Michaelia Cash: states border powers fall at 80 per cent vaccination

Michaelia Cash has warned Premiers their power to shut borders will diminish once the nation hits 80 per cent vaccination.

Michaelia Cash says it will be much harder for states to defend a hard border closure as reasonable and necessary by the time 80 per cent of Australian adults are vaccinated. Picture: Martin Ollman

Attorney-General Michaelia Cash has warned state governments that their constitutional power to shut borders will diminish once the nation hits an 80 per cent vaccination rate, as premiers with low Covid-19 infections defend the need to lock out interstate arrivals.

Senator Cash said the legal ­arguments that led the High Court to block billionaire Clive Palmer’s push to tear down the West Australian border were shifting, as a coalition of the nation’s largest employers urged governments to work together to ease restrictions once 70 to 80 per cent of Australians were jabbed.

West Australian Premier Mark McGowan on Tuesday argued that he had to keep the option to close borders — even when the rest of the nation hit the 80 per cent vaccine threshold — as ­“hundreds of people (would) die” if he introduced the Delta strain into his state.

WA Premier Mark McGowan.

The High Court ruled last ­November that Mr McGowan’s state border closure was proportionate due to public health reasons. Chief Justice Susan Kiefel and Justice Patrick Keane singled out the lack of Covid-19 vaccines and treatments at the time.

Senator Cash — the most senior West Australian in the Morrison government — told The Australian it would be much harder for states to defend a hard border closure as reasonable and necessary by the time 80 per cent of Australian adults were vaccinated. “Once you hit 80 per cent, you are in a fundamentally different position if you are looking at the issue of proportionality,” Senator Cash said.

“When you look at the reasons for that decision, flowing from the Clive Palmer vs WA case, the issue of proportionality was a live issue … we did not know where the virus was going, it was considered a proportional response to Covid-19.

“We now have the benefits of 12 months or thereabouts, but we also have the benefit of the vaccine. Now that can only be tested in the High Court, obviously, but based on the reasons for that decision in that initial case, and based on where we are now in relation to the vaccine and vaccination rates, one would now think the grounds of any argument has now shifted.”

Senator Cash said the government was not considering court action and would do nothing to jeopardise the four-step national plan, but there were expectations Mr Palmer or others could make another attempt to overturn state border closures through the courts.

Police and the Defence Force patrol the Queensland border at Coolangatta on Tuesday. Picture: Nigel Hallett

The Attorney-General’s comments came as Australia’s largest employers – including the banks, telcos, airlines and grocery chains – threw their support behind the national cabinet plan, penning an open letter in The Australian and other newspapers backing the 70 and 80 per cent vaccine targets and phasing out lockdowns.

Signed by chief executives from 80 of the nation’s biggest companies, the letter says Australia must “open up society and live with the virus in the same way that other countries have done”.

“We need to stay the course,” it says. “Informed by modelling from the Doherty Institute, it (the national plan) balances the risks from Covid in a more vaccinated population, with the risks of indefinitely keeping our country divided and cut off from the world, our children out of schools, our friends apart from loved ones, and our small businesses closed.

“We ask governments to work together to implement the national plan and chart a path out of the current lockdowns. Providing a light at the end of the tunnel will encourage more Australians to get vaccinated. We need to give people something to hope for.”

The open letter was signed by companies employing almost one million Australians, including the Commonwealth Bank, NAB, Qantas, Telstra, Optus, AGL, Woolworths, Coles, Uber, BHP and Origin.

The campaign, led by the Business Council of Australia, comes after Josh Frydenberg called on the private sector to “beat the drum” and put pressure on wavering states and territories and as Scott Morrison on Tuesday conceded it was a matter for the states when to drop hard border restrictions. “Ultimately everything is a state matter,” the Prime Minister said. “It all ­depends where their vaccination levels have risen to. So, if you have NSW or Tasmania … well above 70 per cent, and you have other states that are below 70 per cent, well, the national plan doesn’t provide for them to move into Phase B (of the national plan). It’s all a matter of where they’re at any given time.”

The Morrison government came under attack from Mr McGowan and federal Labor last year when then-attorney-general Christian Porter intervened in Mr Palmer’s High Court case. Mr Morrison made the call to withdraw the commonwealth from the stoush.

Senator Cash said she hoped to work with state governments when the vaccine thresholds were passed, making any legal fights over state borders unnecessary.

“My preference is very much to work with the state of Western Australia,” she said.

“We’re not at 70 per cent. We’re not at 80 per cent. So those considerations are not on the table. Let’s get to 70 per cent. Let’s get to 80 per cent.”

Senator Cash said WA could not relax its border measures at the 70 per cent interval due to its lack of Covid-19 community transmission, but said the 80 per cent vaccine threshold would have to change the strategy of the Labor McGowan government.

“The issue we are now confronted with as a state is if not at 80 per cent, when?” she said.

“Most West Australians would say it’s great for the rest of the country to open up at 70 per cent but they are still going to be behind WA … Once you move to 80 per cent though, you’re playing on a different field.”

Mr McGowan and Queensland Labor Premier Annastacia Palaszczuk, Tasmanian Liberal Premier Peter Gutwein and South Australian Liberal Premier Steven Marshall have all voiced concerns about the consequences of opening up when their states are still relatively Covid-19 free.

Mr McGowan said on Facebook on Tuesday that his state border regime might need to exist for “a few months” before he was willing to see Covid-19 introduced back into WA.

“When it is safe to do so we will open the borders — when an overwhelming majority of our population has been vaccinated,” Mr McGowan wrote.

“We will get there — it might only be a difference of a few months — but in the meantime, it’s worth trying to keep Covid out for as long as we can.”