Committee
Resumed from 18 June. The Chair of Committees (Hon Simon O’Brien) in the chair; Hon Stephen Dawson (Minister for Environment) in charge of the bill.
Clause 4: Parts 17 and 18 inserted —
Progress was reported on the following amendment moved by Hon Alison Xamon — Page 6, lines 23 to 25 — To delete the lines.
[speeches and comments of various members]
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: I have an amendment in my name on the supplementary notice paper that pertains to the same provision that we have just amended. As presented, my amendment would not be able to proceed because the numbering of proposed section 272 has now been changed. I want to talk about the substance of the amendments. The three amendments that we have been debating have been trying to address the transparency of the decision-making when an application is taken from the current development approval pathway to the Western Australian Planning Commission or COVID pathway. I am very strongly of the view that the Greens amendment on the supplementary notice paper is the one that provides the greatest transparency to this process, and I think that is critically important. My amendment seeks to increase transparency and address the concern that has been raised with me that the mechanism has the potential to be used by the government to effectively pick and choose favourites in that decision-making process. This amendment would allow developers and the public to know which projects might or might not make it to the proposed section 274 pathway. Ultimately, it would have the effect of reducing the workload of all parties by providing a clear outline of what would and would not be considered. I am aware that to be able to move this amendment, it would need an amendment on my part to renumber it. Before I do that, I am keen to hear the government’s response to the concerns I am raising.
Hon STEPHEN DAWSON: I indicate that the government is not supportive of the amendment. I am advised that it seems unnecessary. The Minister for Planning has already stated publicly that the government is developing criteria for when applications might be referred under proposed section 272. The intent is that this information will be published. I am informed that the criteria are likely to be public interest, jobs, investment certainty, constraints, timing, public benefit and local government engagement. The minister has already committed to publishing the government’s referral criteria. Therefore, I do not believe that the proposed amendment is necessary.
Hon ALISON XAMON: I note that when we originally had a briefing on the bill, the government did have an intention to give us, prior to debating the bill, the criteria that has just been listed by the minister. I appreciate that the minister has given us some indication of what those criteria are likely to be. Could the minister please clarify when the criteria are expected to be publicly available?
Hon STEPHEN DAWSON: As I have indicated, this is the likely criteria. As I understand it, the Minister for Planning is in discussions with her cabinet colleagues to come to an agreed set of criteria.
The DEPUTY CHAIR (Hon Dr Steve Thomas): I note that Hon Alison Xamon has not yet moved her amendment.
Hon ALISON XAMON: That is correct, Mr Deputy Chair. I am seeking to amend the amendment on the supplementary notice paper by changing not the content of the amendment but its numbering. That change would take into account the amendment that was previously passed by the chamber.
The DEPUTY CHAIR: The trick will be that if you are going to amend your amendment, you will have to move your amendment first. Alternatively, you can present us with an amendment in full form. Is it possible for you to provide the amendment that you wish to move in full form?
Hon ALISON XAMON: The written copy is coming to you now, Mr Deputy Chair. I would like to move the amendment standing in my name at 26/4, which I will seek to amend.
Hon STEPHEN DAWSON: I thought Hon Alison Xamon indicated in her contribution that she is moving this now because —
Hon Alison Xamon: In addition to.
Hon STEPHEN DAWSON: I thought she was moving it because an earlier amendment had been passed that affected the numbering.
The DEPUTY CHAIR: I suggest that we find out precisely what Hon Alison Xamon is moving before we proceed. I understand that Hon Alison Xamon is moving not the amendment on the supplementary notice paper but the amendment that has now been given to us on a piece of paper.
Hon ALISON XAMON: I move —
Page 10, after line 7 — To insert —
(7) The Minister must —
(a) set criteria that the Minister will apply in deciding for the purposes of subsection (2)(b) or (4)(b) whether a development application raises issues of such State or regional importance that it would be appropriate for the application to be determined under section 274; and
(b) apply those criteria whenever deciding for the purposes of subsection (2)(b) or (4)(b) whether a development application raises issues of such State or regional importance that it would be appropriate for the application to be determined under section 274.
