Mineralogy Pty Ltd & Anor v State of Western Australia; Palmer v The State of Western Australia [2021] HCATrans 108 (18 June 2021)

Last Updated: 18 June 2021

[2021] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B54 of 2020

B e t w e e n -

MINERALOGY PTY LTD (ACN 010 582 680)

First Plaintiff

INTERNATIONAL MINERALS PTY LTD (ACN 058 341 638)

Second Plaintiff

and

STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry
Brisbane No B52 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 JUNE 2021, AT 9.45 AM

(Continued from 17/6/21)

Copyright in the High Court of Australia

____________________

KIEFEL CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honour. Your Honours, it was suggested yesterday that we had not referred to the way in which section 6 of the Australia Act operates in our oral submissions. Could I, however, refer the Court to what we said on the first day of the hearing, at line 635 of the transcript. Your Honours, what I said then was:

may we make two further preliminary comments. One is that, unlike section 109, section 6 does not require inconsistency with a law of the Commonwealth, apart from the Australia Act itself. It does not require consistency with another law of the Commonwealth. There is no need to be, as there is in the case of section 109, a relevant law.

It goes on to the first paragraph on the next page.

Your Honours, our learned friends from Queensland suggested that the issue was decided in favour of section 109 in Marquet and, in particular at page 570, paragraph 67. May I take your Honours to that for just a moment, your Honours. It is Attorney‑General (WA) v Marquet [2003] HCA 67; 217 CLR 545. At page 570, the passage that was referred to by our learned friends is in paragraph 67 and you will see there an observation by four members of the Court at the bottom of the page saying:

The Australia Act takes its force and effect from the reference of power to the federal Parliament, made under s 51(xxxviii), and the operation that the Act is to be given as a law of the Commonwealth in relation to State law by s 109 of the Constitution.

Your Honours, that paragraph in Marquet was hardly exhaustively defining the manner and operation of the provision and the issue does not seem to have been argued in the matter. Could I say also that ‑ as the old magazines used to say “now read on” – if one goes then to the next paragraph of the reasons for judgment, to paragraph 68, the discussion in paragraph 68 seems rather against the view that it is only by the operation of section 109 that section 6 takes effect. Your Honours will see in the fifth line on paragraph 68:

It is of particular importance to recognise that the Australia Act stands as a form of law to which the Parliament of Western Australia is relevantly subordinate. To the extent to which s 6 applies, the powers of the Parliament of Western Australia to legislate are confined. What has been seen as the conundrum of whether a body given general power to legislate can give up part of that power need not be resolved.

That is the Ranasinghe issue, I think:

By federal law, effect must be given to some manner and form provisions found in State legislation.

Remaining with the Australia Act for a moment, there have been various arguments advanced by our learned friends dealing with the - raised against us in relation to the manner and form. We deal with those in our submissions in reply in paragraphs 31 and following. May I take your Honours to those for just a moment.

KIEFEL CJ: Which paragraphs were they, Mr Jackson?

MR JACKSON: Paragraphs 30 and 31, your Honour, commencing.

KIEFEL CJ: Thank you.

MR JACKSON: Your Honours, in paragraphs 31 and following there are eight points raised against us with which we seek to deal and may I take your Honours to what we said there and I will do so briefly, your Honours. The first, your Honours, is one that – in paragraph 31, I dealt with that earlier in our submissions. In relation to the second point, it is, as we submit there, immaterial that the agreement was, as is put against us, evidently a contract executed prior to the Act itself.....Once the Act came into force the provisions became law, in our submission, and modified other laws. It is not just clause 27. We give other references.

The third matter dealt with in paragraph 33 dealing with those various decisions, your Honours, I think I have dealt with those decisions already. I shall not go over them. I will come back to them for a reason shortly, but I will not elaborate now further on what we have in paragraph 33.

The fourth point, your Honours, is, if I may so, with respect, a curiosity. It is a very strange thing to say, how could you say he had a contractual claim for damages in breach of contract, if the contract is one that is given statutory effect? You would think he would have a better case – better rather case rather than no case at all.

Your Honour, if I could move then to paragraph 35. Of course the agreements were not made by Parliament itself. One does not ordinarily see, except in relation to Parliament’s own affairs, Parliament going out and making contracts, but, at the same time, your Honours, as we submit there, they achieve statutory effect because of laws that are not made by the Parliament.

