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[2021] HCA 31
defendant. The first question was answered no. Sections 9(1), 9(2) and 10(4)-(7) of the State Act, as inserted by the Amending Act, were held not invalid or inoperative. The Court did not answer the remaining...
The High Court rejected Mr Palmer's additional constitutional challenges to Western Australia's 2020 amending legislation. The s 117 argument failed because the legislation operated in the same way whether Mr Palmer lived in Queensland or Western Australia. The challenged provisions were not an exercise of judicial power and were not punishment in the constitutional sense. The rule of law did not supply a free-standing ground to invalidate the Act, and the stated facts were inadequate to determine any inconsistency with Commonwealth laws. The Court held the Act was not invalid in its entirety, confirmed that specified provisions were not invalid or inoperative, and ordered Mr Palmer to pay the costs.
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2,562 words · generated 03/10/2026
Palmer v Western Australia [2021] HCA 31 concerned a challenge by Clive Palmer to Western Australian legislation affecting a State agreement connected with mining projects in the Pilbara. The agreement, and a 2008 variation, were included in schedules to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), referred to in the judgment as the State Act. Mineralogy Pty Ltd and International Minerals Pty Ltd were co-proponents under the agreement. Mr Palmer controlled and was the majority beneficial owner of Mineralogy, and was a director of both companies. He was also named as a “relevant person” for the State Act's indemnity provisions ([2]).
6 cited instruments linked from this judgment.
The co-proponents submitted proposals to the Minister in 2012 and 2013. Disputes concerning the 2012 proposal were referred to arbitration, resulting in awards in 2014 and 2019. In August 2020, the Western Australian Parliament passed the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA). The catchwords describe provisions intended to deprive the proposals and the arbitral awards of legal effect. The amended State Act included provisions affecting those matters, including sections 9 and 10.
Mr Palmer brought a proceeding in the High Court's original jurisdiction, alongside the principal proceeding brought by Mineralogy Pty Ltd. The Court said the agreed facts and documents in the two special cases did not differ materially ([3]). It considered Mr Palmer's additional grounds, including arguments based on s 117 of the Constitution, adjudicative authority, bills of pains and penalties, and the rule of law ([5]-[9]).
The Court answered that the Amending Act was not invalid or inoperative in its entirety. It held that sections 9(1), 9(2) and 10(4)-(7) of the State Act, as inserted by the Amending Act, were not invalid or inoperative. It did not consider it necessary to answer the other parts of the question about particular provisions, and the severance question did not arise. The order required Mr Palmer to pay the costs of the special case.
The joint reasons treated much of the case as governed by the reasons in Mineralogy Pty Ltd v Western Australia [2021] HCA 30. They noted that the special-case material provided no basis to decide questions beyond the validity of the Amending Act and the specified provisions, and that the principal proceeding had already addressed the manner of enactment and the relevant Chapter III and s 118 arguments ([1], [4]). The joint reasons then addressed Mr Palmer's additional grounds.
On s 117, the constitutional question was whether a citizen resident in one State faced a disability or discrimination in another State that would not apply equally if the citizen were resident there. The joint reasons held that even if the Amending Act singled Mr Palmer out, the relevant disability would not be one based on his Queensland residence. They said the Act's legal and practical operation would be no different if he lived in Western Australia ([6]). Edelman J similarly said the provisions were not “conditioned by residence” and were not directed, in their object or effect, to different treatment because Mr Palmer lived outside Western Australia ([18]). The point was not that legislation can never single out a person; it was that s 117's particular residence-based comparison was not met on the facts and provisions before the Court.
The argument about adjudicative authority also failed. Mr Palmer submitted that the Amending Act put an end to a justiciable controversy between a State and a resident of another State, a matter he said fell within s 75(iv) and could only be resolved by a court. The joint reasons treated the argument as depending on whether the challenged provisions exercised judicial power. They relied on the conclusion in the principal proceeding that sections 9(1), 9(2) and 10(4)-(7) did not do so ([7]). The Court did not decide whether other provisions inserted by the Amending Act involved judicial power because that issue was not raised by the facts in the special case ([7]).
Mr Palmer also characterised the Amending Act as a bill of pains and penalties. The joint reasons rejected that route as a basis for showing an exercise of judicial power because the provisions were not concerned with criminal guilt or punishment ([7]). Edelman J examined the point more fully. He described the essential feature of a bill of pains and penalties or bill of attainder as legislative punishment of specified persons for conduct or characteristics ([14]). He accepted that punishment in constitutional reasoning is not confined to conventional criminal punishment, and that civil consequences may sometimes be punitive ([15]). But, on his characterisation, the Declaratory Provisions were closer to provisions concerning acquisition of property than to a sanction for particular conduct. They therefore could not be characterised as punitive for constitutional purposes ([16]). This reasoning separates the consequence of legislation, including the extinguishment of rights, from the legal character of a punishment or sanction.