(8) The chief executive officer must ensure that copies of the following are publicly available on a website maintained by, or on behalf of, the department principally assisting in the administration of this Act —
(a) any notification made to the Minister under subsection (1);
(b) if a development application is referred to the Commission under subsection (3) — the referral and the application;
(c) if a direction is given under subsection (5) — the direction and the development application;
(d) the current version of the criteria set under subsection (7)(a).
[speeches and comments of various members]
Hon Alison Xamon: The numbering is still wrong, but are you saying do not worry?
The DEPUTY CHAIR: No, the amendment will still be inserted after line 6 on page 10. I am sure that the clerks will make sure that the numbering is sorted out as a part of the process. I suggest that the honourable member seek leave to withdraw the amendment as proposed and then move the amendment on the supplementary notice paper.
Hon ALISON XAMON: Thank you, Mr Deputy Chair. With that clarity, I seek to withdraw the amended amendment.
Amendment, by leave, withdrawn.
Hon ALISON XAMON: I move —
Page 10, after line 6 — To insert —
(7) The Minister must —
(a) set criteria that the Minister will apply in deciding for the purposes of subsection (2)(b) or (4)(b) whether a development application raises issues of such State or regional importance that it would be appropriate for the application to be determined under section 274; and
(b) apply those criteria whenever deciding for the purposes of subsection (2)(b) or (4)(b) whether a development application raises issues of such State or regional importance that it would be appropriate for the application to be determined under section 274.
(8) The chief executive officer must ensure that copies of the following are publicly available on a website maintained by, or on behalf of, the department principally assisting in the administration of this Act —
(a) any notification made to the Minister under subsection (1);
(b) if a development application is referred to the Commission under subsection (3) — the referral and the application;
(c) if a direction is given under subsection (5) — the direction and the development application;
(d) the current version of the criteria set under subsection (7)(a).
[speeches and comments of various members]
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: I move —
Page 15, after line 8 — To insert —
(7) Despite subsections (3) to (6), the Commission must not grant approval for development if the Commission considers that to do so would substantially undermine the purpose and intent of a legal instrument referred to in subsection (2).
One main concern that the Greens have with this bill is that it permits the Western Australian Planning Commission to override essential public protections that we know have been put in place for good reason by a range of other legislation. Again, although we understand that this is not the intent of how the process will work, this bill, as it is written, explicitly frees the WAPC from other legal instruments and does not provide even due regard for the advice and submissions of agencies that have been tasked with the expertise to hold those other legal instruments. It will also provide the Minister for Planning the power to override those other legal instruments. I am very strongly of the view that that is not the way that anyone wants or, indeed, intends the process to work. To clarify, this bill needs to provide a clear statement that the objectives of the legal instruments will be upheld, even if those legal instruments are ultimately set aside.
[speeches and comments of various members]
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: I move —
Page 15, lines 14 to 20 — To delete the lines.
I will advise members what I intend to do with this amendment. The amendment removes the line that the minister “must” be provided with an opportunity to make a submission to the Western Australian Planning Commission regarding applications on the WAPC pathway. As we know, the WAPC is already sufficiently expert enough in planning matters to determine planning applications without the advice or recommendation of the minister. I think there is a clear and quite consistent concern within the community that the minister’s input regarding these types of development applications will put pressure on decision-makers, ultimately, to conform with the minister’s request. I also think this has been recognised by the government itself in its decision to support the publication of the Premier’s decision to send a development application down the proposed section 274 pathway but not to publish those reasons because the government has recognised that there is a concern about wanting to ensure that the decision-makers’ processes will not be prejudiced. If the WAPC feels that the minister’s advice would be helpful in determining the application, the WAPC would still be able to seek that advice under proposed section 276(6), but I would ask the minister to give an undertaking to not provide input into the development application process unless explicitly requested to do so by the WAPC for precisely the reasons that I have articulated, which is to ensure that there is not a perception—actual or otherwise—of unduly influencing the final decision.
