High Court may loosen the Premiers’ rules around state borders closures

The High Court looks to be the best chance of opening state borders in 2020.

The High Court looks to be the best chance of opening state borders before Christmas. Clive Palmer lodged a challenge in May against Western Australia, with the case taking months because of disagreement over the facts. Now that these have been determined, the stage is set for the court to rule on whether border closures breach the Constitution. Even then, the court is not hastening to break the political impasse, with the matter not due to be heard until November.

Our Constitution was drafted to create a nation without internal barriers to trade and movement. As former High Court chief justice Anthony Mason said in striking down barriers to lawyers practising interstate: “The very object of federation was to bring into existence one nation and one people.” The intent is that people can ply their trade and access services anywhere in Australia free of state parochialism. Queensland Premier Annastacia Palaszczuk’s statement that hospitals were only for “our people” is anathema to this.

The idea of universal access to services is written into the text of the Constitution. Section 117 says that people cannot be subject to “any disability or discrimination” because they reside in a different state. Jobs in Tasmania cannot be reserved for Tasmanians, nor should healthcare in Queensland be denied to people from northern NSW. As Sir Anthony further said, the purpose of section 117 is to create “a national sense of identity transcending colonial and state loyalties”.

The High Court also has section 92 of the Constitution at its disposal. This section says that “trade, commerce, and intercourse among the states … shall be absolutely free”. It is a focal point of Palmer’s challenge because the closure of state borders runs counter to these emphatic words. The difficulty for Palmer is that these words do not mean what they say.

The High Court has recognised that unrestricted freedom of movement across state borders is unworkable and contrary to the national interest. For example, governments need to enforce quarantine measures to prevent the spread of diseased fruit or noxious pests such as cane toads. The court has long experience of attempting to reconcile the unfettered words of section 92 with the need for a sensible interpretation protective of the community.

The key to Palmer’s case is whether the closure of the West Australian border can be justified as reasonably necessary to prevent the spread of COVID-19. Western Australia will seek to show there is no effective alternative to border closures that will impose a lesser burden on interstate trade and movement.

Western Australia will be assisted in its defence by the fact-finding conducted by the Federal Court. Justice Darryl Rangiah found in late August that the border closure had reduced the number of interstate travellers to Western Australia by about 90 per cent (from about 5000 to 470 people a day). The restrictions were “effective to a very substantial extent to reduce the probability of COVID-19 being imported into Western Australia from interstate”. The judge noted that, in a worst-case scenario, an uncontrolled outbreak in Western Australia could be “catastrophic”.

Justice Rangiah also found that other means of protecting the West Australian community would be less effective. The state could not safely manage a system of hotel quarantine for all entrants and other measures such as mandatory face masks on flights to Western Australia would be less effective than border restrictions. In his view, “a precautionary approach should be taken to decision-making about the measures required for the protection of the community”.

These findings of fact will inform the High Court decision, as may other considerations such as the economic and social costs of border closures. It is difficult to see that from this foundation the court will strike down the closure of the West Australian border. The judges will be wary of overturning a government decision proven to be effective in protecting a state community from the pandemic.

On the other hand, the court may find that border closures must be modified. The evidence provides a strong justification for preventing people from Victoria entering Western Australia. However, the risk of infected people entering Western Australia from South Australia or Tasmania was found to be low to very low. This opens the possibility that the High Court will order a partial reopening of state borders to people from low-risk areas.

The result could open up new zones of movement around Australia. The Constitution may guarantee the right of people to travel between areas of low infection, while enabling the states to deny higher risk movement. This would reassert the imperative of free movement throughout the federation as far as possible.

This approach would enable a more responsive strategy based on actual rates of infection, as opposed to blanket restrictions on all Australians entering a state irrespective of the actual risk involved. Smaller regions could benefit. For example, Queensland could prevent the entry of people from Sydney, but not those from northern NSW where there are no recorded infections. This could be a game-changer for many communities, especially those living along our borders.

George Williams is a deputy vice-chancellor and professor of law at the University of NSW.