The rule-of-law argument was rejected as an independent ground of invalidity. The joint reasons accepted that the rule of law is central to understanding the constitutional system and may help explain the reach of constitutional powers and limitations. But they emphasised that it cannot expand judicial power or contract legislative or executive power beyond limits found in the Constitution's text and structure ([8]). Edelman J developed that distinction. He explained that constitutional assumptions about how institutions are expected to operate are not automatically constitutional rules. A proposed rule-of-law implication must identify the particular principle relied on and explain why it is necessary to the meaning or effective operation of the Constitution ([20]-[21]).
Edelman J also cautioned against treating broad qualities sometimes associated with the rule of law as implied constitutional restrictions. He referred to examples involving changing laws, clarity, retrospectivity and generality, noting that the Court had recognised legislation with features that could conflict with such qualities ([22]). He distinguished those features from specific constitutional implications that have been recognised as arising from the Constitution's text and structure, such as limits associated with detention and the judicial function ([23]-[24]). He did not decide whether there could be an implication protecting the ability to assert and vindicate legal rights. He concluded that such an implication, however framed, could not protect rights from extinguishment, and the Declaratory Provisions did not contravene it ([26]).
Finally, the Court did not determine whether the Amending Act was inconsistent with Commonwealth laws. The joint reasons said the special-case facts did not establish that deciding the issue was necessary ([9]); Edelman J agreed that the materials were inadequate ([12]). This is a conclusion about the record and the questions properly arising in this special case, not a determination that no inconsistency existed.
The judgment does not announce a new general power for State Parliaments, nor does it resolve every constitutional question that could arise from legislation directed to a particular person or commercial dispute. Its determinations were tied to the identified provisions, the constitutional grounds argued, and the agreed special-case facts. The questions about other sections of the Amending Act were not answered because the Court considered them unnecessary on the case as stated.
The judgment applies the established s 117 comparison between the treatment of an out-of-State resident and the treatment that person would receive as a resident of the State imposing the disability. The joint reasons focused on whether the Act's operation would change if Mr Palmer lived in Western Australia, and answered no ([6]). Edelman J referred to the principle in Street v Queensland Bar Association that a law's effect may engage s 117, while explaining that a rational and proportionate connection to an objective other than different treatment based on out-of-State residence may be relevant ([17]). He concluded that residence was not a condition of the Declaratory Provisions ([18]).
On bills of pains and penalties, Edelman J explained the distinction between legislation imposing consequences and legislation properly characterised as legislative punishment. The provisions affected rights of a small number of people, but he considered their character closer to acquisition than sanction ([14]-[16]). The judgment therefore confirms, in this context, that singling out a limited number of affected persons does not by itself establish that a law is punitive. It does not establish that every law extinguishing rights is valid; the analysis here concerned the constitutional arguments and provisions before the Court.
On the rule of law, the decision reiterates that a broad constitutional principle cannot be deployed as a free-standing standard detached from the Constitution's text and structure ([8], [20]-[21]). Edelman J's discussion identifies recognised, more specific implications and distinguishes them from abstract appeals to legal equality or the ability to vindicate rights ([23]-[26]). The judgment leaves open the precise existence and scope of the proposed implication protecting assertion and vindication of rights, but states that it could not protect rights from extinguishment if it existed ([26]).
For practitioners, the “after” position must be stated narrowly. The Court upheld the identified provisions against the particular challenges in this special case. It did not decide the validity of every part of the Amending Act, determine the Commonwealth inconsistency issue, or decide the constitutional position of provisions not engaged by the agreed facts.
At [6], the joint reasons say: “Neither the legal operation nor the practical operation of the whole or any part of the Amending Act would be any different if the plaintiff were resident in Western Australia instead of being resident in Queensland.” In plain English, the Court considered the relevant comparison to be the Act's operation for Mr Palmer under each possible State of residence. Because the operation was the same, the residence-based protection in s 117 did not invalidate the Act.
At [8], the joint reasons explain that the rule of law “supports neither expansion of judicial power nor contraction of legislative or executive power beyond those limits that inhere in the text and structure of the Constitution.” In plain English, constitutional outcomes must be anchored in the Constitution's legal provisions and structure. A general appeal to the rule of law does not itself create a new restriction on Parliament.
At [16], Edelman J says the Declaratory Provisions resembled provisions concerned with “general acquisition of property” more than provisions imposing a sanction for particular conduct. In plain English, the fact that legislation removes or alters rights does not automatically make it punishment. The character and purpose of the legal consequence matter.
At [21], Edelman J says a party relying on the rule of law must identify the particular aspect relied on and explain why it is necessary to the meaning or effective operation of the Constitution. In plain English, broad labels are insufficient: the constitutional link must be specified.
At [26], Edelman J says an implication protecting the ability to assert and vindicate rights “could not extend to protection of rights from extinguishment.” In plain English, even if the proposed implication were accepted, it would not prevent Parliament from clearly extinguishing rights. Edelman J did not decide whether the implication existed in the terms argued.
The decision is most directly relevant where a State law is challenged under s 117 because it affects a person who lives in another State. The key comparison is whether the legal or practical operation would be different if that person lived in the State that enacted the law ([6], [18]). A claim based only on the fact that a law names or particularly affects an individual does not reproduce the s 117 reasoning here unless the relevant difference is connected to out-of-State residence.
