Respondents were then screened via a phone questionnaire to satisfy the criteria of living/lived near the depot, at least one animal health problem in the last five years attributable to a local environmental condition, and that the respondent agree to a household visit to conduct the animal health survey (DOA, 1995:44-45).

221The survey shortfalls included: lack of objective measure of exposure and disease, extremely poor response [of] 26 households, self-selection of participants, 5 year recall component, non-representative sample of owners, animal species [and] locations. [This] subjective assessment [is] likely to lead to bias. Dr Jordan explained that few useful conclusions could be drawn from the Animal Health Survey and examples of these were: no overt or distinct animal health syndrome [and] no association between disease and [the] CRWDD. Dr Jordan then suggested that more animal research should not be contemplated until the following are satisfied: demonstrable pathway of exposure, or multiple cases of chemical toxicity, or human research shows a causal association; and that [the] precise objective of a study is identified and appropriate hypotheses formulated, [and the] hypotheses can be tested and the procedure must use animals (CCMC, Minutes, 15/3/95:3-4).

The community bloc invited a member of the Total Environment Centre's Toxics Committee to respond. She commented that:

the assertion of scant evidence of normal or abnormal disease rates may be technically correct within the research paradigms adopted by the authors. However, this approach is not helpful for the Castlereagh situation since it underestimates the value of existing evidence. In looking for a consistent animal health syndrome, the report states that it is difficult to construct a case definition based on the disorders listed, and notes the non-specificity of biological outcomes. This conclusion is not supported by the evidence since perusal of the disorders list indicates reproductive risk across a wide spectrum of potential adverse reproductive outcomes in a number of animal species. It would be possible to construct a hypothesis related to the occurrence of other adverse biological outcomes, i.e. neurological and functional disorders and deficits ... clues as to what toxins, if any, are present in animal environs seem available within the body of the Woodward Clyde and other reports. Uncertainty of specific exposure profiles and pathways should not be used as a reason to fail to consider the potential risks of exposure, which appear significant ... concern with statistical power [is] inappropriate in this setting and ... more attention should be given to the toxicology approach. There are as yet, unrealised opportunities to utilise the principles of environmental toxicology and environmental epidemiology in any future investigations (CCMC, Minutes, 15/3/95:4-5).

The stigmatisation of the evidence collated by RAGE was inexplicable to the resident and RAG CCMC members. RAGE stated: "We've wanted to get together and chew the fat on this for some time, we wanted it [the study] in draft form but only had a 008 number. You wouldn't talk to us or come to our [RAGE] meetings, we wanted community consultation" (CCMC, 15/3/95,

222Notes). The DOA representative retorted that the EPA paid for the study and only requested that he report to the CCMC (CCMC, Minutes, 15/3/95:5). The DOA epidemiologist was more explicit in his explanation: "Scientists should get together and discuss the findings and this has to be done before talking to the CCMC. I say this because of the political nature of the issue - research has to be kept independent of factions and mechanisms must be in place to ensure that. Your suggestions are unacceptable ... the statutory declarations - the anecdotal evidence - was not acceptable. It was included so that the reader could get a sense of what the residents believed" (CCMC, 15/3/95, Notes).The community bloc promptly moved to reject the study (CCMC, Minutes, 15/3/95:5). Table 7.3 CCMC Motions Regarding Animal and Plant Health Study • Develop a method by which suspect animal disorders can be diagnosed by the DOA or University of Sydney

26/5/93

• Minister provide funds urgently for the Animal and Plant Health Study and for interim testing of diseased or deceased animals

24/11/93

• That the RAGE list of animal health problems be included in the animal health study in some way

27/7/94

• That the CCMC write to the EPA and the Minister recommending that the animal health study not be accepted

18/1/95

• That the CCMC write to the EPA and the Minister recommending that stage 3 (epidemiology study) of the animal health study be carried out

18/1/95

• That the CCMC write to Kate Short of the Total Environment Centre requesting suggestions on designing an animal health study using the toxicological approach

18/1/95

7.3.3 Human Health Study

The human health study, conducted by the DOH, avoided many of the problems that led to the community bloc's critique of the groundwater study and outright rejection of the animal health study. Several factors contributed to this avoidance of acrimony was avoided by: in person reporting to the CCMC by either the project co-ordinator or manager; the maintenance steering committee throughout the study design and conduct; and the dialogic tenor of discussion within both the steering committee and CCMC. The fact that pre-existing statistical information was available in the birth, death and cancer registries also helpful in bridging the lay/expert divide. The project co-ordinator proposed four stages to the study:

Stage 1 - establishment of a Steering Committee to oversee the preparation of the health study [and] to make recommendations on how the outcomes of the Study are pursued243

243 The relationship between the CCMC and steering committee was well thought through:

"Whilst this [CCMC] was considered the appropriate forum for scrutiny of the general direction and progress of the human health study, a smaller working group (as a

223Stage 2 - analysing routinely collected data by the Cancer Council - those cases surrounding the site [and] recorded since 1972. This information can also be obtained from Births, Deaths and Marriages with respect to birth defects and birth weights ... Stage 3 - establishing a register of anecdotal health related problems. Representatives of RAGE report a lot of people complaining of health effects [such as] cleft pallets and thyroid cancers. We would like to speak with residents with ill health claimed to be caused by the waste dump and document those events and also try to validate with general hospital records and other data Stage 4 - look at the Stage II audit water and air monitoring to see if there is a possible risk of exposure ... (CCMC Minutes, 3/3/93:3).

The project was initiated with $101,000 funded by the EPA (CCMC Minutes, 22/9/93:4). Discussion about the questionnaire (stage 1 of the study) covered the study radius, the advantages and disadvantages of random sampling and control groups, environmental variables (residents claimed health effects flared during high rainfall). The CCMC decided to survey a control group as well as the community of concern and requested further funds for this task (CCMC, Minutes, 24/11/93:4). Concerns about psychological well being questions and the phone-in methodology were discussed in March (CCMC, 30/3/94, notes). In April the CCMC moved that biological monitoring of some residents be included if funding could be secured (CCMC, Minutes & Notes, 27/7/94:2). By October the preliminary results of the review of statistical information (stage 2) was presented to the CCMC, the most dramatic finding being that

the incidence of brain cancer among males in the study area is higher than would be expected. Between 1974 and 1991, five men and one woman within the study area were diagnosed with brain cancer. Although this is a relatively small number of cases, the rate for males is three times higher than expected given the rates for NSW over the same period ( CCMC, Minutes, 26/10/94:2).

This finding received extensive coverage in the local and NSW press and lent weight to RAGE's assertion that serious health problems existed in the

subcommittee) was considered more appropriate to deal with the methodological options available and some of the more technical aspects of data analysis and interpretation. Hence a working group was formed specifically to oversee and contribute to the human health study. This group consists mainly of community representatives and has met, as required, to discuss the various stages of the study. This working group has not only proved an opportunity for the members of the community to raise issues of concern regarding the aspects of human health investigated and the methodology used, but also provided a forum for the exchange of information" (Williams and Jaladudin, 1995:iii).