[speeches and comments of various members]
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: I move —
Page 16, after line 13 — To insert —
(d) have due regard to any submission made, or advice given, to the Commission in the course of a consultation under paragraph (a), (b) or (c).
By way of explanation to the chamber, currently the legislation does not clearly state that the advice and the submissions of these bodies be given due regard. I remind members that these bodies are experts in their areas and charged by the people of Western Australia to protect our natural and built heritage. The Western Australian Planning Commission should give that advice due regard, and, for clarification, I believe this should be stated in the legislation.
[speeches and comments of various members]
Amendment put and passed.
Hon CHARLES SMITH: I move —
Page 16, after line 27 — To insert —
(5A) The Commission must —
(a) in the manner the Commission considers appropriate, advertise the development application, inviting members of the public to make submissions to the Commission within the period specified in the invitation; and
(b) have due regard to any submissions made by members of the public within that period in response to the invitation.
(5B) The period specified in the invitation under subsection (5A) must be a period of not less than 28 days after the day on which the development application is first advertised.
[speeches and comments of various members]
Hon ALISON XAMON: Picking up on the point that was just made, my understanding of the amendment in front of us is that it is about issues of consultation, not specifically third party rights of appeal. I point out to members that the amendments at 30/4, which I will move, and at 20/4, which the minister will move, immediately follow this amendment on the supplementary notice paper. I draw members’ attention to those amendments because all three amendments effectively address concerns about public consultation and that due regard for public consultation is seen as optional in the bill at the moment. All three amendments, in different ways, seek to address that issue. I note, because it is significant to this debate, that the amendment I am yet to move that is standing in my name on the supplementary notice paper at 30/4 is for a minimum 21-day advertising period on a central website and however else the Western Australian Planning Commission determines to advertise. The amendment we are debating is for a minimum 28-day advertising period, whereas the government’s amendment is simply to ensure that the basics will be covered, and proposed subsection (6A) is effectively the old 6(c) restated.
I will take the Deputy Chair’s guidance on how we will proceed, but I foreshadow that two other amendments on the supplementary notice paper also effectively seek to address the issue of public consultation and it is a matter of determining which amendment is fit for purpose.
[speeches and comments of various members]
Amendment put and negatived.
Hon ALISON XAMON: We have already had the substantive debate. I move —
Page 16, after line 27 — To insert —
(5A) The Commission must —
(a) on a website maintained by, or on behalf of, the Commission and in any other manner the Commission considers appropriate —
(i) advertise the development application, inviting members of the public to make submissions to the Commission within the period specified in the invitation; and
(ii) make the development application and other relevant documents publicly available throughout the specified period for the purpose of enabling submissions to be made by members of the public; and
(b) have due regard to any submissions made by members of the public within the specified period in response to the invitation.
(5B) The specified period under subsection (5A)(a)(i) must be a period of not less than 21 days after the day on which the development application is first advertised on the website.
(5C) For the purposes of subsection (5A)(a) —
(a) the advertisement must be maintained on the website throughout the specified period; and
(b) the advertisement, and the development application and other relevant documents, must be maintained on a part of the website that is specifically dedicated to advertising development applications under subsection (5A)(a).
[speeches and comments of various members]
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: I wish to indicate that I am moving on to amendment 34/4, because the other amendments standing in my name and, I note, also in the name of Hon Charles Smith are consequential amendments that related to the defeated amendments that we discussed previously. I move —
Page 18, line 21 —
To delete “Divisions 3 and 4.” and substitute —
Division 4.
Amendments 34/4 and 35/4 are consequential amendments that are subject to the passage of the substantive amendment, which is in my name at 38/4. With your permission, Mr Deputy Chair, rather than waiting until we get to amendment 38/4, I would prefer to have the substantive debate now so that we can determine whether we will proceed with these amendments.
The DEPUTY CHAIR: There are no objections.
