Zeus McGowan vs the rule of law

This was originally published on 17th August, 2020, and republished here on 4th January, 2022.

Who is Clive Palmer?

That is not an easy question to consider, and the man himself is unlikely to ever give you a straight answer. Everyone in Australia knows who he is, but it’s hard to separate the man from the myth and legend. Professor Palmer, as his company’s website describes him (legitimately, as he has been an adjunct professor at Deakin and Bond Universities), takes great glee in running circles around people and making millions from it, either from buyers and investors or, more frequently, in court.

He’ll then spend that money on wild ideas that may or may not get off the ground, like the Titanic II listed above, or his resort full of dinosaurs, or a zeppelin-making company, or, most often, his next enormous mine site. On the off-chance any one of the new deals he makes goes south, he will more than likely make a profit off it anyway, because he has a habit of signing contracts that benefit him regardless of the outcome.

How, exactly, he appears to know every legal loophole he can find is itself somewhat of a mystery. When representing himself in court last year, the judge in one of his many ongoing cases expressed concern that Palmer was doing so to get around the restraints placed on what lawyers can usually say. Even as more lawyers arrived in court alongside him, Palmer responded by saying he mostly worked alone.

I say all of this to make it clear that I have no idea what to make of a man who goes on a radio show and twerks on demand, becomes a Living Treasure after telling his staff to vote for him in a poll by the National Trust, becomes an MP after putting billboards of himself up over the country and releases a book of free-form poetry that reads like it could have been produced by a bot, while also getting involved in multiple legal stoushes worth more money than I will ever see in my lifetime. What exactly Clive cares about most (other than his family) always seems to be hidden behind the mythology around him that he flaunts publicly at every opportunity, much like another billionaire who has made a name for himself in politics of late.

There is one thing I can say for certain, though: he understands law. Not in the same way a High Court judge does, and who can say what his motives are? But he knows what the law is meant to be about, he knows which loopholes do and do not exist within it, and above all he can sniff out when the law has been broken in a way that’s negatively impacted him from a mile away.

That is, it seems, more than can be said for the Government of Western Australia.

Professor/mining magnate/law genius? (Image: news.com.au)

Clash of the Titans

Who is Mark McGowan?

On first glance, you seemingly could not find someone more different to Professor Palmer (and I don’t just mean physically). McGowan appears to be fairly straightforward about who he is and what he does, and loves making things as simple and down-to-earth as possible in communicating to people, a useful trait for any politician.

He even likes kebabs! And mullets!

But just as Palmer has developed a mythology around him, so too has McGowan, though of a different sort. Where Palmer’s is full of deliberate half-truths, contradictory elements and random changes of direction, McGowan’s is laser-focused, designed to be easily remembered and to grow in the direction he wants it to without bringing untested or uncontrollable elements into play.

Ever since the Labor government was elected in 2017, McGowan has played up his image as the Defender of Western Australia — a trope normally held by Liberal leaders — and taken any opportunity possible to appear as the one holding back the Great Horde of t’othersiders. Recent months have allowed him to make full use of his rhetorical skill, using his great powers to transform into a black swan, a mascot for all things West Aussie.

And now, in Palmer, he has his worthy villain. Palmer’s reputation is a double-edged sword for the mining magnate, one that allows him to easily be cast as the selfish billionaire, even as he appeals to getting a ‘fair go’. Even better for McGowan, Palmer is from Queensland, which makes him not merely an ‘easterner’, but also perhaps a little bit of a crazy maverick in that way Queenslanders are often cast as (which Palmer no doubt revels in).

They could be laughing about a kebab fine, or about the Constutition. (Image: ABC)

So when Palmer took the WA Government to the High Court over their border closure, it was super simple stuff for McGowan to respond, and so he did, labelling Palmer a ‘menace’, the ‘biggest loser’ and an ‘enemy of Australia’ (among many other names). But one statement from McGowan stood out above all the rest, not because it was a convenient sound-bite or headline material, but instead because it is suggestive of a man who may have eaten up a little too much of his own mythos:

“I mean, we’re in a pandemic. Constitutional niceties I think should go out the window,” the Premier stated.

What might this mean? It could just be a bit of rhetoric he’s come up with on the fly, to try and downplay the importance of the case (and especially of his government losing). But even if that is all it is, that is not all it really is. For one thing, even slick rhetoric tends to tell you something about the mindset of the speaker. But even if it did not, that sentence has still been transmitted out in the community and, rather like a virus, it will spread, and the idea it communicates is one that we are expected to accept.

