China deal went too far, says Colin Barnett

Former WA premier who oversaw a ­dramatic growth in trade with China, says Victoria’s BRI deal is a bridge too far.

Former Western Australian premier Colin Barnett, who advocates for strong trade with China, says Victoria’s BRI deal is a bridge too far. Picture: Colin Murty

Former West Australian premier Colin Barnett, who oversaw a ­dramatic growth in trade with China, says Victoria’s Belt and Road deal is a bridge too far and impinges on the commonwealth’s management of foreign affairs.

Mr Barnett, a frequent visitor to China during his premiership and a vocal advocate for a strong trade relationship with that nation, told The Weekend Australian he would not have pursued such a deal. “My view is Victoria shouldn’t have signed up to that. That crosses the line into foreign policy,” he said.

Geoffrey Lindell of the Adelaide Law School also questioned the constitutionality of the deal signed in October 2018 between the Victorian government and the National Development and Reform Commission of the People’s Republic of China.

Attorney-General Christian Porter leaving after Question Time at Parliament House in Canberra on May 13, 2020. Picture: AAP

Professor Lindell said the issue was whether the external affairs power at section 51 (xxix) of the Constitution was exclusive to the commonwealth, but noted this had not been clarified legally.

“I personally think there is an argument there and it’s been there for quite a long time but it’s not been tested,” he said. “The Attor­ney-General — if it got that far — would be the appropriate person to raise it in the High Court.”

China’s Belt and Road Initia­tive gathered momentum after Mr Barnett was defeated in the 2017 WA election, but the former state Liberal leader said the prospect of deals such as that signed by Victoria had been raised with him by Chinese officials.

“The approach I took whenever it was raised with me was that we would always just look on a project-by-project basis,” he said. “It was after my time but I was asked about it by Chinese repres­entatives.

“My view was it was heading into the realm of foreign policy and I don’t think states should be signing agreements like that.”

Federal Attorney-General Chri­s­tian Porter told The Weekend Australian it was the responsibility of the Victorian government to ensure that all of its arrangements were constitutional. “We take all aspects of the matter, including the constitutional aspects, very seriously,” he said. “We don’t propose to give detailed legal commentary on Victoria’s agreement.”

The Australian revealed on Friday that the Victorian Department of Premier and Cabinet was refusing access to the details of national­ security advice it received before signing up to the BRI.

Victoria became the only Australian jurisdiction to join the BRI when it signed the deal, breaking ranks with the commonwealth, which views the scheme as a vehicle for Chin­ese regional and global expansion.

Mr Barnett’s concerns about the Victorian government’s deal come despite the fact he took an active role in encouraging trade between his state and China, which was clamouring for WA’s resources during his premiership.

In 2011, Mr Barnett signed a memorandum of understanding between WA and China’s NDRC to encourage trade and investment. The NDRC is one of China’s most powerful government organisations, wielding broad administrative and planning control over the Chinese economy and controlling foreign investment by Chin­ese state-owned companies.

The MOU was the first one signed between the NDRC and any state or regional government in the world.

Mr Barnett said that while Victoria had gone too far, it was also wrong for the commonwealth to say that the states had no role to play with foreign countries.

“States should not be setting foreign policy, but equally it’s silly for the commonwealth to say the states have no role. States very much have a trade role,” he said.

Constitutional law expert George­ Williams, dean of law at the University of NSW, said it was a “stretch” to question the constit­utionality of Victoria’s BRI deal under section 51 (xxix). “This power of external relations and external engagement is normally understood to be a concurrent power … held by both the commonwealth and the states. Sometimes there is tension between­ federal foreign policy and state activi­ty. It doesn’t typically give rise to a constit­utional problem.”