In Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 and Palmer v Western Australia (2021) 95 ALJR 868, the High Court dismissed a challenge to Western Australian legislation which retrospectively divested Clive Palmer and his companies of arbitral awards worth an estimated $30 billion, without compensation. In Mineralogy at , the plurality noted and dismissed an argument that the legislation exceeded the scope of State legislative power because it offended limitations “concerning the rule of law and deeply rooted common law rights”.
Do the limitations on State legislative power asserted by Mr Palmer and his companies exist and what are the arguments for and against their recognition in Australian constitutional law?
Captain Sparrow is an environmentally conscious part-time law student who enjoys boating on the weekend. In January 2022, he visits Ferry Impressive Boats, a boat manufacturer and retailer in Maroochydore, Queensland. After considering the various boats on display, Captain Sparrow purchases a Barracuda Mark 5, reputed to be one of the most energy efficient motorboats on the market because of its streamlined hull and lightweight material. Before making the sale, Ferry Impressive Boats provides Captain Sparrow with a digital certificate indicating the specifications of the boat, including that it has a 5-star energy efficiency rating.
After his exams in June, Captain Sparrow takes the boat for its maiden voyage and discovers that its energy efficiency is far worse than the digital certificate indicated. Captain Sparrow is outraged and commences proceedings against Ferry Impressive Boats in the Maroochydore Magistrates Court. He alleges that, in selling the boat, Ferry Impressive Boats engaged in misleading and deceptive conduct within the meaning of the Australian Consumer Law, a law of the Commonwealth given force in Queensland by Queensland legislation.
Sections 15 and 16 of the Fair Trading Act 1989 (Qld) provide that:
15 The Australian Consumer Law
The Australian Consumer Law consists of Schedule 2 to the Competition and Consumer Act 2012 (Cth).
16 Application of the Australian Consumer Law
The Australian Consumer Law, as in force from time to time:
- applies as a law of Queensland;
- so applying may be referred to as the Australian Consumer Law (Queensland); and
- so applying is part of this Act.