It is also relevant where a party argues that legislation has resolved a dispute and thereby exercised judicial power. The joint reasons treated the question as one of constitutional characterisation: did the provisions exercise judicial power, or did they have some other legislative operation? ([7]). In this case, the Court relied on the principal proceeding's analysis of the specified provisions. It expressly did not decide whether other provisions might involve judicial power, because the special-case facts did not raise that issue.
The bill-of-pains-and-penalties analysis is relevant where legislation is said to impose a penalty on named persons or a small group. Edelman J's reasons indicate that the inquiry is not concluded simply by identifying affected persons or adverse effects. The question includes whether the law is properly characterised as punishment or a sanction for specified conduct ([14]-[16]).
The rule-of-law discussion is relevant when a constitutional challenge relies on a high-level principle without identifying a constitutional text or implication that supplies the limit. The judgment requires attention to the exact principle invoked and its connection to the Constitution's meaning or operation ([20]-[21]). It is also relevant to the distinction between constitutional assumptions and implications that form part of constitutional interpretation ([20]-[26]).
The judgment text supplied here contains no decisions after 13 October 2021 and therefore provides no basis to describe how later courts have treated Palmer v Western Australia. It cites Mineralogy Pty Ltd v Western Australia [2021] HCA 30 as the principal proceeding and says the reasons in the two matters are to be read together ([1], [4], [11], [27]). That is the relationship between the contemporaneous proceedings, not later treatment.
The judgment itself discusses a number of earlier authorities. For the s 117 analysis, Edelman J refers to Street v Queensland Bar Association and Sweedman v Transport Accident Commission ([17]-[18]). For judicial power and punishment, he refers to authorities including Polyukhovich v The Commonwealth, Chu Kheng Lim v Minister for Immigration, and Attorney-General (NT) v Emmerson ([14]-[16]). In discussing rule-of-law implications, he considers Plaintiff S157/2002 v The Commonwealth, Kruger v The Commonwealth and other authorities ([22]-[25]). Those citations show the sources the Court used; this judgment does not provide evidence of how subsequent courts have applied its reasoning.
Several issues were expressly left open or were not determined. The Court did not decide whether any other provision inserted by the Amending Act involved an exercise of judicial power. The joint reasons said that question was not raised by the special-case facts and was inappropriate to address ([7]).
The Court did not determine whether the Amending Act was inconsistent with Commonwealth laws under s 109. The special-case facts were inadequate for that inquiry ([9], [12]). The reasons therefore do not establish either that inconsistency existed or that it did not.
Edelman J did not determine whether a constitutional implication could be framed as a right to assert and vindicate rights under law, or whether such an implication could operate at both Commonwealth and State levels ([26]). He concluded only that any such implication could not extend to protection against extinguishment of rights, and that the Declaratory Provisions did not contravene it ([26]).
The Court also did not answer the full list of challenges to individual parts of the Amending Act. The formal answer identifies sections 9(1), 9(2) and 10(4)-(7) as not invalid or inoperative, and says the remaining parts of the question were unnecessary to answer. The severability question did not arise. Accordingly, the judgment's outcome should not be generalised into a determination of every provision's validity.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
CLIVE FREDERICK PALMER PLAINTIFF
AND
THE STATE OF WESTERN AUSTRALIA DEFENDANT
Palmer v Western Australia
[2021] HCA 31
Dates of Hearing: 15, 16, 17 & 18 June 2021
Date of Judgment: 13 October 2021
B52/2020
ORDER
The questions of law stated in the Special Case filed on 12 April 2021 be answered as follows:
Answer: No.
2. If the answer to question 1 is "no", are any of the following parts or provisions of the 2020 Act invalid or inoperative (and, if so, to what extent):
(a) Part 3;
(b) Subsections 8(1), (3)-(5);
(c) Subsections 9(1)-(2);
(d) Subsections 10(4)-(7);
(e) Subsections 11(1)-(7);
(f) Subsections 12(1)-(2) and (4)-(7);
(g) Subsections 13(4)-(8);
(h) Section 14;
(i) Section 15;
(j) Section 16;
(k) Subsections 17(4)-(5);
(l) Subsections 18(1)-(3) and (5)-(7);
(m) Subsections 19(1)-(7);
(n) Section 20;
(o) Subsections 21(4)-(8);
(p) Section 22;
(q) Section 23;
(r) Section 24;
(s) Subsections 25(4)-(5); and/or
(t) Sections 30 and 31.
Answer: Sections 9(1) and 9(2) and 10(4) to 10(7) of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), as inserted by the 2020 Act, are not invalid or inoperative to any extent. The question is otherwise unnecessary to answer.
Answer: The question does not arise.
Answer: The plaintiff.
