Palmer & Anor v The State of Western Australia & Anor

[2020] HCATrans 179

[2020] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

First Plaintiff

MINERALOGY PTY LTD ABN 65 010 582 680

Second Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

First Defendant

CHRISTOPHER JOHN DAWSON

Second Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE

ON WEDNESDAY, 4 NOVEMBER 2020, AT 10.10 AM

(Continued from 3/11/20)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Solicitor.

MR THOMSON:   May it please the Court.  Before I commence back with my submissions, can I say that we have filed a document, or a book called the second further supplementary court book, which is being copied at the moment.  I mentioned it to my friend.  It has in it only two things.  On Saturday last week on 31 October there was a new Order Restrictions Direction No 17 published by Queensland and that restricts entry from New South Wales in terms of the Greater Sydney area but allows it from regional areas and there is a website from the Queensland Government which deals with that as well.  I just mention that.  I do not think there is any dispute about that being provided.

I think yesterday I finished, while I was discussing the operation of the Emergency Management Act, but I think there are…..matters I need to finish off in respect of the…..  The last point that I made yesterday was that one source of power to make the directions is section 67 of the Emergency Management Act.  As you no doubt have seen from the heading to the directions, other sources of power which are mentioned in the heading are sections 61, 70 and 72A and of those section 72A is perhaps the only other relevant section to refer to in relation to the operation of paragraphs 4 and 5 of the directions and the exemptions that apply to interstate travellers to enter Western Australia. 

Section 72A provides a general power during emergency situations for a state of emergency and it gives a general power for a relevant officer to give a direction to a person or to a class of persons to take any action that the officer considers is reasonably necessary to prevent control or abate risks associated with the emergency.  That general power would allow directions to be given about requiring a person to take specific action.  The more particular power about giving directions concerning the entry and exit into an area covered by the state of emergency is, of course, located in section 67.

GAGELER J:   How do the two powers relate to each other?  Is there an overlap or are they ‑ ‑ ‑ 

MR THOMSON:   Well, I think there is a general power, plus there is the particular power for the specific type of directions in case there is any type of concern about a power to give orders to exclude or to ‑ ‑ ‑ 

GAGELER J:   I follow that, but is the general power to be read as covering the same territory as the specific power?

MR THOMSON:   Yes, I think so. 

GAGELER J:   Or do you – so they are overlapping powers?

MR THOMSON:   Yes, that is right.  As the Court identified yesterday, some significance can be attributed to the fact that there is no challenge to the directions as being within the statutory power and we would suggest that the significance is twofold.  First, the Court must act on the preconditions to the exercise of the statutory power to make the directions has been satisfied, and, in that sense ‑ and perhaps I can respectfully adopt the words of her Honour Justice Gordon ‑ the Court must act upon the basis that the statutory indicia, which are inbuilt into the Emergency Management Act have been satisfied. The second consequence is that satisfaction of the relevant preconditions or statutory indicia, may also indicate satisfaction of matters that are relevant to the constitutional question about section 92.

Can I make this point as well?  It is important that the powers in sections 67 and 72A are both based upon the objective fact that the directions are for the purpose of emergency management and are not conditioned on a person reasonably forming an opinion about that.  A consequence of that is that any acceptance that the directions are within power is necessarily an acceptance of the objective fact that the directions are for the purpose of emergency management.  Can I recapitulate then upon the particular statutory indicia which the Court must take as satisfied on the basis that there has been no challenge to the statutory power to make the directions?

KIEFEL CJ:   I thought the concession by the plaintiffs was to the validity of the Emergency Management Act provisions.

MR THOMSON:   Yes.

KIEFEL CJ:   It was not so clear to me that there was any express concession about whether or not the directions may be seen to be authorised by that Act.  That is a question which has not been addressed. 

MR THOMSON: Certainly, we would embrace the fact that it has not been addressed and that the only challenge that has been made in these proceedings is a challenge to the constitutional validity based on the operation of section 92. That challenge can only actually occur upon a basis that assumes that the directions are within power because unless they are within power, then you never get to the constitutional validity question.

KIEFEL CJ:   You say there is an implicit concession.

MR THOMSON:   Absolutely.  Of course, this Court has established jurisprudence that you only get to the constitutional question as a matter of last resort in a case where it actually arises.  So, if there was any challenge to the directions being within power, then that also has been ventilated prior to the question of constitutional validity.

KIEFEL CJ:  Putting aside the concession made by the plaintiffs, what do you say about whether or not the relevant provisions of the Act that you have been discussing, whether or not they in their operation would comply with section 92 or not?

MR THOMSON:  Whether the provisions of the Act comply with section 92?

KIEFEL CJ:   Yes.

MR THOMSON:   Clearly, the Emergency Management Act was enacted well before the pandemic and well before the directions were made and therefore its validity has to be assessed at that point in time.  The statutory power to make the directions would have to be construed as subject to any constitutional freedom and so that you could not promulgate directions or undertake legislative or executive action which is contrary to a constitutional freedom.

KIEFEL CJ:  In your submission do the provisions admit of the possibility of non‑compliance or infringement of section 92?

MR THOMSON:   No, because you would have to read the provisions as subject to the constitutional freedoms.

KIEFEL CJ:   So, you agree with Victoria’s submission that they are within the second category of act?

MR THOMSON:   Yes.

GAGELER J:   Does that involve some reading down or is it just a matter of the statutory criteria complying with section 92?

MR THOMSON:   Precisely the second.  It is not a matter of reading down, but you cannot undertake legislative or executive action which would infringe or burden the constitutional freedom.

EDELMAN J:   All of the plaintiff’s submissions would essentially be understood as submissions that say that whatever be the scope of the Emergency Management Act the Act does not extend so far as to permit directions such as these because if it did it would be contrary to section 92 and it should be disapplied to that extent.

MR THOMSON:   Yes.  So we would not make a submission that there is an ability to make a direction under the Emergency Management Act that has the effect of contravening the intercourse freedom under section 92. Having made those points, can I indicate the statutory indicia that must necessarily have been satisfied in order for those directions to have been activated and to be effective except for this question about their constitutional validity.

Some of these were mentioned yesterday, but section 56(2) and the declaration of a state of emergency depends upon the State Emergency Coordinator having provided advice to the Minister, which the Minister has considered, and upon that basis the Minister must be satisfied that:

an emergency has occurred, is occurring or is imminent –

and that the Minister is also relevantly satisfied, for the purposes of this type of direction, that:

extraordinary measures are required to prevent or minimise –

(i)loss of life, prejudice to the safety, or harm to the health, of persons –

Can I also mention that ‑ ‑ ‑

GORDON J:   Do you pick up the definition of “emergency” and rely upon that for the purposes of that declaration?

MR THOMSON:   Yes, precisely.  I was just about to mention the definitions that are relevant from section 3.  If you go to section 3, there are these definitions that are relevant – the definitions of “emergency”, “emergency management area” and “hazard”.  If you start with “hazard”, “hazard” means:

a plague or an epidemic –

in subparagraph (d), and:

emergency means the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response –

and:

emergency management means the management of the adverse effects of an emergency including:

(a)prevention – the mitigation or prevention of the probability of the occurrence of, and the potential adverse effects of, an emergency; and

. . . 

(c)response – the combating of the effects of an emergency, provision of emergency assistance for casualties –

and so forth.  It would follow that due to the lack of any challenge, perhaps the implicit acceptance to the statutory power to make the directions, that the Court should act upon the basis that there is an ongoing state of emergency in Western Australia related to the COVID‑19 pandemic – nobody has challenged that and that seems to be accepted - and that the directions to prevent entry into Western Australia are for the purpose of the emergency management of that pandemic, in the sense of preventing the probability of the occurrence of that pandemic, or preventing the potential adverse effects of the pandemic, or combating the effects of that pandemic.

Can I make this point which is, perhaps, the opposite of the point that Victoria makes – and it is not to decry Victoria’s point, it is just to put it in a different – or look at it from a different angle.  In a sense, the requirement that the Court must act upon the basis of the matters that I have mentioned represents the opposite side to what has been described as the Wotton point.  The Wotton point is that the directions can only be challenged as invalid for exceeding the constitutional limits of the power to make the directions contained in the Emergency Management Act.  As there has been no such challenge, the reserve question about the constitutional validity of the directions on the Wotton point does not arise directly.

The opposite way of looking at it is to say that you can proceed from the consequence of there being no challenge to the power to make the directions and the inbuilt statutory indicia that are indicated by that, and for the reason that there has been no challenge the Court must act upon the basis that the directions have been validly made for the purposes of emergency management.  Now, if the Court has to act upon that basis, that will assist in answering the constitutional question of what is reasonably necessary and whether the directions are reasonably proportional to their purpose.  It is not decisive of it ‑ ‑ ‑

KIEFEL CJ:   Is there some inconsistency between that approach and the provisions of section 72A?  Because if the answer to that is in the negative, does not that suggest that there is a non‑authorisation under section 72A?

MR THOMSON:   I am sorry, I am not sure that I entirely follow, your Honour.

KIEFEL CJ:   Section 72A requires that a direction would be:

reasonably necessary to prevent, control or abate risks associated with the emergency.

MR THOMSON:   Yes.

KIEFEL CJ:   You say we must proceed upon the basis that the directions, so far as they were authorised by section 72A, are validly authorised.

MR THOMSON:   Yes.

KIEFEL CJ: But, you say, when you come to consider the directions in the context of section 92 and you apply the reasonable necessity test, you apply that test and there may or may not be found to be reasonable necessity?

MR THOMSON:   Our submission, of course, is that the directions are reasonably necessary.  The test of reasonable ‑ ‑ ‑

KIEFEL CJ:   Yes, but what if the Court finds to the contrary?

MR THOMSON:   That is why I say it is the opposite of the Wotton point.  If the Court, for these purposes of section 72A, determines that it has to act upon the basis that because there has been an implicit acceptance of the validity of the directions – and to the extent that they are made pursuant to section 72A – that is, an acceptance of the fact that they are reasonably necessary for the purposes of the Emergency Management Act, then that is established for the purposes of then applying that for whatever test then needs to be applied under section 92. Now, I am not suggesting to you that it is identical – and I will come to the nature of the test to be applied for the purposes of section 92 – but that will be of assistance in answering the question.

We also say, leaving aside all of this completely, that you would be able to be satisfied that the test under section 92 has been established or has been satisfied in this case by reference to the matters that have been found by Justice Rangiah and also by reference to the matters that have been agreed. So, I will go through all of those things when I come to going to the test of proportionality and reasonable necessity under section 92. So, I am not saying that this is decisive in any way, but it is of assistance and that builds on some of the matters, I think, that some members of the Court put to me yesterday in submissions.

GAGELER J:   I am sorry, you mentioned that both section 67 and 72A depend on the objective fact that the direction is for the purpose of emergency management.  What does that mean?  What constitutes the objective fact of that purpose?

MR THOMSON:   So that it is established that the directions are for the purposes of emergency management as that term is defined in section 3.  If there was a dispute about that ‑ and perhaps this is the Wotton point ‑ then what ought to have occurred is that there ought to have been a challenge to the vires of the directions to say that they were not for the purposes of emergency management.

GAGELER J:   I have not really made myself clear.  In examining purpose for the purpose of determining the vires of the direction, are we concerned only with the subjective motivation of the office of making the direction?  Are we concerned with some rational connection, some proportionality?  How do you determine whether the direction is made for that purpose?

MR THOMSON:   When I come to making submissions about the application of the McCloy principle, we would suggest that the matter that is established by this route, but not only by this route, is relevant to the question of rationality.

GAGELER J:   So, the statutory criterion of purpose requires a rational connection?

MR THOMSON:   That is right.

EDELMAN J:   This is effectively addressing the primary submission of the plaintiff, their primary submission that purpose was not a – no rational purpose would be to respond to the pandemic.

MR THOMSON:   Yes, and if you – I think the way that the submission is put is at a factual level.  As I understand it, they say there is no relevant risk of importation of COVID‑19 from a jurisdiction such as Queensland and because there is no relevant risk then that manifests itself in the application of the various tests, so that they might say, well, it is not rational, or it is not suitable, or it is not proportional.

Can I say that the route that I have just digressed to go down in relation to the operation of this so-called inbuilt statutory indicia of the Emergency Management Act is another route but not the only route upon which we would reach the conclusion that the directions are valid.

Can I say some things about the nature of the test of reasonable necessity or proportionality and then I will say some matters about how that is applied in the present case, but before I go to the legal nature of the test I would make the submission ultimately that whatever legal test is determined to apply, we satisfy that legal test?  So that will fall out of the nature of the submissions that I end up making about the application of the legal test, but it may be of assistance if I make some submissions about the appropriate nature of the legal test in the first place.

The first point I would make about the legal test that should be applied when it comes to a question of what type of burden can be imposed upon a constitutional freedom which is of an express nature, such as in section 92, is that it has been accepted in relation to the trade and commerce freedom that proportionality of some sort is a useful concept to apply.

