Welcome back to article two of Let’s Get Legal. This is a series where myself, Simeon (creator and author of the Levine Lowdown) and Guest Author Daniel, review, prompt ideas, and demonstrate how certain court cases, statutes and everything in-between affect you and bear relevance to our society.

Please let us know any thoughts you have and provides us with feedback to assist us in improving our future posts. You can find a link to article 1 at the bottom of this post!

But, before we get started, please remember that:

The content in this series does not constitute legal advice and should not be relied upon as such. We encourage you to seek out a qualified legal professional if you need legal advice. Rather, this series aims to encourage conversation about the law and allow individuals to express their personal opinions surrounding legal matters.

Border Battles

Introduction

In February 2020, most people didn’t even know what COVID-19 was. By April, the whole world was shut down because of this virus. COVID-19 was unpredictable, spread incredibly fast, and left governments rushing for answers.

When it soon became realised among the medical field that the virus could spread at immense speed and with little difficulty, prevention options began to significantly reduce. While some countries tried to stick it out and hope that citizens would obey social distancing protocols, many Australian states made a sudden decision. Close the borders.

The Australia Government closed international borders, and many states, including Western Australia, closed their borders from other States. As time passed and the cases began to be controlled, States such as New South Wales, Victoria and South Australia slowly re-opened their borders, but Western Australia refused to follow suit. They were concerned at the risk of more cases being introduced into the public and threatening the Western Australian population by transporting the disease throughout the nation.

Therefore, they shut themselves off from the rest of the country. With the border firmly intact, they were able to freely go about their lives mask-free and without any community transmission. However, although this protected lives, it had a significant impact on business. Many corporations were no longer able to freely enter Western Australia for work, importation and exportation became increasingly complex, and the State’s no-compromise policy led to severe headaches around the nation.

This led Clive Palmer, an Australian businessman and politician, who is also a billionaire, to take the case to court and argue against the strict closures. In this week’s edition, I will outline the essential parts of this case and the court’s decision on the validity of the Australian State’s border closures.

The Case: Palmer v Western Australia [2021] HCA 5

Useful Details

– Date of Hearing: 3rd and 4th of November 2020

– Date of Order (Decision): November 6th 2020

– The main issue that the case aimed to address is whether the quarantine directions, which involved closing Western Australia’s state border, and the authorising of the Emergency Management Act 2005, were invalid because they infringed upon Australia’s Constitution.

Initial Facts

– On March 11th 2020, the World Health Organisation declared COVID-19 a pandemic

– On March 15th 2020, the Minister for Emergency Services for Western Australia declared a state of emergency with effect from March 16th in respect of the pandemic

– This state of emergency was declared in accordance with section 56 of the Emergency Management Act 2005 (WA)

– The Commissioner of the Police, issued the Quarantine (Closing the Border) Directions which took effect from April 5th 2020.

– The plaintiff (Clive Palmer), challenged the border closures as unconstitutional under Section 92 of the Australian Constitution

The Law

The Emergency Management Act 2005:

Section 56: Allowed for the minister to declare a state of emergency in the whole or in any areas of the State if they are satisfied that extraordinary measures are required to prevent or minimise loss of life and harm to the health of persons or animals

Section 58(4): Allowed the emergency declaration to be further extended beyond 14 days

Section 67: For the purpose of emergency management during an emergency situation or state of emergency, an authorised officer may direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around an emergency area of any part of the emergency area

This Act allowed the government of Western Australia to close the borders for an extended period when there is an occurring or imminent emergency that requires extraordinary measure to prevent or minimise the loss of life or harm to the health of persons or animals.

The Australian Constitution:

Section 92: On the imposition of uniform duties of customers, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigations, shall be absolutely free

This section of the Constitution is referring to the free movement between states which is unrestricted.

