No winners in Clive Palmer’s border war with WA

Nov 9, 2020

Clive Palmer had a spectacular loss in his High Court challenge to Western Australia’s border restrictions – but he has probably helped influence the easing of those restrictions, beginning from the middle of this month.

The High Court heard his case on Tuesday and Wednesday, and dismissed it without giving its reasons on Friday morning. But its decision was in effect canvassed by Chief Justice Susan Kieffel within minutes of the very beginning of the hearing on Tuesday.

The challenge was based on the requirements of section 92 of the Constitution, that trade, commerce and intercourse between the States, shall be ‘absolutely free’. Over more than 100 years of litigation, the High Court has laboured over what ‘absolutely’ should mean – but never held that it really means ‘absolutely’. Currently, the Court considers that there can be limits set by federal or state legislation if those limits are reasonable and imposed for a legitimate end, such as (in this instance) protecting the public from a dangerous disease.

In Western Australia, the strict border control measures that the government imposed, which had the effect of excluding almost everyone from every other state in Australia (the Commonwealth controls the border with the rest of the world) were made under the Emergency Management Act which provides for the declaration of an emergency by the government and the issuing of directions by the Chief Health Officer for the protection of the people of WA.

Palmer’s legal team had no quarrel with the Emergency Management Act. In reply to a question from Chief Justice Keiffel, Peter Dunning QC agreed that he was not contending that the Emergency Management Act was invalid, but only the directions made under it.

The Chief Justice then said, ‘It is raised against you that therefore there might not be a constitutional question because section 92 , of course, operated on the statute, not what is made under the statute, the latter usually raising a question of whether or not it is properly authorised within what it otherwise a valid Act.’

Mr Dunning agreed that he wasn’t challenging the Act, but that his case was that the directions themselves took the character of legislation and section 92 operated directly on them. The Chief Justice invited him to address this issue later and he did so. However he was unable to persuade the court to adopt his reasoning, as the court’s orders later made clear.

Those orders made three points. First, that the sections of the Emergency Management Act authorising the directions ‘in their application to an emergency constituted by a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s.92 of the Constitution”.

Second, that the ‘exercise of the power given by those provisions’ to make the relevant directions did not raise a constitutional question. And third, that ‘no issue was taken’ (in the Palmer litigation) as to whether the directions were validly authorised by the provisions in the Act.

The orders leave open the possibility that the directions might have been open to some challenge on administrative law principles – whether the directions are within the power granted by the legislation or perhaps questioning the motivation behind them – but rejects the notion that they offended the constitutional imperative that trade, commerce and intercourse should be ‘absolutely free’.

There are some interesting political by-products of the litigation. The first concerns the actual directions about border controls that will shortly come into effect in WA. Before hearing the case, the High Court ordered that various factual issues on which the contending parties could not agree (or be expected to agree) should be settled in the Federal Court.

There Justice Darryl Rangiah ruled that the border restrictions imposed by WA had been effective in reducing the probability of COVID-19 entering from interstate and that they were the most effective means of keeping the state safe. However he went on to rank the risks of the virus being imported from other states, ranging from high in Victoria to very low in Tasmania.

This ranking may have helped persuade the authorities in WA that the time had come for them to drop their blanket ‘borders closed to everyone’ approach, and be more discriminating. In any event they have now decided that (subject to the relevant circumstances being re-assessed on 14 November) visitors from all states other than NSW and Victoria may travel to WA without having to go into quarantine for a fortnight on their arrival.

Before the Federal Court decision, WA was planning to maintain its hard borders until early in the New Year. So thank you Mr Palmer for contributing to that earlier easing of the border restrictions. But the High Court’s decision allowed the WA Premier to boast about his success in overcoming Mr Palmer’s attack on the border controls, and provide him with the highest possible legal backing for the strong stance he took. As we have seen throughout the year, that also solidifies the support of a majority of voters – and there is an election coming up, early next year.

The Palmer litigation has also proved somewhat embarrassing for the Prime Minister. His first instincts were to support Palmer – indeed in the Federal Court Palmer relied primarily (though not exclusively) on the witness experts produced by the Commonwealth. The Commonwealth changed its mind and withdrew from its active supporting role just before the Federal Court’s decision was announced.

It was notable also that while almost all the States and Territories joined in supporting WA’s position in the High Court, there was one important absentee – New South Wales.

While NSW and the Commonwealth finished up on the sidelines, their failure to oppose Palmer won’t be forgotten by their political opponents.

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