Your Honours, could we move then to paragraph 36. Section 6 of the Australia Act does not require that every aspect of the manner and form be carried out by Parliament itself. Your Honours, I can just put that shortly. In a slightly related way, the seventh point to which we have referred in paragraph 37 is one where we would submit it is quite wrong to say that, at most, clause 32 prescribes, “a manner and form for the parties” to follow if they wish to amend the agreement That is true if one really stops there. But, of course, absence of agreement by a party to an amendment is not the end of the matter. It can be the subject of arbitration with the matter then going to the Houses of Parliament under clause 32, and each of the two Houses of Parliament is, in our submission, involved.

Your Honours, finally, may I refer to what we have in paragraph 38. This is the attempted reliance on section 73 of the Constitution Act. That provision, however, if one looks at it, your Honours, only applies to changes in the constitution of the House. Clause 32 does not deal with that topic.

Your Honours, could I come then to a matter to which I adverted a few moments ago that I would and that is just a brief thing about reference to earlier decisions. The State and I think some of the interveners have said that we have not dealt with the decisions suggesting that a State may change the law even though it affects the outcome in pending litigation. Your Honours, we have, in fact, done so. That can be seen in our submissions in reply and could I refer in that regard to paragraphs 9 to 20 inclusive. I had not intended to go to them one by one. May we adopt what we have there as being our submissions in response to that submission.

Your Honours, this is a case, we would submit, where it is unreal, quite unreal to separate the parts of the Act from each other. One has a situation where we have an agreement with the State and it is a situation where the Act is concerned and is directed towards a relatively narrow area, namely, that agreement between the plaintiffs and the State.

Every aspect of the 2020 Act is in one way or another dealing with one aspect of that narrow subject matter. It approaches it from a number of points of view. Of course, it approaches it in a number of ways. They have been elevated to metaphors - the concentric lines of lines of defence and so on, as if we were the attacking Goths.

If one does descend to metaphors, a better description of the present situation would be where one person comes to another’s house and says, “Let’s work out how much you owe me under our agreement” but finds the front and back doors locked and the windows barred and the two German Shepherds not in a particularly welcoming mood.

Your Honours, might I come then to two questions which really are in a sense related and that is pleading reliance – sorry, a need to plead reliance, on the one hand, the question of perhaps prematurity on the other. The first is the question that has been raised on a number of occasions. Should the provisions be treated as akin to time limitations – ineffective unless pleaded - and should the attack on the Act be dealt with piecemeal?

Your Honours, in the Court’s decision a few days ago, LibertyWorks v The Commonwealth [2021] HCA 18, there were some passages in the reasons of members of the Court to which I would like to refer briefly. The first is in the joint reasons of your Honour the Chief Justice and Justices Keane and Gleeson at paragraph 90, where what your Honours said there was that - there was a reference to Lambert v Weichelt, where Chief Justice Dixon had said it was:

not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties.

Your Honours, can I go to your Honour Justice Gageler, paragraph 116, and also to your Honour Justice Gordon, paragraph 125. Might I just go to paragraph 125, your Honour Justice Gordon, for a moment. Your Honour there said that:

As with any question of constitutional validity, the first step must always be to construe the Act and determine its legal effect and practical operation.

Your Honour then dealt with that in the remaining part of that paragraph. Your Honours, what one sees in relation to this area, speaking generally for a moment, in our submission, is that how one deals with these aspects must depend on the justice of the particular case.

If one looks at the 2020 Act here, it is dealing with one agreement. It varies that agreement for the past and for the future. It takes away established entitlements under that agreement. It prevents any form of litigation to establish those entitlements or to challenge the conduct that has been engaged in to achieve that end. It makes the other innocent contractual party liable to it for the costs and losses sustained by its own conduct, and for the future such costs.

Your Honours, it all relates to the same basic subject matter – the agreement. We would submit that it is a case where it is inappropriate to dispose of it in, as it were – and I do not mean this in any offensive way – dribs and drabs. It is a matter, we would submit, of justice.

