During the height of the coronavirus pandemic, most of the Australian States and one Territory closed their borders to people from other States. The two states with the highest number of cases, NSW and Victoria, did not close their borders. The ACT also did not close its border. On the advice of their Chief Health/Medical Officers WA, SA, Tas, QLD and the NT closed their borders to stop the flow of people that might bring the disease in, to protect the people in their jurisdiction from transmission of COVID-19.
Section 92 of the Constitution protects freedom of movement of goods and people across State borders. It says:
Section 92 Trade within the Commonwealth to be free
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.
The phrase ‘intercourse among the States’ includes people travelling from one State to another. The Constitution says that this shall be ‘absolutely free’. But the High Court has recognised that this freedom of interstate movement of people and goods can be limited if it is reasonably necessary to achieve some kind of legitimate purpose, such as protecting the community from harm. Such a purpose is likely to include protecting the health of the people of a State during a pandemic. But how far can such limitations go?
To what extent do the Queensland and Western Australian laws affect their borders?
The Queensland Border Restrictions Direction (No 5) (the ‘Qld Direction’) made under section 362B of the Public Health Act 2005 (Qld) permits entry to Queensland for Queensland residents, persons moving to Queensland and residents in cross-border communities who travel to Queensland to obtain essential goods or services or for other permitted purposes. Other people are banned from entering Queensland unless a person is an ‘exempt person’.
‘Exempt persons’ include military, police and other government officers who are required to be in Queensland for work, Members of Parliament travelling to Queensland for official duties, certain emergency and health personnel carrying out their duties, persons involved in inter-state transport, freight and logistic services, persons who maintain or repair critical infrastructure, utilities and services, and persons engaged in commercial fishing or employed by an agribusiness. In addition, some persons may also enter Queensland on compassionate grounds, which includes being a carer of a dependent in Queensland or entering Queensland for essential medical treatment or to visit a terminally ill relative or to attend a funeral. The Chief Health Officer may exempt other persons or classes of persons.
Overall, there are many exceptions to the ban, but their focus is maintaining the critical needs of the State, making sure that food and other supplies enter the State and supporting compassionate needs. Entering the State for a holiday or social purposes is not permitted.
Section 362D of the Public Health Act 2005 (Qld) makes it an offence to fail to comply with a public health direction ‘unless the person has a reasonable excuse’. The maximum penalty is 100 penalty units, which is a fine of approximately $13,000.
Western Australia also sets out similar exclusions and exemptions in its Quarantine (Closing the Border) Directions (the ‘WA Directions’) made under the Emergency Management Act 2005 (WA). A major difference, however, is that Western Australia does not give the same broad exemption for its own residents, although there are exemptions for Western Australian residents who have been quarantined in another Australian State or territory before arriving in Western Australia and who are not displaying any symptoms of COVID-19.
The case for border closures
The States all have their own Chief Health/Medical Officers who advise the Government of their respective State on actions to take to keep their people safe during this pandemic. We are not privy to the details of the advice, but in some of these States the advice has been to close the borders and keep them closed.
Could it be that these States, like New Zealand, have been pursuing an elimination strategy, rather than simply trying to suppress the virus? The idea here is to eliminate local transmission within the State so that local businesses can re-open and return to normal, without the need for significant social distancing measures.
If achievable, this would allow increased economic activity at the local level, although those businesses that rely on tourists or workers from outside the State would still be affected. It would also have the advantage of removing the stress on hospital and medical services within the State, which could resume elective surgery and other measures necessary to maintain the health of the people of the State. Finally, it would reduce the emotional cost to families of dealing with the COVID-19 induced illness of loved-ones and the serious social costs associated with social isolation, including domestic violence, suicide, the exacerbation of mental illness, and the stress and the pain of not being able to attend funerals, weddings and other major life events (at least when these things occurred within the State).
Another reason to keep borders closed as been to protect remote indigenous communities that are at particular risk if their people caught the virus.
The case against border closures
The case numbers are well down, and the rate of community transmission of COVID-19 is now very low. This significantly reduces the risk of a traveller taking the virus to another State. There are also now stronger measures in place to support contact tracing of infected persons, meaning that if a case does occur, those who have been in contact with that person can be isolated for 14 days, reducing the risk of COVID-19 spreading.
The Federal Deputy Chief Medical Officer Paul Kelly has stated that there was never any advice from Commonwealth health advisers that borders needed to be closed. The economic effects of border closures, especially upon the tourism industry and those who need to travel for work, are serious and mounting. Border closures have also separated family members and caused much social distress.
It has been argued that there are less burdensome alternatives to border closures, ‘including allowing people to enter the state if they had tested negative to the virus, subjecting new arrivals to quarantine and confining the ban so that it only applied to states or territories that had a COVID-19 case in the preceding 28 days’.
