The High Court and Section 92 again

Nov 10, 2020

David Solomon’s item on the above – – is headed ‘Palmer loses border war’. It is not just Palmer that lost the war; in one way or another, as Australians, we all have.

The reasons for the High Court’s decision upholding Western Australia’s stringent border closures in the face of the clear terms of Section 92 – “trade commerce and intercourse between the States shall be absolutely free” – have not been released, which makes discussion difficult. But the political context in which the issue was decided is strongly suggestive that the Court had little difficulty in deviating from the black letter, strictly literal approach it took in the recent eligibility to sit in Parliament case as to who were or who were not of ‘foreign’ descent, in spite of that decision being highly disruptive of the workings of Parliament.

In the borders case the Court could hardly have been unmindful of the Commonwealth’s early withdrawal from the case, and of the Commonwealth Attorney-General’s failure to exercise his duty to maintain the integrity of the Constitution in such matters in withholding his participation. In other words , the case had huge political implications for all Australians who were awaiting the Court’s guidance on the application of Section 92 in circumstances such as a pandemic given its varying manifestations; and in other circumstances where wholesale border closures might be imposed.

If the Court has simply asserted that the WA legislation and the regulations underlying it were an exception to Section 92 on what grounds or by what standard or standards was it an exception? The answer can’t be found within Section 92 unless the Court were to explore the historical context of the section which it was not prepared to do for an understanding of the word ‘foreign’ in the eligibility for Parliament case.

In short, one might feel that the High Court is not being straight with us and has been ducking issues that go too close to politics, issues that also require an understanding as distinct from a mere knowledge of Australian history. The consequential unrestrained loss of personal freedoms and economic injury to the economy can be incalculable in these situations while they remain open to arbitrary measures by competing State governments. Unhealthy too for a well functioning Federation.

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