Coronavirus: Lawyers question the legality of ongoing state border closures

Businesses suffering economic hardship because of state border closures could have a case to put to the High Court.

University of Sydney constitu­tional law expert Anne Twomey said it was a lot harder now than it was at the start of the pandemic to argue that the border closures were reasonable and imposed for a legitimate end.

Businesses suffering economic hardship because of the coronavirus pandemic and state border closures could have a case to put to the High Court, with leading constitutional lawyers saying it’s possible the ongoing restrictions on interstate travel are illegal.

Attorney-General Christian Porter said on Tuesday night that the states needed to carefully consider the economic effects and constitutional limitations of their ongoing border restrictions.

Under section 92 of the Constitution, trade, commerce and the movement of people among the states “shall be absolutely free”. However, the High Court accepts there are exceptions to the rule, including to defend the public’s health.

Pressure is mounting on Queensland Premier Annastacia Palaszczuk to reopen borders sooner after she shocked the tourism industry by suggesting it would more likely occur in September because of small levels of community transmission in NSW and Victoria. The Palaszczuk government’s road map released earlier this month set July 10 as the possible date to kickstart interstate travel.

Western Australia, Tasmania, South Australia and the Northern Territory have also embraced border closures, with WA Premier Mark McGowan vowing to maintain his closed border with the east “for months to come”.

Federal Tourism Minister Simon Birmingham said there was “no reason” for Queensland to wait until September if Australia continued to successfully contain the coronavirus and ease shutdown measures.

Agriculture Minister David Littleproud, a Nationals Queensland MP, accused Ms Palaszczuk of using the border as a “parochial political weapon” ahead of the ­October 31 state election.

University of Sydney constitu­tional law expert Anne Twomey said it was a lot harder now than it was at the start of the pandemic to argue that the border closures were reasonable and imposed for a legitimate end, such as protecting the community from COVID-19, when the number of active cases in Australia was so low.

Professor Twomey said it was “a possibility” that the border closures­ were unconstitutional.

“If a court is looking at what is reasonably necessary in the circum­stances, there’d be consensus the states shutting borders at the start was reasonably necessary,” she told The Australian.

“But it’s much more difficult now the huge numbers of coronavirus cases have reduced significantly and there’s little commun­ity transmission … to argue you still need those borders shut.

“You can make a case for it, particularly if you’re trying to exterminate the virus rather than just manage it, but is it purely for a health purpose and is that health purpose reasonably necessary in the circumstances? It would then be up to a court to decide.”

University of NSW constitu­tional lawyer George Williams agreed that the height of the pandemic there was a clear necessity to close state borders but said that reasoning “will run thin”.

“If we get to a point where borders are closed but the justification is no longer as strong, then good questions do need to be asked about when these measures would become unconstitutional,” Professor Williams said.

“Only the High Court can answer that, which would take a challenge, but it’s not beyond question someone might want to bring a challenge. Particularly if a state looks like it’s hanging on a border closure well beyond what might seem reasonable.”

David Bennett QC, a former solicitor-general during the Howard government years, said he believed­ the states with border restrictio­ns would succeed if there was a challenge.

He acknowledged nothing was absolutely certain in High Court cases, but added: “My understanding is the High Court has said a number of times there’s an exception of section 92 in relatio­n to health and matters of that sort. That’s the basis, for exampl­e, on which the states have prohibited the movement of fruit.

“I would’ve thought this would have come into that category. You’d have to prove there was some real advantage in doing it (closing the state border). That wouldn’t be difficult.”

The Australian understands states and territories are aware of the varying legal interpretations of section 92 of the Constitution.

Mr Porter acknowledged that the border closures had helped manage the disease and protect lives by slowing the virus’s spread, but said states were now faced with balancing the economic imperative to get the economy reopening with the health imperative.

“Ultimately it is up to each state and territory to reopen their borders, and I’m sure each jurisdiction will give proper consideration to any potential constitutional issues as they move forward,” he said.

An increasing number of feder­al Coalition MPs have demanded that Queensland’s border be reopened before September, while Australian Industry Group chief executive Innes Willox said border barriers that prevented tourism in safe numbers and investment opportuniti­es “should be taken down without delay”.

Mr Willox asked the premiers to “show leadership” and exercise their authority to direct officials to remove border restrictions.