Also, your Honours, we would submit that the provisions of the 2020 Act do operate to deprive courts of jurisdiction. If one looks at the provisions which say that any proceedings are terminated, the expression “are terminated” means terminated as from the enactment of the Act, as it were. Of course, a court may have to consider whether a case does or does not fall within the prohibition on jurisdiction, but that is simply a court exercising jurisdiction to determine whether it has jurisdiction.

Your Honours, our submission is that it is not a case where there is a need to plead before a provision comes into effect or can be treated as coming into effect – effecting, a sense. Could I go for a moment to say this, that to treat, for example, section 9 as living in isolation from the provisions – from other provisions and from, for example, sections 11(1), 11(2) and 11(3), we would submit, is to give some, but not full, effect to the terms of the Act.

Can I take your Honours for a moment to what we have sought to say in our reply at paragraph 20 and following – sorry, I think I should have said paragraph 2 and following. In paragraph 2, and under that heading, we deal rather more fully with the approach taken – I am sorry, your Honours, I am putting it badly – I should have gone first to paragraph 20. That summarises an underlying matter, we would submit, in the case, and particularly the last sentence of paragraph 20.

Your Honours, could I just say also, if one goes back to the earlier part of our reply submissions, in paragraphs 2 to 8, we seek to advance comments submitting that the approach taken by the defendant and by the interveners in this case is one which is inappropriate. I will not go through it in detail, but your Honours will see that we refer, in the first sentence of paragraph 2, to two matters that we suggest are inappropriate. One is the failure to consider the Act and scheme as a whole. The other is the elevation of form over substance.

We develop the first of those things in paragraphs 2, 3 and 4, and in paragraph 5 we refer to the form over substance issue, quoting what was said in Ha v New South Wales. That goes through to paragraph 8. Your Honours, could I also refer to what was said by the Court in Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 and to paragraph 129 at page 91 of the reasons for judgment. There four members of the Court said, speaking of a Kable approach:

For present purposes it its important to recognise that the conclusion in Kable proceeded from consideration of the whole of the Act in question and all of the features which it presented.

I will not go over the discussion of the particular case, but one comes to the last sentence of that paragraph:

But neither of those features of the Community Protection Act can be considered separately from its other features and, in particular its conscripting -

and so on. It supports the view, in our submission, that one has to look at the Act as a whole.

Could I say, your Honours, going to the transcript yesterday, I do not think I need to actually take your Honours to it, but if one looks at the transcript yesterday at about line 5865, you will see arguments by our learned friends for Western Australia that what is described and described
again and again and again as the “rights principle” to which it has been elevated exists by itself. All else is dependent on the rights principle. That is not correct, in our submission. One does have to look at things as a whole.

Your Honours, that takes one, in a sense, to looking at section 8(4) and (5) of the 2020 Act. If I could take your Honours to those for just a moment. Your Honours will see in relation to section 8(4) if one is considering validity one is looking, in our submission, at the enactment as a whole. It becomes difficult to apply to the extent – test adverted to in section 8(4) because the provisions are interrelated and so too is the conclusion about invalidity.

Again, with section 8(5) if one looks at its terms, what is the provision if one is looking at the Act as a whole, that is not valid for any reason. Your Honours, we rely, of course, on our written submissions, as I have said before. Those are our submissions in reply.

KIEFEL CJ: Yes, Mr Palmer.

MR PALMER: Thank you, your Honour. I will only be brief, less than 30 minutes, I believe. Your Honours, I wish to adopt all the submissions made by Mr Jackson in reply and make some reply submissions of my own. After listening to the submissions from the Solicitor‑General of Western Australia, the Commonwealth, the intervening States, I feel that I am standing here before the Court today facing layers of persecution.

I want to reply first to what Mr Thomson said about the manner and form issue. I start by emphasising the important, practical point of State agreements and Acts which ratify them, previously provided and rock‑solid foundation for many billions of dollars of investment for the development of Western Australia since the 1950s.

The most compelling and unavoidable evidence of the defendant being bound by the manner and form of clause 32 is that in 2008, when amendments were made to the State agreement, the State proceeded in accordance with the 2002 original Act. There was never any question then or until 2020 of the State ever behaving otherwise.

This also applies for all amendments of similar agreements that have taken place over the years. When the defendant has acted as a State, it accepted for almost 20 years in respect of this agreement that it was bound by the original 2002 Act in matters of manner and form. It should not now depart from a long-established position on which I and other parties and other countries have relied for so many years.

