Clive Palmer-WA border challenge in High Court

Clive Palmer has argued in the High Court that WA’s hard border stance was ‘an overreach’, but the justices had some tough questions.

Clive Palmer’s fight against Western Australia’s hard border was challenged in the High Court on Tuesday with the judges questioning his main argument.

The mining magnate was in Canberra on Tuesday, his media adviser told NCA NewsWire, but he did not attend the hearing in person.

Mr Palmer’s lawyers started the morning arguing the border closure breached section 92 of the constitution, which says trade, commerce and movement among states should “be absolutely free”.

Peter Dunning QC claimed the border was not preventing the spread of coronavirus and was instead about stopping interstate movement.

Mr Dunning argued the border should be opened to “low risk” states and territories, such as Tasmania, that would not increase the risk to West Australians.

“The inclusion does not add to the risk … it’s an overreach,” he said.

Clive Palmer was in Canberra today, but did not attend the High Court hearing. Picture: Lyndon Mechielsen

But the justices had some tough questions for Mr Palmer’s lawyers.

Chief Justice Susan Kiefel challenged Mr Dunning’s argument because questions of constitutional validity applied to the laws themselves, not the health directions that flowed from them.

Mr Dunning initially struggled to argue his point, agreeing the directions were valid, but explained they had the “character” of legislation and were not “reasonably necessary”.

Justice Kiefel later proposed the question being debated was whether WA’s emergency management powers had authorised a border ban that was not required to prevent the spread of the virus.

However, Mr Palmer’s arguments were thrown into contention by the WA Government, which gave evidence in the afternoon.

It claimed that a hard border was the only effective measure of keeping coronavirus out of the state.

The court also heard findings from the federal court, which concluded the hard border had been “substantially effective” at reducing the risk of reintroduction of COVID-19 and community transmission in WA.

WA solicitor general Joshua Thomson said Justice Rangiah found social distancing and face masks were not equally effective.

“There is nothing as effective as keeping people out or in hotel quarantine,” he said.

Mr Thomson said “border hopping” presented a real risk of coronavirus effecting to the WA community.

“You cannot expect people to act honestly,” he said.

“There is no finding of fact that there is zero risk of coronavirus,” he said of other jurisdictions.

Mr Thomson said the plaintiffs “just don’t meet the case factually”.

WA Premier Mark McGowan said his government’s legal and factual arguments were strong. Picture: Jackson Flindell

The High Court will hear from states that have intervened in the case on Wednesday.

WA authorities are expected to review the rolling case average across Australia ahead of November 14, when the government announced it would enable people from several jurisdictions except NSW and Victoria to enter without quarantining.

Mr Thomson explained WA’s chief medical officer concluded bringing down the borders earlier than November 14 would create a larger risk to its residents because they have been moving around the state and mixing with people from other households.

This is because it would be a month since NSW opened to New Zealand and two weeks since other states opened to them.

The dispute over the border began in May after mining magnate Clive Palmer’s exemption application was rejected.

READ MORE: Clive Palmer’s WA border challenge could cost taxpayers