Predicting that Clive Palmer will lose in the High Court is like shooting fish in a barrel, but I am two for two and will claim it.
Having flamed out spectacularly in his challenge (the one that Scott Morrison says Christian Porter didn’t lend the Commonwealth’s support to, which he totally did) to Western Australia’s border closure, Palmer has gone down again, unanimously, and WA Premier Mark McGowan is the winner once more. This time, however, there is no merit to be awarded.
As I reported last year, Palmer’s beef with WA came from the latter’s ruthlessly cynical attempt to do him out of a financial windfall, supposedly worth up to $30 billion, from an agreement between his mining company Mineralogy and WA dating back to 2002.
In essence, the WA government had passed a special law to enshrine its “state agreement” with Mineralogy, giving the latter assurance of its ability to exploit its iron ore tenements in return for the guarantee of massive royalty flows. Disputes had led to arbitrations in 2014 and 2019, both of which had resulted in awards favourable to Palmer. To avoid the payout, the current WA government rushed through a special amending act to completely wipe out Mineralogy’s rights and leave it with nothing.
The amending act is, as I said at the time, extraordinary in its detail and scope. Palmer challenged it in multiple ways, raising “vibe” arguments similar to those in his border challenge about the rule of law, common law rights and implied constitutional limitations, as well as some more specific and very technical legal arguments around whether a state parliament can extinguish existing legal rights.
Short answer: yes, it can. Most of the plethora of legal exotica with which Palmer had attempted to excite the High Court justices was given back to him, still unwrapped; basically they said they didn’t need to hear about it and had better things to do.
As to the central questions, the WA parliament was within its legislative power when it made a law which almost precisely reversed what its own previous law from 18 years earlier had done. That’s hardly surprising and certainly not radical, either in general or specific terms. Parliaments constantly pass acts which contradict or fundamentally change the law as it previously was, and of course they can do that.
More importantly, it is well established — actually has never been in doubt — that in doing so they can alter or extinguish people’s legal rights. What WA’s parliament did was “to ascribe new legal consequences to past events and thereby to alter substantive legal rights”. That is, legally speaking, A-OK.
So Palmer is out of the money and will be paying the very expensive costs of the whole exercise, again. That won’t worry him, no doubt, since he mostly seems to litigate for fun.
I’ll self-indulgently quote myself here, from when I wrote that Palmer would take this dispute to the High Court and lose:
I think that what WA has done will work, in that it will survive the challenge and kill off Palmer’s claims. But, in doing so, it will vindicate what he is saying: that, in terms of sovereign risk, WA is an unsafe place to do business.
Justice Edelman thinks so too, noting that the upheld amending act “may reverberate with sovereign risk consequences. But those consequences are political, not legal.”
Maybe if Palmer were a more appealing hero he’d garner more sympathy and less schadenfreude. In reality, this case will pass unnoticed except by corporations thinking of doing business on the legislated undertakings of a state government which cannot be trusted to keep its word.
Thanks for that informative summary.
“… the WA parliament was within its legislative power when it made a law which almost precisely reversed what its own previous law from 18 years earlier had done.”
Yes, that should be obvious. No parliament can be bound by any act of an earlier parliament. But Palmer did succeed in the earlier arbitration hearings, and it seems clear enough that what was done by the WA government 18 years earlier was – and I’m trying to be kind here – extremely stupid and reckless, given the liability which it placed on the state. Seems a pity that the ministers of that time have no personal liability for it, though of course they must have had the agreement of parliament to go ahead by pasing the relevant legislation (did parliament really know what it was doing?) and that’s the end of it.
Avoiding a $30b claim from a parasite, who has done eff-all to deserve it, justifies some exceptional legislative intervention. Palmer and his companies have never acted in good faith with the state or people of WA and deserve no sympathy.
The detail that he represented himself in this matter was intriguing.
Abe Lincoln – “he who represents himself has a fool for a client” – is that what you were thinking?
It is intriguing. There are several reasons someone might represent themselves. Some cannot afford to pay lawyers; we can rule that out for Palmer. Some have a case that no respectable lawyer would want go near; well, maybe, but I’d have thought Palmer could provide sufficient incentive to get representation if he wanted it, no matter how smelly his case is. So my guess is that Palmer is confident that his towering jurisprudential acumen, encyclopaedic knowledge of all relevant laws and constitutional principles, extensive experience of litigation and magnificent courtroom skills made him by some distance the best choice to conduct his case. There are no practising barristers to match him, not in Australia, probably not in the world, as far as he knows.
You are probably right, but as a lawyer I’m going to say that the calibre of lawyer you need to go to the High Court wouldn’t have touched his case. In the lower courts you have any number of dodgy lawyers willing to fundraise for speculative type litigation, but those people don’t, as a general rule, reach the rarefied air of the High Court.
Just helps to reinforce the comment that he seems to litigate for fun, as a distraction, an amusement.
And is it not an obscenity that people of such wealth that all this is just play money can exist, profiting from Australia’s ongoing willingness to give them access to our natural resources for a pittance? If not throwing in subsidies as well. Perhaps he should have jumped on the back of a truck with a protest sign, with the Murdoch press and the Coalition piling on behind him. That works. What a nation of mugs we are.
Still perhaps there is some consolation in the decision. Apparently a parliamentary road to socialism remains open and at some point the expropriators could be expropriated. At least until the US troops arrive.
Perhaps it was because even shysters have some shame about representing hopeless propositions.
It rarely seems to deter them when the fee is sufficiently high so dare we hope that the Clivasaurus is feeling the pinch and none would quote a realistic, no win, no fee?
How many hospitals could 30 Billion Build?
Quite a few no doubt, Staffing them might be more difficult, though.
Nah, Michael. I suspect most *ordinary* business owners look at Palmer and see him as a self-aggrandizing simpleton who can barely be described as a businessman, given how many of his business enterprises have fallen flat on their face.