I refer to page 1 of the original Act set out on page74 in volume 1 of B52 special case book, which sets out the original Act’s purpose in the first line. What it says is:

An Act to ratify, and authorise the implementation of –

the agreement, which in clause 4(2) says:

The implementation of the Agreement is authorised.

The purpose of the Act is not just to validate and approve, as the defendants would have us believe, but to ratify, authorise and implement the agreement. I want to emphasise the word “implement”. Paragraph 4(1) of the Agreement says:

The Agreement is ratified.

Paragraph (2) says:

The implementation . . . is authorised.

The terms of the agreement itself require that the parties fulfil its terms, in particular clause 7.6 of the agreement, which requires that proposals are implemented. I refer to the transcript of the Court dated 16 June 2021, at paragraph 4825 on page 110 where Mr Thomson says to the Court as follows:

So, on the one hand, there was an Act which validated or approved – which is similar to authorised and ratified – and on the other hand there was an Act which imposed an obligation, a statutory oath – sorry, an obligation to implement and fulfil the terms of the agreement which in modern parlance we would say is equivalent to enacting the obligations into statutory force –

So, the critical features of giving statutory force according to the State of Western Australia are obligations to implement and fulfil the terms of the agreement. That is something the original Act and the State agreement do, in clause 4 of the original Act and in clause 7.6 of the State agreement. So, the State agreement and the original Act meet the requirements of Western Australia’s oral submissions to this Court – as stated in paragraph 4825 of the transcript just mentioned – to have statutory force by implementing a project and being bound to fulfil the terms of the State agreement.

I find it curious that the Solicitor‑General for Western Australia did not bring to the Court’s attention clause 31 of the Interpretation Act 1984, which is contained in tab 1 of B52 plaintiff’s supplementary book of authorities, which states in subparagraph (2):

An Appendix or schedule to or a table in a written law, together with any notes thereto, forms part of the written law.

Section 3 of the original Act defines the agreement as the:

Agreement . . . set out in Schedule 1, and includes the agreement as varied from time to time in accordance with its provisions -

The State agreement makes up Schedule 1 of the original Act. I note the submission from Western Australia that section 4(3) performs some magic trick by getting out of the way any impediments to the agreement without making the State agreement law. This cannot be the case.

For the avoidance of doubt, I would refer the Court to the table I handed up to the Court in the course of my oral submissions. There can be no doubt that only a law of the Western Australian Parliament could achieve such outcomes as achieved by provisions listed in the table, I submit to the Court.

I bring the Court’s attention to section 4(3) of the original Act. It deals with the agreement as a whole, not part of the agreement, but all of the agreement without discrimination. Clause 4(2) says:

The implementation of the Agreement is authorised –

and that is the whole agreement. Whatever the effect of section 4(3), it applies equally to all clauses of the State agreement including clause 32 of the State agreement. Consequently, the State agreement is a law of the State of Western Australia. Its legal power comes directly from the Western Australian Parliament enacting the original Act.

By section 4 of the original Act, referred to in the agreement, as defined as section 3 of the agreement as varied from time to time in accordance with these provisions, Parliament clearly intended that clause 32 of the agreement in a manner and form which was a manner and form which must be complied with both to amend the original Act as well as the agreement and to achieve the original purposes of the Act and that is exactly what the West Australian Parliament has done in 2008. That is the exact method that they operated under.

The amending Act has not followed the manner and form requirements laid down by clause 32. As a result, I would respectfully submit, the amending Act is invalid in its entirety for not complying with section 6 of the Australia Act which Mr Jackson has taken you to this morning and which I will not repeat.

The Court raised yesterday section 3 of the Interpretation Act 1984. I wanted to respond in the following points. Firstly, section 3 of the Interpretation Act (WA) is not invoked. The Court should be slow to find to the contrary intention or exception in the 2002 Act and there is more. Secondly, section 4(3) of the 2002 Act does not constitute an exception as provided for in section 3 of the Interpretation Act. Thirdly, section 4(3) incorporates the State agreement into the 2002 Act and gives it legislative force.

