States and territories have lined up against Clive Palmer’s challenge to Western Australia’s border ban, urging the high court to uphold its validity.
In the second day of hearings, jurisdictions including the Australian Capital Territory and Tasmania defended WA’s ability to set tighter policies to prevent the “catastrophic” reintroduction of coronavirus.
The high court reserved its decision on Wednesday afternoon, meaning a result could come in as little as two weeks in Palmer’s bid to overturn border policies the federal court has already found are substantially effective at keeping out the virus.
The case now turns on whether the border ban is “reasonably necessary”, or if the existence of lighter touch policies proves WA has overreacted and breached the constitution’s ban on blocking interstate movement.
On Tuesday, Palmer’s lawyers abandoned their claim the border ban is directed at preventing interstate movement instead of the spread of Covid-19, but opened up a new line of attack by arguing the ban may not be authorised by emergency laws.
On Wednesday, WA’s solicitor general, Joshua Thomson, continued the state’s case by arguing the state of emergency was “temporary” – because it has to be extended every two weeks – and proportionate to fight a virus with a “significant mortality rate”.
Thomson noted coronavirus is particularly harmful for subsections of the population, including Indigenous Australians and those in aged care, citing mortality rates as high as 22% for those aged 80 and above.
Thomson argued Palmer had failed to prove a “discriminatory purpose” behind the border ban, which applies equally to interstate and international movements.
Thomson rejected Palmer’s view that travel from Queensland represented a low risk, saying it “doesn’t take account of border hopping”, in which travellers come from high-risk jurisdictions via low-risk ones.
He concluded that WA’s border ban was “the most effective” policy and there were “no other measures available” that were less restrictive of movement.
The ACT solicitor general, Peter Garrisson, told the court although some jurisdictions are currently low risk, new cases could elevate the risk.
“There only needs one case and the consequences for Western Australia would be catastrophic,” he said.
Justice Stephen Gageler noted that the ACT and other jurisdictions had adopted “less restrictive means to deal with exactly the same crisis”. Garrisson countered that the ACT and WA had geographical differences that made a border ban more feasible and effective in WA.
Tasmania’s solicitor general, Michael O’Farrell, added that although less restrictive measures were possible, Palmer’s case had failed to show they would “achieve the same purpose to the same degree”.
In its submissions, Victoria argued WA’s laws are “valid and effective” because they “can only be exercised” for emergency management purposes, not the purpose of discriminating against interstate movement.
South Australia submitted that Palmer’s case conflates the effect of WA’s border ban and its purpose, while Queensland argued that Palmer had failed to identify any alternative set of policies that would be as effective as WA’s ban with a lesser burden on interstate movement.
In reply, Palmer’s counsel, Peter Dunning, said the case should not turn on whether WA is “akin to South Australia or the Northern Territory” with great physical distances or akin to the ACT, Queensland or New South Wales with closer knit border communities.
“It is the fact that, despite their differences, all of them were able to come up with a regime that was far less onerous than Western Australia,” he said.
Premier Mark McGowan has announced WA will reopen to all states and territories from 14 November, with some restrictions remaining for residents of New South Wales and Victoria.