Border wars

Border wars: Why WA can't hide behind the constitution for long

This Article First appeared in 2021

Premier Mark McGowan will come under pressure to lift Western Australia’s border restrictions to all states but Victoria as other states move to do so.

Earlier this week Mr McGowan shelved plans to reopen WA's interstate borders on August 8 in light of the eruption in coronavirus cases in Victoria, saying he felt “vindicated” over his strict border stance.

Yet South Australia and Queensland announced plans to lift their own border controls to every state except Victoria.

Mr McGowan's argument in June that "picking and choosing between the states" was unconstitutional had effectively been eroded by his interstate counterparts not taking an all-or-nothing approach, according to law expert Lorraine Finlay.

Ms Finlay, a Murdoch Law School lecturer in constitutional law, said an argument could be made to the High Court that it wasn't simply an issue that fell under section 117 of the constitution, which “basically says you can’t discriminate against residents of different states”.

“Under section 92 there can be legitimate reasons for restricting movement where a public health emergency stems from one state and no others,” she said.

“The devil really is in the detail and how those restrictions work in practice because the court will consider the reasonableness of the measures imposed, what the government is relying on for advice at the time and the time imposed, and other practical factors.”

She said while “no one can say with absolute certainty where the balance falls” between the two sections of the constitution as they had never been tested together, the longer WA’s border closures remained, the harder it would be for the Premier to argue they were constitutional.

“It makes it harder for Western Australia to maintain that the restrictions are reasonable when other states are opening up their borders and WA is an outlier,” she said.

“If WA is the only state to keep their borders closed it could be considered outside the line of reasonableness.”

In regards to Clive Palmer's challenge to WA's border closures, the matter was only being considered as a test to the initial border lockdown, which fell solely under section 92 with other elements brought into it.

“Section 92 has been interpreted by the court to allow some restrictions of movement for legitimate public purposes, and closing the borders in a public emergency brought on by a pandemic would be one of those cases," Ms Finlay said.

Mr McGowan’s strong border stance relies heavily on the health advice of the state’s chief health officer, Andrew Robertson, who has already ruled out reopening borders until Victoria's numbers significantly improved.

"If either they've got no community spread or we're fairly confident that what little community spread [exists] is well under control and being effectively managed, that would be the time we would provide that advice [to reopen]," Dr Robertson told ABC Radio on Monday.

Victoria reported 77 new cases yesterday, of which 332 infections statewide could not be traced to a known source.

“At this point in time, strong points for why it is constitutional is that: WA is relying on medical advice that says it isn’t safe to open the borders; this outbreak of community transmission in Victoria; and a phased opening up of the WA economy has been timed out, where there is a clear intention to remove border restrictions when it is safe to do so," Ms Finlay said.

“So when you combine those three factors, it is likely that the High Court would still hold the closures constitutional at this stage.”

WA’s stance has also meant it has stayed outside the border wars raging in the east, particularly between Queensland, New South Wales and Victoria.

A national cabinet meeting on Friday will be a call for peace between the states after Queensland raised concerns about NSW only restricting visitors from Melbourne's coronavirus hot spots, which heightened their vulnerability should infections still manage to jump the borders.

The Northern Territory, which has taken the same targeted approach as NSW, recorded its first coronavirus case in almost three months when a Darwin man tested positive after recently returning from Melbourne.

Prime Minister Scott Morrison has consistently stressed the need for open borders and warned against overreaction to local outbreaks.

"There will be hot spots and you can't just shut Australia up every time there's an outbreak," he said on Tuesday.

"We need to ensure our economy builds back with confidence and with resilience." 

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