Don’t invest in Australia

On Friday the AFR published the most astonishing op-ed you’ll ever read.

Big call, I know.

It was published under the name of John Quigley – the Attorney-General of Western Australia. He deploys an argument that only a not-too-smart-lawyer-cum-entitled-politician would love. A certain type of authoritarian also likes this sort of argument that can be boiled down to “What I have done is acceptable because it is legal – see I just passed the law myself”.

So some background – this is to do with the WA v Palmer dispute. We have covered that here, here, here, here and here. To remind ourselves, this is how Henry Ergas described what WA is doing:

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.

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.

Yet 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, which at the time included the determination, through the testimony of at least two “worthy and lawful men”, of just terms.

What does the WA Attorney General have to say?

There are three key constitutional principles which underpin the operation of the Amendment Act. These principles are all well-established in the High Court by cases from other states in Australia.

The three principles are set out below. They speak for themselves.

The first principle is that it is within the power of a state Parliament to expropriate property without providing just compensation.

The second principle is that it is always within the power of Commonwealth or state parliaments to alter the rights and liabilities of a person, even in respect of pending litigation.

The third principle is that legislation can always be specific to particular individuals or corporations. 

That is the rule of law in Australia.

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32 Responses to Don’t invest in Australia

  1. nb

    WA debacle, China virus, absurd protests against nothing, zombie USA Democrat presidential candidate, Trudeau corruption, Ahern generally:
    Why is there such insanity at the moment? Truly baffling. What are the over-dinner conversations of these people? What happened to the spirit of liberalism (real liberalism, that is, not the Soviet version)?

  2. H B Bear

    Quigley is the very worst kind of lawyer to have in a parliament. He knows his word now is literally law. And he is a weirdo.

  3. H B Bear

    nd – in a. word Covid. All bets are off. Want police clubbing citizens in the streets while cheered on by the media – sure, no problem.

  4. Bruce of Newcastle

    Not far from me is Quigley’s grave.
    You can look it up.
    Hopefully Palmer nails WA’s Quigley so deep he’ll need a raise-borer to dig himself out of the grave he’s dug for himself.
    And I am, as an ex-QNI guy, no fan of Palmer.

  5. Alex Davidson

    I agree that this is completely unacceptable, but it’s not too surprising. If the political class had to abide by the fundamental principles of freedom – respect for property rights, contract, and consent – it would wither away very quickly. Unfortunately it does not, and has now grown into a very powerful gang of thieves, declaring itself beyond any reasonable concept of law, and for many of us, causing far more harm than good.

  6. John A

    I can’t read the editorial, only the first line teaser.

    Does the “contributor/advocate” provide any references or citations to support his contentions?

    if not, I suggest that he is attempting to preempt, or at least derail, any High Court challenge, and is keeping his powder dry.

    And whatever we may think of Clive Palmer, legal relativism (the idea that the legislation is “OK” because it hits someone I don’t like) has no place. If something is wrong, it is wrong for everyone – friend and foe alike.

    We need moral and legal absolutes if the so-called free society is worth keeping.

  7. Well.

    Where is Christian Porter? He is the Commonwealth attorney general and earlier in his career the Western Australian attorney general. Does he have nothing to say.

    How about the Corman-ator? Anything from the Minister for Finance?

    Oh silence. Right. Sorry. Not right. But left.

    This conduct by the Western Australian government is disgraceful. The silence from the Commonwealth is equally so.

    At some point, don’t know when, there will be a change of government in Western Australia. In addition to repealing this piece of garbage law, TAFKAS would beseech the new government to confiscate every piece of private property of John Quigley and his extended family and to quote back his own words to him.

    … it is within the power of a state Parliament to expropriate property without providing just compensation

  8. Archivist

    The first principle is that it is within the power of a state Parliament to expropriate property without providing just compensation.

    The second principle is that it is always within the power of Commonwealth or state parliaments to alter the rights and liabilities of a person, even in respect of pending litigation.

    The third principle is that legislation can always be specific to particular individuals or corporations.

    Is there any acknowledgement that these things are bad?
    That they are the antithesis of “rule of law” and “natural justice”?
    That even if they can be done, it is better not to do them?

