Western Australia may soon face legal challenge over closed borders

Attorney-General Michaelia Cash at Parliament House in Canberra. Picture: NCA NewsWire/Martin Ollman

Michaelia Cash, the first law officer, has positioned the federal government on the right side of history. She did so in an interview with this newspaper that came within a whisker of drumming up a High Court challenge against state border closures.

This infuriated Mark McGowan, the parochial Premier of Western Australia – which is the best possible endorsement for Cash. It confirms that the Attorney-General was talking sense.

If business takes the hint – and gets the timing right – McGowan and his fellow traveller in Queensland might find themselves in the High Court running a Chicken Little argument that is approaching its use-by date.

McGowan leads a state with the nation’s lowest vaccination rate. But as more people get the jab and demand a return to something approaching normality, his fearmongering will lose its punch.

But until then, he is doing a great job of scaring the daylights out of people. This was typical:

“By knowingly letting the virus in, it would mean we’d have hundreds of people die, have to wind back our local freedoms, introduce restrictions and shut down large parts of our economy … I don’t want to see people dying in nursing homes or aged care villages or disability centres or hospitals. I don’t want to bring back harsh limits on local businesses,” he said this week.

McGowan, however, needs to reconsider his position. WA’s borders will only be forced open by the High Court if the judges are persuaded it is safe to do so.

To survive a High Court challenge, he would need to show that his border closure is necessary to protect public health, proportionate and the only way of achieving that goal.

Whatever happens in the courts cannot diminish the fact that Cash was right to calmly state constitutional reality: the legal arguments upholding the validity of all state border closures will weaken once the nation hits an 80 per cent vaccination coverage.

It is easy to understand why McGowan was displeased. He had just been wedged.

Cash had pointed potential plaintiffs in the business community towards his weak point. And she did it on the same day that the Business Council mobilised the leaders of 80 companies to call for all governments to implement the national plan that charts a way out of lockdowns and other restrictions.

Under national cabinet’s plan, an 80 per cent vaccination rate within each state and nationally is the trigger for the removal of many restrictions. But if that is the case, why has the Australian Medical Association been arguing that WA might need a 90 per cent vaccination rate? And why did McGowan say this week that his state is likely to be “a few months” behind the rest of the country in opening its borders?

AstraZeneca and Pfizer are just as effective in Perth as they are in Melbourne. What is it about the West that means it believes it cannot meet national standards?

Here’s one possibility: it is beginning to look as though the hospital system in that state is so run down it is struggling to cope with normal demand – and this is in a state that is Covid-free.

Western Australia Premier Mark McGowan. Picture: Jackson Flindell

The WA Health Department announced this week that some elective surgery at public hospitals will be postponed for a month to cope with increasing pressure on the system.

The state government plans to spend an extra $2bn recruiting nurses and doctors, but the growth in state spending on hospitals is paltry compared to that of the commonwealth. Scott Morrison has pointed out that under his leadership commonwealth funding for WA hospitals rose by 72.8 per cent while state funding in the same period rose by 18.4 per cent.

The ABC reported this week that Sir Charles Gairdner Hospital in Perth declared internal emergencies almost once every five days because of extreme pressure on its ability to treat patients.

That means McGowan is in a dreadful bind. Now that Cash has talked up the likelihood of success in a constitutional challenge, the Premier risks inviting a challenge from well-resourced business groups if he delays reopening after reaching 80 per cent.

If timed properly, the next High Court challenge will almost certainly argue that the border closures are no longer necessary or proportionate because high vaccination rates have given the state an alternative way of protecting public health.

In those circumstances, McGowan would face a choice: open the border or take the nuclear option and argue that his government has made a mess of the state’s hospitals, which cannot cope with additional demand.

This would mean admitting that despite almost 18 months warning about the pandemic, his government had not addressed the shortcomings of the hospital system. Instead, it chose to trample on one of the few rights that are guaranteed by the plain words of the Constitution.

Section 92 of the Constitution, which was approved at a referendum, promises that trade, commerce and intercourse between the states shall be absolutely free. Successive High Courts have watered down that freedom but section 92 still provides a residual guarantee that we are citizens of one nation and merely residents of states.

Based on current projections, 80 per cent of West Australian adults will be fully vaccinated on December 3, compared to November 1 for NSW, November 20 for Victoria and December 8 for Queensland.

That means McGowan has three months before the border closure will be most vulnerable to challenge. If his hospitals are not up to scratch by them, he is likely to face an interesting time in the High Court.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.