It’s an understatement to say that I’m no fan of blowhard billionaire Clive Palmer. Palmer is a braggadocious, shonky used-car salesman incarnate as a resource billionaire. And he foisted Jacqui Lambie on we long-suffering Tasmanians.
That said, the West Australian government’s treatment of Palmer is a shocking abuse of power which should alarm all Australians.
In a nutshell, successive WA governments, Labor and Liberal, have granted, then disputed an agreement with Palmer’s company to develop the Balmoral South iron ore mine. Palmer took WA to court (twice) and won (twice).
So WA’s McGowan Labor government secretly rushed through a law that specifically and retroactively denies Palmer any right to recompense.
The features that make the legislation so objectionable, even if they do not necessarily render it unconstitutional, are readily apparent.
It is, to begin with, unquestionably a bill of attainder: that is, a law that identifies a specific person, or group of people, and convicts them of a crime, seizes their property or removes their liberty without affording them a trial to contest the issue.
Just because the bill targets an unpopular figure doesn’t justify it, any more than Victoria’s Community Protection Act 1990 – a preventive detention law – was justified just because it targeted notorious criminal Garry David.
As Blackstone put it in his famous Commentaries on the Laws of England (1765), such legislation — for example, “a particular act of the legislature to confiscate the goods of Titius” — is alien to the very idea of law, because its “operation is spent upon Titius only, [instead of] the community in general”, making it “rather a sentence than a law”.
It amounts, in other words, to the exercise by parliament, acting without the safeguards of natural justice, of judicial functions, undermining the separation of powers and the protections it brings.
Additionally, the legislation is plainly retroactive: as the state’s Attorney-General emphasised in his second reading speech, its purpose is to strip Palmer of rights he enjoyed as a result of the agreement he signed with the state in 2002 and of subsequent legislation[…]
To make matters worse, while the legislation deprives Palmer of valuable property by narrowing or eliminating rights he had under the 2002 agreement (which nonetheless remains in place), it provides no compensation whatsoever.
This undermines one of the longest-standing principles of our legal system.
The moral obligation on the sovereign to compensate those whose property it takes was an integral part of English law and custom even before Magna Carta formalised in 1215 the crown’s pledge not to “disseise” (that is, dispossess) any free man without due legal process[…]
While Blackstone regarded it as obvious that an Englishman’s “absolute right” to property could be nullified by the legislature, he considered it equally obvious that any such legislation was bound to ensure its victim received “full indemnification for the injury sustained”.
WA is getting away with this flagrant abuse largely because it has successfully made Palmer into a hated Goldstein figure. Firstly, Palmer initiated a High Court challenge to WAs almost certainly unconstitutional border closure. Secondly, the Attorney General claimed, without evidence, that Palmer was suing the state for $30 billion. Palmer was trying to steal WA’s money, the government shrieked, forcing them to close schools, hospitals and police stations. As one commentator has noted, “If you think this sounds a lot like yelling ‘fire’ because someone has lit a cigarette, you’d be right. It’s populism at its most putrid.”
Nor does the mere fact that the compensation would benefit Palmer at taxpayers’ expense do anything to excuse the state’s conduct, as the state’s Attorney-General seems to believe. After all, were that “Robin Hood” defence accepted, the state could simply confiscate the assets of its wealthiest citizens, showering the gains on to whatever constituents it favours.
And, while it may be true that Palmer is especially unpopular, that only increases the obligation on parliament to ensure that his rights, including to property, are fully protected.
Just as in the border dispute, the WA government is attacking a widely disliked Goldstein rather than facing up to its own long-standing errors. If the McGowan rushed through border closures that are unconstitutional, then that’s their fault, not the person who points out the error.
Similarly, if the state has for decades entered into shonky, opaque resources deals with mining billionaires, then it’s on them to come clean and fix it, not strip away the basic legal rights of an individual just because they lost the court case.
It’s especially hypocritical to whine that Palmer would have sold it all to China, at the same time as they’re touting Twiggy Forrest for supposedly saving their economy from the Wuhan pandemic – by shipping megatonnes of iron ore to China.
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