  9. C.L.

    Bills of attainder now.
    Wow. Just wow.
    Isn’t the country in the very best of shape?
    But I don’t blame Labor, principally.
    I blame the Howard/Abbott/Turnbull/Morrison Liberals.
    There is absolutely nothing they’re willing to fight for.

  10. rickw

    The first principle is that it is within the power of a state Parliament to expropriate property without providing just compensation.

    The second principle is that it is always within the power of Commonwealth or state parliaments to alter the rights and liabilities of a person, even in respect of pending litigation.

    The third principle is that legislation can always be specific to particular individuals or corporations.

    Third World Shithole.

  11. Speedbox

    Sweet Jesus. I guess we all imagined that’s how they thought but I can’t recall ever reading an actual quote that sets out their contempt for the citizenry so clearly.

  12. Mother Lode

    It has been a necessary and momentous achievement in the development of civilisation to set laws down so everyone knows what they may and may not do, and to protect people from the capriciousness of rulers who are also bound.

    The Greeks had Draco tabulate existing Athenian law. Once they saw it they realised how uneven and cruel it was – hence the word ‘Draconian’, and leading to the appointment of Solon to reform laws along more just lines.

    The Romans had their Twelve Tables, the basis of a legal system that maintained order in the largest empire the woulrld had seen, where a man could travel from Palestine to Britain through flourishing towns secure in his rights and his responsibilities.

    Magna Carta is rightly remembered for protecting people from the whims and predations of a monarch.

    In common among all of these is that they provide permanence and predictability, they allow citizens a defence against the arbitrary exercise of power, and guarantee the conditions under which society thrives.

    This Quigley fellow would be given hemlock in Athens, thrown before wild beasts in Rome, and spitted on a spear in England.

    And with Quigley’s precedent we can just do it too!

  13. Colonel Crispin Berka

    it is always within the power of Commonwealth or state parliaments to alter the rights and liabilities of a person, even in respect of pending litigation.

    Absolutely chilling.

    Ich bin ein Berliner.

  14. OldOzzie

    John A
    #3557359, posted on August 23, 2020 at 1:35 pm
    I can’t read the editorial, only the first line teaser.

    Does the “contributor/advocate” provide any references or citations to support his contentions?

    if not, I suggest that he is attempting to preempt, or at least derail, any High Court challenge, and is keeping his powder dry.

    The law stacks up against Palmer

    The extraordinary legislation to protect WA taxpayers from Clive Palmer’s damages claim is not something out of a banana republic, but based on a solid foundation of case law and precedent.

    John Quigley Contributor

    The West Australian government accepted from the outset that emergency legislation passed at speed through state Parliament to protect taxpayers from an enormous damages claim by Clive Palmer was extraordinary and unprecedented for WA.

    But that doesn’t mean the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 is not built upon a solid foundation of case law and precedent.

    Notwithstanding the critics’ cries of “banana republic”, “17th-century star chamber” and “charade for democracy”, the Act is far from ill-thought-out.

    Dealing with Mr Palmer sometimes feels like being in a rodeo, but this legislation is not some “Wild West” idea.

    There are three key constitutional principles which underpin the operation of the Amendment Act. These principles are all well-established in the High Court by cases from other states in Australia.

    The first principle is that it is within the power of a state Parliament to expropriate property without providing just compensation.

    This was established in a 2001 High Court case called Durham Holdings Pty Ltd v New South Wales.

    In that case, coal in certain lands in New South Wales was vested in the Crown by the Coal Acquisition Act 1981.

    That Act provided for payment of compensation to landowners, but an amendment in 1990 introduced a cap on the amount of compensation that was payable.

    Settled position
    In effect, this legislation prevented Durham Holdings pursuing a claim for more than $93 million for coal compensation, because the cap applicable to that company was $23.25 million.

    In other words, the effect of the legislation was to deprive Durham Holdings, which argued the 1990 amendment had been invalid, of about $60 million of compensation.

    The High Court refused to hold the New South Wales legislation invalid, because it said it had been the settled position respecting state legislative power since the Wheat Case, which was decided in 1915, that there was no requirement for a state parliament to provide just or properly adequate compensation upon the acquisition of property.

    The second principle is that it is always within the power of Commonwealth or state parliaments to alter the rights and liabilities of a person, even in respect of pending litigation.