As section 4(3) gives the State agreement legislative force, the intent and the object of the 2002 Act is not inconsistent with section 31(2) of the Interpretation Act. That is both section 4(3) of the 2002 Act and section 31(2) of the Interpretation Act operate consistently to enable the State agreement to form part of the 2002 Act. Nor do any other sections of the 2002 Act express any intent or objective inconsistency with section 32(2) of the Interpretation Act.

For example, the preamble states that the 2002 Act is an Act to ratify, and to authorise and to implement an agreement between the State and Mineralogy. The language is consistent, and the State agreement being part of the 2002 Act. Section 3(1) of the 2002 Act states

the Agreement means the Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Act, a copy of which is set out in Schedule 1, and includes the agreement as varied from time to time in accordance with its provisions.

Again, the language is consistent with the State agreement being part of the 2002 Act.

Lastly, construing section 4(3) of the 2002 Act consistently with section 31(1) of the Interpretation Act recognises a combined, harmonious operation of section 4(3) of the 2002 Act, and section 3(b) of the Government Agreements Act 1979. The State Agreement Act forming part of the 2002 Act enables it to modify – modify statutorily any other relevant Act or law, as provided for in section 3(b) of the Government Agreements Act 1979 (WA).

In responding to matters raised in respect of section 118 submissions, I note that section 35 of the Arbitration Act has two steps: firstly, to recognise that a law is binding and, secondly and separately, it provides for a subsequent enforcement of that award. I would respectfully submit an award is binding by the force of section 35 of the various State Acts and the Territories on and from the date of the arbitral award.

A binding award may not require an application for enforcement. A party who the award is made against may just perform the award orders made against it. Much as happens with respect to judgments from superior courts in this country. The existence of a binding award is more often than not sufficient to resolve the matter and provide certainty without recourse to the courts, which is one of the benefits of having a system of commercial arbitration in the first place.

The award is the offspring of the arbitration process, which is brought to a conclusion by the making of the award. An application for enforcement may fail or be granted considering wholly different grounds. The award may still be binding but the Court may exercise its jurisdiction for other reasons not to grant enforcement, which were not themselves part of the arbitral process.

An application for enforcement is a new process subsequent to the making of the award and involves a court application and is separate and subsequent to the award being made and its only option. A very important issue about section 18 of the Constitution to be determined in this case raises an issue of general importance for the credibility of Australia’s integrated national scheme for commercial arbitrations.

The credibility of that scheme has been severely damaged by the enactment of the Amending Act. The Amending Act assumes the losing party to an arbitration is to extinguish unfavourable arbitral awards retrospectively, in all States and in all Territories. It assumes that a losing party can reverse the result and wipe clean the slate even after eight years of arbitral proceedings before a very distinguished arbiter.

If that view is permitted to take hold, the work of commercial arbiters will diminish greatly, parties will stop including arbitration clauses in their agreements and the workloads of the courts will increase. This is contrary to the public interest, confidence in our national scheme of commercial arbitrations and the constitutional assumption of full faith and credit on which the scheme depends needs to be restored as soon as possible.

In making that submission, I acknowledge the point raised by your Honour the Chief Justice about the Amending Act being a legislative Act and the importance about not blurring the distinction between government and legislature. However, I respectfully submit that the distinction is very thin in this particular case. That is because, as mentioned in paragraph 9 of my written reply submissions, there was no effective opposition either in the House of the defendant’s Parliament.

In any event, if arbitral awards are susceptible to sudden legislative reversal, despite what section 35 of the Commercial Arbitration Act says about them being recognised as binding, it does not matter whether this reversal was a result of government or a legislative Act. The damage to the national scheme of commercial arbitrations will be exactly the same. It is a damage which must be prevented.

The Amending Act, in particular, section 7 is invalid as they do not give full faith and credit to two awards and the laws of the States and the Territories. Mr Thomson made various submissions to the effect that the matter raised issues are hypothetical. That overlooks the impact which the provisions of the Amending Act are having now.

It was recognised by the Commonwealth that the Brisbane proceedings in the Federal Court were adjourned by orders of Justice Greenwood. The pleadings have not yet completed, and I can confirm that the amended concise statement will contain constitutional issues and those specific issues are still in preparation.

As a matter of substance, the cumulative effect of those alleged hypothetical provisions including the indemnity provisions is to create a monster privative clause. Those provisions have a practical effect of ousting the jurisdiction of the courts. Their draconian nature is designed to intimidate me and my companies under my control from bringing matters before Chapter III courts.