Read the sentence again. “Constitutional niceties I think should go out the window.” The ‘constitutional nicety’ he is referring to Section 92 of the Constitution of Australia, which states that “trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.” This is the section that Palmer has challenged the WA Government on regarding the border closure.

Regardless of whether Palmer is right to believe that the ‘hard border’ is unconstitutional due to this section, one has to ask why, exactly, McGowan thinks that a section of the Constitution of Australia is merely a ‘nicety’. There are two different implications of the wording, as a nicety can either be a small, precise matter of limited relevance, or a social expectation of politeness. Either meaning creates problems for McGowan.

A nation’s constitution is rather like the foundation of a building. Without it, the whole thing can’t exist, and if damaged, it will collapse. Therefore, just as you have to be careful to make sure your building doesn’t mess with its foundation, so likewise you must ensure that your legislation doesn’t mess with its foundation — in this case, the Constitution of Australia.

Whichever definition of ‘nicety’ McGowan was meaning, there are enormous problems caused by suggesting that the Constitution should be thrown out the window. The Constitution is neither a mere polite expectation, nor are its small details irrelevant. Every part of the text is as important as the next, and cannot be tossed aside because a government feels like it. The whole purpose of the Constitution is that it restricts any federal, state or territory government from doing whatever they please. It provides a foundation out of which legislation can flow, which means it must be adhered to at all times, without exception.

McGowan does not appear to believe this, at least not at the moment. His government was proclaiming back in March that a hard border would be unacceptable because it would likely be unconstitutional (and economically damaging), but it seems that his position is that the Constitution only matters when it suits him.

To put it bluntly, that is the attitude of a tyrant.

Zeus McGowan on top of Mount Eliza, 2020 (colourised)

Of course, it would be quite a leap to say that his government is actually tyrannical, and it barely needs to be said that it isn’t. But the logic is the same. If the Constitution only matters when it suits the leader of a government, it may as well not matter at all, as the ultimate law becomes whatever the leader of the government wants it to be, rather than something that even the most popular of leaders must be held to.

It is worth noting that the main issue here is not whether the hard border is constitutional. It probably isn’t, but even if it is, the bigger issue is that the Premier of Western Australia felt that the Constitution of Australia was less important than his government’s legislation — that a lesser law (and, by extension, the government that implemented it) should not be subject to its foundational law.

You may say that one instance of quite mildly despotic thinking and practice is not enough to blot a leader’s name, especially given that McGowan did quietly acknowledge that if the High Court did strike down the legislation, the Government would comply.

But what about two instances?

One Rule to Rule Them All

Understandably, Palmer was annoyed with being barred entry to another part of Australia while being labelled an ‘enemy of the state’, an ‘Olympic scale narcissist’ and ‘Australia’s greatest egomaniac’. Rather than sit around waiting for the High Court’s decision on the border closure, which is expected in late September or early October, he instead relaunched a separate legal proceeding regarding a mining agreement first signed in 2002, and approved in his favour in 2014.

I suspect that Palmer was holding onto the claim just in case he ever needed it as leverage over the WA Government, but perhaps he just forgot about it, or couldn’t be bothered meeting the 46 conditions placed on his company. Whatever the case, the Government decided to launch a counter-attack and make more political hay out of him, this time by claiming that he was trying to rob the state of $30 billion.

This eye-watering figure is not, it turns out, from Palmer himself, but instead from the office of the WA Attorney-General, pulled like a rabbit from a hat. How convenient that the same government that has produced the figure has then been able to use that grand sum non-stop for days on end to further prove what a villainous man Clive Palmer is, and how heroic the Premier is for stopping him by any means necessary!

In this case, ‘any means necessary’ involved bringing in emergency legislation with barely any time for MPs to read it, and expecting them to pass it anyway without significant scrutiny or amendment. After all, claimed the Attorney-General and the Premier, this was an ‘unprecedented’ situation, and it therefore required ‘unprecedented’ legislation.

Whenever a government claims that its actions are justified by special or unique circumstances — ‘unprecedented’, in politicalese — it’s best to be extremely sceptical of those claims. There is nothing new under the sun, and this is indeed not the first time the Government of Western Australia has tried to use legislation like this to get out of a legal stoush that was its own fault.

In 2016, the High Court ruled that the WA Government had introduced legislation that was ‘invalid in its entirety’, because it was inconsistent with existing tax laws. The Barnett Government was trying to bypass the law with another law, but the former outranks the latter.

How did the Opposition of the time respond? Ben Wyatt, who is now the Treasurer of Western Australia, stated that “When the Government of the day seeks to use the power of a parliament to intervene in a commercial dispute so that the Government gets to dictate the outcome, you’ve got to make sure that the inevitable High Court challenge would be successful.”

