Palmer & Anor v The State of Western Australia & Anor

[2020] HCATrans 178

[2020] HCATrans 178

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 TUESDAY, 3 NOVEMBER 2020, AT 10.04 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   In accordance with the current practice, I will announce the appearances.

For the plaintiffs, MR P.J. DUNNING, QC together with MR R. SCHEELINGS and MR P.J. WARD appear.  (instructed by Jonathan Shaw)

For the defendants, the Solicitor‑General for the State of Western Australia, MR J.A. THOMSON, SC together with MR J.D. BERSON appears.  (instructed by the State Solicitor’s Office (WA))

For the interveners, the Attorney‑General for the Australian Capital Territory, the Solicitor‑General for the Australian Capital Territory, MR P.J.F. GARRISSON, SC together with MS H. YOUNAN, SC and MS A.M. HAMMOND appear.  (instructed by the ACT Government Solicitor)

For the Attorney‑General for the State of Tasmania, appearing remotely, the Solicitor‑General for the State of Tasmania, MR. M.E. O’FARRELL, SC together with MS S.K. KAY appears.  (instructed by the Solicitor‑General of Tasmania)

For the Attorney‑General of the State of Queensland, appearing remotely, the Solicitor‑General of the State of Queensland, MR G.A. THOMPSON, QC together with MS F.J. NAGORCKA and MR K.J.E. BLORE appear.  (instructed by Crown Law (Qld))

For the Attorney‑General for the State of South Australia, the Solicitor‑General for the State of South Australia, MR M.J. WAIT, SC together with MS F.J. McDONALD appears.  (instructed by the Crown Solicitor’s Office (SA))

For the Attorney‑General for the State of Victoria, appearing remotely, MR P.J. HANKS, QC together with MS P.P. THIAGARAJAN and MR T.M. WOOD appear.  (instructed by the Victorian Government Solicitor’s Office)

For the Attorney‑General for the Northern Territory, who are on line but not making submissions, I understand, MR T.J. MOSES together with MR L.S. PEATTIE appear.  (instructed by the Solicitor for the Northern Territory)

MR DUNNING:   Thank you, your Honours.  As your Honours will have seen in the written submissions exchanged between the parties the issue of what has come to be colloquially called “the Western Australian hard ‑ ‑ ‑

KIEFEL CJ:   You might need to speak up a little, Mr Dunning.

MR DUNNING:   My apologies, Chief Justice.

KIEFEL CJ:   You have just forgotten how big this courtroom is.  It has been a little while.

MR DUNNING:   Indeed.  The question of the validity of what have come to be called “the Western Australian hard‑border closures” falls to be determined against, in effect, three tests that are, between the parties, identified.  The first is, as we would primarily submit, an application of this Court’s holding in Gratwick in respect of what - in due course we will take your Honours to - we submit are directions that were materially identical to those considered by this Court in Gratwick.

If we are correct in that contention – because ultimately, when I take your Honours to the facts, you will see that the restriction of persons from Tasmania, South Australia, the Northern Territory and the Australian Capital Territory was not in aid of the prevention of the introduction of COVID into Western Australia any greater than the risk Western Australia was already making.  So, it was a complete prohibition against something that did not have a sound regulatory basis – so it was not regulating in that sense. 

Secondly, if ultimately one comes to a test of was this reasonable regulation, and the test is one of reasonable necessity, for the reasons we will identify it was neither necessary nor reasonable in the circumstances.  The third test is that propounded by Western Australia and a number of the interveners, and that is that in lieu of the test that was identified in Gratwick, and that that was stated as recently as APLA, that instead a test adapted from the implied freedom of political communication should be created in respect to section 92, both regarding its trade and commerce limb and its intercourse limb.  Indeed, some interveners – and, as we understand, Western Australia – go as far as to say that the structured proportionality tool, which is a feature of the implied freedom of political communication should in fact become part of the test in relation to the constitutional guarantee in section 92.

Ultimately, your Honours, against any of those three bases, in our respectful submission, on the facts the prohibition fails.

GAGELER J:   Are we concerned with the trade and commerce limb at all, on your argument?

MR DUNNING:   Your Honours, the trade and commerce limb is raised in our pleading, but beyond what we said in our written submissions we were not proposing to develop it any further orally and it would be right that if we succeed on the intercourse limb, which is the main argument joined between the parties, there will be no occasion to consider the trade and commerce limb.

GAGELER J:   If you fail on the intercourse limb?

MR DUNNING:   If we fail on the intercourse limb, then we do rely upon what we have said in relation to trade and commerce.

KIEFEL CJ:   But you are not going to develop that any further?

MR DUNNING:   I am happy to develop any questions your Honours had for us, but beyond what we have said in writing we are not proposing to develop it orally. 

KIEFEL CJ:   Another point of clarification, the plaintiffs’ claim to invalidity is directed to the directions which are, of course, made under the Emergency Management Act.  As I understand the plaintiffs’ case, it is not contended that the Emergency Management Act itself, the authorising Act, is invalid, but rather only the directions made under it.  Is that correct?

