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”.
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.
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.