Clive Palmer loses High Court bid to overturn WA legislation

Clive Palmer’s attempt to overturn legislation aimed at killing off his $30bn legal claim against WA has been emphatically rejected.

Clive Palmer is expected to ramp up a claim against Australia through the Singapore-Australia free-trade agreement after the High Court threw out his constitutional challenge to Western Australia’s $30bn anti-Palmer legislation.

The Queensland billionaire has already registered a corporate entity in Singapore in a move that has been interpreted as setting the stage to turn his fight into an international dispute, with those efforts set to intensify in the wake of his latest High Court defeat.

The federal government last year warned in its mid-year economic and fiscal outlook that there was a risk of a “prospective investor-state claim against Australia” seeking damages in relation to the dispute between WA and Mr Palmer.

The High Court on Wednesday emphatically rejected Mr Palmer’s attempt to overturn the WA emergency legislation introduced in parliament last year to kill off his $30bn legal claim against the state, finding unanimously that the amendment was not invalid under the Con­stitution and ordering Mr Palmer to pay costs.

Mr Palmer, who appeared for himself during the proceedings, had argued the legislation discriminated against him because of his residence in Queensland, but the High Court found the WA legislation “plainly” did not single Mr Palmer out for discrimination forbidden by the Constitution.

“Neither the legal operation nor the practical operation of the whole or any part of the Amending Act would be any different if the plaintiff were resident in WA instead of being resident in Queensland,” the court found.

The court also rejected Mr Palmer’s argument that the amendment fell foul of the “cardinal principle of the rule of law”, namely that the law should apply to the government and its agencies just as it applies to the ordinary citizen.

The High Court ruled it was “logically impermissible” to treat the reference to the rule of law as though it was contained in the Constitution, or to attribute to the Constitution a meaning derived from other sources, which “the plaintiff has sought to do”.

WA’s emergency amendment was introduced after Mr Palmer lodged a claim seeking tens of billions of dollars in compensation as a result of the rejection by then-premier Colin Barnett of his mining plans for the Balmoral South iron ore project in the Pilbara.

Mr Palmer did not comment on the decision on Wednesday, but sources close to the former federal MP expect him to start exploring his options under the Singapore-Australia FTA.

International arbitration experts said Mr Palmer might find it difficult to gain traction for a Singapore manoeuvre. Chief executive of the Resolution Institute Amber Williams said while WA’s actions could expose the commonwealth to an investor-state arbitration, it was “unlikely” Mr Palmer would have recourse under the Singapore-Australia FTA. Any action, she said, would likely rely on the Singapore government taking up the claim against Australia on his behalf.

“The dispute resolution provisions of the Singapore-Australia FTA only allow claims between nation states to be mediated, conciliated or potentially arbitrated,” Ms Williams said.

“Should Mr Palmer’s companies be incorporated in Singapore and the Singapore-Australia FTA is the relevant instrument, then it may be incumbent on Mr Palmer to convince Singapore to raise the matter formally with Australia.”

Tobacco giant Philip Morris tried to sue Australia over plain packaging laws using investor-state dispute settlement clauses under the Hong Kong-Australia FTA. Unlike the Singapore-Australia FTA, the Hong-Kong Australia agreement allows indi­vidual companies or investors to bring actions against nation states. The case fell over after an international tribunal found Philip Morris had moved its assets to Hong Kong to take advantage of those provisions.

WA Attorney-General John Quigley said outstanding costs owed by Mr Palmer to WA were now likely to be more than $2m in the wake of Wednesday’s decision. “If he brings that luxurious huge jet back into WA and lands that here, I’m going to have the sheriff seize it and he can go back east by train,” he said.