Present Case

– The Plaintiffs (Clive Palmer and co) argued that Western Australia’s policies placed a burden on the freedom of movement among the Australian people in several States by prohibiting the cross-border movement of persons

– They argued that the freedom of trade and commerce guaranteed by section 92 of the Constitution is contravened because Western Australia’s policies impose an effective discriminatory burden with protectionist effect

– However, the defence (Western Australia) argued that these provisions of the Act had the legitimate purpose of protecting the population of Western Australia against the risks arising from emergency situations and that movement between the states was only limited to the extent that it was reasonably necessary

– The Court found that to rule in favour of Western Australia, the key provisions of the Act must be justified in their relevant application through 3 tests:

  1. Firstly, the court found that the sections served a legitimate purpose – that was to put appropriate arrangements in place to deal with the catastrophic nature of natural or man-made emergencies that might occur in the state
  2. Secondly, the discrimination in the sections is reasonably necessary – here, the court highlighted that the legislation was well within a margin of reasonable legislative responses that minimise the intrusions upon the freedom outline in section 92.
  3. Lastly, the burden imposed by the Act is adequate in the balance – this asked whether the extent of the burden that the law imposes upon the freedom in section 92 can ever be justified by that law’s purpose, and in this case, it was proven successfully.

Ruling

The Court held that the key provisions of the Emergency Management Act 2005 complied with the constitutional limitation of section 92 of the Constitution.

Clive Palmer also had to pay the costs of the special case.

Concluding Thoughts

In summary, the case put forward by Clive Palmer was always going to be challenging to prove. Western Australia’s laws had been legally implemented and contained the appropriate provisions that enabled the court to examine the nature, purpose and objective of the Act.

The financial cost to Clive Palmer would have been significant for taking the case to the High Court, but only someone with his financial backing would be prepared to take that risk. The question does arise regarding why Mr Palmer even decided to go ahead with the case.

The hearing was in November, well after the spike of COVID-19, and it wasn’t only his business pursuits that had been impacted. Thousands of businesses around Australia had to remain closed or reduce certain aspects of their operation to manage the pandemic, but this was all to save countless lives.

Australia’s response to COVID-19 must be applauded for years to come, and it is largely down to the State Premier’s. The Prime Minister, Scott Morrison, wasn’t absent, but he certainly wasn’t a decisive and robust figure when controlling the increase in COVID-19 cases. It was the State Premiers who demonstrated their courage, leadership and communication, especially WA Premier Mark McGowan. In fact, his incredible leadership led him to a comprehensive victory in the 2021 state election, with his party receiving over 500,000 more votes than their nearest rivals.

However, this case also has possible consequences for future high court decisions. The reasons outlined in the judgment could make future challenges against border closures on public health grounds more difficult. The precedent is incredibly clear, and increased power has now been provided to State authorities, in a society where more and more power is going to the Federal Government. This swing is interesting, but is almost exclusively due to the influential role that State Premiers played during 2020, in the authoritative absence of Scott Morrison.

One role of the High Court is to interpret Australia’s Constitution, and in this case, they have methodically analysed the Constitution and compared its terms to the provisions of Western Australia’s legislation. But, the question remains:

Should State governments be given increasing power to make decisions? Or, should it be left up to the Federal Government to control internal borders?

Thank you for reading the article! Let us know your thoughts in the comments below or thought the blog’s various social media pages, which can be found in the ‘contact’ section of the blog!

Article 1: Immigration, Immigration, Immigration: https://thelevinelowdown.com/2021/03/19/lets-get-legal-immigration-immigration-immigration/

7 thoughts on “Let’s Get Legal: Border Battles

  1. Lots of my relatives live in Western Australia and here in England we are very impressed and also envious, still in lockdown, haven’t seen my family this year! Of course WA did have the advantage of isolation, but it was still a bold approach.

    Liked by 1 person

    1. Thank you for your comment! Yes, it was a bold approach indeed – and one that continues to be scrutinised by other state and federal bodies. However, it was successful. How long has the most recent lockdown in England been going for?

      Like

      1. I see, certianly an extended period. Has there been support for the vaccine rollout in the UK?

        One state in Australia (Queensland) has just had a small outbreak of the virus which can hopefully be contained.

        Like

      2. That’s great progress! Australia’s vaccine rollout has been slow, but they’ve justified it by stating that it’s to ensure safety as there is no risk of community transmission. However, an outbreak is continuing to develop at the moment in Queensland.

        Liked by 1 person

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