The time is right for a fresh challenge on state borders

WA Premier Mark McGowan speaks during a media opportunity ahead of the 2021 AFL Grand Final at Optus Stadium on September 23. Picture:Getty Images

The legal prospects of a successful challenge to the Queensland and West Australian border closures may just be looking up.

There are several avenues by which an aggrieved and powerful litigant may proceed.

National cabinet agreed in August on a national plan to transition Australia’s Covid-19 response to post-vaccination settings, starting when national vaccinations reached 70 per cent, with that target expected to be reached by Oct­ober 22. But Queensland Premier Annastacia Palaszczuk and West Australian Premier Mark McGowan have a very different plan for their states – to stay closed.

Although previous legal challenges to state border closures such as these have failed, including Clive Palmer’s constitutional challenge to the WA border restrictions, unanimously dismissed by the High Court last year, the legal prospects, just like the pandemic, are changing.

The High Court’s reasons in the Palmer case were based on limited legal grounds and very different facts. Three members of the five-judge bench (Chief Justice Susan Kiefel and justices Patrick Keane and James Edelman) were careful not to rule out definitively the possibility of a future successful challenge.

Meanwhile the Queensland border closure legislation has not been subjected to a sustained challenge and its constitutionality remains an open question.

The border closure also could be challenged via judicial review of public health measures, which would argue restrictions go further than is necessary to protect public health.

A new challenge also may garner support from other stakeholders. Scott Morrison says Australians just want to “get on with it”. Home Affairs Minister Karen Andrews has waged a public war of words with the Queensland Premier since July and Attorney-General Michaelia Cash, a senator from WA, says things have changed fundamentally and as a result the WA border restrictions are “no longer necessary and proportionate”.

South Australia’s backing is likely, given its position in the Palmer case. And while NSW did not show its hand in the Palmer case, border tensions and social media posts by Attorney-General Mark Speakman may indicate where its sympathies lie. The basic facts of any case could be agreed and should not be contentious, given Covid-19 is perhaps the most rapidly and exhaustively studied phenomenon in history.

Apart from vaccines and new treatments, what has changed?

Critical to the High Court’s reasoning in the Palmer case were “uncertainties about the level of risk”. Chief Justice Kiefel and Justice Keane endorsed WA’s position with a powerful and prescient statement of the court’s reasoning: “There is no known vaccine, and no treatment presently available to mitigate the risks of severe medical outcomes or mortality for a person who contracts Covid-19.”

The question is this: did the High Court deliberately leave the door open to a future challenge as soon as a vaccine was rolled out and other treatments approved?

Fast forward to last month, and more than 50 per cent of Australians now are fully vaccinated against the virus. Uncertainty has been dispelled by Doherty Institute and Burnet Institute modelling based on more than 12 months of international data. With test, trace, isolate and quarantine measures in place, the level of risk in reopening at 70 per cent has been quantified with precision: 2737 infections and fewer than 15 deaths, with no lockdowns required.

That is a caseload the health system surely can cope with. Since April last year, Victoria has tripled its intensive care unit capacity, bringing an additional 1600 beds online. The NSW and Queensland governments announced early in the pandemic that they would double their capacity.

Australia’s prospects for returning to everyday life are looking very good. Health capacity has been ramping up continuously since Covid-19 reached our shores last year. All of which makes Palaszczuk and McGowan’s refusal to commit publicly to a date for reopening difficult to understand.

Vaccination rates in Queensland and WA lag behind the rest of the country by a wide margin, which adds to the uncertainty on reopening. It is not clear when Queensland and WA will reach 80 per cent vaccination. And their premiers tell Queenslanders and West Australians borders will stay closed for as long as necessary to keep the virus out.

However, we also know the implications of border indecision aren’t merely about convenience and federal consistency. The livelihoods of many Australians are affected. The tourism industry in particular is under pressure. In WA, tourism is an $11bn industry employing about 8.2 per cent of the state’s population. In Queensland, always a popular holiday destination, about 75 per cent of the $28bn sector is reliant on domestic tourism.

More intangible but no less deeply felt is the human cost for all of us. Queenslanders and West Australians with friends and relatives living elsewhere have endured almost two years of separation. The daily lives of border residents have been disrupted, including by restrictions on movement within their own states.

Faced with indefinitely prolonged restrictions, the Australian Human Rights Commission has expressed concern, citing a “lack of transparency in explaining the continued justification for some emergency measures”. The commission says: “The need for the restrictions must be regularly assessed, and the moment they are no longer necessary they must cease.” Prospective plaintiffs may be wondering whether that moment finally has come. With agreed facts, a challenge could be heard and determined in as little as a few weeks: the High Court pronounced orders on Palmer’s challenge within two days of the close of hearings.

Whatever the outcome of any challenge, it will be a step further down the path out of Covid-19 and back to normal life, something likely welcomed by all of us.

Leon Zwier is a partner at Arnold Bloch Leibler.