Representation
C F Palmer appeared in person
J A Thomson SC, Solicitor-General for the State of Western Australia, and S J Free SC with J E Shaw and Z C Heger for the defendant (instructed by State Solicitor's Office (WA))
S P Donaghue QC, Solicitor-General of the Commonwealth, with F I Gordon, T M Wood and J G Wherrett for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with J S Caldwell for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office NSW)
N Christrup SC, Solicitor-General for the Northern Territory, with L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
R J Orr QC, Solicitor-General for the State of Victoria, with G A Hill and M‑Q T Nguyen for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor's Office)
E J Longbottom QC with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Qld)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Palmer v Western Australia
Constitutional law – State Parliament – Legislative power – Where State of Western Australia entered into agreement concerning mining projects in Pilbara region with Mineralogy Pty Ltd and other parties ("co-proponents") including International Minerals Pty Ltd – Where plaintiff controller and beneficial owner of Mineralogy Pty Ltd and director of both Mineralogy Pty Ltd and International Minerals Pty Ltd – Where agreement and 2008 variation set out in schedules to, and thereby formed part of, Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) ("State Act") – Where agreement provided that Mineralogy Pty Ltd, alone or with co-proponent, could submit proposals to relevant Minister regarding projects – Where Mineralogy Pty Ltd and International Minerals Pty Ltd submitted proposals to Minister in 2012 and 2013 – Where disputes in relation to 2012 proposal referred to arbitration, resulting in arbitral awards in favour of Mineralogy Pty Ltd and International Minerals Pty Ltd in 2014 and 2019 – Where in August 2020 Parliament of Western Australia passed Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) ("Amending Act") – Where Amending Act purported to insert new Pt 3 into State Act, including provisions which would deprive 2012 and 2013 proposals of legal effect (s 9) and deprive 2014 and 2019 arbitral awards of legal effect (s 10) – Where plaintiff named in Pt 3 – Where plaintiff commenced proceedings in High Court's original jurisdiction seeking declarations that Amending Act wholly or partly invalid – Whether Amending Act singled out plaintiff for "disability" or "discrimination" in manner forbidden by s 117 of Constitution – Whether ss 9(1), 9(2) and 10(4)-(7) of State Act invalid on basis they amounted to exercise of adjudicative authority regarding controversy within scope of s 75(iv) of Constitution – Whether ss 9(1), 9(2) and 10(4)-(7) of State Act invalid on basis they constituted bill of pains and penalties – Whether Amending Act exceeded limitation on legislative power of Parliament of Western Australia arising from rule of law.
Words and phrases – "adjudicative authority", "bill of pains and penalties", "disability", "discrimination", "exercise of judicial power", "legislative power", "rule of law", "text and structure of the Constitution".
Constitution, Ch III, s 117.
Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA).
Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA).
KIEFEL CJ, GAGELER, KEANE, GORDON, STEWARD AND GLEESON JJ. These reasons for judgment are to be read together with the reasons for judgment in Mineralogy Pty Ltd v Western Australia1, which can be referred to as the "principal proceeding". They adopt the same nomenclature.
The plaintiff, Mr Palmer, is an Australian citizen resident in Queensland. He is the controller and majority beneficial owner of Mineralogy Pty Ltd. He is a director of that company and of International Minerals Pty Ltd. He is the individual identified by name as a "relevant person" for the purposes of the indemnity provisions of the State Act.
In a proceeding commenced by writ of summons contemporaneously with the principal proceeding, the plaintiff seeks declaratory relief against the defendant in terms almost identical to that sought by the plaintiffs in the principal proceeding. By special case in the proceeding, the plaintiff and the defendant have agreed in stating questions of law for the opinion of the Full Court that are almost identical to those stated by the parties in the special case in the principal proceeding. The facts the plaintiff and the defendant have stated and the documents they have identified in the special case as necessary to enable a decision to be made on the questions they have stated do not differ in any material respect from the facts stated and documents identified in the special case in the principal proceeding.
For the reasons fully set out in the reasons for judgment in the principal proceeding, the facts and documents identified in the special case provide no basis on which to be satisfied of the necessity of answering any question beyond those as to the validity of the Amending Act and as to the validity of s 9(1) and s 9(2) and of s 10(4) to s 10(7) of the State Act. For the reasons also fully set out in those reasons for judgment, the manner of enactment of the Amending Act did not contravene s 6 of the Australia Act and s 9(1) and s 9(2) and s 10(4) to s 10(7) of the State Act are not incompatible with Ch III of the Constitution and have not been demonstrated to be incompatible with s 118 of the Constitution.
Left to consider are the additional bases on which the plaintiff, choosing to appear for himself on the hearing of the special case, argued for the invalidity of the Amending Act.
First, the plaintiff argued that the Amending Act singles him out for a "disability" or "discrimination" of a kind forbidden by s 117 of the Constitution. Plainly, it does not. The prohibition in s 117 is against subjecting an Australian citizen resident in one State to a disability or discrimination in another State which would not be equally applicable to that Australian citizen if the Australian citizen were resident in that other State. Even if the Amending Act could be characterised as singling the plaintiff out for a disability or discrimination, that disability or discrimination could not be characterised as being of a kind forbidden by s 117 of the . Neither the legal operation nor the practical operation of the whole or any part of the Amending Act would be any different if the plaintiff were resident in Western Australia instead of being resident in Queensland.
