A rum state of affairs

These two examples of severely dysfunctional NSW public service authorities are not isolated instances. They reflect a wider environment of a collapsed capacity within the NSW public service to undertake its public duties in a professional manner within a clear line of authority to cabinet and parliament. Instead what's on display are fiefdoms of unaccountable power acting as rogue institutions. Individual public servants of integrity and competence are as much victims of this as is the NSW public.

It's no wonder that the Keneally government found itself in trouble (again) a year ago when it announced plans to compulsorily acquire private homes to enable higher density residential development. It's as if the government and its urban taskforce authority hadn't even heard of the fundamental right to property ownership. This again demonstrated a disconnect from fundamental principles of justice that enable a settled and stable society to function.

There are many reasons for this state of affairs in NSW. Some are structural and some attitudinal.

On the structural side a major issue is the powers of the NSW Industrial Relations Commission. The IRC should not be thought of as an industrial relations body but rather a legal competitor to the Supreme Court of NSW and the High Court of Australia. The unique legislation of the IRC prevents anyone appealing its decisions to the Supreme Court or beyond, giving the IRC a unusual power not existing in any other state . But even though this was declared unconstitutional by the High Court in early 2010 (Kirk case mentioned above) no attempt has been made to change the legislation or the behaviour of the IRC. It continues as before.

What the IRC effectively does in NSW is to create a mask for anti-competitive and allegedly even corrupt 'mates' dealing making in NSW that sits beyond normal law. For example in the transport sector the public disclosure of dubious payments by businesses to union funds was only ever subject to a union investigation and never went further. The payments exceeded $1.1 million. Many other examples could be cited. The point is, that most of this dubious behaviour is only possible because it's done within the ambit of the NSW IRC, literally a law unto itself protecting 'inside' players.

This has allowed and even created a culture where a comparatively tiny segment of the NSW population operates within a protective bubble where 'normal' law has difficulty touching them. It's largely enabled what many refer to as the culture of Sussex St. This is the Sydney CBD street where NSW unions have their headquarters - but more - it's the area to where developers and sundry dealmakers gravitate to curry favour. Clutches of select lawyers and financiers massage deals through the unique NSW environment creaming off their fees as they go. It's 'business' NSW. It's the Sydney establishment. And as they go about their deal making they pontificate a claim to a high morality of protecting the disadvantaged. It's the same moral claim Einfield made as he went to jail.

There are other issues such as complex 'advisory' committee structures that seem to shadow every activity of the professional public service in NSW. The structures link strongly back to the Sussex St culture in a way that arguably calls into question the ability of the NSW Parliament to direct and control the activities of the public service. The complexity of this is enormous, but probably explains much of why the NSW public service has so much difficulty actually delivering what a government would want it to do.

What this amounts to is that the task facing O'Farrell is huge. The Sussex St establishment in it's many shadowy guises will have moved early and probably already be positioned to 'control' the new government. They are the establishment after all and will expect some cosmetic changes but nothing of real substance to upset their operations. This is Sydney remember, the home of the Rum Rebellion. The challenge for O'Farrell will be to assert the authority of the peoples' parliament and the duly elected Cabinet over the establishment that currently rules.