MR DUNNING:   That is correct, Chief Justice. 

KIEFEL CJ:   It is raised against you that therefore there might not be a constitutional question because section 92, of course, operates on the statute, not what is made under the statute, the latter usually raising a question of whether or not it is properly authorised within what is otherwise a valid Act.  Now, you do not contend that the Emergency Management Act is invalid for contravention of section 92.  As I understand your answer to the issue raised by the intervener Victoria is that the directions take the character of legislation.  Is that how you put it?

MR DUNNING:   Yes, and in a sense in the way that the Court dealt with the directions as they were in Gratwick. 

KIEFEL CJ:   But it remains the case, does it not, that the directions are still made under and are only authorised by the statute. 

MR DUNNING:   That is correct, yes. 

KIEFEL CJ:   But you say that section 92 operates on the directions, directly?

MR DUNNING:   Yes, we do, your Honour.

EDELMAN J:   Mr Dunning, in Gratwick, if the direction that the subsidiary orders had been invalid, the legislation, the national security legislation, would have been invalid to that extent.  The invalidity in Gratwick was an invalidity of the application of the legislation, and therefore an invalidity of the legislation to that extent.

MR DUNNING:   Yes.

KIEFEL CJ:   The issue raised by Victoria – you might want to come back to the question raised by Justice Edelman – the issue raised by Victoria has regard to what was said by this Court in Wotton v State of Queensland, as its submissions suggest.  Perhaps you might want to return to this issue because it is not really dealt with clearly in your reply except for the point that you make about the directions having the character of legislation, I think, Mr Dunning.

MR DUNNING:   Very good, your Honour, yes.  I would be grateful if I might return to that later in my address.

KIEFEL CJ:   The Court will, of course, be taking its morning break at 11.30, so at some convenient point I think it is a matter which you will need to address.

MR DUNNING:   Thank you, Chief Justice.  Your Honours, can I start please then with the terms of the directions themselves and may I ask your Honours please to take up the supplementary court book, and go to page 122, where your Honours will see what is agreed between the parties is a composite version of the directions in question.

GORDON J:   Mr Dunning, may I ask a question?  Is it the position that we are only to address this set of directions and no other?

MR DUNNING:   Yes, Justice Gordon, on the basis that we contend that the time for determination of validity is the date of the hearing.

GORDON J:   Thank you.

MR DUNNING:   Thank you.  Your Honours, critically, at about line 30 on page 122 your Honours will see a heading “Directions” and then “Closure of the border” and then in direction 4:

A person must not enter Western Australia unless the person is an exempt traveller.

Then direction 5 creates some regulation around those exempt travellers and then direction 6 requires a person who has arrived in Western Australia, other than under the authority of directions 4 and 5, to leave.

Your Honours, the definition of “exempt traveller” is at direction 27.  It starts on page 128 at about line 40 on that page.  Then over the ensuing pages are a number of persons who fit into the category of “exempt traveller”.  Then, finally, can I take your Honours, please, to page 135, subcategory (r), which is:

any person or category of person . . . as the State Emergency Coordinator . . . approves and who complies with any terms or conditions . . . whether on any other compassionate grounds or on any other ground whatsoever.

Three illustrations are given under that category.  As the note provides, it was to provide an alternate means for some persons to get in, but when one looks at the examples the occasions for that are remote.

So, if we take the first example of a person who is out of Western Australia and whose business is facing financial ruin, they might be given permission under that and, again, if we go to example 3 at line 30, a person who found themselves in need of return to Western Australia - because they had no means of support outside Western Australia - to live with family might be granted an exemption.

I take your Honours to that to demonstrate that the directions in question do undoubtedly operate so that they exclude the bulk of persons who might want to come to Western Australia and in respect of those persons whether they might be permitted remains entirely at the discretion of the Executive.  So it is, on any view of it, a direct prohibition upon the entry into Western Australia. 

KEANE J:   Mr Dunning, do you accept that that is entering Western Australia from anywhere – not just from other States but from anywhere?

MR DUNNING:   Yes.  Sorry, Justice Keane, I pause to note.  There are international arrivals – hotel quarantine – in Western Australia.  So, there are ‑ ‑ ‑

KEANE J:   Yes.

MR DUNNING:   ‑ ‑ ‑ persons in the exempt category, but yes.

KEANE J:   But the prohibition on entry is not limited to people from other States.  It may go to the question of the character of the prohibition.

MR DUNNING:   Yes.  I understand your Honour’s point.  Can I reflect on that and come back to you in relation to it in due course?  Thank you.

GORDON J:   Mr Dunning, before you leave those directions, do we not have to take into account what appears above the heading “Directions”?  In other words, we cannot just start at point 6 on page 122, can we?  We have to understand what is set out above the word “Preamble” and what follows after the word “Preamble”.

MR DUNNING:   Yes, Justice Gordon, we accept that and as I am about to go and deal with the findings of Justice Rangiah I hope that will demonstrate that when one looks at these directions objectively, whilst one can see how they might be characterised as meeting a purpose of preventing the spread of COVID‑19 from places such as New South Wales and Victoria where there are higher rates of transmission, the same cannot be said for those States where there is no community transmission.

