Legal expert explains constitutional validity of West Australian border closures

The sensational decision to delay Western Australia’s border reopening could result in the state government again being challenged in court, but a leading constitutional expert says it’s too early to tell if such a bid would be successful.

In a late night press conference, WA Premier Mark McGowan declared opening up his state to the rest of Australia would be “reckless and irresponsible” given the nation’s Covid surge and scrapped the February 5 reopening date he had previously set.

No new date has been set, but Mr McGowan indicated one could be announced as the booster and child vaccine roll out gains momentum.

The border backflip has renewed questions about the constitutional validity of the Premier’s hard line measures.

Controversial mining magnate and United Australia Party Senate hopeful Clive Palmer last year unsuccessfully challenged the constitutional validity of the WA border closure in the High Court.

The court found essentially that as long as it was proportionate to the health threat, the states had the powers to shut their borders.

Constitutional Law Professor Anne Twomey said the court had upheld the constitutional validity of WA’s border legislation, meaning a future legal dispute would rely on challenging particular emergency orders.

“The court would look at whether or not the order or that direction falls in the scope of the legislation,” Professor Twomey told NCA NewsWire.

“The High Court found in the Palmer case that the legislation that supports the border closure is valid. And that hasn’t changed.

“Where the controversy lies is the orders and directions that are made under the legislation.”

Professor Twomey said people might consider challenging the WA government now that the border was again closed indefinitely, but it was “impossible to predict” if such a legal bid would be successful.

“Certainly on the facts they are now, it would be unlikely to succeed but that would depend on that facts when the challenge is heard,” she said.

Before the Covid vaccine, it was clear the best defence was to restrict movement.

Professor Twomey said she thought the High Court would still hold that view in WA’s case, because the state had a relatively low booster vaccine uptake and was yet to experience an Omicron outbreak like the other states.

“If, however, Omicron did get into WA and was spreading throughout, then it would be much harder to justify keeping the borders shut,” she said.

“There are also lots of remote Aboriginal communities that live a long way away from medical and hospital support, so West Australians would need to take that into account.

“There’s also the mining industry and needing to maintain Australia’s economic exports.”

However, if a stoush were to make it to the High Court, modelling and agreements from national cabinet could be used as an argument against the WA Premier.

It’s a view shared by the Assistant Minister to the Attorney-General, Amanda Stoker.

In a paper, co-written with research assistant Jye Beardow, she argued for Mr McGowan to “tear down this wall”, echoing former US President Ronald Reagan’s demand to the head of the Soviet Union near the end of the Cold War.

“As more Australians become vaccinated, state border closures become less proportionate – a point that’s been made by a number of prominent constitutional scholars, including Greg Craven, Anne Twomey and George Williams,” Senator Stoker said.