It is said that desperate times call for desperate measures. However, they should never be a reason for dishonourable and unprincipled behaviour such as that recently displayed by the Western Australian parliament.
Recently, we have seen the sovereign State government of Western Australia behave as if it were the ironically named Democratic Republic of the Congo. This is a moment of darkness as deep as an African jungle.
Clive Palmer, Queensland’s unsinkable and larger than life mining magnate is the bete noir of many in Australian politics. Many in the Labor Party believe his unrestrained spending on electoral advertisements in 2019 cost the ALP its chance of victory.
This year Mr. Palmer has issued legal proceedings to challenge the decisions of State governments, most particularly Western Australia and Queensland, to close their State borders to the rest of Australia. Palmer believes that such closures contradict s.92 of the Constitution which provides that interstate trade between States shall be free.
In the days of Colin Barnett's Liberaal government in Western Australia Clive Palmer sought approval for the development of a mine in Western Australia from 2012-2014. In 2014, the government received legal advice to appeal against an arbitral award over the dispute in favour of Mr. Palmer.
Clive Palmer argued that Premier Barnett, who was then the State’s Development Minister, banned the development on improper grounds. Palmer and the State government have been involved in arbitration for close to two years to attempt to resolve the dispute. The arbitration was led by a former High Court Justice, Michael McHugh, who found that the State government had not followed legal process. Further arbitral hearings were to be held to discuss compensation for Mr. Palmer.
Not any longer. Fearing a damages claim of $30 billion, the Western Australian Labor government, with the support of the Liberal Opposition, passed legislation in 48 hours to prohibit Clive Palmer from taking legal action against them.
There are some of us old enough to remember when Brian Burke in his days as Western Australian Premier in the late 1980s would have his secretary, Brenda Brush, (Nb. I am not making this alliteration up- read the Royal Commission’s Report!) deliver brown paper bags full of money to disgraced merchant banker Laurie Connell at his office on Perth’s major commercial boulevard, St. George’s Terrace.
The spirits of crumbling democracy were revived when the ‘Ban Clive’ legislation was delivered to the State’s Governor, Kim Beazley, for Royal Assent at the proverbial five minutes to midnight at his St. George’s Terrace abode of Government House.
The legislation is monstrous. It provides that any sum awarded to Palmer is void. Calling into question on any basis “any conduct of the State is prohibited.” Rules of natural justice and duties of procedural fairness are expressly excluded. It is not quite the Reich’s Enabling Act, but it has enabled the State Government to destroy cardinal democratic freedoms.
Forget what you think about Clive Palmer. Forget the hysteria about a $30 billion payout bankrupting the State. There is no guarantee that Palmer would have been awarded anywhere near this figure. Even if he was, it is only the cost of one and a half of our yet to be built submarines.
A hallmark of our democratic society is the separation of powers doctrine which allows independent courts to review the actions of individuals and governments. This is how governments are held accountable and why everyone is entitled “to have their day in court.”
The notion that all are bound by the law and that no-one is above it is the foundation of our society’s democratic rule of law. The famous symbol of justice shows a blindfolded lady holding the scales of justice. Her blindness reinforces the principle that the law must be decided by the justice of the case, not the personal qualities of the claimant. This legislation is all about attacking the man and not playing the legal ball.
Western Australia's government has now placed itself beyond scrutiny and accountability. Clive Palmer is to have no legal rights. The State has removed them.
The legislation destroys the separation of powers doctrine and annihilates the legal freedoms and protections on which we all depend. Relying on anti-Clive hyperbole to justify their trampling of democracy, the government has enacted legislation that is shameful and sinister.
That Mark McGowan, the State’s Premier, himself a qualified lawyer, even contemplated such legislation is, sorry Hillary, truly deplorable. Power clearly tends to corrupt, especially it seems parochial power at a time of insecurity. And the supine silence of those who know better has been equally appalling.