GORDON J:   So, you do not challenge, as I understand it, the declaration of the state of emergency under section 56 and the preconditions to the declaration of that state of emergency, which continues?  

MR DUNNING:   Justice Gordon, can I return to that question after morning tea just to make sure ‑ ‑ ‑

GORDON J:   Certainly.

MR DUNNING:   Thank you.  Your Honours, can I then move, please, to the factual findings that were made by Justice Rangiah on the remitted questions and your Honours will find his Honour’s reasons starting in court book 1 on page 127 of that book.  I am presently at item 4 of our oral outline. Can I first of all ask your Honours, please, to go to page 159 of the book and at paragraph 123 of his Honour’s reasons, his Honour records the advice given by Dr Robertson, who is the Chief Health Officer of Western Australia, that the closing of Western Australian borders, the advice he gave on 29 March 2020:

would have an impact on slowing the spread of COVID‑19, but it would not reduce the risk significantly further than that achieved by measures already in place, such as isolation -

and the other matters he mentions.  Now, if I can take your Honours ‑ ‑ ‑ 

KIEFEL CJ:   Could I just interrupt you there, Mr Dunning.  The risk to which his Honour refers, do I take it that that is the risk identified in your outline, namely the risk of reintroduction of COVID into Western Australia?  That appears in paragraph 5 of your outline.  You say that the directions were not responsible for the original elimination of the COVID‑19 virus, but the risks of reintroduction were measured against – and I think that is consistent with the way his Honour approached it.  His Honour was addressing the measures according to the risk of reintroduction into Western Australia.

MR DUNNING:   That is correct.

KIEFEL CJ:   Reintroduction of the virus from States where there was community transmission, or reintroduction altogether? 

MR DUNNING:   Reintroduction altogether, yes.  But his Honour comes then to deal with, globally, reintroduction, if one just viewed the matter Australia wide and then ‑ ‑ ‑

KIEFEL CJ:   There is no challenge to the identification of the risk by his Honour and I take it that it was argued in that way before his Honour. 

MR DUNNING:   Yes, your Honour.  Can I then take your Honours, please, to paragraph 152 of his Honour’s reasons on page 167 and your Honours will see there that Justice Rangiah accepted Professor Collignon’s evidence that the “border restrictions commencing on 5 April 2020” had had a “fairly small” contribution to the spread of COVID-19 compared to the other measures, and that that was consistent with the advice of the Chief Health Officer. 

If I can take your Honours, please, to paragraph 352 of the reasons, that led his Honour to give the answer that he does to issue 1.  Can I just note, for your Honours’ attention, that reference to the paragraph number in parentheses should be 152, not 52.  Then, finally, can I ask your Honours to go to paragraph 365 of his Honour’s reasons, which commence on page 212, and if I could ask your Honours, please, to go to subparagraph (c).  His Honour here was dealing with matters of the amended defence as to whether they were proved or not.  And can I invite your Honours, please, to read the dot point that appears under the allegation that is set out in (c).

GAGELER J:   What paragraph?

MR DUNNING:   Sorry, your Honour, 365, on page 212, subparagraph (c), Justice Gageler.  Now, the approach that his Honour took was – as he took from the evidence – what was known as the precautionary principle in terms of dealing with a matter such as COVID‑19.  Can I ask your Honours, please, to go to page 149 of the book and paragraph 73 and, at the beginning of that paragraph, his Honour recites the evidence given by the Chief Health Officer regarding the precautionary principle and its application.  And then, ultimately, at line 30 he quotes from an article by Associate Professor Lokuge, who also gave evidence as to what that principle stands for, which his Honour records at paragraph 79 on the next page, about halfway down:

This means, from a purely public health perspective, all reasonable and effective measures to mitigate that risk should ideally be put in place.

Then, if I may ask your Honours, please, to go to paragraph 296 of his Honour’s reasons on page 197.  His Honour recorded the agreement of the experts of Western Australia had a strong surveillance and testing system.  At 297, as to:

whether a single person transmits the disease, and the extent of any outbreak, is –

as his Honour described:

very much a matter of chance.

That led his Honour, according to that principle at 298, to say, that:

In view of the highly infectious nature of the disease –

he assessed as:

high probability that they would transmit the disease into the Western Australian population.

But that does not necessarily lead to an outbreak, as his Honour records, for the reasons he gives in paragraph 299, which in due course led his Honour at paragraph 300 on the next page to arrive at “a moderate risk of an uncontrolled outbreak” in Western Australia.  And, at 302, to round up that discussion as to why, in light of the matters just canvassed, the precautionary principle was appropriate.

Now, according to that, your Honours will already have seen that, his Honour used some qualitative assessments of that risk, which his Honour was persuaded was the appropriate way to deal with that matter.  And if I can ask your Honours, please, to go to page 190 ‑ ‑ ‑

KIEFEL CJ:   Mr Dunning, do his Honour’s findings in relation to a risk of an uncontrolled outbreak which his Honour is assessing, does that raise the question of whether or not the measures are to be assessed against that risk, or the risk of reintroduction which we discussed earlier?

