Un-democratic or vital for a green future? The laws granting WA’s premier massive power

Under Premier Roger Cook’s “Made in WA” vision, green steelmaking, renewables, manufacturing and defence will all be jostling for a slice of the economy alongside the resources sector – and West Australians will have their pick of the industry they want to work in.

But authoring a flashy election promise and delivering on it are entirely different things.

WA Premier Roger Cook.Credit: Trevor Collens

Bureaucratic shadows loom large over Cook’s vision, which is why he is proposing some of the most extraordinary major project approval powers WA has seen through the State Development Bill.

“Ultimately, I think what the people of Western Australia expect the government to do is to deliver, and what we are keen to continue to deliver on is jobs,” he told WAtoday ahead of the upper house debate on the bill in the final three sitting weeks of the year.

What powers will Cook get?

The State Development Bill has emphatic backing from industry, which says it will improve WA’s flagging investment confidence, but has frightened conservation groups who call it anti-democratic and open to abuse by fossil-fuel proponents.

The bill contains “modification orders” which empower the state development minister (which Cook currently is) to remove portions of approval processes enshrined in legislation.

The Environmental Defenders Office said this could include removing the need for aspects of Environmental Protection Act assessments to apply to projects.

“At the end of the day, governments are accountable to the people that elect them.”

The minister must deem the modification order necessary to speed up approval of a priority project and be comfortable it can still be regulated effectively.

Cook’s public rhetoric around the bill has been that it will enable the complex green energy transition as well as green steel, critical minerals projects and AUKUS-related works to occur smoother and quicker than under old legal frameworks.

However, the Environmental Defenders Office warned modification orders would “allow the personal views of the government of the day to override established and democratically enshrined laws that exist to protect the WA community and environment”.

WA Greens energy and planning spokesman Brad Pettitt said the bill and modification orders were the latest in a worrying trend of anti-democratic reforms to fast-track projects.

“The laws this bill is seeking to bypass, and the regulations they define, exist for a reason,” he said.

“Creating new, extraordinary powers for the premier to ignore the law in favour of his pet projects is a public acknowledgement of his government’s failure to govern in the public interest.”

Greens WA leader Brad Pettitt.Credit: Trevor Collens

Cook defended these powers as necessary to urgently help trading partners reduce carbon emissions and said they would be used rarely.

However, he conceded future governments could use them to fast-track fossil fuel projects – but would still need to sell those decisions to the public.

“Obviously, these are very important powers in relation to strategic industries, but they’re not powers that a government would use lightly,” he said.

“But, at the end of the day, governments are accountable to the people that elect them and when it comes to a project of the sort of order that you’re talking about, they go over the life of a single term of government anyway.

“From that perspective, there’ll still be public scrutiny in terms of the way the process works.”

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Conservation Council of WA executive director Matt Roberts said suggesting the bill would help establish green projects was a distraction. If the powers really were for green projects, that should be enshrined in the bill.

“If our other laws are flawed, fix them – not simply hand such enormous powers to one minister who can then bestow them on an unelected official,” Roberts said.

More power

At the heart of the bill is formalising the powers of the coordinator general, currently held by bureaucrat Chris Clark, to identify and advise the premier and State Development Commission on projects and land that should be deemed a government priority.

Once this happens, modification orders become available and the coordinator general can hurry slow agencies along using levers like timeframe notices.

Joint decision notices can also be issued, which brings in the coordinator general as a decision-maker alongside a government agency. If they don’t agree, the decision can be pushed up the chain to the minister and then the premier.

While it was up to Clark to identify projects, Cook said he already had some ideas in mind, like the clean energy corridors in the North West and in the Kwinana Industrial strip and Henderson to support AUKUS.

“When authority is exercised without scrutiny, communities lose confidence and trust in the system altogether.”

“That’s the sort of project that I thought in the first instance would lend itself really well to these sorts of powers,” he said.

While the Liberals support the bill, Opposition Leader Basil Zempilas raised concerns about its concentration of power.

“History shows what happens when too much power is centralised in the hands of too few; when independence gives way to instruction, decisions often become political,” he said in parliament last month.

“We have seen that before. When transparency is replaced by direction, mistakes are hidden.

“When authority is exercised without scrutiny, communities lose confidence and trust in the system altogether.”

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What’s to gain?

Association of Mining and Exploration Companies boss Warren Pearce said he hoped the success of the proposed laws meant they could be confidently broadened to a wider range of minerals projects in the future.

WA plunged from fourth to 17th on the Fraser Institute’s best mining destination list released in July after a survey of companies found regulatory burdens and delays were hurting investability in the state.

Chamber of Minerals and Energy WA director policy and advocacy Anita Logiudice said protracted assessments and state-federal duplication hurt Australia’s ability to attract investment.

“The window to capitalise on the global energy transition is closing,” she said.

“We are competing against countries that measure approval timeframes in weeks, while here in Australia, those same processes often take many years.”

The final hurdle

Cook has publicly declared he wants the bill passed by the end of the year, but with only nine sitting days left and a packed legislative agenda in the upper house, his wish may not be granted.

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WAtoday has learned the bill has been moved to second on the order of business – ahead of extension of the banned drinkers register and extending the application of terrorism legislation to 2027.

The government has not moved the debate ahead of the surrogacy bill debate, which is expected to be protracted as Liberal MPs begin talking on it.

Cook wants the debate on that bill to wrap up.

“The debate is well-developed now, and we want to see that concluded, but we don’t see any reason why the government, the upper house, can’t conclude that debate and move smoothly on to the three other bills that we think are important,” he said.

Pettitt warned Cook not to pass the State Development Bill without proper scrutiny.

“If the Cook government is at all concerned with democratic process it must not ram these draconian laws through the Parliament in the final sitting days of the year,” he said.

Eight months on from the endorsement his Made in WA plan received at the March election, Cook said his number-one key performance indicator was jobs and the strength of the economy.

“They’re the sort of issues that people will judge us on ... the key way that we can protect people from the cost of living issues, the key way that we can provide them with access to a quality of life is through a quality job,” he said.

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