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Fascinating constitutional event underway in Western Australia (WA).
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The WA government has introduced emergency legislation to block a legal claim from mining magnate Clive Palmer.
2/ https://www.forbes.com/profile/clive-palmer/#1ce89bd94a97
2/ https://www.forbes.com/profile/clive-palmer/#1ce89bd94a97
A larger than life Queenslander, Palmer is a familiar figure in Australian politics, fronting his own United Australia Party (“Make Australia Great”).
He is currently challenging WA’s hard border post-Covid policy before the High Court of Australia.
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https://auspublaw.org/2020/08/border-closures-and-s-92-clive-palmers-quest-to-enter-wa/
He is currently challenging WA’s hard border post-Covid policy before the High Court of Australia.
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https://auspublaw.org/2020/08/border-closures-and-s-92-clive-palmers-quest-to-enter-wa/
The legislation relates to decisions of the previous WA government’s rejection of proposals from Palmer’s company Mineralogy for an iron ore project in the Pilbara in 2012 & 2013.
(Mining/resources are a very significant part of WA’s economy.)
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(Mining/resources are a very significant part of WA’s economy.)
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Arbitration of this dispute, begun in 2014, is still underway, before former HCA judge Michael McHugh.
Palmer is seeking damages of $30 billion. That’s the equivalent of WA’s annual budget. Or $12,000 per inhabitant of the State.
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Palmer is seeking damages of $30 billion. That’s the equivalent of WA’s annual budget. Or $12,000 per inhabitant of the State.
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The legislation - Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Amendment Bill 2020 - has 3 core objectives.
(For legal geeks - these are to be found in Division 2, Subdivision 1 of the Bill.)
https://www.parliament.wa.gov.au/Parliament/Bills.nsf/2F1CFD31ACD372EE482585C100337061/$File/Bill%2B205-1.pdf
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(For legal geeks - these are to be found in Division 2, Subdivision 1 of the Bill.)
https://www.parliament.wa.gov.au/Parliament/Bills.nsf/2F1CFD31ACD372EE482585C100337061/$File/Bill%2B205-1.pdf
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1. Terminate the arbitration & render any awards or agreements connected with it or no effect (s.10).
2. Immunity from liability in any past or future proceedings relating the dispute (s.11).
3. Prohibit appeal or review of any action relating to the dispute (s.12).
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2. Immunity from liability in any past or future proceedings relating the dispute (s.11).
3. Prohibit appeal or review of any action relating to the dispute (s.12).
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The Bill also makes the Freedom of Information Act inapplicable to material relating to the dispute.
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You can understand the motivation, especially with the added financial hit of the Coronavirus pandemic. As WA premier Mark McGowan said: “A payment of $30 billion would cripple the state of Western Australia.”
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The episode illustrates the danger posed - especially to a small-to-medium sized democracy - by individuals with massive personal wealth.
In that respect it is a “hard case”. As WA Attorney General said: “Mineralogy and Mr Palmer are not normal.”
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In that respect it is a “hard case”. As WA Attorney General said: “Mineralogy and Mr Palmer are not normal.”
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But there are serious constitutional and rule of law concerns, including:
1: interference with legal process
2: expansive ouster/privative clause
3: legislation targeted at an individual (and his company)
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https://www.google.co.uk/amp/s/amp.abc.net.au/article/12494968
1: interference with legal process
2: expansive ouster/privative clause
3: legislation targeted at an individual (and his company)
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https://www.google.co.uk/amp/s/amp.abc.net.au/article/12494968
The last item is the most serious.
There’s a troubling parallel with the classic “Act (or Bill) of Attainder” - where a person was declared guilty and punished, usually without trial - understood now as a clear abuse of legislative power.
https://www.google.co.uk/amp/s/amp.abc.net.au/article/12494968
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There’s a troubling parallel with the classic “Act (or Bill) of Attainder” - where a person was declared guilty and punished, usually without trial - understood now as a clear abuse of legislative power.
https://www.google.co.uk/amp/s/amp.abc.net.au/article/12494968
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The constitutional issues will ultimately be tested before the High Court of Australia.
In the meantime, Palmer seems intent on getting around the legislation by litigating in another Australian state (though the Bill purports to prevent this too).
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In the meantime, Palmer seems intent on getting around the legislation by litigating in another Australian state (though the Bill purports to prevent this too).
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