In that respect, there are two cases I would mention that amply demonstrate that.  I do not need to take the Court to them.  The relevant passages are from the judgment of Chief Justice Mason in Castlemaine Tooheys and the judgment of the plurality in Betfair (No 1).

Can I just mention that potentially there are two different concepts that might apply in relation to that question of proportionality?  If I can give them some labels but then try and articulate the underlying concept, so that the labels do not become misleading of themselves, that might be of some assistance.  On the one hand, one label seems to have been proportionality or proportionality of purpose and the other label seems to have been structured proportionality or structured proportionality of means. 

If I can try and crystallise the two different concepts:  is it necessary, where a law or some other form of action burdens a constitutional freedom, for it only to be reasonably appropriate and adapted and proportionate to a legitimate purpose that might be regarded as a proportionality of purpose test; or, is it also necessary that the law or action which burdens a constitutional freedom to achieve a legitimate purpose should only do so by a means which does not go beyond what is necessary or appropriate, or, another way which has been put is to say a means which is the least restrictive available means?  That seems to be a more stringent test of proportionality, a proportionality of means, to achieve a legitimate purpose, and as I ‑ ‑ ‑

KIEFEL CJ:   But both have regard to purpose.

MR THOMSON:   Absolutely.

KIEFEL CJ:   Both are directed to purpose.

MR THOMSON:   Absolutely.  But the second one, perhaps I can apply the label of structured proportionality to that, because it picks up proportionality of means as well as proportionality of purpose, and it does so in a direct fashion.  Of course, proportionality of means may be an indicator of proportionality of purpose.

As I say, the labels may be interchangeable.  It appears that no sharp distinction has been drawn between those two things until we get to cases such as McCloy, where quite clearly McCloy has adopted the more stringent test, perhaps, in relation to at least an implied constitutional freedom and perhaps there is no reason why an express constitutional freedom should be in any different position.

Conceptually, an express constitutional freedom and an implied constitutional freedom both may be the subject of a burden, but the application of a test such a McCloy test means that the burden will always be the most minimal burden necessary to achieve the legitimate purpose.

KIEFEL CJ: In both cases, if one has – that is, in relation to the implied freedom in section 92, Betfair (No 1) would say that in relation to an express freedom, it must be justified.

MR THOMSON:   Yes.

KIEFEL CJ:   The burden must be justified.  So there is that - it aligns to that extent. 

MR THOMSON:   Absolutely.

KIEFEL CJ:   But if one approaches it in that way, that the burden must be justified, West Australia’s pleading relies upon reasonable necessity with regard to the purpose - a legitimate purpose sought to be achieved, but it does not rely upon the balancing of the burden against the greater good to be achieved in the public health sense.  It does not plead strict proportionality – and I do not understand that to be West Australia’s position.

It may well be, of course, that if one is to look at proportionality testing, or analysis by those means, that it is a matter for a party whether or not it seeks to justify particular measures by reference to one or more of the matters set out - in McCloy, of course, strict proportionality actually arose because the Commonwealth sought to engage with strict proportionality.  That is how it actually arose.

MR THOMSON:   Yes.  Certainly we have pleaded, there being no other reasonable alternative means ‑ ‑ ‑

KIEFEL CJ:   You have not sought to justify by any other means?  It would go without saying that you claim there is a rational connection because of your argument about purpose.

MR THOMSON:   Precisely.

KIEFEL CJ:   But I just want you to clarify - I do not understand Western Australia to say that it needs to, or seeks to justify by reference to strict proportionality, the balancing exercise.

MR THOMSON:   Can I put it this way?  I will submit to you that we can do that and in fact if you look at the submissions that we filed at paragraphs 54 to 57, we certainly use those phrasings about adequacy and about legitimacy of purpose and so forth.

KIEFEL CJ:   But you do not plead it?

MR THOMSON:   No.  But whether or not we need to plead it, we can certainly do it.  And part of the issue is this, perhaps.  There is – and there has never been any dispute about the legitimacy of the purpose and that is a very important matter because legitimacy of the purpose being to protect the WA population against the importation of COVID‑19, the health purpose.  That being so, there is no real dispute about the rational connection.  There is clearly a rational connection in those circumstances between the directions, which expressly state what their purpose is, in the matters that are at the outset and in the preamble.  And in terms of the adequacy of the balance, when you look at the question of the acceptance of the legitimacy of the purpose and the nature of the directions, if there is no other reasonable available means that is sufficient to demonstrate the adequacy of the balance.

KIEFEL CJ:   One simply follows from the other – the same inquiry?

MR THOMSON:   That is precisely right, yes, because of the nature of the fact that this is a case about a situation where the legitimacy of the purpose has been accepted.  It is a bit different from, say, Betfair ‑ ‑ ‑

KIEFEL CJ:   And the importance of the purpose.

MR THOMSON:   That is precisely right.

KIEFEL CJ:   This public health area is the area where proportionality in other contexts has been raised, more often than not.

MR THOMSON:   Yes, but the importance of the purpose in this case, is not simply about the protection of perhaps diseased cattle going across the border, but we are talking about humans, and we are talking about a disease with a significant mortality rate.  At the time that it was before Justice Rangiah we had a mortality rate of 1.3 per cent but for people in the bracket I think over 80 it was a mortality rate of 22 per cent and with people in the bracket of 65 to 79 it was in the region of 3.1 per cent, and it has been agreed in the special case book that the mortality rate is now 3 per cent overall.  So, it is hard to imagine a situation where there is a more serious legitimate purpose in the circumstances where the pandemic is one which spreads without detection from people who may be asymptomatic, and it has the capacity to kill people and also to increase morbidity.

I have just mentioned the relevant mortality rates.  It is also a pandemic which has the potential to adversely affect greater than those average mortality rates special subsections of the community – the indigenous groups and people in aged care facilities and so forth.  It is a pandemic which has uncertainties, which Justice Rangiah acknowledged at paragraph 95 of his reasons.

One of the points that is important is that the directions are only effective while there is a state of emergency.  A state of emergency has to be extended every two weeks and, therefore, they are of temporary effect. 

So, what you have, ultimately, is the most important purpose of public health to be weighed against a measure which is of temporary effect on a fortnightly basis in order to work out whether or not there is a rational connection and whether there is an adequate balance.  So, the question of necessity and reasonable necessity really answers both those questions, in the circumstances where there is no dispute over the legitimacy of the purpose. 

KIEFEL CJ: In the context of section 92 and the Betfair Case, what do you say is the role of the reasonable necessity test there propounded with respect to purpose?  Is it something additional to purpose or is it something that confines purpose within its limits and then ‑ ‑ ‑

MR THOMSON:   The question about – well, can I take a step back?  First, Betfair was decided prior to the exposition of the transparency of reasoning in McCloy.

KIEFEL CJ:   Yes, quite.

MR THOMSON:   It has been said that McCloy is a tool of analysis, but I should note that the Court actually uses the word “testing” in the McCloy formulation of the McCloy test, so that to try and diminish it, if that is what is intended by referring to it as a tool of analysis may be not to give it its proper place.  It is a set of tests, but it is a set of tests ‑ ‑ ‑

KIEFEL CJ:   I think in Betfair it is referred to as a justification. 

MR THOMSON:   Yes.  But it is a set of tests which is to flesh out what is meant by “reasonable necessity”, so you have to jump through the hoops ‑ ‑ ‑

KIEFEL CJ:   Or “reasonably appropriate and adapted”.

MR THOMSON:   Yes.  I think his Honour Justice Edelman put it that it increases the transparency of reasoning and it allows people to examine it.  I think that was in one of the cases last year, perhaps it was in Banerji or Vella, and because that is what it does it is a set of tests that means that the reasoning process to understand whether or not something is “reasonably necessary” or “appropriate and adapted” or whatever language is used, it is a set of tests which ensures, conceptually underpinning all of that, that the burden that is imposed for a particular purpose is of the lowest amount or the most minimal amount possible because constitutional freedoms should not be trampled upon without justification. 

KIEFEL CJ:   So, is that different from the approach in Betfair (No 1)? 

MR THOMSON:   I do not think it is.  Betfair (No 1) was looking at – in paragraph 110, which your Honour drew attention to yesterday – focused upon the alternative means test.  Perhaps that was not quite as developed at that point as what happened when the test in McCloy set it out more fully, but it is still aiming for the same underlying result which is that the constitutional freedom is infringed – can be infringed for a legitimate purpose but only to the minimum extent possible.

KIEFEL CJ:   Betfair (No 1) was not the first case where reasonable necessity, of course ‑ ‑ ‑

MR THOMSON:   No.

KIEFEL CJ: ‑ ‑ ‑ was said to be required in addition to the purpose being a non‑protectionist discriminatory purpose. So, what do you say is the role in the section 92 cases of the “requirement” – to give it a neutral term – of reasonable necessity in addition to the purpose not being of a discriminatory – and in the trade and commerce section aspect – protectionist sense? Why the extra requirement in addition to a non‑discriminatory purpose?

MR THOMSON:   Because the freedom that is protected by the trade or commerce limb is an economic freedom which prevents protectionism.  So, that is positively its purpose and that is something that has to be established prior to coming into – has there been any burden imposed upon the constitutional freedom that is given by the trade or commerce limb?  If there has been an infringement of it – and there will not have been an infringement of it unless there is a protectionist purpose which has been touched – then you have to ensure that the amount to which that infringement occurs is the most minimal possible. 

So, the nature of the freedom, given by the trade or commerce limb, is necessarily defined by the discriminatory purpose with a protectionist effect.  That is probably the conceptual difference between that freedom and the intercourse freedom that is given by the other limb because in order to establish the infringement of the freedom in the first place, you have to look at what is protected by the freedom and the intercourse freedom protects cross‑border movements of, at least, people but also ideas – sorry, not ideas – but communications, and so forth.  The trade or commerce freedom protects against economic protectionism.

GAGELER J:   So, is the only difference between the two limbs the element of protectionism?  

MR THOMSON:   Yes.

KIEFEL CJ:   You could still approach both limbs by reference to a discriminatory purpose?

MR THOMSON:   There have been suggestions that in relation to the intercourse limb, that a discriminatory purpose could be established by reference to discrimination between cross‑border movements and intrastate movements. 

KIEFEL CJ:   Yes.

MR THOMSON:   It depends upon how you characterise the freedom.  For the present purposes – and in this case as opposed to, perhaps, the Gerner Case that is coming up – the only thing that is necessary is to understand that this is a case which does involve cross‑border movements and, therefore, we would accept that there is an infringement of the freedom because it uses cross‑border movements as the basis for what happens.  The extent of the freedom – and whether it must be discriminatory against, for example, intrastate movements – is a different type of matter and this case does not depend upon that.

EDELMAN J:   But, if one is asking whether there is any role for protectionism in relation to the intercourse limb, is it not necessary to consider, for example, the possibility of laws with a dual characterisation which are characterised both as laws concerned with trade or commerce and also concerned with intercourse?

MR THOMSON:   Can I answer that this way?  First, in Cole v Whitfield this Court made it very clear that there were two distinct freedoms and that there was a difference between the two freedoms and there was a conceptual difference between the two freedoms, and they applied the discriminatory purpose to the freedom of interstate trade or commerce but not to intercourse.  That seems to respect the difference that is generated by the plurality, or the whole of the Court, in Cole v Whitfield.  In relation to the question that your Honour Justice Edelman has just raised, in this case there is no question that the law, if it is to be characterised, by reference to dominant purpose, would be referable to a dominant purpose which is the intercourse freedom so, therefore, you do not need to worry about whether it is swallowed up or not by reference to the intercourse freedom. 

There will, of course, be other cases where movement across borders is for the purposes of trade or commerce and then there might be a dominant purpose question to be answered in respect of that.  If you correspond or align the tests of reasonable necessity in respect of each of those freedoms then any law which is reasonably necessary to achieve positively a legitimate purpose will be an acceptable law and will not matter whether it is characterised as interfering with one or other of the constitutional freedoms.

So, in that sense, the effect of adopting the same test of reasonable necessity for each limb would be that to the extent that there is any question of burdening a constitutional freedom, it does not matter which of the constitutional freedoms is burdened because the person who is doing the burdening will have to demonstrate the legitimacy of purpose and the reasonable necessity of it.  So, that, I think, is in favour of adopting the same test of reasonable necessity for each limb and it hopefully avoids much of the disputation about which limb might swallow up the other. 

Can I make this other point and that is that in the nascent cases before McCloy and the setting out of the structured proportionality tests, there does seem to be quite a degree of interchangeability between the descriptions of what is necessary to establish reasonable necessity which would tend to suggest that all of the cases are aiming at that underlying concept of minimising the extent to which a constitutional freedom is burdened.  If I can give you these examples ‑ in ACTV Justice Dawson delivered the judgment which was of the most relevance to section 92. Of course, he was dissenting. He did make some comments at page 195. He says there that:

But if the real object of a law is not the restriction of movement across State borders, the fact that such restriction occurs incidentally will not offend s. 92, provided that the means adopted to achieve the object are neither inappropriate nor disproportionate.