224Castlereagh region.244 The report concluded that exposure of the local community to chemicals was possible and recommended an epidemiological alert and ongoing monitoring (CCMC, 26/4/95, notes).245 Having jettisoned accusations of irrationality and subjectivity, the authors were able to point out that the survey results were similar to information collected by RAGE (Williams and Jaladudin, 1995:134). The report concluded:

It is the determination of risk that often delivers probabilistic conclusions and in many cases fails to satisfy both the community and the policy makers. Where the risk can be reasonably quantified, there is then the question of whether a community will accept such a risk and such a decision is rarely based on probability alone (Williams and Jaladudin, 1995:134).

This study, the only one to bridge lay/expert perspectives and thus avoid being bogged down in acrimony was successful because it was based on what Nowotny calls a hybrid fora:

... groups constituted from the interplay of experts and lay people as social actors in the shaping of knowledge and the genuine production of new knowledge (Nowotny, 2000:14, italics added).

Only two CCMC motions were made relating to the study, a reflection of the community bloc's satisfaction with its formulation, progress and outcomes:

244 See the SMH 26/10/94:3 and 27/10/94:4. 245 The recommendation of an 'alert' came as part of an elaboration on the third

recommendation of the report. The four recommendations were as follows: 1. The CCMC and Health Study Working Group should continue to monitor all investigations into the effects of the Castlereagh Waste Disposal Depot (CRWDD) on human health, with regular opportunity for members of the community, including those not currently represented, to participate; 2. The air monitoring program, currently required by the EPA, should be undertaken as soon as possible and should examine the potential for gaseous emissions and windblown dust particles to transport contaminants from the CRWDD to the surrounding areas; 3. Funded mechanisms should be established for the ongoing surveillance of cancer incidence and adverse birth outcomes in the area around the CRWDD; 4. All hospitals and general practitioners in the Wentworth Health Area (Penrith, Hawkesbury and Blue Mountains LGAs) should be informed of the results of this study, with particular reference to the range of symptoms reported that were thought to be related to local environmental conditions (Williams and Jaladudin, 1995:v-vi).

225Table 7.4 CCMC Motions Regarding Human Health Study CCMC Motions Date • Control group for the human health survey be identified and further funds be requested from the Minister

24/11/93

• That biological monitoring of some residents be included in the human health study

26/4/94

7.4 The CCMC and EPA

As the funding body for the scientific studies and regulator of WR&PS operations, the EPA was pivotal in the CCMC. Although the first organisation in NSW dedicated to the protection of the environment, the EPA, like its forebear the SPCC, legitimates pollution by licensing.246 The EPA's public credibility is vulnerable in the face of aroused communities bearing the impacts of licensed pollution, as became clear during the course of the CCMC's proceedings. The crux of the matter presented itself at the CCMC's fifth meeting, when an emotional resident outlined the health problems suffered by her family and livestock. Explaining she considered it immoral to sell a property she was convinced was contaminated, she requested relocation. Other resident and RAG representatives spoke to this plea arguing that it was ridiculous in light of the American literature to claim clay will hold a million litres of waste without leaking, and that there was too much unexplained phenomena observed by residents for the depot not to be responsible (CCMC, 21/4/93:5, Notes). After a period of stunned silence, three motions were passed to the effect that the onus of proof needs to rest with the EPA to prove that the property was not contaminated, and contaminated by the Depot, and urging the Minister to relocate the family (CCMC Minutes, 21/4/93:5-6). On realising that between 70 and 80 households had requested relocation, the alarmed EPA representative, pointed out that contamination was a state wide problem resulting in many requests for relocation not all of which could be funded (CCMC, 21/4/93, Notes). Resident and RAG CCMC members were sobered by this admission that requests for relocation were viewed primarily as a fiscal problem. By the March 1994 meeting, resident and RAGE representatives began to openly question the EPA's credentials. A resident complained: "You continue to jump on our questions to the consultant, you are not here as an expert. Every time we have asked for something, they don't come or they come in a different form. Is it the EPA's role to protect the people or WR&PS?" (CCMC, 23/3/94,

246 Beck describes such arrangements as "symbolic detoxification" (1995b:84).

226Notes). When the health study's brain cancer cluster finding brought a television crew to the CCMC, resident and RAGE representatives took the opportunity to publicly lash out:

We are disappointed in the lack of the EPA's objective view on its environmental protection. The EPA has been more of an apologist for the audit. We find ourselves in an unprotected position - the EPA isn't giving us the protection that we need. This one million tonnes of material, it has been acknowledged, leaks into the groundwater, creeks, Hawkesbury-Nepean River and thus affects all of Sydney because it gets into the food chain. The EPA and government have to make the hard decisions now to protect the future. The EPA and government have a duty of care (CCMC, 26/10/94, Notes).

The community bloc was also unimpressed with the EPA's performance as WR&PS' watchdog. At the first major presentation of interim audit reports in January of 1994, the EPA was ready with a statement on the specific measures it would take in response as: "the water management program of the mid 1970's is not acceptable today" (CCMC Minutes, 5/1/94). EPA stated that "licenses are not cast in concrete - the EPA have the power to revoke them at any time. If the Committee are not happy with the licence, procedures, etc, then the EPA will modify the licence if the EPA consider the requests viable" (CCMC Minutes, 5/1/94:2, emphasis added). However, the EPA's response to the identification by AGC of a potential surface water discharge point was to licence it (CCMC, Minutes, 23/3/94:6). The EPA's response to PCC's submission that WR&PS should be prosecuted for a breach of the Clean Waters Act was that: "an assessment would have to made as to whether it would be worthwhile taking the Waste Service to Court, bearing in mind the cost ... money that could be spent alleviating the problem" (CCMC, Minutes, 9/3/94:3). The EPA subsequently informed the Committee that no legal case for a breach of the Clean Waters Act could be made as the groundwater was not scheduled under the Act. By sidestepping the issue, the EPA maintained the tradition of government agency independence from legislative standards designed to protect environmental amenity. The EPA's responded to lay critique of the groundwater study findings that the: "studies have been conducted under the terms of reference. The Study has found no link between the Depot and contamination outside the Depot. It does not say there is no contamination outside of the Depot". When a resident representative asked why contamination not linked to the Depot had not been further investigated, he was told that such work was not part of this study and

227if necessary, could be the subject of further studies, a disingenuous comment considering such a prospect was remote. (CCMC, Minutes, 23/3/94:8). Cat and mouse games between the EPA and community bloc became typical - resident and RAG members attempts to obtain acknowledgment of contamination were met with evasive, and legalistic responses. When residents alleged the EPA had admitted the tip was leaking, the EPA representative returned: "he did not say the tip's cells were leaking but that the vertical permeability of the cell's clay was better understood than their horizontal permeability" (CCMC, 21/4/93, Notes). The community bloc's disillusionment is expressed in the number and content of pertinent CCMC motions: Table 7.5 CCMC Motions Regarding the EPA • Onus of proof on the EPA to prove that a private property is not contaminated and is not contaminated by the depot

21/4/93

• Urge EPA to treat depot as if it has leaked and act in accordance with Precautionary Principle (as defined in POE Act)

26/5/93 & 23/6/93

• EPA ensure WR&PS completes Emergency Response Plan immediately 26/5/93 • EPA requested to investigate the oxygen levels in Rickabys Creek 23/6/93 • CCMC forward a letter to the EPA & request clarification that there are no chemicals contributing to a family's health problems

