Western Australia July to December 2023

Abstract

For much of the second half of 2023, Western Australian (WA) state politics adjusted to the new reality that the towering figure of Mark McGowan had departed. This departure immediately led many participants and observers to predict a return to more conventional political battles, and a much more even state election in 2025.

After taking office on 8 June, the new Premier of WA, Roger Cook did not enjoy much of a political honeymoon. Widespread criticism over new Aboriginal Cultural Heritage laws led to a humiliating government backflip, while the juvenile justice system witnessed tragedy and turmoil. Nevertheless, the government achieved some major legislative milestones, while a new electoral distribution for the 2025 state election renewed tensions between the Nationals and Liberals.

The first major electoral test for the Cook Government came on 29 July, in McGowan's old seat of Rockingham. Unsurprisingly, McGowan had been incredibly popular in Rockingham, achieving a primary vote of 82.75% in the 2021 election, representing a two-party preferred margin of 88-12 against the Liberals. In a drive for renewal, the Labor party selected 28-year-old Magenta Marshall, a former campaign strategist and electorate officer. For their part, the Liberal party selected resources recruitment consultant Peter Hudson, who was just 21. Hayley Edwards, Deputy Mayor for the City of Rockingham, failed to win Labor preselection, and then stood as an independent candidate. Whilst local issues featured prominently in the campaign, broader statewide issues such as the rising costs of living, Labor's contentious cultural heritage laws and the state of the public health system were all under the microscope.

Labor's performance in Rockingham under McGowan was unsustainable and the by-election did see a massive swing of 33% swing away from the Government. They still achieved a primary vote of 49% however, and the eventual two party preferred margin was 65-35 against the Liberals. Much of the swing from Labor did not go to the Liberals, but rather to a swag of other candidates; Edwards picked up 16%, just behind the Liberals, and finished second after preferences, while the Legalise Cannabis party achieved 7%, outpolling the Greens. The result indicated that the next state election in 2025 would be closer, but it was unclear how many people were ready to support the Liberals again.

The latter half of 2023 saw the official redistribution of the WA State Electoral Boundaries, for the 2025 election. The redistribution had to take into account population growth in Perth, and a decline in the population in regional WA, particularly in agricultural areas. Broadly speaking, the principal change was the merging of two regional seats both held by the National party, the seats of Moore and North West Central. Accompanying this was the creation of a new seat in Perth's southeastern suburbs called Oakford. Whilst the new boundaries delivered one additional notional seat to Labor, the uniform swing the Liberals and Nationals needed to form government remained unchanged, at a massive 23%. There was some good news for the Liberals and Nationals in the redistribution, as a number of their target seats saw Labor's margin decrease, including Albany, Geraldton, Hillarys, Kalgoorlie, Pilbara, and Scarborough.

Whilst finalised in December, the boundary changes were flagged as early as July when the draft report was released by the Electoral Distribution Commissioners. The merger of the two seats of Moore and North West Central pitted two of the Nationals' four MLAs against one another. As the party leader, the Member for Moore Shane Love would normally be expected to win the preselection for the seat. This expectation undoubtedly played a significant role in the defection of North West Central MLA Merome Beard to the Liberals in October. This in turn impacted on the balance of Opposition MPs in the Legislative Assembly, with the Liberals and Nationals both having three members. Unsurprisingly the Nationals were unhappy with this development, which exacerbated existing tensions earlier in the year. In August, Opposition Leader, Shane Love had floated the idea of handing over that role and its resources, in return for the Liberals agreeing to a joint ticket in the Legislative Council for 2025, which would protect the number of National MLCs under the new statewide electorate system. This was rebuffed by the Liberals in October.

The Nationals responded by announcing that they would be standing candidates in metropolitan seats, formally calling for nominations in December. One positive development for the Nationals was the election (by recount) of Louise Kingston MLC, following the formal disqualification of previous member James Hayward, who was originally elected as a National, but expelled from the party after being charged with child sex abuse. Mr Hayward was jailed in October for 2 years and 9 months. He had already been automatically disqualified from Parliament because the offences for which he was convicted carried a jail term of more than 5 years. It is believed to be only the second occasion in which an MP has been removed from Parliament under this law, the first time being in 1910. The election of Ms Kingston restored the Nationals' representation in the Legislative Council to three, with Ms Kingston becoming Shadow Minister for Climate Action, Regional Cities, and Tourism.