[2021] HCA 30. ↩
(2018) 265 CLR 304 at 335 [43], 336-337 [45]. ↩
Haskins v The Commonwealth (2011) 244 CLR 22 at 37 [25]-[26]. ↩
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 463 [91]; 390 ALR 590 at 612, quoting Stephen, "The Rule of Law" (2003) 22(2) Dialogue 8 at 8. ↩
eg Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [31]; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [40], 25-26 [44]. ↩
eg Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [40], 25-26 [44]. ↩
eg Minogue v Victoria (2019) 268 CLR 1 at 19 [25]; Gerner v Victoria (2020) 95 ALJR 107 at 111 [14]; 385 ALR 394 at 398. ↩
McGinty v Western Australia (1996) 186 CLR 140 at 169. ↩
cf Victoria v The Commonwealth (1937) 58 CLR 618 at 631-632; The Commonwealth v Queensland (1987) 62 ALJR 1 at 1-2; The Commonwealth v Western Australia (1999) 196 CLR 392 at 478 [259]; Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428 at 467-468 [90]. ↩
Palmer
Western Australia [2021] HCA 31
(2018) 265 CLR 304
(2011) 244 CLR 22
(2021) 95 ALJR 441
(2003) 211 CLR 476
(2017) 263 CLR 1
(1951) 83 CLR 1
(2019) 268 CLR 1
(2020) 95 ALJR 107
(1996) 186 CLR 140
(1937) 58 CLR 618
(1987) 62 ALJR 1
(1999) 196 CLR 392
(2019) 266 CLR 428
(1991) 172 CLR 501
(1992) 176 CLR 1
(2021) 95 ALJR 166
(2014) 253 CLR 393
(1972) 127 CLR 291
(1994) 179 CLR 270
(1989) 168 CLR 461
(2006) 226 CLR 362
(2010) 243 CLR 319
(2013) 252 CLR 118
(2013) 248 CLR 459
(2017) 261 CLR 622
(2005) 224 CLR 322
(1945) 71 CLR 29
(1992) 177 CLR 106
(1926) 37 CLR 393
(2019) 269 CLR 219
(2010) 241 CLR 539
(1945) 71 CLR 184
(1972) 126 CLR 529
(2017) 261 CLR 328
(2012) 245 CLR 355
(1986) 161 CLR 88
(2017) 261 CLR 306
(1992) 174 CLR 455
(1997) 190 CLR 1
(2020) 94 ALJR 502
(1981) 151 CLR 170
(1998) 195 CLR 337
(2011) 243 CLR 181
The first question was answered no. Sections 9(1), 9(2) and 10(4)-(7) of the State Act, as inserted by the Amending Act, were held not invalid or inoperative. The Court did not answer the remaining parts of question 2 or question 3 because they did not arise. Question 4 was answered by ordering the plaintiff to pay the costs of the special case.
Second, the plaintiff argued that the Amending Act amounts to an invalid attempt to exercise "adjudicative authority" to put an end to a justiciable controversy within the scope of s 75(iv) of the Constitution (between the defendant as a State and himself as a resident of another State) of a kind which, on the authority of Burns v Corbett2, is capable of being exercised only by a court. The argument presupposes that the Amending Act amounts to an exercise of judicial power. For reasons fully set out in the reasons for judgment in the principal proceeding, s 9(1) and s 9(2) and s 10(4) to s 10(7) of the State Act as inserted by the Amending Act involve no exercise of judicial power. The argument that one or more of those provisions involves an exercise of judicial power is not advanced by the plaintiff's attempt to characterise the Amending Act as a "bill of pains and penalties" for the reason that none of the provisions is concerned either with criminal guilt or with punishment3. Whether any other provision of the State Act inserted by the Amending Act might involve an exercise of judicial power is not raised on the facts stated in the special case and is not appropriate to be addressed.
Third, the plaintiff argued that the Amending Act falls foul of the "'cardinal principle' of the rule of law ... 'that Government should be under law, that the law should apply to and be observed by Government and its agencies, those given power in the community, just as it applies to the ordinary citizen'"4. "The rule of law" is a useful shorthand description of a complex concept central to an appreciation of the form of government that inheres in the text and structure of the Constitution. Acknowledged repeatedly has been that the Constitution was framed on the "assumption" of the rule of law. Reference to the rule of law can help to elucidate the scope and operation of a conferral of judicial power5, just as it can help to elucidate the scope and operation of an express or implied limitation on legislative or executive power6. Also acknowledged repeatedly7, however, has been that the rule of law supports neither expansion of judicial power nor contraction of legislative or executive power beyond those limits that inhere in the text and structure of the Constitution. Of the rule of law, no less than of "representative democracy", it "is logically impermissible to treat [the term] as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed"8. That is what the plaintiff has sought to do.
Finally, the plaintiff argued that the Amending Act is inconsistent with various Commonwealth laws. The facts in the special case provide no basis on which to be satisfied of the necessity of determining whether any such inconsistency exists9.
The questions stated in the special case will be answered in terms equivalent to the answers to the questions stated in the special case in the principal proceeding.