Hon ALISON XAMON: I note that the minister indicated that he is happy for us to have the substantive debate on this matter now. I have a number of amendments on the supplementary notice paper that are trying to achieve the same outcome. Effectively, I am attempting to remove the minister’s power to resolve conflicts by directing other government bodies or agencies. The Greens are strongly of the view that it is fundamentally inappropriate for a minister to direct other government bodies and agencies to do or not do things that would otherwise not be lawful. I argue that it is inappropriate for a minister to so direct even their own agency, so I think this is a significant overreach of the planning minister’s power and authority. If a project reaches a point at which lawful approval from an agency cannot be granted, then, frankly, there are concerns that the project should not go ahead, regardless of whether initial approval was granted by the WAPC. The process that has been described to me should avoid ever needing the use of these powers, so I think granting them in the first place is fundamentally problematic. Effectively, I will seek to delete the lines as outlined in amendment 38/4. I remind members that we are dealing at the moment with amendment 34/4 which, should it be passed, is one of the consequential amendments that would be required to give effect to amendment 38/4.
[speeches and comments of various members]
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: I refer to the amendment standing in my name at 36/4 on the supplementary notice paper. I want to make reference to the fact that the following two amendments after that are attempting to address similar issues—that is, the time frame for substantial commencement. I note that the entire point of this part of the legislation is to speed up the generation of jobs through this pathway. The pathway is intended to work with all the relevant agencies that are involved from the pre-engagement process through to identifying and working out any major issues prior to approval, as well as the setting of conditions, which should significantly reduce the time required to meet those conditions and to seek additional pathways. Given this smoothing of the pathway, developers should be able to substantially commence their projects sooner than four years from approval. I note that the Western Australian Local Government Association, which is very familiar with these processes, has also recommended a 24-month time limit. I move —
Page 19, line 12 — To delete “subsection; or” and substitute —
subsection, which must be a period of 24 months or less beginning on the day on which the approval is granted; or
I am aware that we may want to have a broader discussion that also deals with the subsequent amendments.
[speeches and comments of various members]
Hon ALISON XAMON: I have made no secret of the fact that the Greens are not fans of the expedited process that will bypass ordinary, good planning processes. It strikes me that if we do not even have the pay-off, if we like, of ensuring that jobs and opportunities will be created to try to address the economic crisis that has now occurred as a result of the COVID-19 pandemic, then, really, what is the point? Why would the government do this?
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: Sorry, I was not expecting to move my amendment so soon because the amendment standing in the name of Hon Charles Smith was going to introduce third party right of appeal, of which the Greens are huge supporters—it is a longstanding policy position. I move —
Page 27, lines 12 to 15 — To delete the lines.
The reason I have moved this amendment is very similar to the tone of a previous amendment that I moved. This amendment removes the requirement for the State Administrative Tribunal to engage the minister. Again, there is concern that there is too much opportunity for the minister to pretty much influence every single step of the decision-making process. It is not appropriate for the minister to receive special consideration at SAT in determining a review of the Western Australian Planning Commission’s decisions. Of course, my amendment would not preclude the SAT from requesting information from the minister, but it makes it clear that it is not required to do so in its deliberations.
Hon STEPHEN DAWSON: I indicate that we oppose this amendment. This amendment removes the ability to provide submissions to SAT and any review before the tribunal under proposed section 283(5). Proposed section 283(5) simply replicates the current power of the minister found under section 245 of the act. In fact, proposed section 283 lessens the minister’s powers under proposed part 17. In the usual process under part 14 of the act, the minister can provide a submission whether she is invited to or not. She can also call in applications to be determined by her rather than the tribunal if she deems them of state or regional significance, which all of these applications are. Therefore, we do not support this amendment.
Amendment put and negatived.
Hon ALISON XAMON: I indicate that I will not be moving the amendment standing in my name at 40/4 because it was consequential upon the passage of previous amendments. However, I would like to move the amendment standing in my name at 41/4. I move —
Page 28, after line 28 — To insert —
284A. Approval granted by Commission under s. 274 disallowable by Parliament where approval is contrary to certain advice
(1) This section applies if—
(a) the Commission grants approval for development under section 274; and (b) the approval is granted contrary to—
(i) any submission made, or advice given, to the Commission in the course of a consultation under section 276(3)(a), (b) or (c); or
(ii) any submission made to the Commission under section 276(4) within the specified period.
