Coronavirus: Clive Palmer loses WA border bid in High Court

The West Australian government has declared the High Court’s ruling a ‘victory’ for the state.

Clive Palmer’s bid to force WA’s border open has shot down by the High Court. Picture: Mark Cranitch

The West Australian government has declared “victory” after Clive Palmer lost his High Court challenge against its hard border, but a leading constitutional lawyer says the court’s orders aren’t a “clear cut acceptance” of the states’ ability to impose border closures.

Attorney-General Christian Porter also on Friday said there was “nothing to celebrate about hard borders” and encouraged WA to proceed with the reopening of its border, which is due to be significantly eased from next weekend.

Mr Palmer, who lives in Queensland and has business interests in WA, commenced High Court proceedings in May after he was unsuccessful in applying for an exemption to enter Western Australia.

The High Court has ruled in favour of the WA government. Picture: AAP

Chief Justice Susan Kiefel said Western Australia’s Emergency Management Act, which authorises the “closing the border” directions, complied with the constitution when considered in the context of a plague or epidemic.

It did not infringe on any limb of section 92, which says travel, trade and commerce between states “shall be absolutely free”.

Mr Palmer was ordered to pay costs, which WA estimated would be in the hundreds of thousands of dollars.

University of Sydney constitutional law expert Anne Twomey noted the court did not make a ruling on the direction that actually closed the state border, after Chief Justice Kiefel said it “does not raise a constitutional question”.

“The High Court’s orders in the Palmer case do not amount to a clear cut acceptance of the ability of the states to impose border closures,” Professor Twomey said.

“The consequence may be that a separate challenge could be brought about whether the direction was validly authorised by the legislation (the Emergency Management Act). But we should probably wait for the reasoning in the judgment to see whether this remains a possibility.”

University of New South Wales constitutional law expert George Williams agreed the reasons for the High Court’s decision would need to be published before knowing if another challenge to the hard border was possible or whether there had been a decisive win for WA.

“What we know is that the WA border closure as it currently stands does not breach section 92 of the constitution,” Professor Williams said.

“What we don’t know is whether it might breach that section at a later time – say if the closure is modified or as the pandemic changes - or what implication this might have for any other state border closure.”

McGowan hails ‘drubbing for Palmer’

Mr McGowan said his government had to act “extremely quickly” when it introduced the border in late March and early April as it dealt with cruise ship arrivals and faced mass deaths from the coronavirus around the world.

“This (High Court result) is a comprehensive drubbing for Clive Palmer. Mr Palmer is only interested in himself,” Mr McGowan said.

“We’ve had to fight Mr Palmer on this and other issues every single step of the way. Mr Palmer wants to cost us millions, in fact billions of dollars. His selfishness and his greed is there for all to see.”

Mr McGowan expected the High Court case would have cost the WA government “hundreds of thousands of dollars”, if Mr Palmer was not made to pay the costs.

He said the state and federal Liberal Party needed to explain why they “backed” Mr Palmer’s High Court challenge.

The Morrison government was due to intervene in the case in support of Mr Palmer but withdrew following pressure from the Premier.

“I thought the Liberal Party believed in states’ rights,” Mr McGowan said.

“They supported Clive Palmer. I know he spends countless millions getting them elected but that doesn’t mean they should support him when these matters come forward. What they should’ve done is said ‘no’, they should’ve stood up to him, state and federal.”

WA attorney-general John Quigley said the High Court’s decision was “not only a great victory” for the state and validated the hard border, but affirmed a long line of case law dating back to 1928 “respecting the state’s powers to have hard borders in a health crisis”.

Morrison government sources said the commonwealth’s withdrawal from the case actually helped WA because it meant the court did not hear its arguments and was able to “dodge the question of the validity of the border closure directions”.

Mr Porter said removing the commonwealth from a constitutional matter before the High Court was unusual but the Morrison government had listened to the WA government’s concerns.

“We acted on Western Australia’s request (not to intervene) and prioritised the need to work cooperatively with them during the pandemic,” he said.

Opposition legal affairs spokesman Mark Dreyfus and opposition trade spokeswoman Madeleine King labelled the court orders a “humiliating rebuff to the Morrison government and Western Australian Liberals”.

“The commonwealth eventually backed out of the challenge in the face of a massive backlash, but only after the damage had been done and millions of dollars spent supporting Clive Palmer,” they said.

“The Morrison government must reveal immediately how much it spent helping Clive Palmer.

The people of WA will not forget this.”

How Mr Palmer’s case played out in court

While Mr Palmer initially said WA’s “closing the border” directions infringed on section 92 of the constitution because it prevented free movement between the states, his barrister Peter Dunning QC was forced to abandon the argument.

Instead, Mr Dunning said the test was whether the border was “reasonably necessary”. He acknowledged the directions were put in place for the protection of health and not to restrict interstate travel.

While it could be assumed WA’s border was constitutional when it was first announced, Mr Dunning said, the problem arose “when circumstances changed” in the midst of the COVID-19 pandemic and it was not revoked.

WA solicitor-general Joshua Thomson SC said the hard border, which has been in place since early April but is due to be eased next week, was necessary and had proven the most effective measure in keeping the population safe from COVID-19.

WA Premier Mark McGowan. Picture: Colin Murty

He also said there was no other reasonable alternative while conceding that removing the restriction presented a “greater risk” to the state because social distancing had been relaxed and there was a high level of “mixing” among West Australians.

Mr Thomson and Mr Dunning drew extensively on findings by Federal Court judge Darryl Rangiah, who in August found the WA border was “effective to a substantial extent” in reducing the probability of COVID-19 ­entering the state.

Exceptions to section 92 have been made, including to deal with a public health emergency.

From November 14, Australians from South Australia, Tasmania, Queensland, the ACT and Northern Territory will be able to enter Western Australia without quarantining, pending any new outbreaks.