MR DUNNING:   In the end, his Honour did it against an algorithm that arrived at effectively a decision tree that took those qualitative risks, and then left you with an ultimate answer in terms of a qualitative risk factor.

KIEFEL CJ:   That is how one assesses the likelihood of the risk.  But as to the identification of the nature of the risk itself, is it his Honour’s finding, do you say, that it is the risk of an uncontrolled outbreak which is being assessed, which is to be assessed in relation to the directions or is it the risk of reintroduction of the virus, as we earlier discussed?  They are quite different things.

MR DUNNING:   They are quite different things, but they are components in an overall assessment of risk that his Honour arrives at.

KIEFEL CJ:   No, the assessment is of probabilities of the risk occurring.  The question is, what is the relevant risk?

MR DUNNING:   Well, the relevant risk is ultimately the uncontrolled introduction of – sorry, an uncontrolled outbreak of COVID in Western Australia.

KIEFEL CJ:   So it is the reintroduction of the virus into Western Australia resulting in an uncontrolled outbreak?

MR DUNNING:   Yes.

GORDON J:   Mr Dunning, is that why – if you, for example, go to paragraph 315, his Honour assesses the border restrictions against the effectiveness of screening and PCR testing, and recognises that the border restrictions are much more effective, because he is looking at the reduction of the probability of it being imported in WA.

MR DUNNING:   Yes, he is.  But in respect of all of them, he arrives at an overall risk assessment, of the competing alternatives, from the current border arrangements through to a complete lifting of them.

GORDON J:   Yes, but in answer to the Chief Justice’s question, in assessing the reduction or the probability of COVID being re‑imported into the State.

MR DUNNING:   Yes, his Honour concluded that they were less effective, that is correct.

GAGELER J:   Mr Dunning, you are probably coming to explain the terminology, but is his Honour using the word “risk” to mean something different from “probability”?

MR DUNNING:   No, he is not, other than it is probability measured by qualitative markers, rather than quantitative markers.  That was argued before his Honour, and his Honour, whilst he took account of the qualitative evidence, was in the end persuaded that the questions were best answered by qualitative assessments.

GAGELER J:   But it does not include any qualitative assessment of the degree of harm if the probability were to occur?  These words are used in different ways, in different forms of risk assessment.  I just wanted to understand how you say his Honour is using this terminology.

MR DUNNING:   I was actually about to take you to that.

GAGELER J:   Thank you.

MR DUNNING:   Can I ask your Honours, please, to go to page 190, paragraph 253.  His Honour there records that he accepted the algorithm used by Associate Professor Lokuge as a useful tool in the decision‑making context, though he recognised it was a tool and could not dictate the outcome.  Then at paragraph 254, his Honour says:

I will give my qualitative assessments of the probability of importation from elsewhere in Australia.  I will apply the following scale of values ‑

Then your Honours can see those scales that are set out there.  To understand how they are then applied, can I deal with what was referred to as “elimination”.  If I can take your Honours, please, to paragraph 113 of the reasons on page 157.  Your Honours will see that his Honour accepted what was the agreement amongst all the experts that:

two incubation periods (28 days) –

of no community transmission:

the disease can be described as “eliminated” –

in that community, and again his Honour accepted, as the experts had all agreed that where there was no community transmission reported for 28 days:

that is “as low risk a situation as can reasonably be hoped for”.

Then if I can ask your Honours, please, to go to paragraph 117.  His Honour recorded that the probability of there being any community transmission in Western Australia was presently negligible against that standard and then, importantly, as we come to look at the conclusions his Honour arrived at:

The experts specifically agree in their joint report that border restrictions are important to ensure higher transmission risk populations do not spread COVID‑19 to lower transmission risk populations.  Therefore, the border restrictions aim to guard the Western Australian population against an ongoing risk.

So, the raison d’etre of any border restriction is that it is to isolate from a lower risk community the arrival of persons from a higher risk community.  Then may I take your Honours, please, to paragraph 247 at page 188 and your Honours will see there that his Honour recorded that there was agreement among the experts that:

the probability of an infectious person travelling to Western Australia differs between the States and Territories.

There was also agreement that:

there is a very low or negligible probability of infectious persons travelling from States or Territories where there have been no cases of community transmission with an unknown source for 28 days.

His Honour deals at the foot of that paragraph with the question of border hopping, which I will come to in a moment, but subject to that issue, Western Australia had a very low or negligible risk because of 28 days of no community transmission.  In the other States or Territories, or for that matter, any other community, but relevant to our present inquiry, any other States or Territories that also had 28 days of no community transmission were also in a like position to Western Australia. 