How prescient.

Western Australians worshipping their god

For the sake of simplicity, we can ignore the fact that the $30 billion figure is an enormous stretch with a laughably small likelihood of ever coming to pass. We can also ignore the fact that Palmer is more likely to sell his mining rights than he is to use them. We can even ignore the fact that Palmer probably wouldn’t have even renewed this legal stoush in the first place had the Government not tried to turn him into the bogeyman over the border closure.

What simply cannot be ignored is that this legislation undermines the rule of law.

After many years of only appearing in school textbooks, the rule of law has made a bit of a comeback in recent years, though often alas in the hands of people who can’t quite explain what it means, but are sure that it matters and their political opponent is undermining it!

It is, in essence, the idea that every individual and institution is subject to an ultimate authority, that being the law, and that they are subjected to it equally.

The purpose of the Constitution is to be this ultimate authority, which means that if a government believes that the Constitution only applies to them when they feel like it, the rule of law is being eroded. Likewise, if a government introduces legislation that allows them to bypass the laws that are in place for any other individual or institution in the same legal circumstances as them, the rule of law is being eroded.

This is why Palmer stated that in a recent interview that McGowan is “giving himself immunity from criminal prosecution. You go to Western Australia, he can murder, shoot you, raid your house and he’s immune from the criminal law”, none of which is true, but could theoretically become true in future legislation if it uses the same logic as this legislation. As Palmer says (correctly this time), “All Australians, no matter who they are, are subject to the law. That’s what protects our democracy.”

Whether democracy also needs protection from a billionaire’s billboards is another question entirely. (Image: New Matilda)

In other words, for the Parliament of Western Australia to pass legislation that means the law doesn’t apply to the WA Government is for that Government and its leadership to have the attitude of a tyrant. Again. It’s the kind of legislation that we might deride other countries for, because it is so obviously arbitrary in the way it bypasses the rule of law in favour of the ruler of the land. It is the kind of strongman tactic used by the weak, by a government unable or unwilling to bother remaining within the confines of the constraints placed upon it.

Perhaps you still don’t see the issue, so let’s use an example. Imagine that I am a king, and you are, I don’t know, some peasant. For some reason, I decide to enter an agreement with you over a game of scissors-paper-rock. We both sign the agreement, which states that the loser must give the winner $10. You draw paper, I draw rock. By the terms of the agreement, I now owe you $10.

However, I refuse to pay up. Because my land has a legal system, you take me to court to get your $10, but I catch wind of what you are about to do, and quickly pass a law that states that the king does not owe any money whatsoever to this peasant for any game of scissors-paper-rock that we may have played, regardless of any written, signed agreement we had, and that you also have no recourse to this law I am putting in place, and are therefore exempt from receiving natural justice in this case.

Does that sound fair, just, or right? Of course not. It is an absurdity, the kind of arbitrary behaviour we would expect from a mythological god or an ancient ruler, or indeed a modern dictator. Yet this is what the Government of Western Australia had done, in careless pursuit of political gain. Clive Palmer may not be a peasant, but he is an Australian, entitled to have his legal action dealt with as any Australian individual or institution would. To legislate otherwise is dangerous, and erodes one of the fundamentals of our just and free society.

Any law can only truly be law if it does not break a higher or ultimate law, but McGowan’s response to this truth has been to go ‘nuh uh!’ and point at the magical $30 billion distraction, striking fear into all Western Australians with the thunderbolt threat of government services disappearing. It is, after all, a magnificent political wedge for him, allowing him to be worshipped as the great Defender of Western Australia while forcing the Opposition to either disagree with him, and lose the tiny amount of political capital they have in the minds of most Western Australians, or feebly let the terrible legislation through.

The Premier is trying to appeal emotionally to Western Australians, and emotion is a powerful tool. But here’s the reality: The party that’s in government is irrelevant. Your personal feelings about Clive Palmer are also irrelevant, as are your feelings about Mark McGowan. All that matters is that, twice in a matter of weeks, the same government has decided that it is above the law. The $30 billion figure is a weapon of mass emotional destruction, but the rule of law is real, and is meant to protect you from governments that claim to be acting in your interest when their primary concern is themselves. There is, after all, an election in seven months from now.

Most people know little about the Constitution and even less about the origins of their liberties and freedoms, but they know that viruses are bad and so is losing money. McGowan and his ministry are taking full advantage of this, engaging in pathetic political grandstanding, projecting abject weakness as immense strength, and assuming that Western Australians are too afraid to ask questions and too uninformed to know better.

And perhaps they are. But I hope they are not, because these actions deserve criticism regardless of whether the High Court strikes them down.