In September, the Government embarked on its second tranche of electoral reform, this time focussing on political donations and campaign funding. The Electoral Amendment (Finance and Other Matters) Bill 2023 contained a range of new provisions designed to provide greater transparency around the nature of political donations and increase the amount of public funding received by political parties. The provisions of the Bill introduced by Attorney General John Quigley contained measures to reduce the threshold for disclosure to $1000, disclose all donations over that amount within 7 days, disclose donations within 24 h during formal election campaigns, and prevent political parties from declaring donations using the federal system, which had a threshold of $16,300. Foreign donations were banned, with the amount of money political parties and third-party campaigners could spend capped. On the flipside, political parties who achieved more than 4% of the primary vote would be entitled to $4.40 per primary vote, instead of the current $2.26. Whilst the new amount was almost double the current amount, it still left WA with the lowest level of public funding of political parties across the Australian states and territories. During negotiations with the Opposition, the threshold for disclosure remained at the current level of $2600, but the other provisions were passed in November, to take effect from July 2024.

The first few weeks of the new Premier's tenure were dominated by increasing criticism over the Aboriginal and Cultural Heritage Act 2021. This Act was passed in response to the destruction by Rio Tinto in 2020 of the 40,000-year-old Juukan Gorge rock shelters in the Pilbara region, under the provisions of the 1972 Aboriginal Heritage Act. Premier Roger Cook later referred to this as “a global embarrassment”. The new legislation was criticised by many Aboriginal groups for its failure to allow them a veto over mining activity on their lands, although consultation rights were strengthened (see previous AJPH Chronicles). More than a year elapsed between the passage of the Act and its commencement on 1 July 2023, to allow for consultation and preparation for its operation. However, it appears this time was not well spent. Interest groups—in particular farmers and mining exploration companies—complained vociferously about the lack of detail and certainty in how the new legislation would work, and expressed concerns that common activities such as fencing, minor earthworks and planting may be affected. They received enthusiastic backing from Liberal and National Party MPs at both state and federal level, as well as from The West Australian newspaper.

The laws, which applied to all parcels of land exceeding 1100 m², included assessment, consultation, and inspection requirements based on a tiered system of activities and approvals. Information meetings held between the relevant department and large groups of farmers and explorers reportedly caused confusion and consternation about how the system would work in practice. Farmers were particularly concerned they could inadvertently be in breach of the law for relatively minor work or alterations on their land, if it was later deemed to be of cultural significance. Local Aboriginal Cultural Heritage Services (LACHS), which landowners would be required to engage with, were not in place in some areas or were deemed to have limited expertise in some cases. Critics, including the Opposition, called for a 6-month delay.

Initially, the government—led by Premier Cook and Aboriginal Affairs Minister Tony Buti—stood firm and criticised opponents for being “on the wrong side of history” and “dog whistling”. However, the degree of criticism led government to promise that the first 12 months of the law's operation would be mainly educative and not applied in a heavy-handed way.

Eventually, the government buckled. On 8 August, just 8 weeks into his premiership, Roger Cook announced the government would not just reform the law but repeal it altogether. Instead, it would restore the 1972 Aboriginal Heritage Act, accompanied by amendments that would improve protections and prevent another Juukan Gorge incident. There would be no requirement for landowners to conduct their own heritage surveys, the proposed LACHS would no longer continue, and the costing model for proponents to submit a management plan to the Aboriginal Cultural Heritage Council would be replaced.

The Premier, in announcing the backflip, said that the government's “response was wrong … unintentionally causing stress, confusion and division in our community” and admitted that “the complicated regulations, the burden on landowners and the poor rollout of the laws have been unworkable … and for that, I am sorry”.

In addition to the legislation's inherent problems, two other factors were also instrumental in the government's decision to repeal the legislation—a new opinion poll, and the impact the controversy was having on the Voice referendum.

On 24 July, The West Australian reported on an opinion poll of 1000 people conducted by Utting Research. The results were a shock, showing the Liberal Party leading Labor on a two-party-preferred basis by 54% to 46%. This was a huge turnaround from a similar poll in May, taken 2 days after Mark McGowan announced his resignation as Premier, which had Labor leading 61-39, and of course a complete reversal of the 2021 Labor landslide which reduced the Liberals to just 2 seats in the Legislative Assembly. Liberal Party first preferences improved from 28% in May to 37% in July, while Labor's dropped from 52% to 32%. The same poll showed 57% of respondents were against the Aboriginal Cultural Heritage legislation, versus just 23% in favour. The next day, The West reported that 58% of poll respondents intended to vote “No” in the forthcoming referendum, compared to 29% “Yes” and 13% undecided. Tellingly, 54% said the Aboriginal Cultural Heritage legislation made them less likely to vote “Yes” compared to just 16% who said it was more likely. This opinion poll—along with concerns from the national “Yes” campaign—increased the pressure on the Cook government to deal with the problematic Aboriginal Cultural Heritage legislation.