As to how those matters were then – those…..were then applied, I will come to deal with each of the assessments in detail but can I – to understand and give them some context, can I ask your Honours, please, to go to paragraph 263 which your Honours will see on page 192.  Now, at the middle of 190, his Honour starts his discussion of Australia overall and Victoria and because of the different situation in Victoria to the other States and Territories in the country, ultimately Victoria became a proxy for the risk Australia‑wide because Victoria had the highest risk.  His Honour considers the risks in Victoria, and then at 262 at the top of page 192, says:

In view of the current numbers of active cases, including from unidentified sources in Victoria I find that there would be a high probability of infectious persons travelling to and entering Western Australia from Victoria if the border restrictions were removed. 

Then, at paragraph 263:

I accept the opinions of the experts that, on public health grounds, the Western Australian border restrictions should not be removed in respect of Victoria at the present time.

His Honour says the same of New South Wales which your Honours will see at paragraph 269 and at 268 your Honours will see that his Honour had arrived at a conclusion of “moderate” in respect of New South Wales regarding the level of community transmission in that State.  But, at 269 at the end of that paragraph:

I accept their opinions -

That is the experts - these were Associate Professor Lokuge and Professor Blakely - that New South Wales was in the category of case where consistent with the precautionary principle the borders should not be opened. 

Then, if I can deal with Queensland, which your Honours will see starts at paragraph 286 on page 195, and if we go over to paragraph 291 on page 196, at the time there had been recently some arrivals in Queensland of persons with COVID, so it was, as it were, in the insipient stages of whether there would be any outbreak.  Now, the position, his Honour states at the time he delivers his judgment, has now changed.  It is common ground between the parties that Queensland is in the same category as the other States in this regard but what his Honour says in 291 is because it was unknown at the time in Queensland, your Honours see that in the second line:

too uncertain to allow an assessment to be made -

his Honour accepted the views of Associate Professor Lokuge and Professor Blakely that the Western Australian borders should remain closed until that situation was resolved. 

Your Honours, that is in contradistinction to how his Honour dealt with his assessment of the other jurisdictions.  If we can start with Tasmania – which starts at paragraph 270 on page 193 – his Honour, in the third line, records that COVID…..Tasmania as the best that could reasonably be hoped for.  That led his Honour to conclude at 271 that community transmission – the risk of – was “very low or negligible”.  So as low as you could hope for and comparable with Western Australia.  That led his Honour at 274 to conclude that there was:

a very low probability of a person infected with COVID‑19 entering Western Australia from Tasmania if the border restrictions were removed.

Your Honours will notice that his Honour does not in his assessment of Tasmania make the conclusion that his Honour had made in respect of Victoria, New South Wales and Queensland that against the precautionary principle he had applied the border should remain closed.  

Your Honours, if I may then move, please, to South Australia?  South Australia also had no community transmission for 28 days.  So, at 275, it is rated as “very low”.  At 276, his Honour essays what as he saw as some distinctions regarding COVID controls in Tasmania – by comparison between South Australia and Tasmania – and that led his Honour to conclude:

that the probability of a person infected with COVID‑19 entering Western Australia from South Australia . . . is low.

Again, his Honour does not make a recommendation that the borders be closed as he did.  To pre‑empt where I am going to take your Honours to in a moment, part of the reason for that is, even though there had been no community transmission in Western Australia for the two months and, therefore, it was very low or negligible, by reason of the exemptions of hotel quarantine, Western Australia was, in fact, accepting a low risk.  I will come to deal with that in a moment.  But his Honour does not make the findings that he had made in respect of New South Wales, Victoria and Queensland. 

If we go the Australian Capital Territory, it is the same.  In 279, a very low assessment was of no community transmission.  At 281, “a low probability” of entry into Western Australia and, again, no finding that the borders should remain open.  The same, your Honours, in relation to the Northern Territory.  Your Honours will see that at, relevantly, 282 and 285.

So, his Honour having now assessed that the risk of – I will now, for present purposes, not concern myself with Victoria and New South Wales because the relevant comparator is why people from places like Tasmania are being excluded under the direction.  His Honour then looks at what were the other risks of the introduction of COVID into Western Australia. 

If I can take your Honours, please, to paragraph 305 of his Honour’s reasons, starting on the foot of page 198, and your Honours will see about the middle of the page – it is under a heading “The probability of persons infected with COVID‑19 entering Western Australia under the present border restrictions”.  This is really a reference to those persons exempt or permitted to enter as exempt travellers.  Your Honours will see at the top of page 199:

Taking into account the current number of entrants and the quarantine requirements that exist for a number of categories of entrants, I assess the probability of importation under the existing border restrictions as low.

So that would be comparable with each of South Australia, the Northern Territory, the Australian Capital Territory and now Queensland, and in fact higher than the risk from Tasmania.  Your Honours, his Honour also considered the risk in relation to hotel quarantine, and your Honours see that at paragraph 307.  Again, his Honour concluded that the risk of the reintroduction by hotel quarantine was low.

His Honour also considered whether hotel quarantine was an option, but effectively rejects that.  Your Honours will see that at paragraphs 325 and 326 on page 202, in essence, because that was not a viable alternative in the sense that it would put too much strain on the hotel quarantine requirements in Western Australia.