So, he was referring to “means” in ACTV.  Justice Brennan, in Nationwide News, which was the main judgment of relevance to section 92 – again, I think he was dissenting – said at page 57:

If the law is enacted for some other purpose then, provided the law is appropriate and adapted to the fulfilment of that other purpose, an incidental burdening of interstate intercourse may not be held to invalidate the law.

So he only refers to “purpose” in that passage.

GAGELER J:   What is meant by “incidental” in those two quotes?  In both of those cases, the laws in question did not discriminate against interstate movement or communication.  They were laws of general application which, in their general application, prohibited interstate communications in the same way that they prohibited intrastate communications.  Is that what their Honours were talking about when they used the word “incidental”?

MR THOMSON:   Can I answer that in two parts?  The first part is to say that all of the cases prior to this case, between Gratwick and this case, are cases involving laws of general application, I think.  Therefore, in that sense you might say that any burden upon the freedom is going to be, if you want to use the term, an indirect burden as opposed to a direct burden.

GAGELER J:   Or a discriminatory burden.

MR THOMSON:   Yes, but as we understand it, there is no longer any suggestion that such a distinction is a relevant one because our friends have said that they do not adopt a criterion of operation type test.  In terms then of what “incidental” means, “incidental” in our submission means incidental to achieving the legitimate purpose, which is consistent with the way in which the plurality in AMS looked at it and described it as a “reasonable regulation dispensation”, and that is picking up the words in the Banking Nationalisation Case.  So all of that is looking at an idea which is to try and look at the most minimal way of infringing the relevant constitutional freedom.

EDELMAN J:   Your point is that it is the difference between purpose and effect, is it not?  The effect is an incident of a legitimate purpose, but it is not the purpose or the goal itself?

MR THOMSON:   Yes, that is right.  The point I was endeavouring to just then develop is that the earlier cases seem to use the description of the test in a way which is interchangeable and the way I was going to mention that is because I referred to Justice Dawson in ACTV referring to “means” and Justice Brennan in Nationwide News referring only to “purpose” but both of them in Cunliffe said that they endorse the other’s approach.

Justice Dawson in Cunliffe at pages 366 to 367 said that he endorsed Justice Brennan’s approach in Nationwide News as well as his own; whereas Justice Brennan in Cunliffe at page 333 said he endorsed Justice Dawson’s approach as well as his own.

So, in that sense, although there is a difference between the language that was used in the description of the tests, that is to say, one refers to “means”, the other refers only to “purpose”, they clearly seem to think that they were adopting the same test.  That appears to us to be true also of the way in which the description of “reasonable regulation” and the dispensation for it is described in AMS, and the approach that was then adopted in APLA as a result.

The idea that the test between both limbs of section 92 should be aligned is also consistent with the cases we have put into our written submissions, but in particular, I think it is noticed by the plurality in Monis at paragraph 347, consisting of Justices Crennan, Kiefel and Bell, and Chief Justice French I think referred to it in Attorney‑General (SA) v Adelaide City Corporation at paragraph 65.  It has been referred to also in Murphy v Electoral Commissioner and Brown v Tasmania – and we have given the references in our submissions.

So, in effect, the cases prior to McCloy seem to engage in – well, develop two points.  One is that, however you describe it, whether it is reasonable proportion and adapted in terms of purpose, or you go and talk specifically about means as well, they regard it as the same test.  As well, there was an alignment of the tests between the intercourse freedom and the trade and commerce freedom.

Conceptually, it is, we think, right to say that if there is a constitutional freedom, and whether it is an express or an implied freedom, it has to be respected and that the interference with it has to be the most minimal interference possible.  That can be measured by applying the McCloy factors, but the underlying thing that it is driving at is, as I have said, the most minimal interference with that freedom.

That represents the type of submissions we would make about the legal nature of the test, unless there was something further that the Court wants to ask me about in that respect.  I was then going to turn to the application of the test in the present case, and with particular reference ultimately to how, if you need to, the factors in McCloy would be satisfied.

The starting point is as I have indicated, that the purpose of protecting the health and safety of the WA population is a legitimate one.  It has been accepted as that, it is uncontroversial, and it is consistent with a whole range of cases that are cited in our submissions about health purposes being legitimate reasons why constitutional freedoms can be burdened to some extent.  As I have said, it is hard to imagine a more serious threat than this type of pandemic. 

Notwithstanding the acceptance by the plaintiffs of the legitimacy of the purpose, and notwithstanding that it represents a very serious threat, the plaintiffs have made submissions that the health threat to the WA population from Queensland travellers does not justify the directions, because Queensland is a low‑risk jurisdiction for the reason that it has had no cases for the last 28 days.

Let me just recapitulate some of the things I said yesterday and deal with that specifically.  We would contend that there is no factual basis for that submission.  First, it does not take into account the risk of border hopping, particularly in circumstances where there are some border control changes that have occurred, and this is why I have mentioned the second supplementary court book at the beginning.  Those border changes involve things between Queensland and New South Wales and increases the porous nature of the borders.  As well, the submission does not take into account that it is proposed that the WA borders should be open to Queensland shortly, on 14 November, if Queensland continues to be low risk following the border changes which have happened.

Thirdly, the submission ignores the need to adopt a precautionary approach, which Justice Rangiah found was the accepted public health approach to the type of risk that we are speaking about and, in particular, I would refer you to paragraphs 70 to 76 and 302 of his judgment.  And, as I have said, that is particularly so in cases involving WA where there is less social distancing at the moment.  There has been a particularly high‑risk indigenous populations present in WA and there is no evidence about the cumulative risk of WA opening its borders not only to Queensland but to other low‑risk jurisdictions.

The underlying assumption of the submission about Queensland appears to be that the health risk of travellers from other Australian jurisdictions can be segregated from the health risk of travellers from Queensland, and there is no evidence that that is the case and, in fact, the contrary is true.  Justice Rangiah specifically mentioned, as I took you to yesterday, that border hopping was a concern in respect of all of the low‑risk jurisdictions.

In that context, the approach of the WA Chief Health Officer, in his advice on 28 October 2020 and the approach of the Premier in the media release that he made just after that is specifically based on a rolling average, which is Australia wide, and then allowing entry from jurisdictions which have no cases and, in our submission, that blends the approach of risk from all jurisdictions as the starting point and then considering the risk from individual jurisdictions but you have to meet that threshold of considering the risk from all jurisdictions at first.

We say that the serious nature of the threat to the health of the WA population places this disease in a different category to other less virulent health threats.  We accept there is obviously a burden placed upon people crossing the border into WA.  If you look at the question about whether the purpose of the law and the means adopted to achieve that purpose are legitimate, in the sense that they are compatible with the maintenance of a constitutionally prescribed system of representative government, we would say that clearly the answer is yes.  And we actually specifically said in paragraph 55 of our primary submissions that the aim of protecting a State’s population is compatible with the constitutional assumption that States will continue to exist.

The question of proportionality testing or reasonable necessity or the stages – the three stages in McCloy can be dealt with this way.  The first stage concerns whether the directions are suitable because they have a rational connection to the purpose of protecting the WA population.  The rationality of the border restrictions to mitigate the health risks of coronavirus are specifically mentioned by Justice Rangiah at paragraph 151 of his judgment and it may be of some assistance if I can just take you to that.  It is on page 167 of volume 1 of the court book, Justice Rangiah ‑ ‑ ‑ 

GAGELER J:   Is not rationality subsumed within necessity; if you make the argument that they are necessary, they must be rational?

MR THOMSON:   Absolutely, we absolutely agree with that, but to the extent that anyone wishes me to divide it out just to show how if it is necessary the factors in the McCloy test are met, but we would certainly say that it is subsumed within the concept of necessity, and clearly Justice Rangiah dealt with it at paragraph 151.  He says ‑ if you start:

I accept the opinions of Associate Professor Lokuge and Professor Blakely that border measures are an accepted and effective component of the public health response to the control of infectious disease outbreaks.  That is reflected in the fact of controls upon Australia’s international borders, and the effectiveness of border closures in New Zealand.  The experts specifically agree in the joint experts’ report that border restrictions are important to ensure higher risk transmission populations do not spread COVID‑19 to lower risk transmission populations.  I accept that they are a particularly important measure for the protection of a region with no community transmission from importation of the virus from regions with ongoing community transmission.

In terms of the second stage of proportionality testing, to use the McCloy term, the question is whether the means adopted by the directions are necessary in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose, and there are specific findings that I mentioned yesterday from Justice Rangiah’s decision about that.

There are the matters in the pleadings that I took the Court to, and then there are the matters in the last three bullet points of the judgment of Justice Rangiah, and he also mentions that self‑isolation or quarantine for 14 days in a hotel is not a feasible option due to capacity constraints.  In terms of the question about adequacy of balance, if you divide it up in that way the importance of the purpose that is served by the restricted measure and the extent of the restriction it imposes upon the freedom are matters that I have already mentioned. 

Perhaps, I can address the question of necessity, or of rationality, or of adequacy, in this way.  The significance and importance of protecting the WA population from COVID‑19 is illuminated by a counter‑example – and I can use the counter‑example that Justice Edelman gave yesterday – the adequacy, or the rationality, or the necessity may be less compelling if the type of restrictions contained in the directions were implemented in response to the annual influenza influx.  The serious health impacts of annual influenza are less and there appear to be vaccines available for that. 

In this case, the extension of the measure only happens on a two‑weekly basis.

So, we would end up by submitting that whatever test is applied, ultimately the measures that have been adopted in this case are clearly the least – sorry, are the most effective measures and there are no other measures that are available and that that demonstrates all the matters that need to be demonstrated to show that it is the most minimal way of infringing the constitutional freedom of intercourse.

Unless there are any particular questions about that, can I then turn very briefly to the remaining issues in the case?  In relation to the question about interstate trade or commerce, the thing that I would say is that the nature of the particular trade or commerce which is affected has not been identified in any way.  The plaintiffs have not articulated the interstate nature of their activities according to the existing case law.  That is to say, why the management of their investments cannot occur as easily from Queensland as might needs…..in WA.

The third point is that if there is a burden upon interstate trade or commerce, this will be permissible if the directions represent reasonable regulation of that trade or commerce or are reasonably necessary according to the test that I have just been through.  It is precisely the same question, we would say, as arises for the intercourse freedom.  So, with respect, we do not see how that really arises as a separate issue in the case.  Unless there is anything further, your Honours, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Solicitor‑General for the Australian Capital Territory.

MR GARRISSON:   May it please the Court.  The Attorney‑General of the Australian Capital Territory relies upon our written submissions that were filed on 19 October.  We also adopt the written and oral submissions of Western Australia.  The Territory does wish to make some short points on the implications of the plaintiffs’ arguments to an extent to the manner in which they may affect the ACT.

Your Honours will have the outline of oral submissions that were filed this morning. The starting point is that although section 92 does not in terms apply to the ACT, section 69 of the Australian Capital Territory (Self‑Government) Act which is at the joint book of authorities volume 2 at page 202 is in equivalent terms to section 49 of the Northern Territory(Self‑Government) Act and section 69 provides the “trade, commerce and intercourse between the” self‑governing territories and the States and between the self‑governing territories themselves “shall be absolutely free”. Their Honours, the plurality, Chief Justice Gleeson, Justices McHugh and Gummow made the observation in AMS v AIF that in that case section 49 and, we say, with respect, section 69 of the Self‑Government Act should be given the same meaning.

Moving to point 3 of our outline, this year, like Western Australia, a range of statutory instruments have been made in the Territory to impose a number of restrictions for the purpose of limiting the spread of COVID‑19.  Some of those are referred to in our written submissions but have been updated and, in particular, if I may take the Court to the Public Health (COVID‑19 Interstate Travellers) Emergency Direction 2020 No 2 which is found at page 274 of the supplementary court book.  That deals with travel from Victoria to the ACT and provides that:

An affected person must not enter the Australian Capital Territory unless –

they fall within a specified category of exemption.  Excluded from that definition is a person who is ordinarily resident in the ACT and a person who is in Victoria for the purposes of transiting through one of the airports in Melbourne, and ordinarily residents of the ACT who return to the Territory from Victoria must go to a designated place for 14 days quarantine and not leave it except in an emergency.

It may be accepted that at different points throughout 2020 the circumstances of the different States and Territories have posed differing levels of risk in relation to the spread of COVID‑19.  That remains true.  But, at present, the result of Western Australia’s assessment is that the risk of the spread of COVID‑19 from any other State or Territory of Australia is sufficient to warrant restricting entry to those who have qualified as exempt travellers.

GAGELER J:   Mr Solicitor, the ACT’s restrictions overall are less restrictive than Western Australia’s, are they not?

MR GARRISSON:   Yes, your Honour.