Despite the backflip on the Aboriginal Cultural Heritage legislation, WA still registered a resounding “No” to the proposed Voice to Parliament in the referendum held on 14 October 2023. Only 36.7% of electors in WA voted “Yes”, the third lowest (after Queensland and South Australia) of all states and territories. Only 2 of WA's 15 federal electorates voted “Yes”—Curtin (held by the “teal” independent, Kate Chaney) and Perth (held by Labor's Patrick Gorman).

As noted, the debacle over the State's new Aboriginal Cultural Heritage legislation was regarded as a contributing factor to the low “Yes” vote in WA. Several “No” campaigners argued that approval requirements imposed on landowners in the heritage laws could be repeated more broadly via a Voice to Parliament. While there was little if any evidence for this, the association of the two issues in the public mind was almost certainly part of the rationale for the WA government's decision to abandon the cultural heritage laws 2 months before the referendum and after only 5 weeks of operation.

As a “No” result in the referendum became more likely, WA's Opposition parties changed their position. WA Liberal Party leader Libby Mettam announced in mid-August that she had reversed her previous support for the Voice, citing the debacle over the cultural heritage laws, while the WA Nationals did the same at their conference later that month.

A week after his government's reversal on the Aboriginal Cultural Heritage legislation, new Premier Roger Cook gave a major keynote speech to a business breakfast. In it, he stated his economic priorities, and in particular his goal of WA “becoming a global green energy superpower”. He outlined plans for an energy transition summit, and his ambitions for the state to become a downstream processing hub based on critical minerals and battery technology.

Another initiative was Cook's announcement that the government would establish an office in Canberra, to “remind Canberra that we're the engine room of the national economy” and to “unwind decades of Eastern States-centric attitudes and thinking in the nation's capital”. The “embassy”, as some referred to it, would be similar to the state's overseas trade missions and act as a permanent base for government officials and advocacy groups to promote “team WA”.

The idea was welcomed by the Chamber of Minerals and Energy, but criticised by WA's most senior federal Liberal MP, Senator Michaelia Cash, as evidence of the ineffectiveness of federal Labor MPs from WA. State Liberal leader Libby Mettam called it a “bad joke”.

The idea was not particularly new. Two other WA Labor Governments had previously established offices in Canberra—in the mid-1980s under Brian Burke, when its role was principally to lobby for defence work, and again in the mid-2000s when Alan Carpenter was Premier. Both were relatively short-lived, and it remains to be seen how effective or lasting this latest attempt to establish a WA presence in Canberra will be.

Another major headache for the new Premier was WA's troubled youth justice system, which was in the headlines for the worst possible reason. On 19 October, 16-year-old Cleveland Dodd died 1 week after he was found hanging in his cell at the Unit 18 youth detention area inside the maximum-security Casuarina Prison for adults. It was the first recorded death in the state's youth detention system. Several young people had been transferred months earlier to Unit 18 following riots and damage to the state's only dedicated youth detention centre at Banksia Hill. Despite the Minister for Corrective Services, Paul Papalia, initially telling the media that prison officers had done an “exceptional job” on the night Cleveland hanged himself, it later transpired that 16 min elapsed from when Cleveland first called officers to say he was going to take his own life, to when he was discovered. It was also revealed that his lawyers had written to the Department of Justice 2 weeks earlier, expressing concern about his wellbeing and asking for him to be transferred back to Banksia Hill. Inquiries by the department and by the Crime and Corruption Commission were quickly established, with a coronial inquest to be held by the Ombudsman.

The tragedy came on the back of riots at Banksia Hill in May 2023 that saw then-Premier Mark McGowan label the actions of detainees as a “form of terrorism”. McGowan's hardline comments followed several previous riots and incidents, along with severe criticisms of the government's policies on juvenile justice and youth detention by Children's Court president Hylton Quail, by experts and advocates such as Professor Fiona Stanley, and by the Children's Commissioner. In July 2023, the Supreme Court noted a broader “systemic failure” that saw three young detainees subjected to solitary confinement on a frequent basis. The court ruled they had been unlawfully locked in their cells for prolonged periods.

