The West Australian
ScoMo’s borders handicap
Federal Government’s court support for Palmer was big error
The decision to back Palmer’s case was part of a pattern . . . senior Federal ministers were dispatched to pressure their relevant State Labor premiers into reopening their borders.
Scott Morrison was once popular in Western Australia. It wasn’t that long ago. And then something happened. It was something big. That something big was Clive Palmer.
Morrison’s decision to back Palmer’s legal challenge to WA’s hard border was a political miscalculation of epic proportions. He is now paying for it and will continue to pay for it all the way to the next election.
Morrison knows this and he is very worried about it. He clearly demonstrated that this week in his interview with this paper’s Ben O’Shea on The West Live.
Morrison claimed it was “a lie” to suggest that he had supported Palmer’s challenge and that political advertising insinuating that he had done so reflected badly on the Labor Party. But it isn’t a lie at all. Morrison’s Government did support Palmer’s challenge. The evidence of that is written in black and white in legal documents submitted to the High Court.
A quick search of the High Court’s Brisbane registry reveals an official notice of filing lodged on June 12 last year by Andrew Buckland of the Australian Government Solicitor’s Office on behalf of the Attorney-General at the time, Christian Porter.
Paragraph 20 (1) of that document gives formal notice of the Federal Government’s intervention in the case.
The following section, paragraph 20, (2) reads: “The Attorney-General intervenes in support of the position of the plaintiffs.”
The plaintiffs are Palmer and his mining company, Mineralogy.
The Government intervened in support of Palmer.
Porter argued that although the document said the Federal Government supported Palmer, it didn’t necessarily mean that.
He said it was just “the standard language that the High Court uses for an intervention on constitutional matters”. However, constitutional law experts say the “standard language” would have been substantially different had the government supported the McGowan Government’s position.
It would have said the Attorney-General was intervening on behalf of “the defendant”, not the plaintiff.
Porter says the High Court expects the Commonwealth to become party to challenges of such constitutional significance.
Morrison continued with that defence this week saying that it was
“the normal process” for the
Federal Government to become party to such proceedings. That is true.
It was the Federal Government’s choice to intervene and its choice to do that on Palmer’s side.
And Lorraine Finlay, a lecturer in constitutional law at Murdoch University, said at the time that the Morrison Government had done more than just associate itself with Palmer in its notice of filing.
“They’ve actually gone to the court and presented arguments that do favour Clive Palmer’s position that the border restrictions are unconstitutional,” she said.
Porter conceded as much in an interview shortly after the intervention was lodged when he said the McGowan Government’s actions in imposing a hard border were “likely unconstitutional”. In other words, he agreed with Palmer’s position.
Premier Mark McGowan pointed out at the time that, although it was a convention
Federal Government to seek standing in a case of constitutional significance, there was “no law that says you have to”.
Morrison effectively conceded as much when he announced that his Government had decided to withdraw from the case. He said he had decided to dispense with convention and take no further part in light of “the high level of concern regarding public health in the Western Australian community”.
There is no doubt he also took that decision in light of polling at the time which showed his standing in WA in freefall.
Morrison has been furiously backpedalling ever since. He is now positioning himself as McGowan’s best friend. Why wouldn’t he? McGowan remains more popular than free beer. The decision to back Palmer’s case was part of a pattern at the time in which senior Federal ministers were dispatched to pressure their relevant State Labor premiers into reopening their borders.
Peter Dutton attacked Annastasia Palaszczuk relentlessly while Josh Frydenberg smashed Dan Andrews.
Former finance minister Mathias Cormann appeared to be the designated enforcer on WA. Morrison wanted the hard lockdown of State borders replaced by selective and targeted restrictions on designated hot spots.
His Government’s decision to intervene in support of Palmer’s case was a material part of that effort.
That it happened is not a lie. It is, indeed, the opposite of a lie. It is a fact. And it is the major reason that Morrison is no longer as popular as he once was in WA.