GAGELER J:   They are addressing the same pandemic, are they not?

MR GARRISSON:   They are.

GAGELER J:   So what do we make of that comparison?

MR GARRISSON:   I am sorry, your Honour?

GAGELER J:   That there appear, from your measures, to be less restrictive means responsibly adopted by an Australian polity to deal with exactly the same crisis as in Western Australia.  What do we make of that?

MR GARRISSON:   That the circumstances of each jurisdiction are different.  One of the principal differences, for example, is the physical size of the jurisdiction, the capacity to use that size to advantage to have more broadly based and accessible testing, for example, in relation to COVID‑19, the fact that there is a geographic problem in, to use the vernacular, closing the border.

The ACT has something in the order of 60 to 80 different points of entry around it.  It wanders in and out, the roads wander in and out of New South Wales, for example.  You have a circumstance where the border, not only is it porous, but there are a significant number of citizens of New South Wales who have to travel into the ACT for work and vice versa.

So the setting of that whole parameter means that the sort of restrictions that are imposed first of all need to be practical, they need to be able to be effected.  In that context, almost from the outset, a testing regime that was expansive, there were restrictions on movement within the ACT and the citizens of the ACT.  There was the imposition of quarantine in relation to all travellers who had returned to the ACT.

Now, the net effect is that the ACT has had no substantial cases for a very long time, but it works in with other factors.  So that, for example, the prohibition in relation to Victoria worked effectively for the ACT because for people to drive to the ACT from Victoria they had to come through New South Wales.  So New South Wales is controlling its borders, and we could have reasonable confidence that there were not going to be that many who are going to come into the ACT by road, therefore resources could be focused on the airport, as it was – and people were turned back.

So, as distinct from Western Australia, which is a significantly diverse – geographically, physically and in terms of its population spread – the ACT was able to confine the way it dealt with it.  That is, your Honours, perhaps the point of the submission that I am making, that each jurisdiction has its own characteristics and needs and demands, which respond in a particular way. 

As we have seen from matters found by his Honour Justice Rangiah, the particular circumstances in Western Australia dictated a particular outcome as the most effective way of dealing with it.

EDELMAN J:   Or put in terms of the test, it might be said that the alternatives were not obviously compelling.

MR GARRISSON:   Yes, your Honour, and the fact that those risks have been assessed differently in each jurisdiction of Australia at a different point in time does not carry with it the implication that the Western Australian directions lack a rational connection to limiting the spread of COVID‑19.

Your Honours have been taken to a number of references in his Honour Justice Rangiah’s judgment, which are listed in our outline.  I will not take your Honours to them because you have been taken to them a few times already, but the fact that even within those jurisdictions, within Western Australia, those directions are not fixed, they are variable. 

One of the examples in relation to Western Australia is that if one looks at the closing of the border direction that appears in the court book at volume 4, the Court was taken to clause 5(e) at one point.  Clause 5(e) is a provision that relates to very severe restrictions and conditions on exempt travellers who have come from New South Wales.  There is about a page and a half of conditions and things that go with it.  That has now been removed.

So the concept of the directions in Western Australia is not some fixed imposition on the freedom of intercourse.  It varies – it varies according to the assessment of the medical risk, which is the expert evidence upon which the decisions have been made, which is all consistent with the precautionary principle that his Honour Justice Rangiah commented on at some considerable length, which we refer to in our written submissions at 69 and 70.  We also deal with that in paragraphs 56, 57 and 63 of our submissions.

The fifth point that the Territory wishes to make is that, in the circumstances of this case, the Territory endorses the proposition that my learned friend the Solicitor‑General for Western Australia has been discussing with your Honours this morning, that there really is little difference whether the Court proceeds by way of an assessment of reasonable necessity or reasonably appropriate and adapted in the context of a proportionality assessment.

The exercise at the heart of the matter is one of the justification of the law.  The only distinction between the two, identified by the plaintiff, is the adequacy of the alternative measure.  We refer to this and the precautionary principle again in our submissions at paragraphs 40 to 42 and 69 to 70. 

The Territory submits that in the assessment of balance it is appropriate that a State or Territory take a precautionary approach, having regard to what has been described, in particular, by Justice Rangiah as the

worst‑case scenario, of failing to limit the spread of COVID‑19, as well as the cumulative effect of better case scenarios.

Your Honour Justice Edelman raised this yesterday in argument.  Merely because you have a low‑risk or even a very low‑risk jurisdiction you cannot simply say, “Well, then, we can allow as many people as we like in from that low‑risk jurisdiction” or two or three low‑risk jurisdictions, because it does not mean that it remains a low risk.  It could become a medium risk.  It only needs, as the evidence before his Honour Justice Rangiah demonstrates, one case and the consequences for the State of Western Australia would be catastrophic.

The final point that the Territory wishes to put, your Honours, is that it follows that the submission by the plaintiff that adequate measures that are not as effective could be contemplated as an alternative to the current measures is inconsistent with the application of the precautionary principle.  If one accepts that the purpose of the directions is to limit the spread of the virus in the context of a declared pandemic and a declared public health state of emergency in Western Australia, then an adequate measure which is not as effective is not a real alternative and does not meet that purpose.  Unless the Court has any further questions, those are the submissions of the ACT.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.

MR GARRISSON:   As your Honours please.

KIEFEL CJ:   The Court will now adjourn.

AT 11.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.43 AM:

KIEFEL CJ:   The Solicitor‑General for the State of Tasmania.

MR O’FARRELL:   May it please the Court.  Your Honours, as to the Wotton issue, can we indicate that we adopt the written submissions of Victoria in paragraphs 18 to 25 and 46 to 53 of their written submissions and, subject to addressing further issues, we simply want to rely on our written submissions.

As was adverted to in argument yesterday, the question of stringency, with respect, is not one which we say is particularly helpful to the argument of the test of what is reasonably required or reasonably necessary.  We say that the test is no more stringent no matter which way you look at it because it really depends on its own parameters.  As to that, your Honours, if I could indicate the way we would submit the test works.

We would start, your Honours, with the unarticulated but very obvious premise that everything depends upon the proper construction of the impugned law.  We would expect that, at the end of the process of construction, it would be apparent, firstly, what the context and purpose of the impugned law is and also what is its meaning and effect.  As well as that, we would submit that it should then be apparent as to whether or not there is, as a result of the constructional process, a burden which requires justification.

If that is accepted, your Honours, we say that the question is really quite simply a characterisation process of what is reasonably required to meet the legislative purpose.  We make some distinctions as between the McCloy test and the section 92 test. The main distinction, your Honours, is that the section 92 test does not depend on any external element by which to test the legitimate purpose.

So whereas the McCloy test depends – if we can take, for example, the second question in McCloy, that test depends on whether the purpose is compatible with the system of representative and responsible government.  No such issue arises here and, as we have pointed out in our written submissions, the external standard that was previously favoured by a number of members of the Court was rejected, I think, in AMS.

So, if all of that is correct, we would say that the answer to the question, the way to justify the law, the answer to that question is binary. Either the law is valid, or it is invalid, depending on whether or not it is reasonably required for the legislative purpose. On that issue we say that there are close comparisons between the proportionality test of necessity and the simple constitutional question which is posed in the section 92 case about freedom of intercourse, about what is reasonably required, but we would go one step further and say that once that question is answered there is no occasion, with respect, to go on and test the matter by adequacy of balance.

We say that simply because the question will have been answered, the validity o the law will have been answered at the time that the question of what is reasonably required is answered and, indeed, even if you think about it in terms of adequacy of balance and you look at the way the Court has considered that question in its most recent cases, it requires such a high degree of disproportionality that it is difficult to see - I mean it can be understood in the context of the implied freedom, but it is difficult to see how it applies to a section 92 case where the test is simply one of simplicity ‑ ‑ ‑

KIEFEL CJ:   But, Mr Solicitor, it is always hard to envisage other cases involving public health, different scenarios, but it must be at least possible that there would be a case where the measures for the purpose of the reasonable necessity test could be less burdensome but are not, and the policy – the legislature seeking to justify the law is driven to do so by reference to pointing out the importance of the public health issue that is being directed at as a justification for the burden being as great as it is.  I mean it must be at least possible and I am sure there have been such cases – they could be found. 

MR O’FARRELL:   Yes, your Honour.  May I submit this, that if the test of what is reasonably required is taken on its face, what is reasonably required or necessary to fulfil the statutory purpose, and a party seeks to justify the purpose on the basis of public health considerations and what have you, then I submit that that is a perfectly permissible way of answering that question, as part of the justification process ‑ ‑ ‑ 

EDELMAN J:  Mr Solicitor, what about the circumstance – it may go one way, it may go the other way, of a state that decides to close its borders for six months every year to prevent the influx of influenza, in circumstances where there may be evidence to show that there is no other method that is more effective to prevent influx of influenza than closing the borders? 

MR O’FARRELL: Well, your Honour, again, I would submit that, consistently with section 92 cases, that that is going to be a matter of fact as to whether or not the law is reasonably necessary and it would depend on the party seeking to justify the law to bring the evidence to court to explain why it says that an outbreak of flu is sufficient to close the border for six months of each year.

Now, Betfair, in a way, it suggests that the question is not limited to simply whether there are less restrictive means.  The answer of the Court in Betfair related to effectively two submissions, and they were made – I think I have given the reference in the outline at paragraph 9, which is to 107 to 110 of the report.  But the first point was that the Minister had said in answer to a question in Parliament that Betfair made no contribution to the racing industry in Australia.  That question was resolved as a matter of fact, because it was shown that Betfair had taken a 1 per cent contribution of its takings from its bets in Victoria, and that it had consistently met that obligation.  For that reason the Court rejected that as a factual justification for the law and it then turned its attention to the less restrictive means which Tasmania had introduced in order to cope with Betfair.

So that is just one example of the fact that the less restrictive means test will not be the only test, and it may depend on other issues of fact and, indeed, the analysis in Castlemaine Tooheys, which I think the learned Solicitor for Western Australia mentioned, is also an example of that. 

Your Honours, we would submit that – moving on a little further.  We have said at paragraph 5 – and this dovetails with what my learned friend from Western Australia said – that it does not matter how you look at this, whether you choose a form of proportionality testing, or it is simply put under the rubric of justification, the answer to the constitutional question which we attempted to identify in our written submissions at paragraph 30(b) should be the same, or it will be the same.

So we then deal with an argument that is put in reply by the plaintiffs at paragraph 14 of their reply.  I will not go into this in too much detail.  But we submit it is flawed on the bases we have identified.  The first is that if you can find some restrictive means – for example, with respect to the exchange between Justice Gageler and my learned friend from the Australian Capital Territory, that you can find that some other jurisdiction has introduced a lesser restrictive means simply will not answer the question, because it depends on so many other factors.

What the plaintiffs seem to say about this is, well, the Western Australian directions amount to a prohibition and so because there have been other means of controlling the outbreak in other States then there are always going to be less restrictive means.

Paragraph 8 pointed out that that elides the distinction between “purpose” and “means”.  As was pointed out by Justice Brennan in Nationwide News – and we have extracted a short – one of the paragraphs that we have cited that a law which has the effect of preventing or impeding the crossing of the border will be held invalid if the circumstances are such as to show that it is its only or chief purpose.  Then, of course, his Honour went on in the next paragraph to talk about all of the cases in relation to the protection of the population and admitting the possibility that the means required to address a particular problem may well amount to prohibition in some circumstances.

Then, as to the second two points we have made – that is, that we say that the argument fails to identify whether the means adopted in other jurisdictions achieve the same purpose as the West Australian directions and to the same degree, that was alluded to in McCloy v New South Wales and, I think, also by Justice Edelman in Banerji.  So, that is one of the

points.  The second point we make is that it fails to take into account the geographical circumstances and we adopt, with respect, our learned friend from the Australian Capital Territory’s analysis of that part of the argument.

I have dealt already with the issue in Betfair.  So, in conclusion, your Honours, I submit this – that the test of what is reasonably required or necessary, will be satisfied despite the means adopted to limit the spread of COVID‑19 in jurisdictions other than Western Australia.  Although, perhaps, we enter this point at a fairly high level of abstraction, we simply say that in this case the risk is unquantifiable, that is to say, no one knows when the outbreak could occur again and what the nature of the outbreak might be.  We do know from the analysis of Justice Rangiah that it is, in fact, a deadly disease and may affect parts of the population very severely.

So we would say that there are simply no means which are available currently in Australia to eliminate the disease.  To that extent, when you look at the purpose of the law on the direction, it talks about limiting – the purpose is to limit the spread of COVID‑19.  What measures are there which would achieve that aspirational goal?  We would say any measures.  That is a matter of legislative choice. 

As we have pointed out, I think, at paragraph 7(c), the issue is whether or not Western Australia has chosen – within the domain of selections available to it – an appropriate means.  We would submit, with respect, your Honours, that it has.  If there is nothing further, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  The Solicitor‑General for Queensland.