23/6/93

• EPA direct WR&PS to close and remediate depot 28/7/93 • EPA to investigate options for rectification of leak to groundwater and report to CCMC

25/8/93

• CCMC recommends the EPA commission dynamic olfactory odour tests around the depot

27/10/93

• That the EPA stop depot's acceptance of grease trap waste and household garbage

27/10/93

• CCMC endorse Animal Health Study Steering Committee recommendation that the EPA finance a study of fresh water mussels in Rickabys Creek

24/11/93

• EPA not WR&PS should engage laboratories to collect and analyse samples from the depot

5/1/94

• EPA seek an independent Risk Assessment expert to analyse results of the audit and withhold the audit until this analysis is prepared

23/3/94

• That the EPA seek independent, actuarial based assessment of the risks arising from the depot

30/3/94

• Evidence from the audit indicates that groundwater contamination has already occurred and the permeability of Rickabys Creek exceeds the criterion for a rapid plume spread, and that potential for human and environmental risk exists. The CCMC calls for immediate remedial action

27/7/94

• That the EPA investigate the source of chemical contamination evident on some properties in the Londonderry area

27/7/94

• The CCMC expresses concern at the lack of urgency shown by the EPA and WR&PS in addressing the issue of a rapid plume spread as defined in the Contingency Plan chapter of the Environmental Management Plan

14/9/94

• The CCMC urges the EPA to apply the precautionary principle now it knows the groundwater is contaminated

26/10/94

• That the EPA direct WR&PS to test off site and boundary bores for the USEPA priority pollutants

26/10/94

• That the EPA take legal action against WR&PS for the breach of license condition that section 16 of the Clean Waters Act be complied with

26/10/94

228• That the EPA demonstrate audit computer modelling to CCMC and PCC 26/10/94 • That the EPA request the re-evaluation of existing and new data by experts not likely to receive further work from the NSW Government

26/10/94

• That the depot be closed and remediated as soon as possible 26/10/94 • That the CCMC write to the EPA and the Minister recommending that the animal health study not be accepted

18/1/95

• That the CCMC write to the EPA and the Minister recommending that stage 3 of the animal health study be carried out

18/1/95

• The CCMC does not accept the EPA statement that there is no evidence of off site contamination resulting from the depot and asks the EPA to desist from repeating the statement

26/4/95

• That the EPA and the Minister consider the alternatives [recycling and minimising waste] Greenpeace recommended in their report247

26/4/95

7.5 The CCMC and Environment Ministers

The intractability of the EPA from the community bloc's viewpoint raised the issue of the Minister's relationship with the CCMC. By 1994 the Minister's view on how the consultative and scientific processes would function in relation to his politically centralised powers became apparent. On receiving the report of groundwater contamination in 3 boreholes in July 1993, the CCMC moved that the depot be closed and ground water pumped and treated. However, the Minister publicised his response before these test results had been tabled at the CCMC:

the bore holes of concern are located towards the centre of the site, the oldest part of the depot, and there is no indication that contaminants have had moved off-site ... additional sampling and testing needs to be carried out immediately in order to determine if the results are consistently the same. With no evidence of any risk to public health, any other action to address the results in areas closed over 10 years ago would be premature until the full picture of the situation at Castlereagh is compiled in the final audit report (Hartcher, 27/7/93:1).

In contrast, the community bloc reasoned that if the 20 year old section of the site was already leaking, it was merely a matter of time before the more recent sections of the site began to leak (CCMC, 24/11/93, Notes). The CCMC moved a mild motion stating it had concerns about statements in the press release (CCMC, 28/7/93:4, Notes). At the following CCMC meeting, members asked whether: "the Minister was being informed of the seriousness of the problems at the depot" but were reassured by the EPA representative that: "the Minister

247 This last motion, made after the Minister announced the depot would closed concluded

a discussion during which the community bloc expressed the concern that another landfill would be sought to dispose of the wastes disposed of at the depot. This discussion seemed to amaze the EPA representative: "I thought the CCMC would be more enthusiastic having worked towards closure for a long time" (CCMC, 26/4/95, Notes).

229was being kept informed and briefed on all the issues" (CCMC, Minutes, 25/8/93:2). In March of 1994, the Minister mailed a letter to individual "community leaders" outlining the audit methodology, how and why he had established the CCMC and 8 examples of actions taken as a result of issues raised by the CCMC. The letter concludes: "I am writing to you, as a community leader, because I believe the thoroughness of the audit process and the commitment of my office to addressing local concerns, may not be fully understood by the community. The extent and openness of all aspects of this detailed examination of the site has sometimes been overlooked in the reporting of this issue" (Hartcher, 8/3/94:4). The Minister also mailed out a letter to residents:

I am writing to inform you of the results of their examination. There are almost 200 monitoring bores in and around the 300 hectare site. Of all the testing done by the Consultant, only three bores showed any evidence of contamination and those are located well within the site's boundaries. The report states there is no evidence of any contamination of surface or ground waters beyond the boundaries of the depot and, most importantly for local residents, there is negligible risk of any contamination moving beyond the depot boundaries in the future ... I hope these initiatives will reassure you and the local community about the safety of the Castlereagh Depot (Hartcher, 10/3/94)

The CCMC was perturbed by the tone taken in these two letters and moved to write to the Minister describing his statements as misleading as the CCMC did not consider that enough off-site testing was taking place (CCMC, Minutes, 23/3/94:10). By March of 1995, CCMC's community bloc openly disputed a statement by the Minister in a letter to PCC that "subsequent investigations have shown that the concentrations of contaminants have fallen to low levels" (CCMC, Minutes, 15/3/95:7). When the groundwater study was concluded, the CCMC requested the Minister exhibit the draft report (CCMC, Minutes, 30/3/94:4) but was ignored. The final report, not the draft, was placed on public exhibition for 3 months to seek views for the CCMC's, not the auditor's deliberations (CCMC Minutes, 27/4/94:4). Unhappy with both the EPA's and Environment Minister's handling of the consultative and scientific processes, RAGE looked to the upcoming state election as a means of leverage. In the lead up to the 1995 election, the Nature Conservation Council convened an Environment in Crisis Conference within which resident and environmental groups aired their individual and collective concerns. The key election goals of the NSW environment movement were

230thrashed out and formulated as a questionnaire to from political parties that would elicit yes/no responses. A second conference was called in early March so that the environmental movement and the media could scrutinise the responses of political parties and candidates.248 RAGE, present at both conferences, was instrumental in drafting the question: "[Will you] close the Castlereagh toxic waste depot and take action against the Waste Service for its continued breaching of the licence condition that the Depot comply with Section 16 of the Clean Waters Act". The ALP response was that:

Labor believes the Castlereagh toxic waste dump should be closed. We will commence the immediate phase out of its operations and require the EPA to devise environmentally acceptable alternatives to dumping at Castlereagh. This will include new waste specific treatment technologies and waste prevention and reuse. The EPA will be required to draw up plans for remediation of the site (Nature Conservation Council, 1995:31)