Subsequently, there was a severe shake-up in the Department of Justice. The Corrective Services Commissioner, Mike Reynolds, was stood down less than a week after Cleveland Dodd's death. The role of Deputy Commissioner for Young People was split to create a deputy's position specifically focussed on youth justice. In early December, the Director General (head) of the Department, Adam Tomison, announced he would resign the next month, following 7 years in the job.

New abortion legislation was passed in September, the first such changes since 1998 with WA bringing in policy settings more recently adopted by other state parliaments. The new laws, which come into effect in March 2024, decriminalised abortion by removing reference to abortion from the Criminal Code except where an “unqualified” person performs or assists in it. The laws remove the requirement for mandatory counselling, remove the requirement for Ministerial approval for late term abortions, and allow nurse practitioners and endorsed midwives to prescribe abortion drugs. The laws still permit health practitioners to conscientiously object, but require them to refer patients to another practitioner. Women no longer need approval from a special panel of doctors for abortion between 20 and 23 weeks.

In 1998, when WA's abortion laws were last changed, there was heated and often ugly public as well as parliamentary debate. Several compromises were needed to enable the legislation to pass. In 2023, the changes were ushered in with relatively little public controversy, although debate in the Legislative Council still took 9 days, with questions being led by Labor's Kate Doust and the Liberals' Nick Goiran.

Another major piece of legislation passed during this period was the Planning and Development Amendment Act 2023. This Act followed on from National Cabinet's plan to boost housing supply and involves streamlining planning approvals by further entrenching the role of expert Development Assessment Panels and reducing the decision-making role of local governments in planning. Thresholds for referring development proposals to DAPs have been reduced from $20 million (City of Perth) and $10 million (rest of the state) to just $2 million, while the number of DAPs has been reduced from five to three. Approvals for single houses will now mostly be dealt with by local council CEOs and administrators rather than elected councillors, while a “new permanent significant development pathway” within the WA Planning Commission will be established for more complex proposals, bypassing local government. This latter reform entrenches an initiative first developed during COVID-19 and emphasises the pro-development nature of the Labor Government. The legislation received bipartisan support with the exception of former Liberal leader, David Honey, whose Cottesloe electorate has often opposed efforts to increase housing density and construct beachside high-rise developments.

At the end of 2023, Premier Roger Cook undertook his first Cabinet reshuffle. This was precipitated by the resignation of serving Minister Bill Johnston, who stepped down from Cabinet and announced he would not be seeking re-election in 2025. Mr Johnston was replaced by Member for Victoria Park Hannah Beazley, daughter of Kim Beazley, former Federal Opposition Leader, and Minister for Defence. Ms Beazley came from the same faction as Mr Johnston and the Premier had stated in advance that he wanted to see the number of women in his Cabinet increase.

The change from the experienced Johnston to the newcomer Beazley necessitated a broader reshuffle of portfolios. Environment Minister Reece Whitby added the Energy portfolio, David Michael picked up Mines and Petroleum, Training and Water Minister Simone McGurk picked up Industrial Relations, and Police and Corrective Services Minister Paul Papalia added Racing and Gaming. New Minister Hannah Beazley took on the portfolios of Local Government and Youth.

The latter half of 2023 saw the passing of three former state members of parliament in WA. Dr Judyth Watson was the Labor Member for Canning from 1986 to 1989 and then Kenwick from 1989 to 1996. At the time of her election she was the first woman with a doctorate elected to the WA parliament (alongside Carmen Lawrence). She was Minister for Aboriginal Affairs, Multicultural and Ethnic Affairs, and Seniors and Women's Interests in the Lawrence Government. Christopher Baker was elected as Liberal Member for Joondalup in 1996 and served a single term. He also served on council at the City of Joondalup. Don Taylor was Deputy Premier and Minister for Housing, Tourism and Labor under John Tonkin; he was a long-serving Labor member of the Legislative Assembly, representing Cockburn from 1968 to 1984.

Former Premier Mark McGowan recovered quickly from the “exhaustion” cited as a key reason for his shock retirement from State politics at the end of May. After being visible on the campaign trail during the by-election for his old seat of Rockingham, it was reported in August that he was set to be engaged as a consultant to mining giant BHP and a strategic adviser to Perth company Mineral Resources. In October, news came of two more positions—one with Bondi Partners, the consulting firm set up by former federal Treasurer Joe Hockey; and the other as an adviser to human resources company, APM Human Services International. McGowan's move into the private sector follows in the footsteps of his former Treasurer, Ben Wyatt, who retired from state politics at the March 2021 election and was appointed 3 months later to the boards of Woodside Energy and Rio Tinto.