MR THOMPSON:   May it please the Court.  Can we say at the outset that we adopt the submissions of Victoria in relation to the Wotton issue.  Before moving to our oral outline, can I respond to a question from Justice Edelman yesterday which appears at page 26 of the transcript, line 1065, dealing with the question of whether allowing entry from as many people as want to come to Western Australia from all States affects the risk of infection in Western Australia.

In our submission, his Honour has dealt with that question.  Justice Rangiah addresses it at page 168, we submit, in volume 1, in paragraph 157, a paragraph which goes over onto page 169 where his Honour makes the observation in the fourth line that:

There is a direct correlation between numbers of people travelling to Western Australia and the probability that an infected person will enter the State.

It would follow that allowing, in our submission, an increased number of people to enter the State would necessarily affect the risk.  Whether it changes it from low to moderate would be a question of fact.

If I can turn then to our oral outline, we categorise the structured proportionality analysis as a tool.  We do not, contrary to the submissions of our learned friend for the plaintiff, characterise it as a test.  That is clear in paragraph 31 of our written submissions.  The characterisation of structured proportionality as a tool may also go to the question of whether it is necessary to plead each step in the process of analysis, and in particular, as we will come to in due course, the question of whether one needs to specifically plead adequacy of balance in the defence and whether in this case there has been a failure to address adequacy of balance by Western Australia.

As the Court will see from paragraph 3 of our oral outline, we commence by asking the question: what is a burden on section 92? We advance a submission, which may be controversial, that intercourse in the intercourse limb, section 92, will be burdened by a law if it discriminates against interstate intercourse, as opposed to intrastate movement. We have given a reference to the observations of Justice Brennan, as his Honour then was, in Nationwide News at pages 58 and 59.  We recognise immediately that on the previous page, page 57, which appears at volume 9, tab 52, page 3139 that his Honour made the observation there and this is at about line 20:

discrimination is not an essential feature of an impermissible burden imposed on interstate intercourse.  Of course, the appearance of discrimination against interstate intercourse of a particular kind and in favour of intrastate intercourse of a like kind would be a badge of invalidity.  But discrimination in that sense is not an indicium of invalidity of a law burdening interstate intercourse.

That passage, we would say, is properly characterised as dealing with discrimination in a protectionist context and, indeed, Justice Gummow in APLA at paragraph 173 characterised that passage as referring to referring to discrimination in the protectionist sense.  The passage to which we refer at page 58 of his Honour’s reasons were repeated again by his Honour in Cunliffe at page 384 which appears in volume 6 behind tab 32 of the book of authorities at page 1763 at about line 20 where his Honour says:

The plaintiffs claim protection against the application of Pt 2A because of (or at least in relation to) the interstate communications involved in the giving of immigration assistance and in the making of immigration representations.  In rejecting this submission, it is sufficient to repeat what I said with respect to a similar claim in Nationwide News –

and his Honour sets out the passage and the analysis which follows where his Honour says:

I refer to the reasons which I gave for that view in Nationwide News –

and he refers to the passage beginning at 53 through to 61.  It is also relevant to make the observation that Justice Toohey in Cunliffe at page 384 also made the observation:

The plaintiffs say that the extent of the prohibition as to intercourse among the States was left open by Cole v. Whitfield.  In their submission, while freedom of trade is only impaired by a law which discriminates in a protectionist sense in favour of intrastate trade, freedom of intercourse may be impaired by a law of general application, that is, a law which applies indifferently to communications regardless of whether they are intrastate or interstate communications.  I do not accept this proposition.

So, we also have given the Court reference to the passages from the work by Mr Kirk, Section 92 in its Second Century, Current Issues in Australian Constitutional Law, 2020, particularly pages 279 to 281.  And we also direct the Court’s attention to the fact that in APLA the proposition did seem to be rejected by Justice Gleeson and Justice Heydon, at paragraph 37, page 614 of volume 3, behind tab 18, where their Honours say:

In the present case, there being nothing discriminatory or protectionist about the regulations, if it is the test applicable to trade and commerce that operates then the argument for the plaintiffs clearly fails.

But that appears to be the only reference to the discriminatory element that we identify as relevant to the intercourse limb of section 92 and to assessing burden. So, in paragraph 4 we posit the proposition that section 92 does not disclose a basis for requiring discrimination for one limb and not the other, or indeed the application of any different test. And we have referred the Court to the observations of Justice Hayne, in volume 3 behind tab 18, at pages 717 to 718 where his Honour, in paragraph 402, says:

Nothing in the text of s 92 reveals why that should be so. In particular, the text does not ‑ ‑ ‑

EDELMAN J:   But, Mr Solicitor, there is going to be, on any view, a difference in approach between the two limbs, at least in relation to protectionism.

MR THOMPSON:   Yes, your Honour.  We accept that.

EDELMAN J:   So, the difficulty will still arise, will it not, and perhaps even in a case like this, where you have to ask of a law:  does the law have an effect on both intercourse and upon trade and commerce.  And if it has an effect on both, then does one analyse it only in relation to the intercourse limb, if that is the dominant limb?  Or does one always analyse it in relation to both?

MR THOMPSON:   I think the view that has been expressed by Justice Gummow was that if there is an element of trade and commerce then one applies the trade and commerce limb, notwithstanding that there is also an element of intercourse.  The difficulty which we would identify with that approach is twofold.  First, where is the demarcation between a trade and commerce question, and an intercourse question?

And secondly, if the intercourse limb does not require an element of discrimination, the test under the intercourse limb may, as we say in our oral outline, entirely subsume the trade and commerce limb, and effectively render nugatory the restrictive principles which the Court accepted in Cole relating to trade and commerce.

The difficulty also is one which by analogy can be seen in Cole v Whitfield at page 402 in the joint book of authorities, tab number 5 – I am sorry, volume 5, case number 30 at 1636, where at page 402 the Court observed about two‑thirds of the way down the page, towards the bottom:

There are other features of the doctrine which compel its rejection as an acceptable interpretation of s. 92. First, in some respects the protection which it offers to interstate trade is too wide.

And that is a point we identify in our oral submissions.  It may be invalid in respect of interstate movement over intrastate movement and therefore result in a situation where the same law does not burden intercourse but burdens a corresponding activity on an intrastate basis by analogy to the same proposition.  So, an example could be in APLA, if the provision had been found invalid by section 92 under the intercourse limb, it would nonetheless operate discriminately in relation to intrastate activities. A further example may be a lockdown direction in the vicinity of a State border.

We refer particularly to their discussion of Mr Kirk at pages 269 to 279 in the work that we have referred to which discusses that question of the advantage of incorporating a discrimination element to the second limb under section 92 and essentially aligning the tests which are to be applied.

I have been reminded by my learned junior that I need to mention to the Court that we, in fact, missed a large part of the discussion this morning because of the technical issues.  So, if I look blank if the Court asks me some questions, that may be the explanation.

We posit the test in paragraph 33 of our written submissions in relation to the test to be applied, perhaps inappropriately described as a test – a tool to be applied in the steps of structured proportionality.  There are five steps which we have identified.  They are drawn substantially from Banerji and McCloy – paragraphs 35 to 39, particularly of Banerji. 

If we can turn to say something about the elements of justification relevant to this particular case.  The plaintiff accepts, in terms of compatibility, that protecting public health is a legitimate aim and that the directions and the Emergency Management Act have that purpose.

We have given the Court reference to a Newfoundland decision – largely because it is so factually aligned with this case and we refer the Court to paragraph 438 of that decision.  It is a single judge decision.  But, as we say, closely aligned with the facts in which the expression “reasonable to suppose” – which was a test posited to Justice Rangiah as well in the remittal proceedings – was adopted as an appropriate measure of the existence of a rational connection. 

But, in this case, Justice Rangiah went further in paragraphs 156 and 157 of his reasons – which I have already taken the Court to in response to the point raised by Justice Edelman yesterday – in relation to necessity.  Again, Justice Rangiah, in our submission, went further and found that the border measures have additional value above and beyond other measures and they are the only measures which prevent entry of disease – in paragraph 163 of his submissions. 

In relation to the question of adequacy of balance, can we raise a number of specific points?  Firstly, it is clear, in our submission, that Justice Rangiah understood that the task was one which extended to a consideration of the adequacy of balance when one identifies how his Honour formulated the questions – or the issues – before him.  We direct the Court’s attention particularly to paragraph 18, on page 134, and paragraph 19, on page 135, where he concludes:

and facts must be found upon that basis.

The question of whether or not adequacy of balance is pleaded, we would respectfully submit that if it is seen as a tool of analysis, what is pleaded in paragraph 47(2) and (3) on page 34 of Western Australia’s defence at page 72 of volume 1 sufficiently engages the use of issues of reasonable necessity and the issue of whether it is reasonably appropriate and adapted.  If one goes to McCloy, one sees that the five steps in structured proportionality including adequacy of balance was characterised as a subset of those primary issues which have been pleaded. 

We make the following further points.  In the special case there are some parts of the special case which go to the question of the economic implications for both Australia and for Western Australia.  We also make the point that Justice Rangiah identified 11 features of COVID‑19 which demonstrate why addressing the risk it poses weighs very heavily in the balance. 

The final point we would make is that if the underlying purpose of section 92 is identified as national unity, as we say in our submissions, national unity, interstate intercourse are matters which are aided by the control and elimination of this kind of disease, much the same way as was identified in Ex parte Nelson at page 219 – the reference is in our submission at page 2:

the freedom of inter‑State commerce -

and from the constitutional facts which the Court can take into account, from the additional facts which I have identified in the special case relating to the economic implications, and from that principle to which we have most recently referred, there is before the Court, in our submission, a sufficient basis to deal with the adequacy of balance step in the structured proportionality analysis.  Unless there are some further questions from the Court, those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Mr Hanks, for the Attorney‑General for Victoria.

MR HANKS:   Thank you.  If the Court pleases, we wish to make submissions on two core points ‑ ‑ ‑

KIEFEL CJ:   I am so sorry, Mr Hanks.  I inadvertently overlooked in the list the Solicitor‑General for South Australia, and you no doubt appreciated that.

MR HANKS:   I was very worried, your Honour.

KIEFEL CJ:   My apologies, Mr Solicitor.

MR WAIT:   Thank you, your Honour.  Mr Hanks can proceed because South Australia is content to rely on its written submissions.

KIEFEL CJ:   Thank you.  Yes, Mr Hanks.

MR HANKS:   I will have to redeem my composure, thank you, your Honour.  We have two core points that we wish to advance arising out of our written submissions.  Our first point concerns the proper analytical framework to be applied in a case such as this, where an exercise of statutory power is seen to have infringed a constitutional limitation.  We call that the Wotton point.

If the Court accepts that point, we submit that the plaintiffs cannot obtain the relief that they seek in this proceeding – namely, the declaration that the directions are…..The second point in some ways could be described as a hypothetical point. The second point concerns the operation of section 92 and its focus on the character of a challenged law.

That second point is advanced, that there could be a critical question in this case – could be the critical question as to whether the authorising provisions in the Emergency Management Act infringe section 92. Curiously, of course, that does not arise directly, the plaintiffs having abandoned any attack on those provisions yesterday. But despite that abandonment, there is a lingering hypothetical challenge. As we understand the plaintiff’s argument, there is an implicit point that, if the Emergency Management Act did support the directions, then to that extent the Emergency Management Act could be invalid.  That is why we will want to say something about that second point.

Can I go to the first point, the analytical framework?  Now, we have set out in our written submissions, paragraphs 18 to21, our argument on the analytical framework.  Before I go into that, could I make the point that there I am dealing with something that we say in our outline at paragraph 4.  The plaintiffs, in their reply, raise the argument ‑ and the argument was advanced orally yesterday ‑ that the Wotton point would not inhibit their case if one were to characterise the directions as being legislative rather than administrative.  We do not accept that, and we made that clear in paragraph 19 of our written submissions.

In our submission, the real question when it is asserted that an exercise of delegated power has infringed the constitutional limitation, the real question is whether the legislation conferring the relevant power conforms to or is obnoxious to the constitutional limitation.  May I take the Court to two cases, the first of which is tab 49 in the joint book of authorities, it is Miller v TCN Channel Nine, the judgment of the High Court in 1986.

Your Honours are well familiar with the case. It involved a challenge based on section 92 and the freedom of interstate trade and commerce to provisions of the Wireless Telegraphy Act 1905. The relevant provisions are set out in the judgment of the Court – I am sorry, in the judgment of Justice Brennan at page 593 ‑ 594. So, the Minister was given power under section 4 of the Act – more a privilege, in fact, not a power:

exclusive privilege of establishing, erecting, maintaining and using stations . . . for the purpose of:

(a)transmitting messages by wireless telegraphy within Australia, and receiving messages so transmitted ‑

Section 5 of the Act authorised the Minister to grant:

Licences to establish, erect, maintain, or use stations . . . for the purpose –

Under section 6 it was an offence for a person to transmit or receive messages by means of wireless telegraphy unless the person was authorised, including by a licence granted under section 5.

