Clive Palmer lost his challenge to Western Australia’s border ban because the policy was not discriminatory and was justified by the Covid-19 pandemic, the high court has revealed.
After giving orders against Palmer in November, the court published its unanimous but separate judgments on Wednesday explaining why the ban did not infringe the constitutional guarantee that interstate movement “shall be absolutely free”.
The reasons could make future challenges against border closures on public health grounds more difficult and suggest Palmer could have strengthened his case by challenging WA’s emergency laws and not just the directions issued under them.
In August the federal court’s justice Darryl Rangiah set Palmer a difficult task by finding the border ban was effective at preventing the spread of coronavirus and that a “precautionary approach should be taken”.
Palmer then argued in the high court that Western Australia should have nevertheless allowed arrivals from states with a low risk of bringing Covid-19 into the state.
In their joint reasons, chief justice Susan Kiefel and justice Patrick Keane said this argument assumes “that there is a level of risk which may be regarded as acceptable” and “misapprehends” Rangiah’s findings.
“His honour did not suggest that a low risk of an infected person entering Western Australia was acceptable from a public health perspective.
“His honour considered that once a person infected with Covid-19 enters the community there is a real risk of community transmission and that it may become uncontrollable.
“Because of the uncertainties about the level of risk and the severe, or even catastrophic, outcomes which might result from community transmission, a precautionary approach should be adopted.”
Kiefel and Keane said these findings left “little room for debate about effective alternatives” and provided “no warrant” to read the provisions enabling the border ban down. They accepted WA’s case that there was “no effective alternative to a general restriction on entry”.
While “severe” the border ban was “amply justified” by the importance of protecting health and life, they said.
Justice Stephen Gageler said he had agreed with the other judges that if the WA emergency laws are valid then there was “no constitutional question” to answer about the validity of directions made under them.
“The plaintiffs had disavowed any argument that the impugned directions were not authorised by the act,” he noted. “The challenge to the impugned directions therefore failed.”
Gageler accepted the laws were directed at “managing the adverse effects of a plague or epidemic” and contained numerous conditions to ensure the “reasonable necessity across the range of potential exercises of the power”.
Those safeguards include that the minister must be satisfied that “extraordinary measures are required to prevent or minimise loss of life, prejudice to the safety, or harm to the health, of persons or animals”.
The state of emergency also lasts for just three days unless extended by the minister every 14 days.
Justice James Edelman agreed that the WA laws were reasonably necessary because of these “several significant restrictions”.
Justice Michelle Gordon said that “both history and authority” supported the view that it was not discriminatory to impose restrictions where “reasonably necessary” to respond to an epidemic, so the WA laws were valid.
In their judgments, all five high court justices held that section 92 of the constitution is directed at preventing discriminatory restrictions on interstate trade, commerce and “intercourse”.
Legal challenges against federal and state public health laws have so far all failed.
In November the high court unanimously rejected a challenge against Victoria’s lockdown that sought to argue Australians have an implied freedom of movement for any reason.
The federal court is yet to hear a challenge from rightwing thinktank LibertyWorks against Australia’s travel ban, which argues that the health minister, Greg Hunt, has no power to stop citizens from leaving the country.