Does the constitution require interstate travel to begin again?
Morgan Lynch provides a short summary of Clive Palmer’s challenge to the constitutionality of state border closures (as at 26 September).
On 22 May 2020, Queensland businessman and politician Clive Palmer was denied entry into Western Australia, which had closed its borders to the rest of the country on 5 April. In response, he launched a High Court challenge to the WA border closure on the basis the restrictions breached Section 92 of the Commonwealth Constitution.
Section 92 provides that ‘intercourse among States ... shall be absolutely free’. Justice Starke put this in slightly plainer language in the High Court case of Gratwick v Johnson in 1945. He explained that the provision grants Australians the freedom to ‘pass to and from among the states without burden, hindrance or restriction’.
However, as the Court clarified in 1988 in Cole v Whitfield and Cunliffe v The Commonwealth (1994), this freedom is not absolute. If the Court adopts the same approach to this issue as it did fifteen years ago in APLA Ltd v Legal Service Commissioner (NSW), the constitutionality of the border closures will likely depend on whether they are ‘reasonably required’ to achieve their objective, namely to prevent the spread of COVID-19.
The High Court is not able to hear direct evidence on this issue. Since the parties could not agree on the relevant facts, the High Court tasked the Federal Court with hearing expert evidence on the public health implications of shutting down the WA border. So, over four days in late July, the Federal Court heard (often conflicting) testimony from various epidemiological experts on whether hard border closures were really the best way of protecting Western Australians from the virus.
On 25 August, Federal Court Justice Darryl Rangaigh handed down his judgement: the restrictions were ‘effective to a very substantial extent’ at reducing the probability of the novel coronavirus entering WA from elsewhere in the country. Other public health measures, such as mandatory hotel quarantine, mask-wearing and testing, would be less effective at containing the virus.
This is a significant setback for Mr Palmer. However, he has refused to back down, despite losing support from the Commonwealth. The High Court is scheduled to hear the matter in early November, where it will decide on the constitutional issues at play. In addition to the health risks, the Court will likely consider the economic and social effects of the border closures.
As well as either reducing or solidifying border restrictions across the country, the High Court’s decision could have implications long after the COVID-19 pandemic is over. It is likely to provide further clarity on the scope of Section 92, particularly on the freedom of ‘intercourse among States’. This phrase has received far less judicial attention in the past than the requirement for freedom of interstate trade and commerce also contained within the section.
Of course, that is assuming border restrictions are still in place come November. And, if 2020 has taught us anything, it is probably best not to make too many assumptions about what the future holds!
Article written by Morgan Lynch
This article appeared in the Torts Illustrated 2.5. Begin Again (2020) Publication