GORDON J:   Does that give rise to the conclusion at 329 as well?

MR DUNNING:   It does, Justice Gordon, yes.

KIEFEL CJ:   Mr Dunning, matters have moved on somewhat since – facts have changed since his Honour’s findings.  What approach do you say this Court should take to the findings?  Do we just deal with the declarations in relation to the circumstances pertaining to each of the States and Territories as his Honour found them to be, or what do we do?

MR DUNNING:   Chief Justice, in our submission, the answer to your Honour’s question is yes, it was as his Honour found them to be, subject to any relevant changes.  The only relevant change in that regard is that Queensland would now be in the low rather than the uncertain category.  Victoria might have changed, but we do not contend that either Victoria ‑ ‑ ‑

KIEFEL CJ:   But it has not had the 28‑day period to produce what we can extrapolate from his Honour’s findings?

MR DUNNING:   Exactly.  Sorry, I did not mean to talk over your Honour then.

KIEFEL CJ:   Yes, that is all right.

MR DUNNING:   That is right.  So even though there has been improvement in those jurisdictions, his Honour’s reasons make it clear that a risk assessment of moderate or above – or uncertain, under the precautionary principle – meant that the border should, in his opinion, remain closed and low or better did not have such a requirement.  So the only actual change, if that is the, as it were, binary measure, which ultimately it becomes, is the fact that Queensland is now in the category of the other States that ‑ ‑ ‑

KIEFEL CJ:   You are not suggesting that we should start dividing up say New South Wales into regional or metropolitan areas and try a new thing - your case does not depend upon those finer distinctions?

MR DUNNING:   No, it is not necessary for our case.  We would not obviously foreclose that another case might not raise those issues, but for so long as we can point to a number of other States and Territories with like or lower risks than Western Australia is presently taking it is unnecessary to embark upon that inquiry. 

GAGELER J:   Is there a summary somewhere of all of this? 

MR DUNNING:   Yes.  There is a summary of it, Justice Gageler.  It starts on page 207 at paragraph 351 where his Honour sets out the agreed statement of issues.  The reasons I have troubled to take your Honours to it is they refer you back effectively to the paragraphs I have been taking your Honours to - that summary.  His Honour then also has a final summary on paragraph 366, page 214. 

KIEFEL CJ:   I am not sure – your outline at paragraph 7, what you are actually saying there, Mr Dunning:

With the border measures removed but alternative measures in place –

the risk is low.  Is it essentially your case, the plaintiff’s case, that if the risk assessment of reintroduction of the disease into the State is low, that is sufficient? 

MR DUNNING:   Yes, because that was the assessment Justice Rangiah made applying the cautionary principle.

KIEFEL CJ:   But did his Honour say that if it was low that anything followed from that or -his Honour’s finding was that – did his Honour extrapolate from there being a low finding to saying ‑ ‑ ‑

MR DUNNING:   Yes, his Honour did. 

KIEFEL CJ:   That the measures, the alternative measures to hard border restrictions were sufficient.  Did his Honour go that far?

MR DUNNING:   Can I ask your Honours, please, to go to paragraph 365 on page 212 and - I have taken your Honours to that once before; that is where his Honour deals with a series of allegations in the defence.  If I can ask your Honours to go to page 214, which is subparagraph (i) - at the top of the page.  You will see there it had been alleged that:

The easing or relaxation of the Community Isolation Measures contained in the Directions that apply to persons travelling from interstate can only occur without an increased risk of morbidity and mortality within the Western Australian community or population while there is no community transmission within other Australian States and Territories. 

Then his Honour says:

I do not accept that this allegation has been proven.  The experts conclude that the risk is higher from some States and Territories than others, and that the disease can be considered to be “eliminated” when there has been no community transmission from an unknown source for 28 days.  It may therefore be possible to ease the border restrictions with some States and Territories without a significantly increased risk of morbidity and mortality in the Western Australian population while there is ongoing community transmission within other States and Territories. 

GAGELER J:   If we look back at the scale of values at paragraph 254, is it the case that the risk of community transmission within Western Australia, as things now stand, is negligible?

MR DUNNING:   No.  It is low, Justice Gageler because of the arrival of exempt travellers and the hotel quarantine. 

GAGELER J:   I see, and the finding for that?

MR DUNNING:   Your Honours, they are the findings at 305 and 307.

GAGELER J:   Thank you.

KIEFEL CJ:   Mr Dunning, at paragraph 364, the primary judge finds that the particulars of paragraphs 47(d)(iii) to (v) of the second amended defence have been proven and if one goes to those paragraphs they seem to allege that there are no equally effective means available to achieve the purpose of the directions.  How does one read his Honour’s finding that what is there alleged is made out?

MR DUNNING:   As I understand his Honour’s findings…..that there was an efficacy to the hard-border restrictions.  That efficacy only arrived at a risk of the reintroduction into Western Australia as low and that ultimately his Honour considered that to be an acceptable risk under the precautionary principle, whereas anything more than that, so moderate or above or uncertain, was an unacceptable risk and that is why he says in terms that he accepted the evidence that the border restrictions should remain in place in respect of those jurisdictions.

