“The Supreme Court has created the framework for a possible review of state border closures,” said Professor Harris Rimmer. The last time Palmer challenged the state`s border restrictions, he claimed they violated Article 92 of the Constitution, which states that “commerce, commerce, and intercity between states… Be absolutely free.” Professor Harris Rimmer said she thought the Federal Court would take a close look at Western Australia`s roadmap to decide whether the border is reasonable. Moreover, before initiating such litigation, it would be important to read the reasoning of the High Court, which may not be submitted for some time. These reasons will give us an indication of the scope of the legislation, which will be essential before any challenge to the instructions given in its application. Given that this matter does not appear to be clarified as to the validity or otherwise of the directions, will there be further litigation? It is possible for someone to challenge the directions, this time arguing that they do not fall within the scope of the enabling section of the act. “The plaintiffs had rejected any argument that the impugned instructions were not authorized by law,” he noted. “The challenge to the impugned instructions therefore failed.” Professor Twomey noted that the Supreme Court had previously focused on the constitutional validity of the Emergency Management Act rather than border closure orders issued under that Act. Palmer`s case came back from the Federal Court, which found that the border ban was “to a large extent” effective in preventing the coronavirus from entering Western Australia. While the “strict” border ban is “amply justified” by the importance of protecting health and life, they said. Read more: States are closing their borders to stop the coronavirus Is this even allowed? This democratic mandate for elected officials should be respected by the courts when it comes to the current challenge to border closures in Western Australia, especially given the importance of what is at stake.
Western Australian Premier Mark McGowan warned that if the challenge succeeds and the border is reopened, “people could die.” Meanwhile, Palmer pointed out that the immediate reopening of the border initially admitted that the orders had been validated, but claimed that they had the “character of legislation” and could therefore be challenged with Article 92. Attorney General Michaelia Cash has a message for her home state of Western Australia: open your border with an 80% vaccination rate, or another legal challenge of Clive Palmer`s size could come your way. When Palmer challenged Western Australia`s laws last year, the Commonwealth intervened first. Morrison and former attorney general Christian Porter were so confident the challenges would succeed that they spent $1 million to support them. “We had a conference Friday morning with our legal team and a QC,” he said. There is no objectively correct or erroneous answer to the question of whether state borders should be closed in these circumstances or for how long. Rather, it is a verdict that must be made on the basis of the best information available at that time, which forces the decision-maker to weigh a number of different political factors. “If people want to challenge these decisions, they are free to do so, but we are confident in all the steps we have taken.” Since then, as COVID outbreaks hit the East Coast, Premier Mark McGowan has insisted on possible lockdowns and maintaining strict border restrictions, even at these vaccination thresholds.
In a lengthy Facebook post yesterday, he admitted that Western Australia could be a few months behind the rest of the country that is opening its borders. At a hearing in Canberra on Tuesday, Palmer`s lawyers ultimately dropped the argument, focusing instead on whether the border ban is “reasonably necessary”. They were also forced to reframe Palmer`s case to challenge whether Western Australia`s emergency laws allowed the ban. But it does mean that we could end up with inadequate guidance on these issues for the future, which would be unfortunate given the cost and time spent on this litigation. Perhaps the court`s reasoning on the interpretation of section 67 of the Emergency Preparedness Act will give us a sufficient understanding of how section 92 of the Constitution works and the criteria for closing borders in the event of a pandemic. But that remains to be seen. This underlines the importance of the ongoing hearing before the Federal Court. It would be highly controversial for the Supreme Court to strike down border closures imposed by a state government if expert evidence provided a public health justification for the measures.
I don`t want to disrespect the poor troublemakers in lockdown, but the rest of us are sailing for short, tight lockdowns that have worked. The South Welsh should remember that their state has received extra doses (which I agree), but we don`t want to hear the chicken in the trash telling us how well they`re doing now, so we should all be open. If the whole country achieves the big goals, then we should open up. Interestingly, the UK and the US have reached the vaccination rate of 70%, but our border remains closed. I feel one or two hypocrites. Clive Palmer lost his challenge to the border ban in Western Australia because the policy was non-discriminatory and justified by the Covid-19 pandemic, the Supreme Court has revealed. Although the parties and the courts all recognized the importance of expediting the case, the case could not be heard by the Supreme Court until September at the earliest. This means that a final decision on the validity of border closures could take weeks.