Secrecy and speed vital to legislation to lock out Clive Palmer

Normally it takes a week for parliament to proof, print, check and prepare a bill to be sent to the Governor for royal assent. In this instance, it was condensed to just minutes.

Western Australia Defence Minister Paul Papalia and Premier Mark McGowan at Parliament House in Perth. Picture: Will Russell

Just after 11pm on Thursday, a car headed down the hill from Western Australian’s parliament in Perth through near-empty streets towards the Governor’s residence on St Georg­es Terrace.

In the car was a public servant and a bundle of papers that could save the state more than $30bn. Just half an hour earlier, the WA parliament’s upper house had passed an extra­ordinary, unprecedented bill ­designed to kill off a potentially ruinous legal action against the state by Queensland billionaire Clive Palmer.

Normally, it takes about a week for the behind-the-scenes bureaucracy of parliament to proof, print, check and prepare a bill to be sent to the Governor for royal assent. In this instance, however, the whole process was condensed to just minutes.

Palmer’s move in Queensland earlier that day to launch legal ­actions in the Federal­ Court and the state’s Sup­reme Court aimed at scuttling WA’s plans had added even more urgency to the process.

If royal assent­ could be secured by midnight, the legislation would be seen in the eyes of the law as having been implemented at the start of that day — effect­ively predating Palmer’s Queensland legal manoeuvrings.

By 11.15pm, Governor Kim Beazley had signed those papers­ and affixed his seal, making­ it law. That capped a frenetic­ 55 hours in parliament, and six weeks of top-secret legal work involvin­g some of the state’s top legal minds, all designed to deprive the man arguably most hated by West Australians of some of his most fundamental legal rights.

The new law effectively shuts down a dispute between Palmer and WA over the billionaire’s proposed Balmoral South iron ore project, about 100km southwest of Karratha, near the Pilbara coast. In 2002, Palmer had secured from Geoff Gallop’s Labor government a state agreement — a powerful piece of legislation designed to smooth the path for the development of major projects.

It was a deal that effect­ively made him a billionaire, paving the way for him to strike a lucrative deal over a sliver of those iron ore holdings with giant Chinese conglomerate CITIC. That CITIC project delivers about $1m a day in royalties straight into Palmer’s bank account. Balmoral South was supposed to be a simil­arly enormous windfall.

But, in 2012 and 2014, then premier Colin Barnett had knocked back proposals for Balmoral South. The rejections spelled the end of the deal he had lined up with other Chinese interests, and an angry Palmer became the first ever holder of a state agreement to launch arbitration proceedings against WA.

Early arbitration rulings had found in his favour, with former High Court judge Michael Mc­Hugh finding Barnett did not have the power to reject the proposal outright.

The potential significance of the dispute became apparent on June 26, when McHugh scheduled a 15-day arbit­ration hearing for November to consider the amount of damages payable.

The details of the arbitration process had been strictly confid­ential before WA Attorney-General John Quigley rose to his feet in parliament at 5pm on Tuesday.

Using parliamentary privilege to unshackle himself from the arbitration­’s confidentiality prov­isions, Quigley detailed a potent­ial damages claim of $30bn, send­ing shockwaves around the state.

Palmer, for his part, has repeatedly dismissed the credibility of the figure as “bullshit” and the product of the state, not his own legal team. But he has refused to agree to waive the confidentiality conditions around the arbitra­tion, which would make the legal documents publicly available.

The timing of Quigley’s seismic address was deliberate: every court across the nation­ had locked its doors, buying the state precious time to get moving before­ Palmer’s legal team could pepper courts with injunction­s and other legal manoeuvres.

Quigley had been part of a select­ group in the WA government aware of the brewing crisis. Only he, Premier Mark McGowan, Solicitor-General Joshua Thom­­son, state solicitor Nicholas Egan and a handful of senior staff had been aware of the situation.

“There was good reason for this,” Quigley told The Weekend Australian on Friday. “On behalf of all Western Aust­ralians, we could not risk Mr Palmer to get any advance warning of what was coming by way of a legislative response to his outrageous claim.”

The government also enlisted two senior litigation partners from Clayton Utz — typically the law firm of choice for WA’s Liberal­ Party opposition — to “war game’’ the draft bill in an effort­ to find any legal loopholes.

The circle of trust only began to widen last Friday night, when the most senior members of the ministry — Ben Wyatt, David Templeman, Steph­en Dawson, Roger Cook, Bill Johnston, Rita Saffiotti and Sue Ellery — were briefed on the crisis.

The rest of the government only learned of the situation at a 4pm emergency cabinet meeting. As Quigley started speaking, Mc­Gowan called Opposition Leader Liza Harvey and Nationals leader Mia Davies to a quiet corner of the chamber to fill them in.

If Palmer wasn’t already the most unpopular man in WA due to his High Court legal challenge against the state’s hard border closure, the revelations about the $30b claim ensured it. Selling the extraordinary piece of legislation to the WA public wouldn’t be difficult, given the man it was targeting could be portrayed as a villain intent on giving everyone coronavirus and taking their money.

Within parliament, however, there were some deep-seated reserv­ations about the extreme nature of the legislation. The bill included clauses stripping Palmer of his rights of appeal and laws of natural justice, granting the government and its agents indemnity from criminal prosecution.

Nevertheless, the spectre of a $30bn payout proved overwhel­ming. The bill passed through the upper house on Thursday without amendment and is now law.

A High Court challenge from Palmer is a certainty, as are defam­ation proceedings against McGowan. The billionaire has also started a carpet-bombing advertising campaign across Perth.

After a lifetime of litigation, Palmer has a thick skin and even thicker wallet. Getting dragged into a protracted legal battle holds no fears for a man who famousl­y listed “litigation” as his hobby, and that $1m a day of royalties pouring into his account gives him the resources to fight.

On ABC radio, Palmer des­cribed McGowan as “an outlaw swinging his gun around” to protect him and Quigley from criminal law. “The reality is the High Court will strike down their legislation,” he said. “Mark McGowan and the ­Attorney-General are the first law officers that have ever given themselves an indemnity under the legislation from criminal prosecution.

“The real question is: what are the crimes? They haven’t told us.”

Palmer spent years and untold millions fighting CITIC in the courts for the iron ore royalties that now line his pockets. His looming battle with WA could end up making that look like a mere skirmish.