The High Court of Australia has dismissed Clive Palmer’s challenge against the State of Western Australia’s border closures, upholding their validity. The Court has not yet released its reasons, which will follow separately.

Clive Palmer brought the challenge claiming that the Western Australian border closures were contrary to the constitutional freedoms of interstate movement and interstate trade and commerce. The measures were said to be excessive due to the blanket nature of the border closure, which did not account for the differential risk levels across the Australian States and Territories. Palmer’s submissions also referred to the availability and adequacy of other “softer” measures to safeguard against COVID-19, pointing to other Australian jurisdictions which had not gone as far as closing their borders.

On the other hand, the State of Western Australia argued that its border closure directions were necessary to prevent an increased risk of COVID-19-related morbidity and mortality  within Western Australia. A hard border closure was said to be the most effective means of achieving this objective compared with softer measures such as:

  • narrower border closure against only higher risk jurisdictions, which left open the risk of infected travellers from high risk jurisdictions “border hopping” into lower risk jurisdictions and making their way into Western Australia;
  • mandatory hotel quarantine, which raised issues of hotel capacity constraints;
  • mandatory self-quarantine, which depended on peoples’ willingness to comply (where, in many cases, they might not); and
  • targeted COVID-19 “hotspot” quarantine regimes, which left a risk of community transmission due to the lag time in detecting a “hotspot”.

The High Court’s decision may have implications for the broader range of ongoing government measures relating to Covid-19. One point to flag is that the High Court’s pronouncement of orders focuses on the constitutional validity of the legislation that enabled the making of the border closure directions – the extent to which this decision was based on a consideration of the border closure directions themselves (and the arguments outlined above) won’t be clear until reasons are published. The High Court is also hearing a challenge to Victoria’s lockdown measures (in Gerner v Victoria).

We will consider the implications further once the High Court has published its reasons.

Mark Smyth

Mark Smyth
Senior Associate
+61 2 9225 5440