Opinion by ANDREW SMITH former East Fremantle mayor, Dalgety Street resident and democratic town planning expert
WA’S Westminster system of government now appears under threat from new, permanent, fast track planning laws.
This week the Chook’s investigations shows how the WA Governor has apparently been dumped in an awkward position by the WA government; apparently to provide reassurance that nothing can go wrong with its red-carpet access for very wealthy property developers to WA’s planning system.
Last week we highlighted those parts of the new town planning law which threaten our democracy by side-lining vital checks and balances for all state-significant fast track, shovel-ready developments over $20 million in the city and $5 million in the country (“Four words to chill the heart of democracy,” Fremantle Herald,August 19, 2023).
Previously we have written about every elector in every local government being disenfranchised from certain critical decisions which take the form of ’submissions’ by their councils to the government appointed, political decision making JDAPS, and not as balanced decisions by elected councillors (“JDAPS a game changer,” Fremantle Herald, 12/08/2023).
And about the emerging land wars in suburban Perth (‘Urban land ‘wars’ about to escalate,’ Fremantle Herald, August 12, 2023).
When introducing the ferociously undemocratic Part 17 legislation to the WA parliament in 2020 which gave the WA Planning Commission dictatorial powers to get through any economic downturn that never happened, WA planning minister Rita Saffioti was at pains to declare the change was temporary and the WAPC’s super-powers would not be “unfettered”.
To this end she said the WA Governor was to have powers under a new Section 284 to “… add, amend or remove aspects or conditions of any approval”.
Further she went on to say the Governor “also wields the ultimate check on power – he can cancel the approval in it’s entirety”.
Since when has any WA Governor had an executive role to play in town planning or any other part of executive government, or had any right to make decisions with ‘ultimate power’ much like ‘royal’ decree, just like a king or queen centuries ago?
But Rita Saffioti’s Explanatory Memorandum in 2020 gets even more bizarre when she said to the parliament in “the Governor’s order to modify or cancel a development…will have to be communicated to Parliament and be subject to potential disallowance” which “… balances the aims of economic investment certainty with the right of the State… to retain ultimate oversight over the system”.
• Mark McGowan was at the height of his popularity when he decided to tear up WA planning system as we know it, but are the cracks starting to show?
Power
So our democratic parliament from 2020 has had the power for the Governor to make certain planning decisions including cancelling some projects, but also for the WA parliament to overrule the Governor’s ‘vice regal’ town planning decrees?
Since when, we ask, does the monarch of Australia, or his representative the Governor, make administrative decisions which can then be disallowed by a parliament?
But is seems to us that no-one, other than some members of the Opposition recorded in Hansard skirting around this issue in a series of inconclusive exchanges with WA planning minister Saffioti in 2020, is talking about the fundamental question about the powers of the Governor.
As the WA planning law now stands, the WA government has given extraordinary powers to two elected persons – the WA premier and WA planning minister – and a handful of WA Planning Commission appointees and bureaucrats, all paid “agents of the State” as defined in the WA planning act, with the WA Governor as some sort of calming balm. And, without the decency of any respectful debate, at the same time it stripped ordinary West Australians of their rights and entitlements and time-honoured protections in land management and town planning.
Also, as we dug deeper this week we could find no information on who may request of a Governor ‘the addition, amendment or cancellation’ of any WAPC decisions; nor any pathways to approach the Governor other than via the government of the day or our strong tradition of citizens petitions.
But what we did find was a section in Western Australia’s constitution which say any alteration to the Governor’s role needs approval of both Houses of Parliament, as well as a state election.
That Ms Saffioti noted that they were “new powers” he was getting, that leaves a sticky question – are these new super-charged planning laws actually unconstitutional?
We have made formal inquiries on this but as yet, no reply.
When we look at this WAPC planning crisis, the withdrawal of both the Aboriginal Heritage Act – which has almost certainly cost the Voice referendum – and now the proposed medium density laws, all products of the WA planning regime of former premier Mark McGowan and Rita Saffioti, we wonder what needs to be done to clean up this undemocratic.