That is, the ALP said yes to closing the Depot but no to prosecuting the Waste Service. Following the election of a Labor government, the new Environment Minister announced in late April, that the depot would be closed as a precautionary measure despite the absence of a proven link with health problems (SMH, 22/4/95:7). The CCMC wrote requesting it: "take on the role of organising community consultations on all aspects of the closure, remediation and future use and ownership of the site" (CCMC, Minutes, 26/4/95:6). The Minister ignored the offer, directing instead that the CCMC's December meeting be its last. Neither HCC or PCC were consulted (CCMC, Minutes, 6/12/95:1-2).249 After three years of dialogic struggle to bridge operational, regulatory, expert, resident and environmentalist perspectives, the CCMC was summarily dismissed. An education wasted through liberal-aggregative suspiciousness towards 'vocal, unrepresentative minority' groups, and blithe disregard of the particularities embedded in administrative and technoscientific domains. The final motion of the CCMC expressed as much disappointment in the Labor Minister as former motions had in the Liberal Government Minister:

248 The Liberal party did not participate in the questionnaire, but was represented at the

conference. 249 Instead the company Negotiated Solutions was contracted in October of 1995 to plan and

undertake a new community consultation process. Negotiated Solutions gave a presentation to the CCMC, during which it was established that they were poorly briefed on the issues, had not notified any of the CCMC members of its public meetings who, as a consequence, felt they had insufficient time to make submissions on the Closure Plan (CCMC Minutes, 6/12/95).

231this Committee deplores the manner by which the Minister for the Environment, Pam Allen has, without proper consultation with the Committee, the community and the Councils of the People of Penrith and Hawkesbury, dismissed the Castlereagh Waste Management Community Monitoring Committee and furthermore, that this Committee and Penrith Council seek urgent consultation with the Premier to confirm continuing community and CCMC involvement in the further investigations and closure and remediation of the Castlereagh Waste Depot (CCMC, Minutes, 6/12/95:4).

These two rounds of faith and frustration with the Liberal and Labor Environment Ministers is catalogued in the relevant motions: Table 7.6 CCMC Motions Regarding Ministers CCMC Motions Date • CCMC urge the Minister to relocate a family 21/4/93 • CCMC advise the Minister that it is concerned the Audit and human, animal and plant health studies will not appear as one document and that ask the Minister to provide immediate funding for the latter studies

21/4/93

• CCMC approach local MPs to urge Minister to act on CCMC motions regarding a contaminated property

26/5/93

• CCMC recommend to the Minister that there be a site inspection of each cell before filling and that cells be lined

23/6/93

• Advise Minister of CCMC concerns concerning his press release 28/7/93 • Ask the Minister to confirm his awareness of CCMC's concern regarding rainwater infiltration of cells

28/7/93

• CCMC approach the Minister for funds to pay for expenses such as parallel testing of groundwater

25/8/93

• Control group for the human health survey be identified and further funds be requested from the Minister

24/11/93

• Minister provide funds urgently for the Animal and Plant Health Study and for interim testing of diseased or deceased animals

24/11/93

• Request the Minister to allow monthly meetings of the CCMC until all the studies are complete and longer if the CCMC thinks it necessary

24/11/93

• That the Mayors of HCC and PCC lead a deputation to the Minister to raise concerns about the studies' funding, the timing of the audit and the relationship of the human, animal and plant health studies to the audit

24/11/93

• That the draft audit report be submitted to the CCMC before it is sent to the Minister

5/1/94

• That the Minister direct that a recommendation that additional off site bores for ongoing monitoring be included in the audit recommendations

23/3/94

• A letter be forwarded directly to the Minister (not through the EPA) pointing out that his letter, circulated to residents, is misleading

23/3/94

• That the Minister put the final audit report on hold while ensuring the draft audit report goes on public exhibition to seek comment from residents, environmental groups and government agencies

30/3/94

• That the CCMC write to the EPA and the Minister recommending that the animal health study not be accepted

18/1/95

• That the CCMC write to the EPA and the Minister recommending that stage 3 of the animal health study be carried out

18/1/95

232• That the CCMC write to the Minister regarding inaccuracies in his recent letter to PCC

18/1/95

• That the EPA and the Minister consider the alternatives [recycling and minimising waste] Greenpeace recommended in their report

26/4/95

• That the CCMC write to the new Minister congratulating her on her appointment and thanking her for taking the forward step of closing the depot

26/4/95

• That the CCMC write to the Premier and the Minister asking them to direct the EPA to remove from the depot license the recently introduced authorised discharge point to the groundwater aquifer underneath the depot

26/4/95

• That the PCC send a deputation to the Premier supporting the establishment of a technical committee to oversee the depot's closure and remediation consistent with Kate Short's submission

6/12/95

• That the CCMC deplores the manner in which the Minister has, without proper consultation, dismissed the CCMC. That the CCMC and PCC seek urgent consultation with the Premier to confirm continuing community and CCMC involvement in further investigation, closure and remediation of the depot

6/12/95

7.6 Conclusion

This local case study has drawn the insights and analyses yielded by the sociology of science, Giddens and Beck into the overall thesis that pressures placed on liberal democracies by both social reflexivity and systemic complexity, inadequately addressed by the participative strategy, are productive of policy gridlocks with both legitimative and steering facets. The Castlereagh consultative forum, more specifically, demonstrates the fragility of a scientistic legitimative foundation for regulatory endeavour when that endeavour's distance from popular deconstruction is removed. The scientific investigations into the site's socio-environmental impact were informed by regulative interest in results unburdening the NSW State of responsibility for definitive proof of environmental degradation so as to avoid the administratively disturbing possibility of being sued for damages to person and property. The NSW regulatory machinery instead supported investigations that would underpin readily available, cost effective responses. Risk assessment is an ideal methodology for these purposes because, being abstract and probabilistic, it avoids detailed engagement with local phenomena. Environmental toxicology, the methodology advocated by RAGE's independent expert, cuts against these interests because it favours searching for links between contamination and ill health and an open ended exploration of the nature of such links. A lay/expert divide was embedded in the CCMC terms of reference by the Environment Minister that put the EPA in charge of framing the studies and insisted that lay information be handed over to experts. This dichotomy 'justified' regulatory expert efforts to 'protect' the studies from 'contamination' by 'subjective' perceptions. Certainly, without dialogic involvement in the drafting of the terms of reference of scientific investigations, the normative implications of the briefs - how burdens of proof should be

233distributed and how precautionary risk assessments should be - were not grasped by the lay actors in time to substantially influence the studies. Nonetheless, the CCMC debates demonstrate that lay critique of such results, by highlighting the particularity of regulative interests and juxtaposing them against the interests of local and regional civil societies, is still capable of discomforting institutions that necessarily frame themselves in terms of public interests (such as the EPA and WR&PS). This polarised situation is driven by the apposed dynamics of systemic complexity and social reflexivity. Administrative systems are founded on the reduction of complexity through timetables, budgets, program objectives and hierarchies. The simplification of a system's environment is achieved through dyadic codes such as relevant/irrelevant; expert/lay; practical/impractical. In the lifeworld, where the health of children is feared for, such binary thinking appears unhelpful, inadequate, and ultimately offensive. Levine, in her analysis of the Love Canal controversy in America's New York State, was one of the first to articulate the incompatibility between administrative and community perspectives on contaminated sites:

The officials wanted the definition of harm to be narrow, to fit the resources they had available, so that some tasks could be successfully accomplished, accounted for, and pointed to. In a situation with so many unknowns, the people [residents] wanted to feel that the available help would be sufficient to meet their needs, even if some of their needs could not yet be anticipated; the officials wanted to define some aspects as known and to address their attentions to these. Just as they were to fence in a defined area around a construction site when the underlying chemical leachates might be flowing far beyond, so they wanted to define and bound the problem to be solved, even though it lay within the problem that in fact existed (Levine, 1982: 66).