This was a matter that was removed to the High Court under section 40(1) of the Judiciary Act, it was a prosecution.  The defendant, TCN Channel Nine, it was alleged, had erected and maintained a tower in New South Wales for transmitting messages between Sydney and Brisbane without a licence.

So, your Honours, if you turn to page 611, I think it is line 45 approximately on the page, his Honour identified a question:

Is the discretion conferred by s. 5 –

that is the discretion to grant licences:

so wide that the Minister may exercise it in a manner inconsistent with s. 92?

His Honour said:

A discretion which might be exercised in a manner obnoxious to the freedom guaranteed by s. 92 is a discretion wider than the Constitution can support and an attempt to confer such a discretion must fail.

I am going to ask your Honours to turn to page 614.  After considering the nature of the discretion conferred by the statute by section 5, towards the bottom of the page, just before line 40 his Honour said:

The discretion is effectively confined so that an attempt to exercise the discretion inconsistently with s. 92 is not only outside the constitutional power – it is equally outside statutory power and judicial review is available to restrain any attempt to exercise the discretion in a manner obnoxious to the freedom granted by s. 92.

His Honour concluded that the law was therefore valid. If your Honours turn to page 615, at about line 35, his Honour set out his answer to question 1, namely, that section 92 did not prevent the application of those provisions:

4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act . . . the actions of the defendant ‑

Now, his Honour Justice Brennan was partially in dissent in this case. If you turn to the answer that the Court gave to question 1 on page 637 of the report, at around line 28, the question was posed, “Does s. 92 . . . prevent the application of” those provisions to which I have just taken your Honours. Does it “prevent the application of” those provisions, or any of those provisions – sections:

to the actions of the defendant described in pars. 2 to 5 hereof?

Answer:

Yes, but only in so far as those sections relate to the use of the station or appliance.

So, Justice Brennan had said that there was no infringement of section 92 at all. Whereas the majority of the Court said that there was this limited infringement in relation to the use of the station or appliance. Nevertheless, what his Honour said in Miller, we submit to your Honours, stimulated five members of this Court in Wotton to adopt that line of reasoning.

EDELMAN J: Well, in a sense, both answers are correct, are they not? I mean, there was an infringement of section 92 prior to the exercise of effectively applying section 15A of the Acts Interpretation Act and disapplying it to those circumstances. But there was no infringement of section 92 once that process had been undertaken.

MR HANKS:   Can I, with respect, your Honour, say that that is no doubt a plausible rationalisation of the distinction between the majority and Justice Brennan.  Your Honour, in a sense, is posing that interesting philosophical question – what is the right answer?  Possibly, I might respond by saying that the right answer is the answer to which the majority of the Court adhered, and his Honour Justice Brennan, having not entirely agreed with them, did not come up with the right answer.  I trust that is not too disrespectful a response, but I have only taken the Court to Miller in order to identify the genesis of a particular approach that was endorsed in Wotton.  Might I go to Wotton now?

EDELMAN J:  The only reason I raised that is it may be that the genesis is much older than Miller, and it might go back as far as 1921 where that type of approach was applied in the Newcastle v Hunter River Steamship Company Case 29 CLR 357.

MR HANKS:   Thank you, your Honour.  I have not gone back that on far; I am instructed by your Honour.  Going to Wotton, as your Honours know, the challenge here was to the validity of two provisions in the Corrective Services Act 2006 (QLD) and…..Wotton is found at page 70 in the joint book of authorities, commencing at page 4445.  So, what was challenged here was the validity of two provisions in the Corrective Services Act, section 132(1)(a), and if your Honours turn to page 12 of the report. So, the terms of that provision are set out in the middle of paragraph 17, on page 12.

GORDON J:   I think it is paragraph 12, Mr Hanks, on page 10 of the report. 

MR HANKS:   Thank you, your Honour ‑ section 200, your Honour.  That is the second provision.  Section 132(1) makes it an offence in paragraph (a) for a person to interview a prisoner.  That is…..in which, I believe, is summarised in the middle of paragraph 17 on page 12.  There was, as it were, an exception to that offence, namely where a person has written approval from the chief executive to engage in the conduct.  That is also set out or, should I say, summarised in paragraph 17.

On the same page, higher up the page, at about line 15, the terms of section 200(1) are set out and ‑ I withdraw that.  The terms of a particular condition composed on Wotton are described.  That was a condition imposed under section 200(2) and that subsection is set out in paragraph 12, on page 10 of the report.  That subsection authorised the insertion in a parole order of conditions the board reasonably considered necessary:

(a)      to ensure the prisoner’s good conduct; or

(b)      to stop the prisoner committing an offence.

As your Honours know, the challenge in this case was brought on the basis that the provisions and the conditions that had been attached to the parole order granted for Wotton – infringed the implied freedom of political communication.  Going back to page 9, in the judgment of the plurality, the Chief Justice and Justices Gummow, Hayne, Crennan and Bell. 

KIEFEL CJ:   Mr Hanks, could you speak up a little please?

MR HANKS:   I am sorry, your Honour.  Perhaps my voice is becoming a little hoarse and I might be over‑reliant on microphone…..  If we go back to paragraph 9 in the plurality’s judgment, the plurality note that the Act:

confers various discretionary powers which are expressed in broad terms.

That must be read to the full extent but not exceeding the limits of the State’s legislative power.  At the end of the paragraph:

the discretionary powers must be exercised in accordance with any applicable law, including the Constitution itself.

In the following paragraph, paragraph 10, their Honours quote from Justice Brennan’s reasons for judgment in Miller.  Immediately following the quote, your Honours say that the reference by Justice Brennan to:

judicial examination of the exercise of the discretion in question is significant for the present case –

We then go forward to page 13, at paragraph 21:

As remarked earlier in these reasons, with particular reference to what was said by Brennan J in Miller, while the exercise of legislative power may involve the conferral of authority upon an administrative body such as the Parole Board, the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires.

In the following paragraph their Honours sum up the submission which has been supported by Victoria and its own series of propositions, four points, which we say are critical in the present case and this challenge to the directions issued under the Emergency Management Act.  It is the fourth point which, we say, is the critical point:

(iv) if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power.

Then their Honours say:

These submissions . . . should be accepted.

KIEFEL CJ:   That might be a convenient time, Mr Hanks.

MR HANKS:   Thank you, your Honour.

KIEFEL CJ:   The Court will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

KIEFEL CJ:   Yes, Mr Hanks.  Mr Hanks, can you hear us?

MR HANKS:   After all that effort, I muted myself.  I have taken the Court to paragraph 22 in Wotton.  Could I then refer your Honours to paragraph 24 where in the judgment of the plurality they identified what it was that the litigation turned on:

the restraint imposed by the Constitution upon the legislative power of the Queensland legislature.  It is no part of this dispute to canvass any question –

about those particular conditions in the parole order, whether they should or should not have been included.  That would be for a judicial review proceeding.  In our submission, the plaintiff’s complaints about the content or the validity of the directions fall into exactly the same category.

I should draw attention to page 16, paragraphs 31, 32 and 33 – I do not need to read those to your Honours or to go into them in any detail, but your Honours will see that in those paragraphs in the joint judgment the plurality looked at the question of whether 132(1)(a), as qualified by paragraph (d), might offend the constitutional constraint and then whether section 200(2) might offend that constraint and came to the conclusion in paragraph 33 that they did not.

Then your Honours will see again at the end of paragraph 33 the reasons for judgment repeat the point that the validity of particular conditions in the parole order are that it was a matter for a judicial review proceeding.  Those are the only matters I wish to raise with the Court about Wotton.

GORDON J:   Could I ask one question, Mr Hanks, and that is about the point 4 that you took us to in paragraph 22?

MR HANKS:   Yes, I will go back there, your Honour.  Thank you.

GORDON J:   It identifies in the third line of the fourth point that the reference to “without any need to read it down to save its validity”, does that mean that as a matter of process that there may be circumstances where the same approach can be adopted even if it needs to be read down?

MR HANKS:   I believe so, your Honour.  If your Honours were to look at our written submissions, paragraph 20, where we identified three categories of authorising provisions.  Now, in our submission, the Court in Wotton was dealing with the second category, laws that by their terms confer a power that is constrained. Your Honour will see that, that its exercise cannot be obnoxious to the freedom guaranteed by section 92.

There is the third category which your Honour will see in paragraph 20(3) - laws that allow for the possibility that the power might be exercised in a manner obnoxious to the freedom.  Now, it is that category where, in our submission, it might be – it would be necessary for the Court to engage in the reading down exercise.

GORDON J:   Thank you.

EDELMAN J:   Mr Hanks, why would not the court usually start with the third category, rather than the second?  In other words, even if one looked at a law and thought well, it looks like in almost all, maybe all possible applications, this law is going to be valid, there may be some situations that are not before the court or that the court cannot presently imagine where it might be invalid.  We have a clear situation before us in the third category.  Let us just ask, first of all, whether that particular application is valid or not.

MR HANKS:   Thank you, your Honour, for the question.  But it is our submission that that is not the correct way to go about evaluating the validity of the provisions.  If it is the fact – and this is a matter for construction, if I might say so.  If it is the fact that the law in its terms confers a power that, on its face, is constrained so that it cannot be exercised in a way that would be obnoxious to a constitutional guarantee, in our submission, that would be the end of the inquiry.

EDELMAN J:   But, Mr Hanks, the question I am asking is, how do you know that in many, perhaps most cases, unless you are able to comprehend every single possible factual scenario in which this legislation might apply?

MR HANKS:   In our submission, your Honour, you know that by construing the legislation.  If, as your Honour puts to me, shall we say an unusual set of circumstances might throw into relief the possibility that the provision could be used for a purpose in the situation – that is, that would offend the constitutional grounds, in our submission, that possibility can properly be left until those circumstances are established.

KIEFEL CJ:   Mr Hanks, we were having a little difficulty earlier before the luncheon adjournment hearing you.  Would you mind repeating what you understood to be the implicit argument put by the plaintiffs about the Emergency Management Act – how it must be invalid?

MR HANKS:   Thank you, your Honour.  I will try to correct my behaviour but, moving on to answer the question, although the plaintiffs appear to have abandoned yesterday any attack on these provisions of the Emergency Management Act there seems to be, we submit, a lingering hypothetical challenge to those provisions.  We think that the plaintiffs are saying, at least implicitly, that if the Emergency Management Act supports the directions, if the Court concludes the directions can be brought within one or other of the provisions in the Emergency Management Act then, to that extent, the Emergency Management Act would be invalid.

KIEFEL CJ:   But you say that point is not reached, do you not?  You say that the question of whether or not they authorise the particular directions, whether they are within the power of the EMA is not a constitutional question?

MR HANKS:   That is true, your Honour, that is our primary submission.  But we think that there is a lurking submission made by the plaintiffs.  It may not be completely in the open yet or we may just be slow in recognising it.  That submission is that on, shall we say, administrative law terms, the directions are supported by the provisions of the Emergency Management Act.  For example, in particular, section 67(a) – which I am about to come to in a moment. 

But, if that is the case, then the invitation held out in Wotton for, here the plaintiffs who invoked judicial review proceedings in order to protect their interests, that would be, as it were, an empty invitation. It might be that in those circumstances the plaintiffs will say yes, we can see that there is apparent, indeed clear support in the Act for these directions. To that extent, the Act will infringe section 92.

GORDON J:   But, Mr Hanks, is not the answer to that question met by the fact that if you adopt subparagraph (iv) of paragraph 22 and one undertakes that analysis, one gets to the same answer?  In other words ‑ ‑ ‑

MR HANKS:   Yes.

GORDON J:   Sorry.

MR HANKS:   Sorry, your Honour.  Your Honour was about to explain that question, I think.  Your Honour said “in other words”, and I missed the connection.

GORDON J:   It seems to me that if one undertakes the analysis in paragraph 4 of Wotton, one determines whether or not, in effect, the statutory indicia are sufficient to give rise to known validity.  This supposed working submission in a sense is met by that answer, is it not?

MR HANKS:   It is, your Honour, and your Honour has remined me, very helpfully, that my answer to the Chief Justice was perhaps incomplete because we will need to consider whether the authorising provisions offend the guarantee of freedom of interstate intercourse, so that we can make good the point that your Honour just put to me – make good the point that derives from number (iv), in paragraph 22. 

GORDON J:   Thank you. 

MR HANKS: That is the point I wanted to turn to almost immediately. We say that the question whether the authorising provisions offend section 92 will depend upon their characterisation and we have referred in our written submissions to a joint judgement in Castlemaine Tooheys and your Honours will know that that is tab 28 of the joint book of authorities. 