This is done in a variety of ways Mr Thomson described in his submissions as involving cascading layers of protection. With respect, this is a euphemism, as spectacular as describing the Amending Act as involving an adjustment of rights. A less kind description might be to say the Amending Act involves cascading layers of persecution.

It strips away rights of natural justice which I would normally have as an Australian citizen. It denies me access to the courts in relation to important matters. It denies me access to documents and information. It deprives me of valuable rights including property rights. Last but not least, it creates indemnities which impose a very heavy burden on me and my companies and on my descendants. The indemnities and the amending Act are real, a real sting in the tail. They mean that the consequences of bringing a relevant matter before a Chapter III court would be so dire that it is an effective deterrent from doing so.

Those courts must be available to litigants to allow them to ventilate disputes about their rights and their obligations and to seek review, including constitutional review of government action and legislation. The Amending Act is speaking now, and it is providing an effective deterrent from bringing matters before the courts.

This is not hypothetical. It is not a hypothetical matter which might arise in a future case. It is a problem which exists now. It is a problem which remains for so long as the provisions of the amending Act which in substance and effect amount to a monster privative clause remain on the statute books. There cannot be any hypothetical in circumstances where it is common ground that the defendant has already put my companies on notice that it intends to seek costs from them in relation to the proceedings that have been commenced.

There is thus an existing threat enforcement by the defendant on the indemnity provisions. Those are costs which would ultimately fall upon me personally as the ultimate beneficial owner of the companies. In any event, the indemnity provisions of the Amending Act make the liability of relevant persons to indemnify the State joint and several. So, I am already on the hook, directly as well as indirectly. There is nothing hypothetical about this.

Further, I wish to reply briefly to what Mr Free for the defendant said about section 117. I respectfully submit that where the objective purpose of a piece of legislation is to engage in discrimination of the kind prohibited by 117, it must be invalid. In this case we have insight, perhaps a rare insight into what the objective purpose of the legislation is. This may be ascertained with the aid of Hansard materials. This makes this case different from previous cases which decided section 118 before this Court. It may warrant a different approach in order to ensure that section 117 achieves its real purpose.

Next, I wish to reply briefly to what Mr Free for the defendant said about section 75(iv). I refer to my previous written oral submissions explaining why there was and, in substance, a matter between the defendant and me which the Amending Act has sought to quell. It has done so in a judicial manner inter alia by reversing previous quasi‑judicial decisions made by a very distinguished arbiter and former member of this honourable Court. It has done the kind of things a court might do when reversing a decision on an appeal. Only a Chapter III court has the power to resolve matters of the kind described in 75(iv). The Amending Act attempted to do so, and it results in invalidity.

I wish to make a brief observation about the submissions of the interveners who have supported the defendant. Those submissions remind us of what is really at stake in this case, in terms of the erosion of the rule of law in our country. If the amending Act is not declared invalid, then it is not merely a question of what the defendant might do next and to whom that gives rise to a much wider danger. It means that other States and Territories, emboldened by what the defendant has done, may enact legislation which is equally offensive, and perhaps even more offensive to the rule of law which underpins the assumption of our Australian Constitution.

Your Honours, I would like to respond to submissions that have been made by the defendants by each of the interveners who have adopted the defendant’s submissions as their own, and in some cases expanded upon them in respect of the extreme law point. State Parliaments and their powers are recognised under Chapter V of the Constitution, and particularly under section 107. It follows the West Australian Parliament was established under the Constitution, is governed by the assumption of the rule of law.

In cases of extreme legislation a State Parliament may not be behaving as a State Parliament of the kind envisaged in Chapter V and the rule of law. Laws created by not following proper procedure incited by propaganda, or in circumstances where, in essence, the Executive has merged with the Parliament, and the normal parliamentary procedures have broken down, especially where individuals, religious groups or small groups of people have been targeted contrary to the rule of law, are not laws. But it has been said that they are an abomination masquerading as a law.

History reminds us of the mischief that can be carried out when legal positivism does not look at the substance of what is happening and ignores the requirement of a properly constituted Parliament which follows established democratic and constitutional procedures.

Your Honour, the Chief Justice raised a point with me regarding the distinction between the Executive and the legislature and the requirements that the government of the Executive be under the law, recognising however that the laws are formally made by the legislature.