What the CCMC demonstrates is the potential for dialogic forums to force administrative agencies to justify the impact of their decisions on communities, so shortcircuiting the liberal-aggregative pathways of accountability that flow from electorate to government to administration. Symmetrically, consultative forums force activists to ponder the reality of limits on administrative action (available time, budgetary constraints and the parochial nature of expert knowledge). The CCMC's resources were exhausted in the struggle to decode administrative strategies to reduce social complexity, in particular, how the lay/expert dichotomy functioned to structure expert investigations, before it could confront squarely the issue of how to recode these strategies more

234satisfactorily. Only the hybrid fora health study is left as a tantalising fragment of this task. The health study, by bringing scientific methodologies to bear on local hypotheses using a 'hybrid fora', was productive of research outcomes mutually acceptable to lay and expert actors (promptly used to chasten the EPA). The largely contestatory unfolding of this dialectic between the systemic complexity of the administrative agencies and social reflexivity of local civil society in the CCMC ended in an unpacked myth of technoscientific certitude. As Giddens points out, such unpackings have implications for modernity as a whole:

Discomforts for expert and layperson come from the very same source. Expert knowledge, and the general accumulation of expertise, are supposed to provide increasing certainty about how the world is, but the very condition of such certainty, not to put too fine a point on it, is doubt. For a long while, the tensions inherent in such a situation were masked by the distinctive status which science, understood in a specific way, enjoyed in modern societies (Giddens, in Beck, Giddens and Lash, 1994:86).

Such confrontations between social reflexivity and systemic complexity are writ large in the multitude of public meetings, inquiry proceedings, and Land and Environment Court cases. They could be said to add up to a reflexive sea change facilitated in large part by the participative provisions of the EP&A Act. This sea-change is recoiled from by political and administrative systems which are underpinned both by the authoritativeness of technoscientific expertise and a reading of representative democracy that marginalises civil society. As these essentially narrow foundations increasing fail to convince, the current pattern of administrative and political arrangements for the reduction of complexity unravel. One symptom of such unravelling is increased electoral volatility. The conclusion of the CRWDD controversy with a political decision to close the depot lends support to my regional case study conclusion that public unease over socio-environmental amenity explains part of, and is likely to contribute further to, electoral volatility uncorsetted from the bounds of electoral loyalty to mass parties.

235

Part E

Conclusion

236

Chapter Eight Democracy, Sustainability and Consultation

8.1 In Review - the Diagnostic Tools

This dissertation opened with the observation that community consultation over socio-environmental degradation could not be considered independently of democratic commitments defining its role. I consequently framed my investigation of NSW's consultative strategy by examining five literatures concerning contemporary democratic difficulties, paying close attention to their respective treatments of civil society, the domain in which socio-environmental dissatisfactions arise. The dominant liberal-aggregative democratic paradigm, positing that preferences are private and amenable to aggregation and representation, was contrasted with the participative democratic paradigm which maintains that individuals, being naturally selfish, require participation in public life in order for a polity to be built. From the liberal-aggregative perspective, consultation illegitimately elevates vocal minority groups, while from a participative perspective, consultation is a step towards 'strong' democracy. The deliberative democratic paradigm argues that preferences can be enriched before aggregation by public deliberation thus attempting to resolve the contest between the liberal-aggregative and participative democratic paradigms. From a deliberative perspective, consultation is a means of enriching public debate and this mediative tack was taken to facilitate the analyses within this dissertation. However, how deliberation itself is defined varies. Rawls sees deliberation as a liberal exercise in limiting conflict by delimiting topics for debate, a view unhelpful to the consideration of socio-environmental unease and conflict. Habermas sees deliberation in procedural terms and deploys his analyses at the institutional level. Bohman adds that deliberation has epistemological implications that demand a dialogic conceptualisation. The fourth literature, analysis of the relationship between the technoscientific and the social by sociologists Beck and Giddens and sociologists of scientific knowledge such as Wynne, thematises social reflexivity arising out of the simultaneous multiplication of choice and risk in techoscientifically mediated societies. Social reflexivity, these theorists observe, is provocative of a politics of knowledge challenging the conventional understanding of technoscience as a monolithic, objective body of knowledge able to offer rational courses of action. SSK portrays technoscientific knowledge as culturally relative, constructed

237within communities dependent on powerful economic and political alliances. The field raises the question of how technoscientific commitments affecting, indeed restructuring, entire societies were legitimated. Consultation, from this perspective, should be deployed so as to connect the politics of knowledge to the mainstream political processes of garnering consent. The fifth literature examined was Luhmann's theory that modernity is an outcome of functional systemic differentiation. Luhmann argues that it is in the nature of these systemic economic, administrative, legal, technoscientific and political domains to demarcate themselves from their environment using binary codes such as profit/loss, relevant/irrelevant, legal/illegal, true/false, government/opposition. Luhmann sees functionally differentiated societies as centreless and evolutionary because the dense interacting effects of systemic behaviour form the future, not any democratic process. From this perspective, consultation threatens dedifferentiation, the loss of the general prosperity and freedoms afforded by modernity, by interfering with the streamlining of system inputs facilitative of functional specialisation. Any messages concerning the ecological destructiveness of systemic behaviour should, according to Luhmann, be delivered only via codes such as government/opposition. From this review of 3 democratic paradigms and two challenges to democratic theory, I conceptualised systemic complexity and social reflexivity as opposite pressures on contemporary democracies requiring political mediation. This conceptualisation of a dialectic between complexity and reflexivity allowed explication of the tensions evident in the case study material such as the polarisation of liberal-aggregative and participative democratic principles in the EP&A Act, as well as how problematic the politics of knowledge proved for political and administrative machinery in the WS/HN region. My interpretive scheme, in response to the democratic task of mediation between systemic complexity and social reflexivity was largely Habermasian. Habermas' political economy and procedural theory of deliberative democracy and law both distinguish sharply between system and lifeworld. On the one hand, Habermas' theory is cogniscent of Luhmann's critique of the ideal that social goals can be collectively chosen, whether according to the lights of liberal-aggregative or participative democratic principles, in the face of systemic domains' indifference to viewpoints formulated outside and against their self-referentiality. On the other hand, Habermas gives a dynamic account of the role which civil societies and public spheres play in bringing the lifeworld themes into the political domain to be encoded in the legalese capable of interjecting in

