Federal Attorney-General argues border closure is ’unconstitutional’

Tasmania had made a submission to the High Court backing its right to keep borders closed during the COVID-19 crisis, despite the Federal Attorney-General saying it is “unconstitutional”.

TASMANIA will go head-to-head with Canberra in a High Court battle over whether Premier Peter Gutwein’s border closure is legal.

Federal Attorney-General Christian Porter has weighed into three High Court cases challenging Western Australian and Queensland’s border closures.

Mr Porter has argued they are “unconstitutional”.

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Federal Attorney-General Christian Porter in Parliament House in Canberra. Picture: AAP IMAGE/MICK TSIKAS

The cases will have implications for Tasmania, which is also refusing to reopen its borders yet, as COVID-19 cases continue to emerge on the mainland.

State Attorney-General Elise Archer confirmed Tasmania had made a submission to the case, backing its right to keep borders closed during the crisis.

“I have instructed the Solicitor-General to support a state’s right to impose and maintain border restrictions, in the context of the present public health emergency,” she told the Mercury.

“We will be presenting a robust submission in support of the states’ powers to impose these restrictions where required.”

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State Attorney-General Elise Archer confirmed Tasmania had made a submission to the case. Picture: CHRIS KIDD

Canberra has been ramping up pressure on states to reopen borders to fast-track the country’s economic recovery.

Prime Minister Scott Morrison warned premiers at last week’s national cabinet that the closures could be unconstitutional.

“There are significant portions of the constitution that guarantee freedom of what is called ‘interstate intercourse’, which is the human movement across state boundaries, but also the freedom of interstate trade,” the Federal Attorney-General said.

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He said there was “some strength” to the argument from businesses, including billionaire Clive Palmer, mounting the case against Queensland and Western Australia that their rights had been infringed.

But the High Court case may come to nothing if Tasmania reopens borders in the next few weeks, because hearings have been delayed by lawyers being unable to agree on facts about COVID-19.

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Mr Gutwein will announce a date to lift borders next Friday, but has flagged it will be late July.

Chief Justice Susan Kiefel has referred the disputed matters to the Federal Court.

“It seems clear that the matters cannot be ready for a June 30 hearing by the court and are unlikely to be ready for some time,” she said.