I need only take your Honours to page 471 in the joint judgment, round about the middle of the page.  Your Honours will see that this is in a relatively compact paragraph that draws a contrast between the approach laid down in Cole v Whitfield and what is described as the American approach.  Towards the end of the paragraph, their Honours say:

we are concerned only with the proper characterization of the law as protectionist or not, in the sense described in Cole v. Whitfield –

In our submission, exactly that approach ought to be taken where the challenge is based on an alleged infringement of the absolute freedom of interstate intercourse.  In other words, we would put it this way – a law would infringe a guarantee of interstate intercourse if the law has as its true purpose restricting movement across State borders. 

In our written submissions, towards the end of paragraph 36, we make the point that the order in Gratwick was an order which had exactly that character.  Its true purpose was to restrict movement across State borders.  It had no other purpose.  So, one might say hypothetically, in the present case, if Western Australia were to introduce a passport requirement for any travel between another State and Western Australia it might well fall into the same category. 

But the relevant provisions with which we are concerned in the Emergency Management Act, all are subject to a purposive limitation.  We think we need only take your Honours to section 67 of that Act.        It is found at tab 40 of the joint book.  Now, your Honours can see immediately from the chapeau that the power that is given here to – well, the two individuals, one was the authorised officer – the power that is given to the authorised officer is given for the purpose of emergency management during an emergency.  We know, because we have been there a few times already today, that those terms are defined in section 3 of the Act:

emergency means the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response –

and “emergency management” is defined to mean:

the management of the adverse effects of an emergency including –

(a)prevention – the mitigation or prevention of the probability of the occurrence of, and the potential adverse effects of, an emergency –

This is a limited power, limited by reference to those factors and when the power is exercised for that purpose it is available to support a direction that prohibits the movement of persons into an emergency area.

GORDON J:   Mr Hanks, I know you want to start at 67, but is it not also that the direction is limited by the fact that for there to be a state of emergency under 56, one has to satisfy the statutory indicia in subsection (2) and that it is subject to a limitation of time of 14 days, in section 58.

MR HANKS:   All of those are important limitations, but putting the time limitation on one side, amongst the things that the Minister must address and be satisfied of is that an emergency has occurred, as defined in section 3, and, secondly, that extraordinary measures are required to prevent or minimise loss of life, prejudice to the safety or harm to the health of persons or animals.

GORDON J:   He or she does that every 14 days?

MR HANKS:   It is a very specific power.  It is a power to declare the emergencies…..and, as your Honour rightly reminded me, the power in section 67 is only available during the emergency or state of emergency.  So, in our submission, it is section 67(a) that would support the directions controlling entry into the State.  Whatever might be said in the preamble to the direction the power is derived from section 67(a).  Your Honours will be well familiar with the simple proposition that for a decision‑maker to recite, perhaps inaccurately, the source of her or his power does not determine the question where the power is found.

KIEFEL CJ:   Mr Hanks, what do you say of the relationship between section 67 and 72A?

MR HANKS:   Your Honour, they may overlap, but they are by no means identical. 

KIEFEL CJ:   Yes.

MR HANKS:   The power given under 72A, in particular subsection (2), is a power to direct at most a class of persons.  I notice that the printed copy of the Act omits the plural of “person” - that must be a printer’s error – to take:

action that the officer considers reasonably necessary to prevent . . . associated with the emergency.

This is, in our submission, a more targeted power whereas the power available under section 67(a) is a much wider reaching – I will put it another way - would support much wider reaching directions. 

KIEFEL CJ:   Would section 72A work with section 67 in a scenario such as being able to turn someone back at the border so that 72A works in aid of 67?

MR HANKS:   It would, your Honour, because the authorised officer may direct a person to take any action that officer considers reasonably necessary for those purposes, set out at the end of subsection (2).  So that is true.  But the direction - and we had understood that it was the direction controlling entry for a class of persons, a very large class of persons into the State - that, in our submission, that direction is supported by and derives its legitimacy from section 67(a).  Your Honour, it may well be true.  I do not mean to diminish ‑ ‑ ‑

KIEFEL J:   Perhaps section 72A more clearly overlaps with section 70 in relation to the directions to quarantine?

MR HANKS:   In our submission, 72A could be used in aid of a direction to quarantine and, as your Honour put to me, 72A could also be used in aid of what I would describe as a generalised wide‑reaching direction under section 67(a).

KIEFEL CJ:   Yes.

MR HANKS:   In our submission, the particular direction that is the concern of the plaintiffs is itself directly supported by section 67(a).  Now, if that be the case, then the legislation ‑ authorising legislation can be seen to have a purpose that is entirely consistent with the guarantee of the freedom of interstate…..

GAGELER J:   Mr Hanks, what role is there for “reasonably required” or “reasonably necessary” to inform the purpose of the law, that is, you have taken us to Castlemaine Tooheys but that was 30 years ago, and things have happened since then.  What do you make of Betfair and what do you make of AMS?

MR HANKS:   I need to focus.  I think your Honour is asking me a question that is not derived from the text of section 67A, or is it derived from the definition?

GAGELER J:   No, sorry, I was going back to an earlier part of your argument where you were setting up the question as one of characterisation.

MR HANKS:   Yes.

GAGELER J:   You used the language of “true purpose”.  You said that is what it is all about, it is about the true purpose of the law.  Yet, in Betfair (No 1) the Court said we do not need to get to purpose.  Here we have a discriminatory and protectionist effect which is unjustified.  I am just wondering how that, and how the slightly earlier analysis in AMS, which was focused particularly on the intercourse limb, fit with your overall submission about true purpose.

MR HANKS:   Well, in our submission, that focus on characterisation or true purpose is also credible in the context of a guarantee of freedom of interstate trade.  But one of the distinguishing heuristic factors here is that with that guarantee of interstate trade, it operates to strike down laws that discriminate in a protectionist manner against trade and commerce between the States.  That feature, if I might put it this way, Justice Gageler, that feature sharpens the analysis in that context.

The guarantee of freedom of interstate intercourse, in our submission, does not depend upon protectionism, does not depend on whether you are striking down protectionism.  What it does is strike down laws whose purpose is to stop movement across State borders and, ultimately, the question of whether a particular law has that purpose in our submission is to be derived from a construction of the law itself.

EDELMAN J:   So the question of effect never enters into it?  It is only ever a question of purpose?  If there is no purpose – accepting that one can sometimes derive purpose from effect, but if you cannot derive that as the purpose of the law then that is the end of the inquiry.

MR HANKS:   I will stand on that line, your Honour.  I had been about to offer the qualification which your Honour offered, namely that sometimes the effect will be a good indicator of what the purpose might be.  But if it is not, and if we say as in the present case, the purpose can plainly, it seemed to be, the protection of the population against the probability of the occurrence of the adverse effects of COVID‑19, that is the purpose, then it will not offend the freedom of interstate intercourse.

If I could come back to Justice Gageler, I have to concede, your Honour, that there is not necessarily a bright line in this analysis.  It is a matter for – I think your Honour would not quarrel with this, perhaps – when one talks of characterisation, it is a matter for careful, informed judgment.  It is not a matter for ineluctable, logical analysis.

I might perhaps move on, if I may be permitted.  Your Honours, having gone to the provisions in the Emergency Management Act and having advanced the submission that they are completely consistent in their character with the protection given to free interstate intercourse by section 92, it is our submission that a challenge to the directions must fail

for that reason.  If the Court pleases, those are the oral submissions I make on behalf of the Attorney-General for Victoria.

KIEFEL CJ:   Yes, thank you, Mr Hanks.  Mr Moses on behalf of the Attorney-General is online, but I understand not making submissions.  So we will move to any reply.  Mr Dunning.

MR DUNNING:   Thank you, your Honour.  Your Honours, at the outset of our learned friend the Solicitor-General for Western Australia’s address yesterday, he raised objections to the Jacobson affidavit.  Those passages only went to the question of utility; they did not go anywhere else.  Unless you need me to develop that any further, that is all I wish to say on that.

The second matter I wish to raise in reply is this.  Our learned friend for Western Australia made the submission that low in Queensland, as in the assessment by Justice Rangiah – he made the point that low in Queensland does not take into account border hopping.  In our respectful submission, that is not the basis upon which the judgment proceeded.  Can I give your Honours these references.

In relation to the Australian Capital Territory at paragraphs 278 to 281 of Justice Rangiah’s reasons, his Honour expressly considers the question of border hopping in relation to the Australian Capital Territory and that was the reason that, being a jurisdiction that had gone more than two incubation periods with no cases of community transmission and therefore, by that definition, was very low or minimal, was nonetheless assessed as low to take account of border hopping.  So border hopping is picked up in Justice Rangiah’s assessment.

Likewise, your Honours, in our respectful submission, it is clear from the judgment his Honour did consider cumulative effect.  If I can give your Honours these references:  paragraphs 119 to 122 of his Honour’s reasons, 251 and 254.  Your Honours might recollect that 254 is where his Honour sets out his qualitative standards by reference to the precautionary principle that he had adopted in particular from Associate Professor Lokuge and in particular the Associate Professor’s decision tree algorithm that adopted those gradients, starting with very low or minimal.

In fact when one looks at the passages I have given your Honours reference to – in particular 251 and 254 – the effect of the way the algorithm worked and the evidence that his Honour accepted is that questions of cumulative effect are in fact picked up by that qualitative assessment of asking the question:  are there border controls?  So, that is how that cumulative effect was addressed by his Honour.  But, plainly, the question of cumulative effect was squarely raised in the trial of remitted questions.  It was squarely considered by his Honour and the explanation lies in how it is dealt with in that way.

Your Honours, might I then move, please, to the question of the test for the intercourse limb of section 92? Might I simply raise this that emerged out of an exchange with Justice Gageler with one of my friends? In our submission, ultimately, if the expressions “directed or aimed” – as one saw used from Gratwick through to AMS – was really no more than – when I say…..pejoratively, but is in reality no more than the language of the day for what we would now call a “discriminatory burden”, then one could restate that test – as I say, as late as the reference to that measure in APLA and AMS – so that whereas if “aimed or directed at” simply meant discriminatory burden – in this case a discriminatory burden against a movement across State borders – then it would achieve these things.

One, it would not require any revisiting of any of those authorities.  I have made the submissions that I have made previously about Gratwick, so I will not use that as an illustration.  If we take some of the latest examples, APLA and AMS – cases where that language enjoyed the support of all members of the Court, if, in reality, it is properly understood as adopting the language of the day for a discriminatory burden against intercourse or against across‑State movement, then it does not require any alteration.  It is simply harmonising the language – or updating it – if I can put it in that way. 

That would then have the consequence that the test in Cole would have as its companion for the other element, or other component of the composite provision in section 92, a like test which ultimately Justice Gageler moves back to, effectively the distinction between the test would then become the test in relation to trade and commerce would have as an additional component the protectionist.

GAGELER J:   So, this is adopting Queensland’s adoption of Mr Kirk’s thesis?

MR DUNNING:   Effectively and picking up on the exchange there had.

GAGELER J:   Yes.

MR DUNNING:   It does not matter that that issue was reserved in Cole in a sense, because it was not a case that had to deal with intercourse.  We have now come to one, and if the reality is it is best harmonised, notwithstanding they have a different provenance and are directed at different matters, it would seem to achieve that desirable outcome.

While I am on that topic, if we could, again really adopting to some extent what was said by our friends for Queensland, as to how does one measure in a case where you have a burden that operates both on trade and commerce and intercourse, in our respectful submission one tests it against each and if it fails against either then it fails. 

Now, the critics of that approach would say, well, you run the risk that the intercourse limb will overwhelm the trade and commerce limb.  But in our respectful submission that ought not to be accepted for these reasons.  The first is it is a composite provision that contains two high constitutional values, one about preserving the freedom of trade and the other, as Justices Deane and Toohey described it, the guarantee of national unity.  Neither should be subservient to the other.  In many cases applying testing against both will yield the same result, but if you fail against either, the law should fail.

EDELMAN J:   Why do you say the intercourse limb would overwhelm the trade and commerce limb?  Would it not be the other way around?

MR DUNNING:   I do not say it will.  Some say that.  Others say that the trade and commerce will, but you do not need to get into that ultimately esoteric debate because if you test against both then you will ensure that each of those high constitutional values is preserved or adhered to. 

Then can I move, please, to the question of the discussions that occurred with my learned friends regarding a test of reasonable necessity as opposed to the use of structured proportionality and can I simply raise these matters.  Can I ask your Honours please to take up Banerji or I could perhaps – it is volume 13, tab 74, page 4790 and the point I wish to make is this. 

The ultimate way to test whether it matters - and that is a topic that has come up on a number of times in this case - is, in our submission, to test it this way.  If I can first of all ask your Honours, please, to go to paragraph [35] of Banerji and the oft‑cited test of necessity, and about halfway through that paragraph, and that is:

there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden –

for present purposes, on intercourse.  The critical question ultimately is, would the answer to that question produce a different result to the answers to the question of reasonable necessity in cases from Betfair and before it?  If the answer to that question is it would…..then, in our respectful submission, the test should be different.  If the answer is that it would produce no different result, then much of the controversy would go out of that.

