Palmer's High Court carbon case dissed by legal experts

Legal experts have suggested mining magnate Clive Palmer's promised High Court challenge against Labor's carbon tax may be nothing more than hot air that won't come to pass.

Palmer has vowed to challenge the government's price on pollution on the basis that it is unconstitutional. But he won't yet reveal any details of the case.
 
"Lawyers for Mr Palmer are still preparing the challenge and will advise when it's submitted," a spokesman told reporters on Thursday when asked for further information.
 
University of NSW constitutional law expert George Williams says it's unusual for someone to announce they will be taking a case to the High Court without providing at least some of the grounds.
 
"You can't ambush in these circumstances," he told reporters.
 
"You have to reveal the grounds on which you file in the High Court.
 
"It's not possible at this stage to assess whether it's hot air or a significant constitutional point."
 
Environmental law academic Andrew Macintosh doubts Palmer will follow through and run a case.
 
The associate director of the ANU Centre for Climate Law and Policy believes Palmer could simply be "making noise to make the Labor Party look bad" because he's philosophically opposed to tackling dangerous climate change.
 
"I would be surprised if there is a High Court case in relation to this," Macintosh told reporters.
 
Labor's so-called Clean Energy legislation relies on the corporations, external affairs and taxation powers of the commonwealth constitution.
 
Palmer is entitled to take a constitutional challenge direct to the High Court. It would typically take six to 12 months to be resolved.
 
The mining millionaire could seek an injunction to delay the carbon tax - which is due to start on July 1 - while any case is heard.
 
The court did grant an injunction stopping the removal of asylum seekers from Australia last year before it sank Labor's people-swap deal with Malaysia.
 
But it would probably be difficult for Palmer to get one, Prof Williams says.
 
"In this case it's unlikely because if it turned out Clive Palmer won the case it's very easy just to repay any money that has been paid under the tax.
 
"There's no permanent damage that would be suffered."
 
Prof Williams has examined the carbon tax legislation closely and thinks it looks "robust".
 
"I'm not aware of any problems with the legislation on constitutional grounds."
 
He argues Palmer's challenge would most likely be a technical one, possibly relating to the way the tax is imposed.
 
Macintosh says the Queenslander might be hoping the external affairs powers don't apply because the first commitment period under the Kyoto Protocol is about to expire.
 
But his chances on that front would be "diminutive verging on zero" because the United Nations framework convention on climate change provides a broad basis for action.
 
Even if Palmer did manage to win that argument the commonwealth could still clearly rely on the corporations power because liable entities are companies, Macintosh said.
 
Climate Change Minister Greg Combet on Thursday said the litigious Palmer had more money than sense.
 
"The commonwealth has got very strong grounds for this legislation," he told Sky News.
 
"I don't think there is any doubt whatsoever."
 
Greens deputy leader Christine Milne said the proposed challenge "looks awfully like vexatious litigation by a man used to getting his own way".
 
Even the opposition seemed sceptical about Palmer's proposed action.
 
Opposition Leader Tony Abbott said "the obvious people to challenge the (tax) would be the state governments".
 
His climate action spokesman, Greg Hunt, said: "The parliament has the power to make taxes."

Have your say...

Mark | Friday, 16 March 2012, 11:05 AM
So legal experts say it wont be any good even though they dont know what is being challenged ! Sounds like they have a pre conceived view to me.
Alfred A Arnold M/Director ACI pty ltd | Friday, 16 March 2012, 1:23 PM
Myself I believe Mr Palmer if he goes ahead with this that the money would be better spent in a few months with a few from page adds showing all of this Governments catchments to date and the amount of policies that have been implemented and and there successes. To my knowledge not one policy change or program has succeeded, all have failed as well as her popularity.A replacement for Australia's Margret Thatcher she will never be,but she will go down in history and the sooner the better.
Adrian | Friday, 16 March 2012, 3:33 PM
The Prime Minister needs to spend more time at Coles don't you think. DOWN DOWN AND STAY DOWN. She as you say will go DOWN in history and everything else will go UP.
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