At this point I invite your Honours to take up the Hansard of the Legislative Council on 30 August 2020, volume 2 special case book in B52 at page 513. In the last sentence on that page you will see the legislature was being asked to “trust the Western Australian Government” after having been given “zero” – that is “zero time to consider the legislation”. On page 533, at line 24:

Although we will not be opposing this legislation, because we are assured that is it in the state’s interest, be it on the government’s head –

Be it on the Executive’s head they may have meant to say. On page 575 in line 10:

What is happening here is not a proper process.

What is happening here, I say, is not a proper process.

When we try to short‑circuit things, it never works. Nevertheless, that is what will happen.

Then on page 577, line 20:

this is on the government’s head. It is the government’s responsibility. The government wrote this bill and rushed it through, so it is ultimately respondent for this, and when it backfires, it will be on the government. Those of us who are critical of this bill have done everything that we can; we cannot do anything more. It is on the government now. When this backfires, it will be on the government, and I hope that people remember that. I doubt that they will, but, ultimately, this is the government’s bill and it is the government’s responsibility.

On page 577 at line 26:

I am very disappointed. Given just a little bit more time we could have worked our way through this bill and possibly made sure that we were doing the right thing. We will not know now for maybe years, but we do know we have compromised our beliefs, our system of justice and our system of democracy, and it is a bad day for this Parliament.

I would submit it was a bad day for Australia. I refer your Honours to paragraphs 9 and 10 of my written submissions in reply on 4 June 2021, which also dealt with that topic. I submit that this Court should declare the entire Amending Act invalid, as the Western Australian Parliament has not performed the functions envisaged by Chapter V of the Constitution of Australia, in circumstances where the Executive has, in effect, in substance over form, merged with the legislature, contrary to the doctrine of separation of powers and the requirements of the Constitution and the assumption of the rule of law which underpins the Constitution.

I would further like to respond to the repeated use of the word “mischief” against me and my companies in the defendant’s submissions. I have not performed any mischief, only properly accepted my duties and obligations under the Corporations Law to cause companies I was a director of to pursue legitimate legal claims according to law.

I would also like to point out to the Court that there is no award of $30 billion to any of my companies. Such a headline‑grabbing figure, that is what is hypothetical and speculative, not the effects of the Amending Act. If the third arbitration is allowed to proceed, my companies may be unsuccessful and be awarded nothing. They may be awarded only nominal damages, or they may be awarded more. All they were seeking was to have their claims determined in accordance with law by a very experienced and distinguished arbiter who was nominated by the State, I might add. There has never been any mischief involved.

Many governments are ready to grab power, power more power from the courts and in the final analysis from every citizen of the Commonwealth. Fear is a dangerous element. State and Commonwealth intervention in these proceedings and their support for the Amending Act must be viewed against this background.

Such interventions sound an ominous warning for Australia and Australians not yet born that they must defend the rule of law and the values embodied in the Australian Constitution. I respectfully submit that the development of law in Australia has reached a crucial juncture. The Amending Act is itself, as Justice Nettle described it, extraordinary and unprecedented.

At this critical moment in Australian history, this Court has a decision to make of what the future of the development of law in this country will take. The choices are stark. Should the law developed by the States grabbing all power at the expense of our people and our federal system of justice or could a strong message be sent to all State Governments that the rule of law, proportionality, the Constitution and the courts cannot be disregarded.

The challenge has been thrown down by the Amending Act to our Federation, our system of arbitration and the rights of all of us. Only this Court has the power and the wisdom to meet that challenge and meet it it must. At the heart of our nation is unity. All Australians regardless of the States they reside, rely on the promise set out in the Constitution that they will be treated equally and fairly. Lady Justice wears her blindfold to ensure that treatment. The Amending Act destroys that promise.

Only this Court can ensure the rule of law. The courts and our democratic traditions will prevail over the challenge they now face by the Amending Act. Australians look to this Court as the last sentry at the gate to uphold the Constitution and all the aspirations who have attended the Constitutional Conventions. The amending Act must be declared invalid in its entirety. May it please the Court, these are my reply submissions.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 22 June in Canberra.

AT 10.40 AM THE MATTER WAS ADJOURNED