(2) The Minister must cause a copy of the approval, including the Commission’s reasons for granting the approval, to be laid before each House of Parliament within 6 sitting days of the House after the approval is granted.
(3) The approval is cancelled if—
(a) a copy of the approval, including the Commission’s reasons for granting the approval, is not laid before a House of Parliament in accordance with subsection (2); or
(b) within 14 sitting days of a House of Parliament after the copy of the approval, including the Commission’s reasons, is laid before the House, the House passes a resolution disallowing the approval.
(4) The Commission’s reasons for granting the approval must include an explanation of why the Commission did not follow the submission or advice referred to in subsection (1)(b).
(5) That explanation must also be included in the reasons given to the applicant, and made publicly available, under section 274(7).
For the benefit of members, this amendment makes the commission’s decision disallowable if the decision is in contravention of the advice that it received from the bodies responsible for upholding other legislation. Again, there is a great concern within the community that the effect of this bill may be to steamroll public protections that exist in other legislation to legitimately check the developments that occur where people live. We understand that this is not the intention of the bill; however, the wording of the bill opens up these avenues, especially with the minister’s additional powers to direct other government agencies and bodies to do things that they would otherwise not be permitted to do. This amendment seeks not only transparency but also to permit Parliament to respond to any legitimate community concerns and disallow an approval if it turns out to be significantly out of step with natural or built heritage laws or significantly beyond what is allowed in the local planning schemes.
[speeches and comments of various members]
Amendment put and negatived.
[speeches and comments of various members]
Hon ALISON XAMON: On that note, I move the amendment in my name at 42/4 —
Page 29, line 21 to page 30, line 3 —
To delete the lines and substitute —
(2) Without limiting subsection (1), Part 17 regulations may prescribe powers, duties, procedures or any other matters for the purposes of, or in relation to —
(a) applications, notifications, referrals or directions under this Part; or
(b) the consideration or determination of applications or notifications under this Part.
As has already been alluded, this amendment would remove the proposed subsection that outlines the use of regulations to amend how other acts are going to be implemented. I understand that this provision is included to, once again, futureproof the bill for issues that are not currently foreseen. However, as we know, this bill already substantially affects the application of a range of other legal instruments, so I think it is unnecessary and inappropriate for a further power to be held in regulations for a just-in-case scenario. As was already identified by Hon Nick Goiran, proposed section 286(2)(b) in particular is potentially a Henry VIII clause and, as such, the Greens have particular concerns.
Hon STEPHEN DAWSON: I indicate that the government opposes this amendment. As I have already stated, the government has no intent to prepare new regulations. A new regulation that modifies any existing legal instrument is unlikely to be prepared precisely because, under proposed section 275(3), the commission is already not strictly bound or restricted by any legal instrument. This provision exists solely as something of a safeguard, recommended by the Parliamentary Counsel’s Office to avoid any potential doubt. In any case, in the unlikely event that any such regulation was prepared, it would be subject to the oversight and potential disallowance of Parliament.
Hon TJORN SIBMA: I rise to register the opposition’s support for Hon Alison Xamon’s amendment. I think that, out of an abundance of caution, it is worthy of support and does not jeopardise the intent of the bill.
Division
Amendment put and a division taken, the Deputy Chair (Hon Martin Aldridge) casting his vote with the ayes, with the following result —
Ayes (21)
Noes (13)
Amendment thus passed.
[speeches and comments of various members]
The ACTING PRESIDENT (Hon Martin Aldridge): An absolute majority being required to pass the suspension motion, having counted the house, an absolute majority of members being present and there being no dissenting voice, I declare the motion is passed.
Question put and passed with an absolute majority.
Third Reading
Bill read a third time, on motion by Hon Stephen Dawson (Minister for Environment), and returned to the Assembly with amendments.