Border skirmish

Western Australia’s retreat from its hard border closure looks like a panic-stricken attempt by the Premier to avoid another humiliation at the hands of Clive Palmer. By Chris Merritt.

After months of legal argument over Western Australia’s border closure, Clive Palmer seems to have the government of Mark McGowan running scared.

Last Friday, just three days before the High Court began hearing oral argument in Palmer’s challenge to the border closure, McGowan’s government blinked and unveiled plans to reopen the state to the rest of the nation.

This is a welcome development. But on closer examination, it looks like a panic-stricken attempt to avoid another humiliation at the hands of the Queensland businessman.

This, after all, is the same man whose victory in a mining dispute with WA was so complete that McGowan abandoned the rule of law and used retrospective legislation to avoid paying Palmer what he is owed.

It looks like fear of another defeat by Palmer is behind the proposed border opening — and an associated suggestion to the High Court court that there might no longer be any point deciding the issue at the heart of the businessman’s challenge.

WA’s retreat started last Friday.

After insisting for months on a hard border to fight COVID-19, McGowan’s government foreshadowed an easing of entry restrictions from November 14 if the pandemic in other states remained under control.

On Monday, the day before the High Court was due to hear oral argument in Palmer’s challenge, WA Solicitor-General Joshua Thomson SC filed a short submission with the court. And there, tucked away on the last page, is the next stage of the retreat.

Thomson suggested that if the pandemic continues to ease, and the November 14 changes take effect, there might no longer be any utility in having the court decide whether the border closure is at odds with the Constitution.

The Solicitor-General wrote that Palmer was only challenging the ”hard border” that would be in place when the hearing was due to take place on Tuesday and Wednesday.

And if the court were to reserve its judgment until after November 14, and the proposed changes to the border restrictions take effect, “there may be a question about the utility of then answering the reserved question …”, Thomson wrote.

The hearing went ahead after Palmer’s legal team put in submissions of their own making the point that the border changes were prospective, highly conditional and McGowan had “purported” to reserve the right to reintroduce a closed border.

The changes announced last Friday have finally given WA’s approach to its border the appearance of rationality. From November 14, the “hard border” will be lifted and people from jurisdictions with negligible infection rates will no longer be banned from entering the state.

Those who enter from NSW and Victoria will be required to go into self-isolation. But people from other states and territories will be free to enter WA without going into quarantine — if there has been no community transmission in their home jurisdictions for 28 days.

The fate of Palmer’s challenge is now in the hands of the High Court, but a victory for the businessman would be unlikely to resolve all of the issues that have been triggered by border closures.

At most, it might provide guidance for all states on how to manage the pandemic without breaching one part of the constitutional guarantee of freedom of movement between the states.

Palmer’s case has been brought under section 92 of the Constitution which says trade, commerce and intercourse between the states shall be absolutely free. But as UNSW law dean George Williams has written, these words do not mean exactly what they say. Some restrictions are permissible.

But there is another issue. The economic damage to business inflicted by WA’s hard border is extremely unlikely to feature in the High Court’s decision.

There are two reasons for this shortcoming. The first is that the facts in Palmer’s case were determined by a separate hearing in the Federal Court and they do not concern the economic impact of the border closure. The facts are confined to health and the best method of controlling the pandemic.

But there is another reason. Palmer’s challenge has intentionally declined to emphasise the first two limbs of section 92 — freedom of trade and commerce. Instead he has invoked the third limb — freedom of intercourse between the states. He says he cannot enter WA where he is involved in “high-value litigation and arbitration”.

This limited use of section 92 seemed to surprise Chief Justice Susan Kiefel and Justice Stephen Gageler who asked about it at the opening of Tuesday’s hearing.

Palmer’s silk, Peter Dunning QC, told the court the first two limbs of section 92 were in his written pleadings and “we are not proposing to develop it any further orally”.

The High Court has been known to offer hints about what sort of case it might be interested in hearing. This might be such an occasion.

Major companies such as Qantas have suffered greatly from border closures. They have a responsibility to shareholders to ensure future border closures are undertaken in a manner that minimises economic mayhem. Populist premiers clearly need guidance on how to comply with one of the few parts of the Constitution that guarantees freedom.

They should remember what was said in 1891 by Henry Parkes, the father of federation, at the National Australasian Convention.

When introducing the clause that became section 92, Parkes said: “ … there can be no federation — no complete union of these governments, of these communities, of these separate colonies unless … there shall be no barrier of any kind between one section of the Australian people and another”.

At the moment, the pandemic appears to be under control. But it has not gone away. Business needs to litigate.

Chris Merritt is vice-president of the Rule of Law Institute of Australia. This article first appeared in The Australian.