Australia Clive Palmer's High Court challenge decision on WA hard border reserved

10:50  04 november  2020
10:50  04 november  2020 Source:   abc.net.au

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Billionaire Clive Palmer will front the High Court in Canberra today in his personal battle against COVID-19 rules that shut Western Australia ' s border . Key points: Clive Palmer says WA ' s hard border breaches section 92 of the constitution. But the WA Government says its border laws are

The High Court is set to hear a landmark case brought by billionaire miner Clive Palmer , challenging Western Australia ' s hard border closure to stem the Mr Palmer - whose privately-held company Mineralogy has offices and staff in Brisbane and Perth and derives most of its income from WA mining

a close up of Clive Palmer wearing a blue shirt: During the two-day hearing several states urged the High Court to throw Mr Palmer's challenge out. (AAP: Dave Hunt) © Provided by ABC Health During the two-day hearing several states urged the High Court to throw Mr Palmer's challenge out. (AAP: Dave Hunt)

The West Australian Government faces an anxious wait to know if it has seen off the challenge to its hard border brought by billionaire miner Clive Palmer.

The High Court has reserved its decision after a two-day hearing in which several states urged the court to throw out the case.

The high profile showdown centred on the freedom of movement between states, guaranteed in section 92 of the Constitution.

Mr Palmer took his beef to Australia's highest court when he and his staff were denied entry to the state, to pursue business interests.

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Clive Palmer is furious after being denied an exemption to WA ' s COVID-19 border closure. (AAP: Darren England). Billionaire mining magnate Clive Palmer has lashed out at Premier Mark McGowan after being refused entry into Western Australia , threatening a High Court challenge to the state' s

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But the West Australian Solicitor General Joshua Thomson noted the group had not explained why management of their interests could not be done from Queensland.

He told the court the directions to shut the border, issued under the Emergency Management Act, were completely justified.

"The purpose has been to protect the Western Australian population from COVID-19," Mr Thomson said.

"We are talking about a disease with a significant mortality rate.

"It's hard to imagine a situation where there's a more (legitimate purpose)."

The legal argument has been whether the border closures place a permissible or impermissible burden on section 92 of the Constitution.

Border closure 'reasonable and necessary'

Mr Thomson said there was no question the measures were reasonable and necessary and were a valid exception to the section.

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"Whatever legal test is applied we satisfy that test," he said.

The ACT's solicitor-general Peter Garrison backed up Western Australia saying each jurisdiction had to take precautions suitable to their circumstances.

"It does not matter if the risk appears low," he said.

"If not controlled it could become an immediate risk."


Tasmania's solicitor-general Michael O'Farrell echoed the concern among the other states about having their plans to protect people stymied.

"The risk is unquantifiable," Mr O'Farrell said.

"We do not know when there will be an outbreak."

The case comes as WA is preparing to ease border restrictions to allow people from some safe areas to travel there.

WA Premier Mark McGowan said it was still necessary to defend Mr Palmer's action in the High Court as it may need to re-introduce the hard border in the event of another COVID-19 outbreak.

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Clive Palmer launched his High Court challenge after being denied a travel exemption to enter WA . His ruling on key facts precedes the final High Court decision . The legal stoush over WA ' s hard border began in May, when the billionaire businessman launched a High Court challenge after

Federal Court findings on Clive Palmer ' s border challenge have boosted the WA Premier's cause. (AAP: Dan Paled / ABC News: James WA Premier Mark McGowan is claiming a significant win in his Government' s high -stakes legal stoush with billionaire businessman Clive Palmer over the state's

Mr McGowan said he was confident in the strength of the state's case heading into the high court.

The case would have been heard much earlier but was delayed due to a dispute over the facts in the case.

High Court Chief Justice Susan Kiefel referred the case to the Federal Court, which led to a finding by Justice Darryl Rangiah, that the border closure was the best way of keeping the virus out of the state.

Mr Thomson declared that alone should defeat Mr Palmer's case.

"We think those questions of fact have been found against them," he told the court.

Low probability of spreading

But Mr Palmer's barrister Peter Dunning urged the court to look at the details of the Federal Court ruling.

He pointed to the low probability of spreading the virus, considering the rates of infections over periods of 28 days.

He also told the court the measures to shut the borders had no sound regulatory basis.

Mr Dunning also said the move was not reasonable or necessary enough to warrant being an exception to the Constitution.

WA ends hard border policy, travellers from 'very low risk' jurisdictions to be allowed in .
Western Australia will remove its hard border policy and move to a "controlled border" arrangement from November 14, which will permit residents from states and territories deemed very low risk to enter without undertaking quarantine. Very low risk jurisdictions are defined as having had no local cases in the previous 28 days, and include Tasmania, Queensland, South Australia, the ACT and the Northern Territory.Travellers from these jurisdictions will still be subject to certain requirements.

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This is interesting!