    In a 2015 New South Wales case called Duncan v Independent Commission Against Corruption then-High Court Chief Justice Robert French, current Chief Justice Susan Kiefel as well as Justices Virginia Bell and Patrick Keane specifically stated: “It is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution even if those rights are in issue in pending litigation.”

    They illustrated this point by reference to a 1998 Queensland case called H A Bacharach Pty Ltd v Queensland, a unanimous decision of five judges.

    Duncan itself was a case involving New South Wales legislation. It effectively declared that the ICAC had power to take future action, after the legislation passed, in respect of conduct that was retrospectively to be regarded as corrupt conduct.

    The third principle is that legislation can always be specific to particular individuals or corporations. Such legislation has been considered and upheld on a number of occasions by the High Court.

    The Amendment Act recently passed with bipartisan Liberal support through the WA Parliament does not seek to take away the lucrative revenue streams which Mr Palmer reaps from his Sino Iron project in the Pilbara under the terms of his state agreement.

    What it concerns is a separate proposal by Mr Palmer’s Mineralogy Pty Ltd and International Minerals Pty Ltd to develop the adjacent Balmoral South precinct, a proposal submitted to former state development minister and premier Colin Barnett.

    In 2012 Mr Barnett rejected the proposal, which an independent arbitrator found had been “defective”, and in 2014 Mr Barnett approved the proposal with 46 conditions.

    Parliament was told last week that Mineralogy and International Minerals say that they had a contractual right to have the proposal properly considered in 2012 (despite it being defective) and that they lost the opportunity to develop a new project which they would have sold to overseas interests. They pursue arbitral awards for damages coming close to the entire annual budget of Western Australia even though they did nothing about pursuing the proposal between 2014 and 2018, and still hold the rights to develop Balmoral South.

    The Amendment Act essentially says that any claim for damages for this speculative lost opportunity cannot now be pursued.

    Palmer’s damages claim for almost $30 billion posed a credible threat to the financial wellbeing of West Australian taxpayers.

    If the proposal had been submitted pursuant to development legislation, rather than pursuant to a fast-track contractual state agreement, there would be no question about damages.

    In the history of state agreements with other companies, no other proponent has ever sought to claim damages for any lost opportunity because a minister rejects a proposal.

    Whether you view the Amendment Act as taking away a contractual right without providing proper compensation, or you view it as adjusting the contractual liabilities of the state in a pending arbitration, those things can happen because of the well-settled underlying principles about state legislative power.

    Mr Palmer’s damages claim for almost $30 billion, signed by his own hand and tabled in WA Parliament this week, posed a credible threat to the financial wellbeing of West Australian taxpayers, and the government had no choice but to protect the state from that threat.

    John Quigley is the Attorney-General of Western Australia.

  15. I don’t agree with it but the law passed by WA is constitutional. States are absolutely sovereign, the same as the English parliament, subject to the Australian Constitution. Parliament has been doing this for centuries – Bills of Attainder are an example as others have quoted. By a bill of attainder Parliament can seize your property and that of your family and also take your life without trial. The Westminster system swaps an absolute monarchy for an absolute Parliament: they can do to you whatever they want and there is nothing you can do about it unless the electorate tosses them out. People go on about the Westminster tradition but right now I’d rather be living in the US with at least some constitutional rights guaranteed.

  16. thefrollickingmole

    The bald fuckstick is claiming on the one hand Palmer has lost nothing, and on the other hand legislating to stop him claiming hes lost a billion or 30.

    What do i believe, his sophistry, or his observed actions???

    The extraordinary legislation to protect WA taxpayers from Clive Palmer’s damages claim is not something out of a banana republic, but based on a solid foundation of case law and precedent.
    Bald fuckstick just dismissed all JPs in WA from sitting in court despite all precedent set over very many years.
    Without informing JPs it was to happen.
    …..
    Why was their no consultation with RAJWA or JPs around WA? We are advised that not even the police have been consulted. As a significant stakeholder, why was there no consultation?

    There was no consultation with anyone, nor did I intend to consult. This was not a decision that could be affected or changed by discussion. There was no time to give pre-notice to the Association as I was concerned with leaks to the media. There was no change to how you do the work. I am taking the job away, not changing it. Because I decided to no longer use Justices, there was no consultation was needed. This decision does not affect police operations.

    …..
    Media Release by Royal Association of Justices WA (Inc.)

