Whatever the Result, Billionaire Clive Palmer’s Border Lawsuit Will Have a Formidable Effect

September 11, 2021 Updated: September 11, 2021

Commentary

Mining magnate Clive Palmer will take the Western Australian government to court over their plan to limit entry to their state to only those vaccinated against the CCP virus.

In addition, he has offered to fund a class action over vaccination passports.

It has been pointed out in the media that he, or the entity through which he operates, may well require an ASIC licence to undertake litigation funding. But that would hardly operate as a barrier to his plans, and there would be no difficulty with Palmer’s compliance under the law.

It would be unwise to dismiss his declarations as mere bravado, or to assume that he will not succeed in some or even all of his lawsuits.

Palmer remains one of the most interesting and powerful persons to have appeared on the Australian national scene in many years. In fact, most of us will only see one Clive Palmer in our lifetimes.

Clive Palmer
United Australia Party founder Clive Palmer addresses the media during a press conference in Townsville on April 18, 2019. (AAP Image/Michael Chambers)

Ridiculed by the elites and subject to their condescension, he remains a man not to be trifled with.

This threatened litigation should not be considered alone. It is part of a trifecta which can quite legitimately advance his political impact.

Like a good general, Palmer relies on all weapons to win victory—advertising, politics, and his latest acquisition, Independent Federal MP Craig Kelly, to whom I return below.

As to Palmer’s threatened litigation, recall that his immediate objective is for the United Australia Party (UAP) to make significant inroads in the next federal election, which must be held before May 21 next year for the House of Representatives and half the Senate.

It is extremely unlikely that there will be final rulings on any of the cases by then.

The cases will ask the High Court of Australia to determine whether recent government actions to contain the CCP virus and protect residents, can be justified under the Australian Constitution.

It is likely the following provisions will be scrutinised including Section 51 (xxiiiA) against “civil conscription” in providing medical services; Section 117, which requires that residents of one state not be subject to any “disability or discrimination” in another state; and Section 92, which allows trade, commerce, and intercourse between states to be “absolutely free.”

Epoch Times Photo
A general view of the High Court of Australia in Canberra, Australia, on Nov. 5, 2020. (AAP Image/Lukas Coch)

Yet, as U.S. Chief Justice Charles Evans Hughes famously once said, “the Constitution is what the judges say it is …’’

The High Court hearing will no doubt feature arguments that Australia’s constitutional system protects fundamental rights as outlined by Justice Mary Gaudron in the 1992 High Court case, Australian Capital Television Ltd v Commonwealth, who said, “The notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and … freedom of speech generally.”

Two experts in constitutional law, Professors Augusto Zimmermann and Gabriël Moens, also recently argued that the Constitution must always be interpreted in a manner that promotes its purposes, values, and principles, which includes fundamental rights for citizens.

Accordingly, they argue that compulsory vaccination, either directly or indirectly, constitutes a form of “civil conscription” that is constitutionally invalid.

However, this only seems to relate to the exercise of power by the federal parliament, leaving the states free to act.

Zimmermann and Moens concede that they are not predicting what the High Court might do, but only arguing what they believe it should do.

Apart from the Constitution, I expect there will be a minefield of litigation to emerge against ministers of health across the country. A significant amount of their law-making could be found unlawful.

I expect we will see massive claims alleging the ministers committing the common law wrong of misfeasance (a transgression) in public office. If such claims were successful, as I am sure they will be, the damages to be paid by taxpayers will be large.

To return to Craig Kelly, like Palmer he is also subject to the condescension of the elites.

Epoch Times Photo
Craig Kelly announces his leadership of the United Australia Party and speaks against COVID-19 vaccination in a press conference at Parliament House in Canberra, Australia, on Aug. 23, 2021. (Rohan Thomson/Getty Images)

But the fact is that he is one of those rare politicians who has not deviated from his principles—and has followed them even to the extent of resigning from the Liberal Party—will be widely recognised among rank-and-file Australians I believe. Any major advertising campaign may enhance this message.

He is precisely the sort of representative 18th century Irish stateman Edmund Burke had in mind when he said representatives owe you their judgement.

If one bothers to read all of Burke, it will be seen that he condemned what now dominates the major political parties in Australia—to a greater degree than in the United Kingdom—which is that party members regularly receive instructions that they are bound “blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of (their) … judgment and conscience.”

In the 2019 election, while the UAP gained no seats, Palmer played a significant role through his advertising campaign in creating legitimate distrust among a significant number of traditional Australian Labor Party voters who would suffer from its policies.

I wrote in the Spectator Australia on why this was the case, and we saw the subsequent defeat for the Labor Party at the 2019 election.

Since the election, Australia’s two major parties, Labor and the Liberal-National coalition, have drawn together in policy and only differed at the margins.

With Kelly, Palmer’s UAP is led by a politician who carries weight among the rank-and-file and offers a notable point-of-difference from the major parties.

The result may be that the UAP plays a strong hand at the next federal election.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

David Flint
David Flint
contributor
David Flint is an emeritus professor of law, known for his leadership of Australians for Constitutional Monarchy and for his tenure as head of the Australian Broadcasting Authority. He is also a former chairman of the Australian Press Council and the World Association of Press Councils.