Pyrmonter on Palmer and WA

There was short-lived but understandable outrage when Western Australia tried to extinguish the legal rights of Mineralogy and Clive Palmer.  We can expect the coming litigation it will provoke to raise constitutional law issues that will be studied by our great-grandchildren.

Much of that outrage focused on the evil of retrospective interference with bargains: the state was undoing a bargain into which it had freely entered almost two decades ago.  Now, it is generally acknowledged that state governments can pass such retrospective adjustments to rights: it is how they have, for example, imposed liability on NSW builders for defects that arose before limitation periods expired; have done likewise with claims for sexual abuse that were time-barred; and adjusted other property rights over time.  But legislation of this kind is rare, and generally confined to reviving rights that were, or at least were thought to, have existed before time had led to their discharge.

It is something different to allow governments to undo transactions that were wholly lawful when entered into.  Yet, with the familiar invocation of ‘Security’, that is what the Commonwealth is now proposing in respect of dealings with foreigners: amendments to the Foreign Investment Review Board’s powers will allow it to impose retrospective conditions on sales entered into before the regime came into effect.

Now, there are reasons to be wary of its obvious target, the increasingly aggressive authoritarian regime in China, one which rather unconvincingly terms itself ‘communist’ while looking rather more like an irredentist central European power between the two wars.  Authoritarianism – whether of the communist, fascist, nationalist or populist variety – is bad.  Its nature is to interfere capriciously in the affairs of its subjects without regard to settled laws or recourse to fair tribunals for adjudication.  So, of course, we need laws of uncertain meaning and retrospective operation to ‘combat’ it.  Or, do we?

This entry was posted in Guest Post, Rule of law. Bookmark the permalink.

8 Responses to Pyrmonter on Palmer and WA

  1. John Brumble

    1) The FIRB rules have nothing to do with the Palmer case. At best, it’s a distraction squirrel; at worst it’s an attempt to poison the well.

    2) Amendments to the FIRB’s powers will NOT “allow it to impose retrospective conditions on sales entered into before the regime came into effect”. The changes to the rules clearly state that retrospective action may only happen on certain, limited classes of transactions that may be entered into after 1 January 2021. Anyone entering into any such transaction will do so in the knowledge that the FIRB powers may apply in limited classes of transactions.

    3) I was going to have a long three about the ridiculous “that’s not real communism” statement, but it’s just not worth it. All hail the great libertarian State of China.

  2. Robber Baron

    Clive just needs to write a big fat cheque to Labor’s re-election fund and all will be well again.

  3. Pyrmonter

    @ John Brumble

    The Chinese government is awful. But it is awful in different ways to those of Pol Pot, Mao, Stalin, Lennin or the Kim family.

  4. Michel Lasouris

    Was the deal with Palmer legal? Probably, but I’m not convinced. Is the action by Palmer legal? Probably not BUT IT IS IMMORAL.
    Just how greedy can this totally unpreposessing man get? How on earth can he be allowed to put the WA State in hock? He is gross in every sense, has he no pride in his actions let alone his appearance? Perhaps that is his problem……self loathing. Now the hapless Western Australians will have to fork out for a trial that will hopefully squash Palmer’s greed. If justice does not prevail, I shudder to contemplate the fall out

  5. Rob MW

    The Chinese government is awful. But it is awful in different ways to those of Pol Pot, Mao, Stalin, Lennin or the Kim family.

    Lol…………..How is it different ?

    Does it have less State sanctioned death squads, or less starvation deaths, or maybe not as many gulags, more starving dog eaters than rocket man, what about bats, do the communists have less industrialized bat bugs than say Stalin or Pol Pot but the kicker is; can the Chinees own property with non-communist rights ?

    Just saying. The Mark Pot of the People’s Republic of Western Australia would probably like to know as well.

  6. a reader

    Michel, I think you’re on the wrong blog

  7. custard

    I wrote this on Spacechook

    I don’t like Clive Palmer. Many of you would remember me referring to his United Australia Party as the Fat Bastard Party during last year’s election.

    Palmer currently is involved in two seperate legal cases, both of which affects WA.

    The first involves the unconstitutional closure of our borders. I support him in this action and I think it’s incredible that the federal Liberal party supported the action too until they realised that it wasn’t popular. Good governance should have nothing to do with popularity but rule of law and principles.

    Then there is his suing WA for it’s handling of his proposal to exploit our resources in what he believes was done in an unlawful way. The government is now seeking to change the law to prevent him from pursuing his legal rights.

    You might not like Clive Palmer but he is entitled to due process as are the rest of us. Imagine having that right literally swept away. We should be very worried about our sovereign risk to future potential investments if this is the way our government behaves to somebody who they don’t like.

  8. Colonel Crispin Berka

    There should be an award for High court and Supreme court cases which catch the State behaving illegally.
    We could call the award “The Clive Palm d’Or.”

Comments are closed.