Border reopening could spell trouble for Clive Palmer High Court case

The WA Premier’s decision to remove his state’s hard border from next week could make Clive Palmer’s High Court challenge trickier.

Clive Palmer’s lawyers argue Western Australia’s hard border closure is unconstitutional because it excludes people from all other Australian states. Picture: Alix Sweeney

West Australian Premier Mark McGowan’s decision to remove his state’s hard border from next week could make Clive Palmer’s High Court challenge trickier and potentially irrelevant, according to constitutional lawyers.

Mr Palmer’s lawyers are due to front the court’s full bench on Tuesday to argue the “indiscriminate” border closure is unconstitutional and unnecessary.

From November 14 travellers from the ACT, Queensland, the Northern Territory, South Australia and Tasmania will be ­allowed into WA without being required to self-quarantine, pending the state’s health advice.

University of Sydney constitutional law expert Anne Twomey said the court must decide at what point it was testing whether the border closure was valid — at the time the border was introduced, at the time the Federal Court made facts about the case, at the time of this week’s hearing or when the judges hand down their decision.

“The recent announcement that the law will change come the 14th of November, announcing something will happen in the ­future may or may not have an impact depending upon what the court decides in terms of the time at which they’re assessing the validity of this particular law,” Professor Twomey said.

“The other side of it is they may well have taken the view the issue is moot because the provisions (hard border) are there no longer. If the law is changed to such an extent that the arguments are no longer relevant in relation to it, that is problematic.”

George Williams, a constitutional law expert at the ­University of NSW, said WA’s Solicitor-General may argue Mr Palmer — who lives in Queensland — will be able to enter the state from ­November 14 and the matter should end without a ­finding.

Though the border could be found unconstitutional retrospectively if it had a bearing on Mr Palmer’s entitlements and through a separate legal claim he argued his goods or business had been affected.

“If he can show he needs an answer because other entitlements depend on it, that could be a basis for his case,” Professor Williams said.

“You can’t enter the state at least for a couple of weeks and it would be a pity if we did not get a ruling because the case may have a major bearing on Queensland’s border closures and any future border closures.

“Quite apart from Clive Palmer’s personal interest, a lot of people would like to know the answer to this question that if you strip away the politics, what actually does the constitution say about the ability of states to close their borders during this pandemic?”

Section 92 of the constitution states that movement and travel between Australian states “shall be absolutely free” but exceptions have been made, including to deal with a public health emergency.