Clive Palmer is one Australian wanting to smash border restrictions during this time of pandemic. He is threatening to go back to the High Court seeking recognition of his right as an Australian citizen to travel freely between the States. In particular he claims the right to enter Western Australia where he has significant mining interests. One of his companies has offices and staff in both Brisbane and Perth, deriving the majority of its income from Western Australia, also being involved in high value litigation and arbitration in Perth.
He was unsuccessful in his first bid in 2020 when he argued in the High Court that the Western Australian legislation authorising border closures by state officials was contrary to section 92 of the Australian Constitution which provides that ‘trade, commerce and intercourse among the states…shall be absolutely free’. Rejecting Palmer’s bid, Justice Gageler observed, ‘The ‘riddle of s 92’ lies in the question begged by the constitutional text: absolutely free from what?’ The pre-eminent legal historian Professor John La Nauze once observed that the Founding Fathers at the constitutional conventions at the end of the nineteenth century ultimately agreed to section 92 without discussion and ‘ “absolutely free” was, to coin a phrase, absolutely free of legal criticism in open Convention’.
There has been a lot of complex judicial writing about how to apply section 92. Three of the present High Court judges think there is a need for an analysis called ‘structured proportionality’. Two other judges think there is a need only to ask whether the law which limits open border access has a non-discriminatory purpose, imposing no limits greater than are ‘reasonably necessary to achieve a legitimate object’. There are now 2 new untested judges on section 92. Last time, all 5 justices were agreed that Palmer did not get to first base. Whatever test is adopted by the 2 new judges and whatever test is to be applied by the majority of judges in his next challenge, Palmer is still unlikely to get any satisfaction from the High Court.
Under the national plan, there is supposed to be a loosening of restrictions at the very latest once 80 per cent of the eligible population are vaccinated. There are indications that states like Western Australia and Queensland might still close their borders. That’s when there will be further debate about free trade and intercourse among the states. But neither Clive Palmer