WA’s recklessness will prove very costly

Illustration: John Tiedemann

West Australian Premier and former navy lawyer Mark McGowan, and criminal barrister, first law officer and Attorney-General John Quigley have described the Iron Ore Processing (Mineralogy) Agreement Amendment Act 2020 as “extraordinary” legislation and have pinned their political and legal careers to its success.

They should both be better serving the people of Western Australia. The legislation will be an extraordinary commercial, legal, and political failure for both.

Only days before the legislation was passed, McGowan’s government signed a mediation agreement with me and former West Australian chief justice Wayne Martin QC. Negotiations were scheduled to commence shortly and there was every prospect that the dispute could be settled for a fair and reasonable amount, well below the absurd claims of McGowan of $12,000 for every person in WA. That would have been the end of the matter.

Instead, McGowan and Quigley have managed the quinella: less future investment in WA, higher government debt and interest costs; compensation will still have to be paid and it has caused further losses to me and the people of WA because I can no longer do any more projects.

The legislation drafted by McGowan and his team of self-described “best and brightest” have exposed the state of WA to massive additional financial burdens. This legislation is being widely described in constitutional legal and financial circles (including in this newspaper by journalists and commentators who profess no love for me) as an abomination, an affront to the rule of law and a significant threat to Australia’s reputations as a safe investment destination. It gives the Premier the power to make any further law he considers necessary or convenient without any approval of parliament. If he felt it necessary to pass a regulation that I should be imprisoned if I criticised his decisions, he has full legislative power to do so. At the same time, he has complete immunity from prosecution for any criminal conduct he engages in and has put in place a statutory secrecy regime.

The legislation is an extraordinary affront to the rule of law. International investors take note of such things. If McGowan can do it to me, why would he not do it to an international banking syndicate or mining company who he also decides is “rapacious” or “greedy”? This legislation will cost international investment. We won’t see it today or tomorrow but over coming years, there will be fewer projects commenced in WA. All, of course, well beyond the next election and the careers of these failed lawyers who will have returned to their east coast homes and will be enjoying their profligate parliamentary super.

The draconian legislation will have an immediate cost to the WA budget because international ratings agencies will change their credit rating for the state because the risk of lending to WA has, on any view, just increased. An increase of only 0.25 per cent in WA’s costs of borrowings of its debt will cost the state $4.5bn over the next 30 years.

Moreover, the legislation has further destroyed the value of my investments in Western Australia and my ability to start new projects with foreign investment and create more jobs and wealth for the state. The first project I personally caused to happen at Cape Preston resulted in $15bn in investment, many thousands of jobs and hundreds of millions of dollars in annual royalties.

Quigley has been out spruiking his constitutional law qualifications recently and explaining why the legislation will survive challenge. He is wrong and his track record is appalling. When Quigley loses legal matters he changes the law and calls me a vexatious litigant. I am not a vexatious litigant; I am a successful litigant winning 12 successive times against McGowan and Quigley in arbitration and the WA Supreme Court. I will succeed again by having this abominable legislation invalidated.

It is beyond belief that WA’s chief law officer could sponsor an act that gives him and the Premier immunity from criminal law and civil law. The question must be asked — what crimes have they committed or what crime are they planning to commit that requires the West Australian parliament to exempt them from criminal prosecution?

In a democratic society, this action alone would demand their immediate resignations. The act bans natural justice and proper process. It prohibits discovery and abolishes Freedom of Information, and hence the public’s right to know and its ability to hold the government accountable.

It is clear the Premier and Attorney-General have friends at the West Australian newspaper, which spews out their rubbish to the point where it is now nothing more than a comic book.

The commercial and legal incompetence of McGowan and Quigley is a tragedy for the people of Western Australia. Rather than seizing the opportunity for settlement, instead McGowan and Quigley have caused massive further financial devastation to the state. They are worthy successors to former Premier Colin Barnett who made the appalling decision to arbitrarily refuse to consider the project for approval (which was found to have been unlawful) and which caused the losses in the first place. One can only hope that McGowan and Quigley share the same political fate as Brian Burke and WA Inc next March.