Behind the scenes: Section 92, the High Court and State coronavirus border closures

Mar 4, 2021

Nearly four months after the High Court ruled in favour of the WA Government against billionaire miner Clive Palmer, who challenged WA’s coronavirus border closure, we have the Court’s reasons for its decision.

The judgments of the case of Palmer vs Western Australia ([2021] HCA 5) run to some 115 pages in all, being those of the Chief Justice Keifel and Justice Keane (a joint opinion), and Justices Gageler, Gordon and Edelman (five of the seven High Court judges). This comment attempts to glean the main elements.

The case, in short form: WA had declared a state of emergency response to the Covid-19 pandemic. Under its statutory powers, regulations were issued empowering the WA government to close its borders and require anyone seeking to cross in to WA to apply for permission. Mr Palmer sought permission to conduct his business in WA but that was denied. Did the regulations, if not the Act, breach Section 92 of the Constitution?

The principle enshrined in Section 92 – concerning the ‘absolute freedom’ of movement’ within the Commonwealth – is the point of reference to judge any derogation from the principle in any particular circumstance. Section 92 exists in a national context. It is not a separate source of power but a constraint on the powers of the Commonwealth and the States. It is designed to protect national integrity and ensure that everyone is treated as a citizen of Australia. State of residence is secondary.

In health and other matters, states are able to exercise their powers extraterritorially. Where they directly affect other States and the Commonwealth generally, not just incidentally, they may be found to be invalid. More so if such actions have a discriminatory or protectionist intent.

At issue, essentially, was the reach or relevance of Section 92. Many had thought it guaranteed absolute freedom of trade, commerce and intercourse among the States, including individuals’.

As it happened, the period between the Court’s decision and its reasons was marked by the greatest turmoil and border disruptions affecting inter-state relations since Federation. Politically, however, the WA Government gained enormous popularity for its border measures and its early success in containing the virus.

During this time there was also a vacuum in national power and responsibility for handling the pandemic. The Commonwealth has a specific power with respect to quarantining when persons enter the country from overseas as well as powers to ensure bio-security. Those are express powers but they encompass only part of the health domain, which was essentially left with the States at Federation. However, assertions such as by Prime Minister Morrison that the States are sovereign in the area of health were seriously misconceived.

The powers of the States are residual at best once the explicit powers of the Commonwealth are expressed, powers that are capable of being expand depending upon circumstances. Any conflict of powers prevails in favour of the Commonwealth in accordance with Section 109. Ultimately the Commonwealth is responsible for the nation’s security regardless of the existential nature of a threat.

The vacuum left by the Commonwealth in dealing with the pandemic allowed the States to act unilaterally, and without consistency or coordination, in the belief they were beyond challenge. They were not challenged, apart from by Mr Palmer, because the horse had effectively bolted and it was too late to retrospectively assert control. Unfortunately for Mr Palmer, his challenge did not include the Commonwealth, which had a clear responsibility to uphold the Constitution when its provisions were being contested.

Section 92 had been litigated many times but mainly in respect of interstate transport and State attempts to tax interstate border movements. The phrase ‘absolutely free’ was the conundrum again in this case, especially given the Court’s proclivity to give a literal interpretation to words and phrases in the Constitution seemingly regardless of practical consequences. This was seen in the Section 44 eligibility for Parliamentary office case where ancestry to a certain level was deemed as being ‘foreign’ though that would have surprised most members of the first Parliament 1901 who on the same interpretation would have been disqualified. This befell a number of parliamentarians in 2017.

The Court could hardly give free rein to the words ‘absolutely free’ when considering measures to contain the pandemic’s spread, the necessity for which had become imperative. So the Court asked itself: ‘absolutely free’ from what? If the offending measures could be seen as not falling within any prior Section 92 proscriptions they could be upheld. That is, rather than defining what ‘absolutely free’ meant, the Court turned the question around and asked what or when the phrase shouldn’t mean what it plainly says.