EDELMAN J. As explained in the joint reasons for decision of the other members of this Court in this proceeding, most of the issues in this proceeding can be resolved on the same basis as the issues in Mineralogy Pty Ltd v Western Australia10. These reasons, which should be read together with my reasons in Mineralogy v Western Australia, deal only with issues that are not resolved in Mineralogy v Western Australia. Five issues remain in this proceeding: (i) whether the Amending Act is inoperative pursuant to s 109 of the Constitution due to inconsistency with Commonwealth laws; (ii) whether the Declaratory Provisions contravene implied restrictions on legislative power deriving from s 75(iv) of the Constitution by purporting to exercise adjudicative authority in a matter between a State and a resident of another State; (iii) whether the Declaratory Provisions are a bill of pains and penalties; (iv) whether the Declaratory Provisions discriminate against a resident of another State and therefore contravene s 117 of the Constitution; or (v) whether the Declaratory Provisions are contrary to the rule of law or contravene a constitutional limit upon "extreme" laws.
As to the first issue, whether the Amending Act is inconsistent with Commonwealth laws, I agree with the joint reasons that the facts in the special case are inadequate for a consideration of whether any inconsistency exists.
As to the second and third issues, the premise of Mr Palmer's submissions is that the Amending Act involves the impermissible exercise of judicial power or is a punitive Act in the nature of a bill of pains and penalties amounting to a legislative intrusion upon the exclusive sphere of judicial power11. For the reasons that I give in Mineralogy v Western Australia12, the enactment of the Declaratory Provisions is not an exercise of judicial power. It remains to consider whether the Declaratory Provisions are punitive and in the nature of a bill of pains and penalties. If so, it would be necessary to consider whether, as State law, they are invalid for that reason.
The essence of a bill of pains and penalties, like a bill of attainder, as a law that offends against the separation of powers at Commonwealth level, is that it "proscribes legislative punishment of specified persons – not of whichever persons might be judicially determined to fit within properly general proscriptions duly enacted in advance"13. An "expanded notion"14 of such bills extends to legislative punishment for some acts or characteristics independent of the criminal activity "which it is the purpose of the law to prohibit or prevent"15. However described, the essential features of bills of pains and penalties or bills of attainder are that they constitute legislative punishment for specified conduct or characteristics of a person or group of persons.
The submission by the State of Western Australia that the purpose of the Amending Act was "to protect Western Australians from the crippling effects that an adverse determination in the arbitral proceedings ... would have on the economy" is insufficient to preclude the Declaratory Provisions from being characterised as punitive. Nor is the civil nature of the Declaratory Provisions sufficient to preclude their characterisation as punitive. Just as a deprivation of a person's liberty by detention can be both punitive and protective, even if it is not imprisonment for a criminal offence committed by the detainee16, so too can the deprivation of a person's property be both penal and protective even if it is not a fine for a criminal offence committed by the owner17. These established propositions mean that punishment as a constitutional concept cannot be confined to its core meaning concerning traditional notions of criminal punishment where proportionate retribution is imposed for a criminal offence18. It can extend to other instances of sanction "for breach of provisions which prescribe a rule of conduct"19.
Although the Declaratory Provisions are directed to extinguishing the rights of a small number of persons, on their proper characterisation they are not a penalty or sanction for breach of provisions which prescribe a rule of conduct. The character of the Declaratory Provisions instead bears much closer resemblance to provisions concerned with general acquisition of property than with provisions concerned with sanctioning any particular conduct. The Declaratory Provisions are also very distant from the traditional notions of criminal punishment that lie at the core of the conception of punishment. They cannot be characterised for constitutional purposes as punitive.
As to the fourth issue, s 117 of the Constitution provides for an individual immunity from a law which, as either its object or its effect, subjects a subject of the Queen, resident in any State, to any disability or discrimination in any other State where the disability or discrimination "would not be equally applicable to him if he were a subject of the Queen resident in such other State". Section 117 will apply to a law which has as one of its very objects such different treatment of persons because they are out‑of‑State residents20. But where that different treatment is merely the effect of the law then, as Brennan J said in Street v Queensland Bar Association21, "if there is a rational and proportionate connexion between the condition and some objective other than the subjecting of protected persons to different treatment because they are out‑of‑State residents, s 117 does not apply".
Mr Palmer's submissions in relation to s 117 fail for the simple reason that neither the object nor the effect of the Declaratory Provisions is the different treatment of Mr Palmer because he is not resident in Western Australia: the Declaratory Provisions are not, in their object or effect, "conditioned by residence"22. In the words of s 117, there is no basis to conclude that the Declaratory Provisions "would not be equally applicable to him if he were a subject of the Queen resident in [Western Australia]".
The fifth issue reflects "increasingly fashionable"23 submissions in this Court proposing novel constitutional implications said to derive from the rule of law or novel constitutional implications that laws must conform to some unspecified content of the rule of law24. The submission, put variously by the plaintiffs in Mineralogy v Western Australia and Mr Palmer in this proceeding, was that: (i) the rule of law is an assumption upon which the Constitution depends for its efficacy25; (ii) one of the three core aspects of the rule of law is that "all should be able freely to assert, and by the processes of law to vindicate, rights under the law"; and (iii) the Amending Act sets out to destroy the ability of Mr Palmer and the plaintiffs in Mineralogy v Western Australia to vindicate their rights under the law. Mr Palmer also submitted that the "extreme" nature of the Amending Act meant that it was not a "law of a State", thus violating an alleged constitutional presupposition that Parliament could only pass legislation which fit the character of laws valid under the Constitution. But he did not identify any further aspect of the Declaratory Provisions that satisfied this alleged character as so extreme as to be unconstitutional other than those aspects of the rule of law upon which he relied.