238systemic treatment of inputs. Habermas bets on law as the mechanism by which lifeworld needs can be written into systemic routines. However, Habermas' procedural account of deliberative democracy does not directly engage with the relationship between debate and knowledge, the in-situ nature of rationality and knowledge that generates a politics of knowledge. His assumption that administrative actions are sufficiently normatively neutral so as to be able to automatically respond to legally encoded normative goals, is deeply problematic. Administrative domains are typically parochial, parochialism in significant part constituted by highly specific technoscientific loyalties gone stale within closed bureaucratic communities. For this reason, public and political debates require constant epistemological enrichment with the results of dialogues at the sharp end of policy that allow the viewpoints of fresh social constellations arising out of civil society to confront the entrenched views of administrative agencies. I therefore extended Habermas' procedural account of democracy and jurisprudence by acknowledging that the boundedness of knowledges and rationalities can only be disrupted through cross-cultural dialogue. This interpretive frame and scheme was used to elucidate the socio-environmental case study material concerning the context and outcomes of the NSW State's consultative strategy encoded in the EP&A Act in 1979. A four part account was thus obtained of the unravelling of the liberal-aggregative framing of representative democracy in NSW from 1945 to the present: 1) the NSW state, moving into the field of urban planning in 1945 while

institutionally compelled to underwrite economic growth, implicating itself in that growth's socio-environmental side effects. Bereft of formal channels to contest planning decisions, the green ban movement arose in the late 1960s out of an aroused civil society triggering a series of debates concerning a legislative solution in the mid 1970s and ended in a change of government (Chapter 4);

2) the use of a consultative strategy to try and simultaneously address these side effects and ensure continued economic growth resulted in a hierarchising of aggregative (ministerial discretion and administrative autonomy) over participatory (deliberative and public enforcement rights) democratic principles being legislatively embedded in the EP&A Act in 1979. The conditionality of the EP&A Act's participative provisions itself generated controversy and contestation until the

239participative provisions were gutted in 1997 by the same political party who wrote them into law (Chapter 5);

3) the participative provisions of the EP&A Act helped highlight the displacement of the side effects of economic growth into the WS/HN region via urban sprawl, arousing the region's civil society and politicising its electorates, polarising Sydney and discomfiting the NSW State. This pattern of urban development being too difficult and expensive to reverse, the now degraded socio-environment of the WS/HN region has been taken as the new standard for somewhat reduced urban development. A the same time, avenues for protest through the EP&A Act have been diluted and a regional institution dedicated to ecological goals disbanded (Chapter 6);

4) the convening of a dialogic forum in the WS/HN region to try and cool a bitterly contested issue, the Castlereagh Depot contamination controversy, facilitated lay critique of the technoscientific pretensions underpinning contested administrative decisions (Chapter 7). This critique resulted in a political commitment to close the depot, secured during an election campaign, alongside the removal of the forum.

8.2 The Diagnosis

Four conclusions can be drawn from the case study material: 1) the highly successful socio-economic accord that economic growth

equals social progress secured at the turn of the Nineteenth Century is in the delicate position of being both entrenched and besieged. Socio-environmental degradation, a side effect of economic growth, makes up a substantial component of this conundrum;

2) socio-environmental degradation has become regionally entrenched, bogged down in mutually reinforcing steering and legitimative difficulties. Civil societies bearing the brunt of regional socio-environmental degradation are being politicised, contributing to increasingly unpredictable electoral behaviour;

3) these politicised civil societies/volatile electorates are subverting established liberal-aggregative political-administrative arrangements. They make it increasingly obvious that not all complaints will resonate politically (because the two party system is wedded to economic growth despite its side effects), and that administrative autonomy is poorly supported by technoscientific expertise, the 'objective', 'rational' status of which is, and is increasingly perceived as, largely illusory;

2404) the participative strategy has not functioned to reverse the unravelling

of established liberal-aggregative political and administrative arrangements, but has instead accelerated it.

This contemporary socio-political landscape, evident across the western world, what Manin terms the 'tribunal of the public' version of representative democracy, is defined in the fact that electorates are increasingly assessing and electing MPs without reference to party allegiance (Manin, 1994:157), making parliamentary majorities more difficult to secure and maintain (Manin, 1994:160). This collapse of mass parties' moral authority reflects the growing disjuncture between political discussion and consent and the dramatic growth in administrative action and autonomy since the second world war (Poggi, 1990). It is prudent, however, to treat the orthodoxy that economic growth automatically equates with social progress separately from the institutions it has funded and framed within the confines of representative democracy in Australia - mass parties, highly differentiated administrative arrangements and attempts, albeit sporadic, to ensure continued public accountability in the face of the politics/administration disjuncture. In particular, I conclude that the failure of the consultative strategy with which this dissertation has been preoccupied does not represent a crisis of representative democratic institutions so much as a crisis of their self understanding in exclusively liberal-aggregative terms. I argue that institutional refurbishment more incisive than an adjunctive consultative strategy can provide is called for.

8.3 A Prescription

So what would a deliberative reframing of consultation look like? And how would this contribute to a reknitting of the institutional architectonic of representative democracies? I have married procedural and dialogic deliberative perspectives in my interpretive scheme so as to utilise their relative strengths to consider how a happier interaction between systemic complexity and social reflexivity could be achieved. Both the marriage of the procedural and dialogic and the mediation between systemic complexity and social reflexivity, I have argued, are facilitated by reinterpreting the constitutionalist and separation of powers doctrines. Namely, I have envisaged how procedural mechanisms can create space for dialogue, the confrontation with the other, the upshot of which can then reinvigorate procedure. I formulated the interpretation and critique of the EP&A Act in Chapter 5 in these terms, conceptualising three roles for consultation:

2411) law's authority and legitimacy derive solely from the wellspring of

lifeworld thematisations. Therefore, laws codify conclusions of public and parliamentary debates, the adequacy and inclusiveness of which is assisted by wide consultation; and

2) "... law ... represents ... the medium for transforming communicative power into administrative power" (Habermas, 1996:169). Therefore, public environmental rights to challenge the legality of administrative decisions can be read as necessary to ensure the protection of that codification; and

3) law is always under-determined (bypassed, amended, critiqued and interpreted) in the face of the dual pressures of systemic complexity and social reflexivity. Therefore, the provision of dialogic forums to debate specific cases, controversies and stand-offs, to ensure administrative engagement with citizens' views and the publicisation of any need for legal reform, is necessary.

These roles lend some precision to the usually ambiguous democratic function of 'consultative processes' by delineating the function of consultation in relation to the separation of political, legal and administrative powers. These three roles are in a 'virtuous' circle. Dialogic debates with administrative agencies may trigger legal review of the legality of administrative decisions or provoke the political articulation of convincing reasons for legal reform. The following section affords a brief expansion on these three roles using political, legal and administrative developments in relation to ecologically sustainable development (ESD) as an example.

