Clive Palmer and WA Premier Mark McGowan
(Image: AAP/Michael Chambers)

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.