Drawing on earlier cases, the notion of discrimination was prominent. When a measure could be seen to be discriminatory to a person or class of persons it should be struck down. Discrimination being a burden from which a litigant in a Section 92 case could seek relief. But some measures in a particular circumstance may well be discriminatory but necessary nonetheless to achieve a transcending public purpose or public good.

Additional criteria have been introduced to justify an exception where it is incidental to, and not disproportionate to, the purpose, and ‘reasonably necessary’ to achieve that purpose notwithstanding having some discriminatory features. An ulterior purpose that would not be sanctioned would be one that had trade protectionist features. The Court was sensitive to this aspect as earlier cases had recognised this element in the Section, recalling the deep free-trade/protectionist split prior to Federation between NSW and Victoria.

As explained in the Kissel/Keane opinion:

“The test of reasonable necessity is not a conclusion to be stated after an impression is gained about a law’s purpose and how that purpose is sought to be achieved. It requires more than a view that there exists a need to which it is the statute’s purpose to respond and the measures taken are reasonable. The test is to be applied in a concrete way to determine whether the measures which the law permits are themselves reasonably necessary. It is obviously logically relevant to, if not demanded by, that enquiry whether there may be alternative, effective measures available to achieve the same object but which have less restrictive effects on the freedom. If there are, the law in question cannot be said to be reasonably necessary” – Kiefel CJ and Keane J at page 15 (para 51)

So how does this stand when a State shuts its borders abruptly? How does that demonstrate proportionality, let alone necessity, in those situations? These can be tricky questions for a Court assessing the practical effects of a measure where the calculus may be imprecise.

Mr Justice Edelman wrote in this regard:

“To avoid offending the guarantee [that is, of absolute freedom], that burden must be justified by a transparent analysis of structured proportionality.”

One might surmise that such words would not have been familiar to the Constitutional draftsmen in the late 19th century.

Was there scope, in relation to proportionality, to separate the claims for ‘intercourse’ from those for ‘trade and commerce’ and thereby accommodate an individual’s interests for protection from measures more aligned to trade and commerce? The Court was wrestling with the uncertainties presented by the pandemic and by and large it accepted the medical evidence – though a lot more has since become known about that. Hence the Court’s notion of proportionality in this context cannot be thought of as fixed.

In November 2020 state governments could be seen in retrospect as having over-reacted by closing down entire States, as opposed to an affected region. National and State economies were adversely affected by differential treatment, with countless thousands of businesses lost or financially threatened. However, the Court declined to accept that ‘trade and commerce’ on one hand and ‘intercourse’ on the other were binary in their separate characterisations.

A law that discriminates against interstate movement is invalid – contrary to s 92 – unless it is justified by reference to a non-discriminatory purpose. It may be justified if it goes no further than is reasonably necessary to achieve a legitimate object. Can this be said about the border closures, particularly in remote regions?

By shutting out another State beyond what is proportional to its ostensible purpose is the enforcer State acting discriminatorily to its own advantage? There have been indications of this, especially in the cases of Queensland and Western Australia. But the Commonwealth has counted itself out of the game. In effect, the situation has become one of de facto lawlessness.

Queensland actually submitted to the Court that a law that burdens interstate movement should be subject to a requirement of justification, in the same way interstate trade and commerce is burdened differently to intrastate trade. The Court accepted that submission subject to the burden on interstate movement being reasonably necessary. As a cynic would say, closing borders creates winners and losers anyway, regardless of the law.

The Court’s approach does allow for a more pragmatic assessment as to how far and where State-wide closures might be delimited with less draconian effects on whole communities. The country has been held to ransom for months at a time by dogmatic Premiers who have shown little understanding of Constitutional constraints. They have allowed a transcending purpose with dimensions that go beyond reason to fetter critical aspects of life, not just in the regions but to the detriment of people’s overall well-being.

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