    During the late afternoon of Thursday 2nd July 2020, Presiding Justices of the Peace (JPs) across Western Australia received written advice from the Department of Justice that Chief Magistrate Steven Heath had decided that as from the 1st of August 2020 the volunteer services of JP’s that preside in Courts would no longer be required.

    This decision was unexpected, and the Royal Association of Justices WA (Inc.) was not aware, consulted or briefed before yesterday’s announcement.

    Approximately 120 JPs around WA perform the very important and valuable voluntary role supporting our Justice system and bring to the Court a lifetime of broad experience, intellect and understanding of Community expectations in the application of Justice.

    We are currently seeking clarification and understanding from the Chief Magistrate and the Department of Justice regarding this decision.

    This announcement has been distressing to JPs, as many have faithfully served the Courts for more than a decade and devoted significant voluntary time and money to train and professionally develop their skills, especially in the Violence Restraining Order Courts.

    The Royal Association of Justices WA (Inc.) will be releasing a further media statement once briefed on this decision.

  17. Robbo

    The WA Labor Party are thieves masquerading as a Government. Quigley is a disgrace to the legal profession and to the Parliament in which he sits. If the Premier of WA has any sense of decency and fairness he will sack Quigley and repeal that disgraceful piece of legislation. Of course he doesn’t have any of that so he will sit back and just hope that all will be forgotten. It won’t.

  18. Crossie

    mmamster
    #3557441, posted on August 23, 2020 at 3:51 pm
    I don’t agree with it but the law passed by WA is constitutional.

    If the High Court agrees with this then we may just as well turn on our governments/politicians. There is nothing to prevent them from doing anything they want to anyone of whom they disapprove. They could disenfranchise the lot of us so we couldn’t even vote them out.

    I’m just wondering, is this what Dan in Lockdownistan has in mind to make sure he and his government are not held responsible for their negligence and incompetence with regard to the COVID-19 fiasco?

  19. If the High Court agrees with this then we may just as well turn on our governments/politicians. There is nothing to prevent them from doing anything they want to anyone of whom they disapprove. They could disenfranchise the lot of us so we couldn’t even vote them out.

    Read the history of the rump parliament in the English Civil war. That’s exactly what they did, until enough people were over it.

  20. Hodor

    This is what we have inherited from the feudal lords of Britain.

    I believe the Westminster System is biased to the wealthy and the sycophants of Govt figures.

    A pox on them too.

  21. Russell

    And all just days after Principality of Hutt River caved into the ATO. Land assets to be sold.
    Mighty suspicious that Feds are not stepping into another case of WA sovereign state …
    These guys are a basket case.

  22. Nob

    Dictators and bureaucrats are always happier to divert discussion to the details of the rules rather than the principles of them.

  23. RealWorld

    Government and Courts work together to over-rule our constitution and do as they please. It will never stop. In the Franklin dam case the courts ruled the federal govt over- ruled the states On land use. Where it suits them in Peter Spencer etc they rule that states control land use and don’t have to pay compensation- even though our federal constitution specifically states it must be paid. Basically we have no rights – our constitution is useless – and we have meekly accepted this.

  24. Rex Anger

    @ Mole-

    A counter-opinion for you. Please take as you will.

    The dismissal of JPs in WA from presiding over certain Courts, particularly in relation to Violence Restraining Orders, is somewhat overdue. We have had relatively unqualified and inexperienced people (A Magistrate has been at least 15 years at the bar, preferably with a Criminal Law background, and needs to be able to accurately determine the veracity of someone’s demeanour as they examine the presented evidence and make their decisions), bound by the weight of social expectation and without cross-examination of all parties involved, granting Interim VROs. I do not know if you have ever been involved in such a process, but it is quite nasty. And that is without considering the possibility of them approving an Interim VRO based on the evidence of a bad faith actor.

    An examination of the statistics of Interim VROs resolved by Mutual Undertaking (Suggesting Improperly Issed VROs) and Interim VROs thrown out by a Magistrate vs. Final Orders would likely suggest that the JPs’ hit:miss ratio was poor enough to justify their discontinuation of presidency over Courts.

    This is a case of a broken clock being right twice a day.