The first part of this submission misunderstands the nature of constitutional assumptions. Although Dixon J said that "the rule of law forms an assumption" upon which the Constitution is based, his Honour was contrasting that assumption with "traditional conceptions" to which the Constitution "gives effect"26. His Honour had previously explained the need not to confuse "the unexpressed assumptions upon which the framers of the instrument supposedly proceeded with the expressed meaning of the power"27. That previous explanation by Dixon J may not have been entirely accurate, because an understanding of expressed meaning will often take into account unexpressed assumptions or presuppositions. But the important distinction being made was between, on the one hand, assumptions about the expected application of the Constitution which have no effect on the essential meaning of the Constitution – for instance, "that the Senate would protect the States"28 – and, on the other hand, those conceptions that shape the express or implied meaning of the Constitution because the conceptions are "part of the fabric on which the written words of the Constitution are superimposed" and which "cannot be ignored" in constitutional interpretation29.
In order to ascertain whether some aspect said to be part of the "rule of law" is a conception which shapes the express or implied meaning of the Constitution or whether it is no more than an assumption about the expected application of the Constitution it is necessary (i) to identify precisely the aspect of the highly contested and abstract notion of the rule of law that is relied upon, and (ii) to identify why that aspect is necessary for the meaning or effective operation of the Constitution or its provisions. The identification of these matters may ultimately reveal that assertions that the aspect relied upon is part of the "rule of law" are, in this respect, no more than magniloquence.
There are laws permitted by the Constitution which exhibit features, at least individually, that are contrary even to aspects of common, "thin" notions of the rule of law. This point can be illustrated by reference to the eight desiderata or elements in Lon Fuller's classic exposition on the rule of law30, an exposition adopted in large part by numerous others31. One aspect said to be part of this notion of the rule of law is that laws should not change too frequently. But, as Fuller accepted, this aspect "seems least suited to formalization in a constitutional restriction"32. Legislation is not invalid if it creates criteria subject to constant change by applying a body of general law which "picks up the case law as it stands from time to time"33. Another aspect of a thin notion of the rule of law, described as "one of the most essential ingredients", is that laws must be clear34. But this Court has held that the Constitution does not prohibit vague or unclear laws35. Another aspect, the absence of which Fuller described as "truly a monstrosity"36, is that laws, and particularly criminal laws, should not be retroactive37. But this Court has held that there is no constitutional proscription even against retroactive criminal laws38. Another aspect is that laws should be general. But this Court has upheld laws that are specific to corporations, individuals, or small groups of people39.
There are, however, a limited number of constitutional implications that have been recognised by this Court as associated with aspects of the rule of law in older, Diceyan terms. Dicey's first principle of his notion of the rule of law, that no person "is punishable ... except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land"40, conforms, with some exceptions, to the constitutional implication that "the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt"41. The existence of that constitutional implication was recognised as necessary from the separation of powers in the text and structure of the Constitution42.
On the other hand, this Court has rejected a broad implication of legal equality derived from Dicey's second principle, that every person is "subject to the ordinary law of the realm"43 and which "excludes the idea of any exemption of officials or others from the duty of obedience to the law"44. Although that second principle was initially said by Deane and Toohey JJ to support a constitutional implication of legal equality45, a majority of this Court later rejected the existence of such an implication as contrary to the text and structure of the Constitution46. Dicey's second principle might, however, be said to support two more limited implications. The first more limited implication, recognised in Plaintiff S157/2002 v The Commonwealth47, is that s 75(v) of the Constitution does not merely confer authority upon this Court but, consistently with the "rule of law", makes aspects of this Court's authority "irremovable"48. This implication arises from the necessity that "if executive power is subject to legal limits, then the courts must be able to properly enforce those limits, in circumstances where they are given jurisdiction to do so"49. The second more limited implication which Dicey's second principle might be said to support is that which was first enunciated in Marbury v Madison50, that power should reside in the courts rather than the Parliament to invalidate laws which exceed the limits of legislative power. That principle, which Fullagar J described as "axiomatic"51, is an implication derived from the fabric of the Constitution as "necessary to vindicate the constitutional allocation of and restrictions on federal and State powers"52.
Without specificity concerning the aspect of the particular version of the rule of law upon which reliance is placed, references to the "rule of law" are of little assistance in elucidating the content of any constitutional expression or implication. Mr Palmer and the plaintiffs in Mineralogy v Western Australia pointed only to one specific aspect of the rule of law that was said to give rise to a constitutional implication. Quoting from Sir Victor Windeyer53, who was in turn referring to Dicey's third principle of his notion of the rule of law54, Mr Palmer and the plaintiffs in Mineralogy v Western Australia sought to establish an implication that "all should be able freely to assert, and by the processes of law to vindicate, rights under the law".