8.3.1 ESD as Normative Deliberation

Debates about ESD can be interpreted as Habermasian instances of public deliberation ending in legal codification that pick up where the now dilapidated and compromised EP&A Act leaves off. The term summates the advocacy of the balancing of ecological and economic goals articulated in the EP&A Act's objects. The development of global, national and state debates about ESD are suggestive of its articulation as a normative goal pivotal to the unfolding Twenty-first Century. The key question is whether economic and ecological goals can be reconciled as were the clashing social justice and capitalist agendas generative of class warfare throughout the nineteenth and twentieth centuries. From a deliberative point of view, the discursive battles that have been, and continue to be, fought over how sustainable development

242should be defined and institutionalised250 can be read as a positive sign that debate on the refurbishment of the contested twentieth century norm that economic growth constitutes a social good is taking place. Deliberative ideals also assist clear assessment of the inadequacies of these debates.251 In terms of legal codification, ESD turns on principles such as precaution, intergenerational equity, biological diversity and ecological integrity,252 principles cited in NSW's Protection of the Environment Administration (POE) Act (1991).253 These principles could sensitise systemic domains to ecological destructiveness if incisively legally encoded, deployed254 and policed. As Beck summates, the unarticulated, unfranchised principle of the 'sub-political domain', driven by economic and technoscientific imperatives, is to sacrifice the future for the present. The inter-generational equity and precautionary principles delegitimate this sacrifice. The systemic effect could be to reverse the burden of proof from those who oppose to those who propose:

... under the precautionary principle, generally the onus is on those who make decisions to provide thorough and convincing argument that their actions will not have significant adverse consequences for present and future generations (Young, 1993:1).

250 Brundtland (1987), Duarte (1999), Endre (2992), England (1993), Howes (2000), Jaeger

(1992) Lipschutz (1991), MacDonald (1998), Robinson (1993), Strong (1991), Tarlock, (2001), Winter (1994), Wold & Zaelke (1992).

251 There is no doubt that current debates are inadequate. Australia and the USA, for example, are recalcitrants on the issue of green house gas emissions (Phillipson, 2001, Taberner, 2001, Victor, 2001).

252 For discussions of these principle see Cameron (1993), Fullen (1995), Stewart (1999), Ward (1995), and Young (1993)

253 Section 6 Objectives of the Authority (2) specifies that ESD requires the effective integration of economic and environment considerations in decision-making processes and that in addition ESD can be achieved through the implementation of four principles/programs: "(a) The precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measure to prevent environmental degradation. (b) Intergenerational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. (c) Conservation of biological diversity and ecological integrity. (d) improved valuation and pricing of environmental resources". For a fuller account of the NSW EPA's approach to these principles see Corbyn and Niland (1993).

254 The degree of vigour would depend on the strength of the precautionary principle's formulation. Young suggests three such formulations, corresponding to different levels of uncertainty (1993:13). Cameron suggests codifying the precautionary principle so that it stipulates "that where the environmental risks being run by regulatory inaction are in some way (a) uncertain but (b) non-negligible, regulatory inaction is unjustified" (1993:6).

243Such a reversal of the burden of proof would substantially realign system/lifeworld boundaries.

8.3.2 Public Environmental Rights

However, without public environmental rights, debates about, and legal codifications to achieve, ESD are likely to prove entirely rhetorical. It is here that deliberatively framed reform confronts the tenacity of the liberal-aggregative reading of representative democracy (tenacity that is comprised precisely in the paradigm's effective servicing of the need to reduce the social complexity of the political system's environment). The legal standing granted to citizens since the 1970's to ensure administrative accountability (to access information, initiate judicial review cases, obtain injunctions and complain to public advocates) amount to innovations attempting to maintain public accountability in the face of the vast expansion in administrative action and autonomy. Under conditions of constant confrontations between systemic complexity and social reflexivity, contestation is so endemic as to be uncontainable through corporatist compromises. 'Tribunal of the public' democracies, potentially ungovernable, could be said to require the institutional stabilisation afforded by allowing the public to police the norms and principles encoded in the people's laws. Public rights to trigger judicial review can be read as Habermas' ideal types - procedural reforms crucial to a realisation of the separation of powers:

The courts will need to consider becoming more closely involved in supervising the way in which administrative discretions are exercised. This is not a call for more merit review, because this substantially diminishes public accountability. The suggestion is rather that the courts should take a more aggressive stance to issues such as whether decision-makers have enough information before them and whether they have made a real effort to balance environmental against economic considerations, as distinct from simply taking them into account. The possibility of such review will enhance the legitimacy of decisions in the eyes of the wider community ... The courts can be encouraged to move towards a more interventionist supervisory stance by the precise terms in which discretions are framed. Decision-makers must be given more direction rather than their values being allowed free play (Farrier and Fisher, 1993:17-18).

This reading of public environmental rights as a way of policing administrative power gives sound grounds for the extension and strengthening of those rights, and make restrictions on standing (such as those preventing opponents of EPA licensing decisions from taking legal action) difficult to justify (Ogle, 1996).

244Legislation that spells out the principles through which ESD is to be achieved, and public rights to police that application in vigilant courts, are both necessary to make ESD meaningful.

8.3.3 Dialogic Forums

Nonetheless, the purely procedural means of achieving ESD remain under-determined. This under-determination is ensured for two reasons. Firstly, laws are not perfect coercive instruments, but are always open to interpretation, bypassing though political and economic means and constant amendment. Secondly, the politics of knowledge driven by increased social reflexivity concerning the side effects and interdependencies of technoscientifically mediated society makes clear that professional, 'expert' rationality cannot adequately inform either the political debate that results in legal codification or administrative action post debate. Tribalised, allianced, contested, and of unpredictable effect, technoscientific knowledge is unable to provide the parliaments and governments that are ostensibly in charge of highly differentiated societies, economies and administrations, with definitive information or tools (Burns, 1999). All debate, all law, all administrative action is dependent on knowledge that is always context bound and provisional. In these (long denied) circumstances, dialogic forums are indispensable to allow confrontations with the 'other' to expose the shortcomings of technoscientific, economic and administrative viewpoints on a case by case, controversy by controversy, basis. Localism is the first face of reflexive perturbation and the provision of local, issue-specific forums is facilitative of dialogues necessary to enrich, inform and replenish political debate and jurisprudence. Because it is increasingly obvious that liberal capitalist democracies are epistemologically adrift, public environmental forums are necessary dialogic meat on the procedural bones of ESD and its principles. Debates over how ESD can be made to work at the coalface draw consistently on dialogic consultative processes (Beck, 1995(a), 1995(b), Christie, 1993, Dryzek, 1990, 1995, Giddens, 1994, Waak, 1995, Wynne, 1992). Dialogic forums could force a more honest appraisal of unknowns, shifting characterisations of situations (such as Castlereagh Depot contamination) from one of acceptable risks to the more realistic characterisation of uncertainty, ignorance and indeterminacy (Young, 1993:11, after Wynne, 1992, ftn 28). It is often no longer viable to maintain that definitive knowledge is available to operationalise a politically decided course of action. For this reason, the gutting of the EP&A Act participative provisions,

245the execution of deliberative regional institutions such as the HNCMT, and failure to build dialogic moments into environmental statutes such as the POE Act are politically self defeating. Such reassertions of centralised power are likely to produce more entrenched steering/legitimative dilemmas, more and more volatile electorates, and further unravelling of the liberal-aggregative institutions of representative government in NSW.