  25. Squirrel

    “The question between confiscation and “taking on just terms” is therefore merely political in this case, and so also are the questions whether compensation ought to be given at all, and whether terms affecting to be just are so or not. I am clearly of opinion that in respect of property real or personal, the power of the Parliament to assume or resume that property is as absolute quoad New South Wales as the power of the Parliament of the United Kingdom in its sphere, with this qualification only, that the power of any State of the Commonwealth must be exercised subject to the Federal Constitution.”

    Some interesting words from Edmund Barton’s judgement in the 1915 Wheat case.

    Don’t know if the exercise of the power of absolute confiscation – rather than taking on terms which might be argued to be unjust – has been tested in the High Court, but we’ll be finding out more about that in the next year, or so.

  26. RobK

    That is the rule of law in Australia.
    I found this to be the case, to my detriment, two decades ago with regard to developing agricultural land,

  27. thefrollickingmole

    Rex.
    Ive sat on VROs and issued them in court.
    The ones JPs have anything to do with is the initial VRO only, and there is no cross examination of the 2nd party at all only a basic questioning of the applicant.
    From my experience Id say there would be a tiny % difference in the number of VROs issued via magistrates vs JPs.
    The system is set up so its unlikely you will have an application rejected unless its too broad (some of the family feud type ones) or really out there allegations.
    The person whos the target of a VRO can appeal i but from my experience it was very uncommon.
    And speaking personally i was acutely aware in effect I was often kicking people out of homes/ restricting their liberty etc on untested claims made by only one party.
    But thats the way that law is set up.

    And the letter to the JP association makes clear they had no complaints about the quality of the work.

    Quigley after getting rid of JPs then parachuted in a mix of ALS, wimmins and assorted diversity hires instead.
    Thats the reason for st and there will be a miraculous improvement in the number of Aboriginals denied bail/imprisoned as well as in increase in the misery in that community as the predators arent removed.
    But ideology wont allow Quiggers to connect the dots between the 2.

  28. Alex

    So here is an opportunity for HM opposition to emerge from the darkness. By the way who is the leader of the opposition (LOO)?

    Sometimes to get through the pub test an issue has to be reduced to the ridiculous. So perhaps the LOO could advise the good and bad electors of WA with a translation that they could get worried over. Something like:
    “Imagine my friends you have bought, taken title and lived in your property these last 30 years and the LLL (Labor Left Lunnies) comes along and says you are evicted with no rights to compensation or appeal. Off you go and take your children with you. Don’t believe this can happen? Well it just has and is likely to be in a suburb near you. Look here, read this article by the chief bunny Quigley. It sets out how easily you can lose everything. Is this want you want for your family? If not, then vote these spongers out and I will enact new legislation to override these mis-appropriation laws forthwith.”
    But we know that won’t happen because the LOO is hiding, SLOMO is hiding, you’ve got to be Joshing is hiding and the LOO wants this power once they get in, if ever.

    Who would want to be young nowadays with all the shite going down?

    “It’s easier to fool people than to convince them that they’ve been fooled” – A quote attributed to Mark Twain

  29. Rex Anger

    OK, Mole. Thanks for the counter-counter-perspective

    Quigley after getting rid of JPs then parachuted in a mix of ALS, wimmins and assorted diversity hires instead.

    This concerns me that the risk of stitch-up (either way) may be even higher now.

  30. Publius

    1. Why do we have Governors? In WA, QLD and VIC they’ve proved to be an accoutrement.
    2. Why do we need Scott Morrison, the Mute and the Libs? Might as well have a uni party and be done with it.
    3. Why don’t we just get the permanent Govt, ie the bureaucrats, to run the country? Seems like they already are in everything but name. Might as well make an honest lot out of them by naming them.

  31. Whalehunt Fun

    At some point, don’t know when, there will be a change of government in Western Australia. In addition to repealing this piece of garbage law, TAFKAS would beseech the new government to confiscate every piece of private property of John Quigley and his extended family and to quote back his own words to him.

    I vote that it be the kidneys.

  32. Ed Case

    ***Approximately 120 JPs around WA perform the very important and valuable voluntary role supporting our Justice system and bring to the Court a lifetime of broad experience, intellect and understanding of Community expectations in the application of Justice.***
    Are you talking about out of hours Bail Justices here?
    Victoria used [?] to have them, a ventriloquist’s dummy operated by the cops coulda done the same job just as incompetently.

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