KIEFEL CJ:   I am sorry, I do not quite follow that.  If his Honour is accepting what is pleaded, is he not accepting that the directions do not have the practical effects in relation to section 92 of the – I think they are talking mostly about economic protection there, but relevantly is his Honour not accepting that the purpose of the directions is to protect the population where there are no other equally effective means available to achieve that purpose and that it is reasonably appropriate and adapted to that purpose? 

Putting aside the legal ramifications at a factual level, which is the level at which his Honour was concerned, do we not take his Honour to be accepting that there are no other practical means to achieve the purpose of the directions of protecting from the risk of reintroduction that his Honour has been talking about?

MR DUNNING:   Well, in our submission, in light of the passages I have taken your Honours to, his Honour turns his mind specifically to the question of the lifting of the border restrictions and identifies…..

GORDON J:   Mr Dunning, he does that as one exercise but the next exercise is to undertake a comparison between the effectiveness of the measures, is that not what he does?  So, for example, in 315 he compares the border restrictions with other mechanisms and that gives rise to the findings the Chief Justice just took you to.  There are two separate inquiries, are there not?

MR DUNNING:   There are two separate inquiries but there is one ultimate inquiry and that is would it be appropriate to – sorry, are they necessary under the precautionary principle to maintain them and ultimately for the reasons or the passages we have taken your Honours to, his Honour concludes that only in respect of three jurisdictions.  So, it is true that his Honour accepted that there were some things that the border restrictions did that no other measures were a perfect proxy for but his Honour, in his assessment of the evidence before him and the application of the precautionary principle, identified ultimately those areas where the border restrictions should remain in place and inferentially those where it was no longer necessary.

KIEFEL CJ:   In any event, Mr Dunning, if one goes to his Honour’s summary of findings at paragraph 366, his Honour finds that in the I think third dot point that:

The border restrictions have been effective to a very substantial extent to reduce the probability of COVID‑19 being imported ‑

I cannot see that his Honour identifies in summary that there are alternatives which are as effective.  His Honour concludes that:

In view of the uncertainties . . . a precautionary approach should be taken –

Am I misreading it?

MR DUNNING:   No, your Honour is not misreading it but can I make one observation in relation to dot point 3.  In our submission, that is a reference to the risk Australia‑wide and ‑ ‑ ‑

KIEFEL CJ:   I see.

EDELMAN J:   Mr Dunning, is your submission, effectively, that it does not matter how many sources of low risk are introduced, the ultimate conclusion is that Western Australia would still remain low risk?  In other words, if there were twenty other low‑risk possibilities, all of which had been eliminated by the border closure but which were reintroduced, then it would not matter how many additional low‑risk possibilities were introduced, it would still remain at low risk?

MR DUNNING:   Yes, but can I unpack that – yes, if I may please?  There is no doubt that his Honour found that the more people who travel into Western Australia, the greater as against the measure of risk the possibility of the introduction into Western Australia.  Now, his Honour goes on to say, well that does not mean you will have transmission or an uncontrolled outbreak but it does add to the numbers.  But his Honour’s overall assessment against all of the alternatives remained the same – and when convenient I was going to take your Honours to the assessment that his Honour makes when you include the alternative measures that have been promoted by Queensland – sorry, by my side, the plaintiffs, and the Commonwealth.

Now, that, Justice Edelman, in our submission, is a function of using a qualitative measure.  It is not a criticism of using a qualitative measure, but a function of it.  And that is that, if what is considered is a low risk is acceptable and a series of alternatives all produce a low risk, albeit within that descriptor of “low”, some might produce a greater incident of it.

GORDON J:   Mr Dunning, can I just understand that submission, having regard to the last four bullet points on page 216, where, as I read his Honour, he says that in relation to hotel quarantine:

If the current border restrictions were replaced by mandatory hotel quarantining for all entrants to Western Australia for 14 days, Western Australia could not safely manage the number of people in hotel quarantine.

In the next bullet point he deals with the suite of measures, and said:

they would be less effective than the border restrictions –

He then deals with the suite of measures, plus a “hotspot”, and again deals with the less effectiveness of them.  And he finally deals with the uncertainties and concludes that, as a result of that, a “precautionary approach” should be adopted.  Does that not cut across just what you put to us?

MR DUNNING:   In our respectful submission, Justice Gordon, it does not.  Can I deal with those four dot points in turn.  If I deal with the first one – that is a reference, in our submission, to the fact that an alternative of mandatory hotel quarantining would overwhelm the capacity of hotel quarantining in Western Australia so that the ‑ ‑ ‑

KIEFEL CJ:   Well, it follows as a measure it cannot be regarded as effective, but then his Honour goes on to say if one adds the other suite of measures, such as the use of masks and all of the other things, they are less effective.  If you add that to the “hotspot” approach they are also less effective, and concludes:

In view of the uncertainties . . . a precautionary approach should be taken –

Having earlier identified in the summary that if an infected person entered Western Australia, there is a high probability that the disease would be transmitted into the population and at least a moderate probability that there would be uncontrolled outbreaks.