It is unnecessary to determine whether a constitutional implication could be made in the terms that Mr Palmer and the plaintiffs in Mineralogy v Western Australia submitted, or to determine whether such an implication could exist at the level of both Commonwealth and State courts. Any implication of an ability to assert freely, and to vindicate, rights under the law, however precisely expressed, could not extend to protection of rights from extinguishment. The framers of the Constitution made a conscious choice to permit the Commonwealth Parliament to pass laws which, provided they are expressed with sufficient clarity55, extinguish vested rights, subject to the just terms requirements of s 51(xxxi). The Declaratory Provisions are not inconsistent with any constitutional implication based upon any aspect of the rule of law.
I would answer the questions stated in the special case in the same manner as the other members of this Court.
[2021] HCA 30. ↩
Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 536, 650, 685‑686, 721; Haskins v The Commonwealth (2011) 244 CLR 22 at 37 [25]. ↩
[2021] HCA 30 at [155]‑[159]. ↩
Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 536, quoting Tribe, American Constitutional Law, 2nd ed (1988), §10‑4 at 643. See also (1991) 172 CLR 501 at 612, 646, 685, 719. ↩
Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 648. ↩
Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 647. See also at 719. ↩
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27; Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 218 [207], 219 [210]; 388 ALR 1 at 62, 63. ↩
See Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 423‑424 [37]. See also Cheatley v The Queen (1972) 127 CLR 291 at 310; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 279‑280, 289‑290, quoting Goldsmith‑Grant Co v United States (1921) 254 US 505 at 510‑511 and Calero‑Toledo v Pearson Yacht Leasing Co (1974) 416 US 663 at 686‑688. ↩
See also Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 215 [196]; 388 ALR 1 at 58. ↩
Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 437‑438 [80]. See also Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 278. ↩
Street v Queensland Bar Association (1989) 168 CLR 461 at 510‑511, 548, 566. ↩
(1989) 168 CLR 461 at 511. See also at 492 (Mason CJ), 529 (Deane J), 573 (Gaudron J); Sweedman v Transport Accident Commission (2006) 226 CLR 362 at 409‑410 [66]. ↩
Sweedman v Transport Accident Commission (2006) 226 CLR 362 at 408 [60]. ↩
Burton Crawford, The Rule of Law and the Australian Constitution (2017) at 202. ↩
See Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 346 [54], 347 [58]; New South Wales v Kable (2013) 252 CLR 118 at 121; Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459 at 466; Plaintiff S195/2016 v Minister for Immigration and Border Protection (2017) 261 CLR 622 at 626; Minogue v Victoria (2019) 268 CLR 1 at 5‑6. ↩
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 351 [30]. ↩
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193. ↩
Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 81. ↩
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135. ↩
The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 413. ↩
Fuller, The Morality of Law, rev ed (1969), ch 2. ↩
Finnis, Natural Law and Natural Rights (1980) at 270‑271; Gardner, Law as a Leap of Faith (2012) at 195; Raz, The Authority of Law, 2nd ed (2009) at 214‑219; Raz, "The Law's Own Virtue" (2019) 39 Oxford Journal of Legal Studies 1 at 3; Waldron, "The Concept and the Rule of Law" (2008) 43 Georgia Law Review 1 at 6‑7. ↩
Fuller, The Morality of Law, rev ed (1969) at 79. ↩
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 259 [86], citing Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 at 549 [23]. ↩
Fuller, The Morality of Law, rev ed (1969) at 63. ↩
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195; R v Holmes; Ex parte Altona Petrochemical Co Ltd (1972) 126 CLR 529 at 562; Brown v Tasmania (2017) 261 CLR 328 at 373 [149], 470‑471 [448]‑[453], 487‑488 [507]‑[508]. ↩
Fuller, The Morality of Law, rev ed (1969) at 53. ↩
See also PGA v The Queen (2012) 245 CLR 355 at 444 [245]. ↩
Polyukhovich v The Commonwealth (1991) 172 CLR 501. ↩
Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88; Knight v Victoria (2017) 261 CLR 306; Minogue v Victoria (2019) 268 CLR 1. ↩
Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885) at 172. ↩
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27. ↩
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 26‑29. ↩
Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885) at 177‑178. ↩
Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885) at 215. ↩
Leeth v The Commonwealth (1992) 174 CLR 455 at 485‑488. ↩
Kruger v The Commonwealth (1997) 190 CLR 1 at 44‑45, 63‑68, 142, 153‑155. ↩
(2003) 211 CLR 476 at 513 [103]. See also Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1. ↩
(2003) 211 CLR 476 at 513 [103]. ↩
Burton Crawford, "Expanding the Entrenched Minimum Provision of Judicial Review? Graham v Minister for Immigration and Border Protection" (2017) 28 Public Law Review 282 at 286. See also Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 at 555 [230]; 376 ALR 575 at 634. ↩
(1803) 5 US 137. ↩
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262. ↩
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 230. See also Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 381 [89]. ↩
Windeyer, "'A birthright and inheritance': The Establishment of the Rule of Law in Australia", in Debelle (ed), Victor Windeyer's Legacy: Legal and Military Papers (2019) 80 at 99. ↩
Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885) at 208, 216. Compare Wainohu v New South Wales (2011) 243 CLR 181 at 208‑209 [44]. ↩
Official Report of the National Australasian Convention Debates (Adelaide), 19 April 1897 at 848. ↩