Off to the High Court
There have recently been three challenges launched in the High Court in relation to the closure of the Western Australian and Queensland borders. To challenge laws of this kind in the High Court, you first have to show that you have ‘standing’, which means you must show that you are especially affected by the law, above the general community.
Clive Palmer and the High Court
The first challenge, brought by Clive Palmer against the Western Australian law (Palmer v Western Australia), claimed that he had sought to travel from Queensland to Western Australia for the purposes of managing his business, Mineralogy Pty Ltd, which is based there, and in his role as the Chairman of the Palmer Foundation, which is also based there.
Mr Palmer applied for entry into Western Australia as an ‘exempt traveller’, but was rejected because he did not fall within any of the categories of exemption set out in the WA Directions. He claims to have standing because he has been refused entry, and his business and philanthropic work has been damaged by his personal absence from Western Australia. In particular, Mr Palmer claimed his Mineralogy business was disadvantaged compared to other businesses that have their senior management based inside Western Australia.
The Palmer challenge is based on three grounds. First, he claims that the WA Directions impermissibly burden the freedom of intercourse among the States by preventing him from entering Western Australia.
Second, he claims that the WA Directions impose a discriminatory burden on the freedom of trade and commerce among the States, which is protectionist in nature, by impeding his ability to enter the State to manage his company in person. In relation to both these claims, he argues that while the restrictions in the Directions might have been valid at the time they were made, their continuation in force from the time of the commencement of these proceedings is invalid.
Third, Mr Palmer claims that the WA Directions are inconsistent with a Commonwealth law, and therefore invalid to the extent of the inconsistency under s 109 of the Constitution. Section 109 says:
Section 109 Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Because the Commonwealth Biosecurity Act 2015 has been used to close some parts of Western Australia, but the rest of Western Australia has been left unaffected, the argument is that the State laws to close the borders are inconsistent with the Commonwealth laws that only restrict access to much smaller areas.
Mr Palmer then caused a second High Court challenge to be brought, through his Mineralogy company (Mineralogy Pty Ltd v Queensland). This challenge is to the Queensland laws and raises an additional point based on section 117 of the Constitution, which says:
Section 117 Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
A breach of section 117 does not result in the invalidity of the relevant law. Instead, section 117 establishes an immunity for the subject of the Queen (an Australian citizen) from the discriminatory application of the law. At a directions hearing on 4 June, Chief Justice Kiefel raised a concern that section 117 might not be applicable to entry into a State.
Senator Hanson and the High Court
Senator Hanson issued an ultimatum to the Queensland Government to open the State borders by 4pm on Thursday 28 May or there would be a challenge to the border closure laws in the High Court.
A group of Queensland businesses and residents have now commenced a case (Travel Essence Pty Ltd v Jeannette Young, Chief Health Officer for Queensland), but while Senator Hanson may have encouraged it, she is not a party to it. The arguments being raised in this case include those concerning sections 92 and 117 of the Constitution. In addition the plaintiffs argue that the Qld Direction is not validly supported by section 362B of the Public Health Act because there were no reasonable grounds to believe the making of the Direction was necessary.
The plaintiffs in this case have been trying to get a copy from the Queensland Government of the documents that provided the health basis for making the Qld Direction. The plaintiffs stated in Court:
We need to see what the material was before the decision‑maker and whether that material constituted reasonable grounds, et cetera, for those matters. So one way or another we are going to have to get that material. The case, in my respectful submission, just cannot be run without the material – it cannot be run at all.
Chief Justice Kiefel was not inclined to order the Queensland Government to produce these documents:
I do not see why the production of documents upon which the Chief Health Officer acted are necessary to a pleading relating to the reasonable necessity test and obvious alternatives.
On 10 June, Chief Justice Kiefel rejected a further application to obtain these documents. The cases return to the Court on Friday 12 June for further directions and are likely to be heard together by the High Court in the first week of July.
The borders will open at some stage
Restrictions on our daily lives have been progressively eased in the last couple of weeks. Will the border closures be one of the last things lifted? Western Australian Premier Mark McGowan seems to think so:
They will be in place for a considerable period of time and we haven’t worked out as yet when they will come down….But we have to be confident there is no community spread in the east before they come down.
This statement seems to back up the idea of an elimination strategy in Western Australia. The Queensland Premier Annastacia Palaszczuk has indicated that the Queensland borders will reopen, and probably soon:
But by the time any action … got to the High Court I’m quite sure that borders would be open again.
If the High Court hears the case in the beginning of July, some borders might well have re-opened by the time the judgment is handed down, but others might remain closed until the Court makes its orders. Even if the litigation does not have a practical result, because borders have already opened by the time the judgment is given, it may prove a useful precedent in the case of future pandemics.
Image source: Kelly Ostwald