KIEFEL CJ:   What if it is thought that it reflects what was said in Betfair?

MR DUNNING:   Well, I am going to, Chief Justice, come to deal with exactly that.  If that is the answer – that is, that what appears in that part of the test is synonymous with the test that was applied in Betfair and the cases that have preceded it, it might well be that too much has been read into, in particular there is the expression “compelling alternative” – that is, equally practicable because certainly in terms of the way the argument is typically pressed on the part of polities, it is to say well, unless you can produce exactly the same result, then it will not be ‑ ‑ ‑

KIEFEL CJ:   Those words are addressed at evidentiary issues, evidentiary problems.  On one view, they do not say anything for or against Betfair - what was said in Betfair.  They have a singular purpose.

MR DUNNING:   They do, and the point we were wishing to make is that if when one tests – if you arrive at a different answer, then there would be an……if the answer is, as your Honour suggested to me, that that is no more than an encapsulation of what took place in Betfair, then that, in our respectful submission, to a great extent would answer that issue.

Can I give a second illustration in that regard and that arose in the exchange between Justice Gageler and my learned friend the Solicitor‑General for the Australian Capital Territory where his Honour said well, how does one compare Western Australia’s response with the Australian Capital Territory’s response in respect of confronting essentially the same problem and in essentially the same position, that is, by the medical standard, elimination in your jurisdiction and your Honour asked for a comparison with Betfair.

Then Justice Edelman in the course of that exchange raised the test I have just given out of Banerji and the cases that preceded it.  Again, we would make the submission that if they produce the same answer, then there is no distinction.  If they do not, then it is a matter of the language that warrants consideration.

Just on what was said by our learned friend, submitted by our learned friend the Solicitor for the Australian Capital Territory, in our respectful submission, Justice Gageler’s point was well made.  It was, respectfully, exactly the sort of comparator that – if I can use a neutral expression – reasonable necessity should focus upon, that is, what are people with like problems doing to meet – sorry, what are people in like circumstances doing to meet like problems?

In effect, that is exactly what happens in Betfair.  Both jurisdictions are confronted with the difficulties of being able to back the loser and how do you respond to that.  It was accepted that they did not have to be materially identical to nonetheless, for the prohibition to offend the provision.

KIEFEL CJ:   But it was not suggested in Betfair that the circumstances pertaining to the racing industry were different in those different jurisdictions, whereas here it is distinctly put that it is, particularly by the Solicitor‑General for the ACT.

MR DUNNING:    That is correct, and if we look at the distinctions that our learned friend gave, most of those matters, in our respectful submission, pointed to, while the Australian Capital Territory might have called for greater not lesser restrictions than Western Australia, Western Australia is largely isolated by a desert.  It has small border communities.

The Australian Capital Territory was the most prone.  It was completely surrounded by another State.  It had many points of arrival and exit, whereas Western Australia was much more limited because of the practicalities of getting there. 

Whether you considered the Western Australian position akin to that of South Australia, the Northern Territory and Tasmania where there were serious physical barriers, or compared it to the Australian Capital Territory or, for example, Queensland and New South Wales, where the border effectively runs through a suburb and then through a series of rural communities, it is the fact that, despite their differences, all of them were able to come up with a regime that was far less onerous than that that had been imported by Western Australia.

Your Honours, could I then move to the submission made by our learned friends on behalf of Victoria regarding what is effectively called the Wotton issue?  Can I commence the submission this way?  In approaching this matter it is appropriate to recognise that the Emergency Management Act – typical of acts like that – is designed to meet some unique situations and it is for that reason it contains some of those provisions I took your Honours to yesterday so that the directions operate as the written law of Western Australia and, in the Wotton sense, are a statute.  That will not be the case and was not the case in Wotton or many other cases.  So, in our submission, one needs to see it in that context.

The second matter, we say, is there is no case made, in our respectful submission, for a departure from the test laid out by the Court in paragraph 22 of Wotton and that is, one starts with inquiring, is the behaviour a burden on the political communication?  Has the source a statute?  Then, is one a limitation of legislative power? 

Once it be demonstrated that that is how Western Australia chooses to make its statutes, one does not go any further on the Wotton inquiry and no good case has been made for why it should be extended.  It is very implicitly accepted, by what Victoria says, that it would require its extension.  Perhaps that point is made most clear by starting at what is effectively the fourth component of that test, but one as it was formulated in Wotton but never contemplated to getting there if you failed on the first. 

Can I now then turn, please, to the emergency management sections themselves because in light of some of the things our learned friends have said there are some matters that we would like to clarify.  The first is that it seemed to engage some enthusiasm that we did not press the invalidity of section 56 of the Emergency Management Act, yet it is hard to imagine a more typical exercise of the legislative power to do something for the peace, order and good government of a State than to provide for the protection of life and property during circumstances of emergency. 

Can we then take your Honours, please, to section 67 and we would make common cause with our learned friend Mr Hanks that section 67 is the appropriate provision to test the critical directions, that is 4 and 5.  We say that for this reason.  Can I ask your Honours, please, to notice 67(a), so the power is given to make a direction to prohibit the movement into an emergency area?  Your Honours have been taken previously to the fact that the emergency area is here, and the statute contemplates that it can be the whole of the State of Western Australia.

So, it is a specific provision that deals with that issue.  It is right to say that the power has to be used for the purpose of emergency management and there has to be such an emergency.  Now, we do not submit that there is not an emergency, unsurprisingly, or that the directions, as in the whole of the directions, are not for the purpose of emergency management.  What we have focused on are those parts of them that are objectionable or obnoxious to the arrival into - or the complete prohibition on arrival into Western Australia.

So, no concept of “reasonable necessity” fits into the section 67 analysis.  I will come back to the significance of that in a moment, but just before I do, may I ask your Honours, please, to take up section 72A and may I ask your Honours, please, to notice these aspects of section 72A.  The first is - and again we would make common cause with what our learned friend Mr Hanks said on this - it is a more calibrated provision and it is about directing people in Western Australia as to what to do. 

Chief Justice, I listened, obviously, to the exchange you had with our learned friend to say well, it is a power that might enable you to do something upon arrival into Western Australia but, in our submission, the directions are to operate to prevent somebody from coming into Western Australia, and the one that is tailored to that is in fact section 67.  So that is the first thing.  It is directed to people inside Western Australia, so it seems to be not the applicable one. 

The other matter that we would make a submission on is in relation to, as one sees in subsection (2), in the fourth line:

that the officer considers is reasonably necessary -

Our learned friend the Solicitor-General for Western Australia accepted, rightly, if we may respectfully submit, that that is a different test to, if I can use the neutral expression, reasonable necessity for the purpose of section 92, so that there is not a correspondence between the two. Put another way, were one to challenge on an administrative law basis whether, even if 72A applied – and for the reasons I have given we say it does not - the making of the directions, the relevant point of inquiry would not be reasonable necessity in the objective sense of section 92, but rather it would be the inquiry into whether the decision-maker held that subjective intention.

EDELMAN J:   Do you submit that 72A(2) would permit an officer to form an unreasonable consideration that measures are reasonably necessary?

MR DUNNING:   I certainly would not, Justice Edelman, just as, respectfully, one would not expect the hazard management officer to be weighing the considerations relevant to whether intercourse has been offended.

GAGELER J:   Mr Dunning, might the analysis not be a little different if you, instead of trying to map reasonable necessity onto section 67 alone, you stand back just a little more and map reasonable necessity onto the combination of sections 56 and 67?  So let us start with defining the non‑discriminatory purpose as the protection of public health in Western Australia.

Now, if that is the purpose, and you are asking is it reasonably necessary, or do the criteria within the Act confine the measures to what is reasonably necessary, then you would put section 56 with section 67 – you say, “Gosh, it only applies during an emergency, and whatever is done has to be directed solely, objectively to mitigating the hazard that is the cause of that emergency” - it starts to look a bit more reasonable and necessary.

MR DUNNING: Yes, but that in itself would not alter – the ultimate inquiry is – sorry, would not alter the fact that if the law is to be – I will try and use a more neutral expression. If the action of Western Australia is to be challenged under section 92, or for violating section 92, does one do that by this sort of constitutional challenge, or is one, as in Wotton, left to go and make whatever administrative law challenge is appropriate?

So even if one stands back from, as your Honour invites me to do, it is still ultimately the question, in our submission, of by what means – given that is the criticism made of us – does one test whether the constitutional protection in section 92 has been offended or not?

Justice Gageler, that takes me to a point I wanted to – I might come back to that point in a moment.  Can I ask your Honours, please, to take up our learned friend from Victoria’s written submission?  Then, to further illustrate the point, can I ask your Honours, please, to go to paragraph 20 of those written submissions.  You will see there the submission is made that the second – and your Honours will appreciate our primary submission is that one does not embark upon this inquiry, one just applies Wotton as it presently stands – but if one does embark on this inquiry, our friends say the second category – which they say was a Wotton case and they say this case is ‑ ‑ ‑

EDELMAN J:   Sorry, just before that, you said the reason why the primary submission is that you do not embark on that inquiry, is that because you have not abandoned your submission about impermissible purpose or impermissibly directed at?

MR DUNNING:   No, because, in our submission, when one applies the test that is set out in paragraph 22 of Wotton, it would terminate at the end of the first question because of those reasons I took your Honours through yesterday – it takes effect as the statute law of Western Australia.  The inquiry there is laws:

confer a power that “is so constrained that its exercise cannot be obnoxious to the freedom –

as opposed to the third category which allows:

for the possibility that the power “might be exercised in a manner obnoxious to the freedom guaranteed by s 92” –

and going on to say that:

this category confers a power that is “susceptible” of exercise in a manner consistent with s 92, but the power is “insufficiently controlled” –

Now, a case such as an Emergency Management Act is, in our submission, a paradigm example of a legislative provision that – perhaps moving away from language that is a little pejorative of “sufficiently control” - is one that necessarily would have to be of great breadth.

Can we perhaps make the point this way?  For the purpose of the argument, let is be assumed that, pursuant to the Emergency Management Act, at a time when COVID was sufficiently rife through all Australian jurisdictions that it was appropriate to make the direction – that is, it was reasonably necessary to close the Western Australian borders.  But that then changed.  The administrative law remedy would be, in our submission, an unsatisfactory one because there would be nothing wrong with the original decision.  There could be no complaint about that.  The real complaint would be that it was not later revoked when circumstances had changed. 

In our respectful submission, that is the drawback or the vice in the extension to Wotton, for which our learned friends contend, whereas if one sticks to the way it was formulated those sorts of difficulties are thereby avoided. So that is, to put it another way, you may have situations where, if we take both 56 and 67, they were wide enough to permissibly allow the making of a direction that was not offensive or obnoxious to section 92. But circumstances changed and it did become obnoxious. This extension to Wotton would lead the challenge to that impaired. 

If I can then ask your Honours to please take up Justice Gummow’s reasons in APLA to indicate that there is some support for the approach that we take.  Your Honours will find that in volume 3, tab 18, page 583 of the book.  Can I ask your Honours, please, to go to paragraph 102 of his Honour’s reasons? 

As your Honours might recollect, APLA is one of a line of cases that involve a section 92 challenge against subordinate legislation. The other members of the Court did not in fact consider the matter even requiring consideration. Justice Gummow, though, does address this question between paragraphs 102 and 106. He refers to cases like Levy where this had happened really without much discussion. 

If your Honours would notice the passage that he quotes from O’Sullivan at paragraph 104, and for the reasons we developed yesterday, in our submission that is apt to describe the basis on which this case is put before your Honours. 

EDELMAN J:   The quote from O’Sullivan at paragraph 104, to put it in the way that you had expressed it earlier is really to say one asks the question in the third category without asking the question in the second category.  One looks directly to the particular application of the law rather than trying to imagine every possible circumstance to which the law might apply and then say well the law in the second category is valid in all of those circumstances, therefore, one does not need to descend to the particular circumstance.

MR DUNNING: Yes, in effect, for the reasons your Honour identified earlier, that is, at any moment in time you cannot be confident that you can foresee the whole constellation of circumstances in which the Act might apply. Then, your Honours, we would also submit that that approach is consistent with section 106 of the Constitution and covering clause 5 in ensuring that section 92 does apply to State laws and then to close out that submission that would take us to what our learned friends say at paragraph 24 – that is our learned friends from Victoria say at paragraph 24 of their submissions, which is precisely the basis on which the case has been agitated. Your Honours, unless we can assist you with anything further, they were our submissions in reply.

KIEFEL CJ:   I take it from you have said or have not said that Mr Hanks was boxing at shadows when he thought there was a lurking hypothetical?

MR DUNNING:   Yes, I would not seek to characterise our submissions as a lurking hypothetical.

KIEFEL CJ:   Thank you, Mr Dunning.

MR DUNNING:   Thank you, your Honour.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders.

AT 3.20 PM THE MATTER WAS ADJOURNED