'Back off': Clive Palmer's High Court challenge to bring down WA's border begins
Clive Palmer’s legal challenge to bring down Western Australia’s hard border commenced in the High Court on Monday.
Mr Palmer, who was denied access to WA in May, claims the closure is unconstitutional as it restricts the rights of Australians to move freely between states.
Clive Palmer – who has a mining company based in WA – says the border was "destroying the economy".
WA Premier Mark McGowan closed the border on April 5 to prevent undetected coronavirus cases from entering the state. WA has not had a case of community transmission in more than 100 days.
He labelled Mr Palmer “a menace to Australia” and criticised the federal government for supporting the legal challenge.
“It’s irresponsible and it’s playing with people’s lives and Mr Palmer and the Liberal Party should back off from the High Court action,” he said.
However, Mr Palmer – who has a mining company based in WA – claimed the border was "destroying the economy".
Section 92 of the Commonwealth of Australia Constitution Act states, "On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free".
That movement can be restricted in the event of a public health emergency.
Judge Darryl Rangiah told both parties his task would be to determine whether the border closure was reasonably needed to contain the spread of coronavirus, and what the consequences of reopening it would be, including a potential outbreak in WA.
After a panel of public health experts agreed the definition of a border closure was to restrict the movement of people entering a state with low rates of infection from an area with higher rates of infection, Judge Rangiah raised the general question: "Is it still a border restriction if people from a state or region with an equal incidence of COVID-19 are prevented from going into another state with that same incidence?"
The panel providing evidence at the hearing includes WA Chief Health Officer Andrew Robertson, Professor Tony Blakely, Professor Peter Collignon and epidemiologist Kamalini Lokuge.
Dr Robertson, in a report submitted to the hearing, estimated if the WA border closure remained in place there was a "less than one per cent chance" of COVID-19 being reintroduced into the WA community.
WA's social distancing restrictions are among the loosest in the country, with the state's hard border and two-square-metre capacity rule all that remain.
A move to phase 5 restrictions – tentatively set for August 15 – would leave only the hard border in place.
Mr McGowan has previously said the border would only come down once Dr Robertson deemed it safe to do so, which would likely be after community transmission was controlled in other states.
And while the Northern Territory, South Australia, Queensland and Tasmania have suppressed community transmission, Mr McGowan said his legal advice was WA could not cherry-pick which states to reopen to.
The all-or-nothing approach differs from other states such as South Australia, which has reopened its borders to a selected few.
Every state and territory has its border with Victoria closed following Melbourne's second wave of coronavirus cases.
The hearing continues.