8.4 In Closing

Dialogic debate could be described as the never ending war of parochialisms. In my analysis, and going beyond Habermas (as he currently states his case), dialogic forums allow the politics of knowledge to feed into normative refurbishment productive of procedural legal innovation. If dialogic moments are not provided for, the politics of knowledge will be unleashed through electoral volatility, which, while yielding more fluid parliaments, also risks the rise of fundamentalist retreats from modernity's inherent dilemmas and instabilities. Dialogic debate could be institutionally harnessed through procedurally provided consultative processes so as to reinvigorate political debate, jurisprudence and administrative action and police the separation of political, administrative and legal powers. The social unease birthed by the reflexive realisation that technoscience cannot anchor us in the face of an always uncertain future can in this way be answered. If our future must be uncertain and provisional because our present is functionally differentiated and technoscientifically mediated, we could at least aim in a direction discussed, publicly policed, and open to democratic revision.

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298

Appendices

299

Appendix I Sydney's Population Growth and Distribution by LGA Sydney LGAs 1961 1966 1971 1976 1981 1986 1991 1996 WS/HN Baulkham Hills 23 643 33 499 57 373 75 679 93 048 102 804 114 059 119 545Blacktown 86 295 111 488 156 830 159 733 181 139 192 442 211 710 232 219Blue Mountains 28 119 30 731 36 727 45 798 55 877 63 866 69 420 72 506Camden 3 443 8 661 11 155 14 597 17 096 18 870 22 473 32 109Campbelltown 18 701 25 695 34 235 52 299 91 525 121 297 137 879 143 733Fairfield 80 707 101 226 113 053 114 603 129 557 153 522 175 099 181 785Gosford 34 162 42 880 56 373 73 412 94 369 109 278 128 956 144 840Hawkesbury 17 499 19 361 23 146 28 667 36 757 43 629 51 319 57 381Hornsby 62 070 81 170 96 863 104 109 111 081 117 565 127 672 136 746Ku-ring-gai 74 821 86 876 98 589 100 142 101 051 100 189 99 193 99 032Liverpool 30 874 68 959 82 447 89 683 92 715 93 215 98 203 120 197Penrith 31 969 46 357 60 316 79 042 108 720 135 342 149 630 163 122Warringah256 94 440 121 819 156 873 169 938 172 653 173 947 171 992 124299Wollondilly 11 254 11 389 12 670 14 790 19 830 24 928 30 267 33 413Subtotal 597997 801500 1009320 1122492 1305418 1450894 1587872 1660927Balance WS Holroyd 56 364 65 823 77 317 79 867 80 116 78 237 79 132 80 470Parramatta 104 061 106 996 111 043 131 659 130 943 130 783 132 798 139 157Inner & East Syd & Sth Syd 172 208 159 188 101 386 85 331 82 612 86 311 91 319 107 843Botany 28 904 31 871 38 236 35 739 34 703 34 273 34 435 34 702Leichhardt 61 951 59 325 71 338 62 550 57 332 56 303 58 484 58 304Marrickville 75 348 76 763 96 796 87 821 83 448 81 647 78 023 76 017Randwick 108 814 113 634 123 865 119 499 116 202 115 620 115 349 118 905Waverley 64 999 63 607 65 539 61 692 61 575 59 847 59 095 61 674Woollahra 47 977 47 326 59 964 53 259 51 659 51 057 49 904 50 169South Hurstville 61 005 64 851 67 143 66 450 64 910 63 219 63 757 65 392Kogarah 46 600 47 654 47 197 46 722 46 322 45 949 46 518 47 618Rockdale 79 115 81 463 84 232 83 798 83 719 83 350 84 074 84 847Sutherland 111 746 134 058 151 574 156 754 165 336 175 191 184 399 194 105West Ashfield 39 723 41 933 44 910 42 322 41 253 40 401 40 558 40 077Auburn 49 002 48 691 48 683 47 557 46 622 47 147 48 566 50 959Bankstown 152 251 159 981 162 730 155 843 152 636 151 570 153 904 157 736Burwood 21 089 31 843 31 888 29 045 28 896 28 556 28 362 28 579Canterbury 113 820 115 802 130 446 128 710 126 741 128 502 129 232 132 360Concord 27 428 27 037 26 104 24 598 23 926 23 399 23 150 23 644Drummoyne 30 197 30 630 31 251 31 516 30 961 30 605 30 192 30 264Strathfield 26 429 26 704 27 167 26 301 25 882 25 662 25 833 26 044North Hunters Hill 13 520 14 233 14 100 13 017 12 537 12 271 11 977 11 969Lane Cove 23 723 25 109 28 676 29 341 29 113 29 113 28 954 30 107Manly 36 049 38 141 39 260 36 709 37 080 35 730 34 895 36 265Mosman 26 145 28 136 29 379 26 811 26 200 25 781 25 353 25 468North Sydney 53 024 51 754 53 338 48 536 48 500 49 927 50 446 53 790Ryde 75 568 81 291 88 806 89 137 88 948 89 252 90 197 92 675Willoughby 53 683 54 576 53 952 51 541 52 120 51 893 51 503 53 735Wyong 18 872 24 646 32 967 47 362 68 950 82 368 100 468 115 999Total 2377612 2753242 3008571 3021979 3204660 3364858 3538749 3689801

256 1996 figure derived from Warringah and Pittwater areas A due to LGA boundary

changes (email with M. Montgomery, Demography, ABS (www. abs.gov.au) 11/6/02).

300

Appendix II Sydney's Population Growth Rates by LGA257 Metropolitan LGAs Growth 1961-1991 Regional

Average Growth 1991-1996 Regional

Average WS/HN Region 5.5 % .92 %Baulkham Hills 12.74% .96 % Blacktown 4.84 % 1.93 % Blue Mountains 4.89 % .88 % Camden 18.42 % 8.57 % Campbelltown 21.24 % .84 % Fairfield 3.89 % .76 % Gosford 9.24 % 2.46 % Hawkesbury 6.44 % 2.36 % Hornsby 3.52 % 1.42 % Ku-ring-gai 1.08 % .03 % Liverpool 7.26% 4.44 % Penrith 12.26% 1.80 % Warringah 2.73% .58 % Wollondilly 5.63 % 2.07 % Balance WS 1.07 % .72 %Holroyd 1.34 % .33 % Parramatta .92 % .95 % Inner and East - .43 % .86 %Syd & Sth Syd - 1.56 % 3.61 % Botany .63 % .15 % Leichhardt - .18 % - .06 % Marrickville .11 % - .05 % Randwick .20 % . 61 % Waverley - .30 % .87 % Woollahra .13 % .10 % South .89 % .69 %Hurstville .15 % .51 % Kogarah - .005 % .47 % Rockdale .20 % .18 % Sutherland 2.16 % 1.05 % West .14 % .41%Ashfield .07 % -.23% Auburn - .02 % .98% Bankstown .03 % .49 % Burwood 1.14 % .15 % Canterbury .45 % .48 % Concord - .51 % .42% Drummoyne - .0005 % .04% Strathfield - .07 % .16% North 1.03 % 1.33 %Hunters Hill - .38 % -.01 % Lane Cove .73 % .79 % Manly - .10 % .78 % Mosman - .10 % .09 % North Sydney - .16 % 1.32 % Ryde .64 % .54 % Willoughby - .13 % .86 % Wyong 14.41 % .3.09 %

257 Growth rates were derived with an arithmatic formula (Pop. 2 minus Pop. 1 divided by

Pop. 1, divided by no. of intervening years, multiplied by 100) on the advice of the Demography Section of the Australian Bureau of Statistics (13/6/02).