State loses bid to keep texts between WA Premier and Attorney-General about Palmer case secret

Confidential text messages between West Australian Premier Mark McGowan and Attorney-General John Quigley about Clive Palmer’s border challenge will be aired publicly at trial after the state government lost its legal bid to keep the communications secret.

The defamation trial between the mining billionaire and Premier, in which they are both suing each other, is due to start in the Federal Court on January 31, with Mr McGowan ordered to attend the Sydney hearings in person, despite WA’s border closures.

Texts between Mark McGowan and the WA Attorney-General regarding Clive Palmer’s border challenge will be aired in court.Credit: Alex Ellinghausen/Trevor Collens

Mr Palmer claims WA’s leader “brought hatred, ridicule and contempt” and hurt his feelings during public commentary about him in 2020, including when Mr McGowan referred to him as “the enemy of the state”.

Meanwhile, Mr McGowan is alleging his reputation was damaged by advertisements Mr Palmer paid for claiming he had “abused the parliamentary system” and lied to the people of WA.

During a Federal Court pre-trial hearing on Wednesday, it was revealed Mr McGowan and Mr Quigley discussed Mr Palmer’s rejected application to enter WA via text on May 21, 2020, a day before the Queensland-based businessman announced publicly his G2G pass had been denied.

The entry request was made at a time when both WA and Queensland had no community transmission of COVID-19, and Mr Palmer wanted to travel to Perth for business meetings, including with then-Liberal powerbroker Mathias Cormann.

During the hearing, Mr Palmer’s legal team sought access to text messages, and a number of other documents it had subpoenaed, after the WA state government refused to release them.

WA’s state counsel Alan Sefton unsuccessfully argued the texts between Mr McGowan and Mr Quigley should be not be disclosed under legal privilege.

Justice Michael Lee instead found the exchanges were predominantly political, despite the pair’s relationship.

“It’s one political colleague dealing with a matter of strategy with another political colleague,” he said.

“It’s not the sort of communication one would usually categorise as the provision of legal advice.“

Two days after discussing Mr Palmer’s application to enter WA, Mr McGowan and Mr Quigley then discussed Mr Palmer’s arbitration over a mining project dispute.

Mr Sefton conceded the texts contained both legal solutions and political solutions to Mr Palmer’s arbitration, however Justice Lee allowed them to be handed over to Mr Palmer’s legal team.

“I just don’t think I can really be satisfied that that communication’s dominant purpose was obtaining legal advice,” he said.

Further emails between Mr McGowan and others regarding Mr Palmer’s arbitration — where he later sued the state government for $30 billion in damages — were also deemed primarily to be about “parliamentary tactics”, and will be released.

On May 25, days after discussing Mr Palmer’s entry application with Mr Quigley, and it being rejected, Mr McGowan was asked at a press conference whether the rejection was political revenge for the arbitration action.

“I learned about this when I was advised by the police commissioner, it was a decision of the police commissioner,” replied.

“I didn’t make this decision, I didn’t know anything about it. I know there’s always conspiracy theories and people assume, I didn’t know.”

He also commented Mr Palmer was subject to the law, just like “everyone else”.

The mining billionaire later lost a High Court challenge to bring down WA’s hard border with other states with no COVID cases.

Shortly after the court found states had the right to make their own risk assessments in relation to the pandemic, WA reopened its borders to states with no COVID cases.