What you need to know
- Today the High Court pronounced its orders rejecting the challenge by Clive Palmer and Mineralogy Pty Ltd to Western Australia's COVID-19 quarantine border closure.
- The challenge was based on s 92 of the Australian Commonwealth Constitution, which provides that trade, commerce and intercourse among the States shall be absolutely free.
- The decision follows last week's announcement that WA will remove its hard border policy from 14 November 2020, permitting residents from states and territories deemed very low risk to enter without undertaking quarantine.
What you need to do
- Businesses affected by border closures and other restrictions imposed due to COVID-19 need to actively monitor restrictions and be aware of what's likely to change. These restrictions have political and legal as well as public health dimensions.
The Western Australian border has been closed to interstate travellers since 5 April 2020, pursuant to directions (Directions) under the Emergency Management Act 2005 (WA) (Act) declaring a state of emergency over the whole of the State of Western Australia to address COVID-19.
On 25 May 2020 Clive Palmer brought proceedings in the original jurisdiction of the High Court challenging the validity of the Act and the Directions on the basis that they contravene s 92 of the Constitution.
Originally the Commonwealth supported the legal challenge, but the support was withdrawn in August. However, the States of Victoria, Queensland, South Australia, and Tasmania, the Northern Territory and the Australian Capital Territory all intervened in support of Western Australia's argument that its border closure was valid.
The High Court has decided today that on their proper construction, the relevant sections of the Act, in their application to an emergency constituted by a plague or epidemic, comply with section 92 of the Constitution.
However, the Court has expressly not addressed whether the Directions are valid.
The Court will publish detailed reasons at a date to be fixed.
Given that no decision has been made on the Directions, it remains to be seen whether Mr Palmer (or some other plaintiff) pursues a further challenge to the Directions. That may be unlikely given that COVID-19 restrictions have already started to relax.
Authors: Jeremy Chenoweth, Partner; Dan MacKenzie, Senior Associate; and Joshua Storey, Lawyer.