MR DUNNING:   I accept all of that.

KIEFEL CJ:   That is the background to the conclusion, that a precautionary approach should be taken.  But you seem to be saying that this Court should adopt a low risk.  That does not seem to be what his Honour is saying.

MR DUNNING:   Well, Chief Justice, I can respond to that this way.  I accept all of that.  However, the very matters I took your Honours to in the findings, at the outset we do not shrink from any of those.  The critical issue amongst the alternatives that Justice Gordon directed my attention to is, ultimately, what is said at dot point 4 and that is that the precautionary approach should be adopted in terms of decision‑making.  What that admits of, in a case such as this, where under that principle one is using qualitative rather than quantitative measures, is that there may be other measures that are not as effective as the border restrictions but they still produce an overall or a qualitative risk that is an acceptable one under the precautionary principle.

GAGELER J   Does your case go something like this:  that it is up to Western Australia to determine the public health risk that it is prepared to live with?  But having determined an acceptable level of risk, it has to apply that equally to international travellers as to interstate travellers?  Is that it or is there more to it? 

MR DUNNING:   That is part of it, and that would be sufficient.  But, in our submission, if, as against what is determined to be the appropriate measure for whether a person should be allowed into Western Australia in the circumstances of COVID, that using a State border as a basis to refuse somebody from another state that does not present a risk as against the findings here, is not permissible.  So it is not a matter of saying that ‑ ‑ ‑

EDELMAN J:   But that is the point I do not understand.  You say a person from another State that does not present a risk.  Just because the other State might be classified as low risk, in the same way as Western Australia is classified as low risk, does not mean that introducing the other State or the possibility of entry from the other State, means that there is no additional risk that is added?

MR DUNNING:   No, no, I have not sought to make the submission, Justice Edelman, that that is the case.  The submission we make is that, ultimately, his Honour was persuaded that a precautionary principle was appropriate.  The precautionary principle looks to the qualitative risk of the arrivals of persons from interstate.  And his Honour arrived at the conclusion that a low risk was, in our submission, an acceptable risk and anything higher than that was an unacceptable risk.

KIEFEL CJ:   Mr Dunning, could you take us to those parts?  If you are saying that his Honour found that a low risk was acceptable and within the precautionary principle, could you take us to those passages where his Honour says that?

MR DUNNING:   Certainly.  They are the passages I have already taken your Honours to.

KIEFEL CJ:   I did not understand them to actually say that.  Have we got to read into it or add them together or – is there one clear passage where his Honour says this?

MR DUNNING:   No.  The best passages are the ones I have taken your Honours to, which is in summary, but I am happy to obviously return to them.  But, in summary, that when his Honour performed his qualitative assessment against the precautionary principle of all the States and territories, he identified three where he said he accepted that the border restrictions should remain.  In respect of all of the others, he does not make a like finding.

KIEFEL CJ:   I see.  So what you are saying is, where his Honour identifies a low risk, his Honour is saying that the border restrictions are not within the precautionary or go further than the precautionary principle?

MR DUNNING:   That, in our submission ‑ ‑ ‑

KIEFEL CJ:   Is that the inference you seek to be drawn?

MR DUNNING:   Yes.  Respectfully, we would not go so far as to say it is an inference.  His Honour expressly says when he was of the view that the border should remain closed and when one reads that with what his Honour says at 365(i), his Honour rejects a suggestion that whilst there is community transmission anywhere in Australia that the border restrictions might not be removed.

So, when one reads those passages, if it be necessary by implication but, in our submission, it is not so much a matter of implication but just a fair reading of – a reading of his Honour’s reasons.  That is, he identified those jurisdictions where he says, under the precautionary principle, the borders should remain.  He rejects an argument that if there is any community transmission there might not be a reopening of the borders at all.  When he goes to deal with each of those other jurisdictions that are low or better, his Honour does not make the same positive findings he makes in respect of ‑ ‑ ‑

KIEFEL CJ:   Is that because – if I am looking at paragraph 263 in relation to Victoria, his Honour simply accepts – I think it was undisputed amongst the experts that the:

border restrictions should not be removed in respect of Victoria –

His Honour simply accepts that.  It is not a qualitative assessment he makes himself.  Where is the other border – the other aspect – I do not think there is another State, maybe New South Wales, where he says it should remain.

MR DUNNING:   That is correct, your Honour.  New South Wales, at paragraph 269, at the top of the page – in that case there was not ‑ ‑ ‑

KIEFEL CJ:   Sorry, paragraph?

MR DUNNING:   Paragraph 269, Chief Justice, at the top of page 193.

KIEFEL CJ:   Thank you.

MR DUNNING:   In that case ‑ ‑ ‑

KIEFEL CJ:   Again, it is accepting the experts’ opinions. 

MR DUNNING:   The point I was about to make was, there was not unanimity of the experts there.  He accepts the opinion of two experts. 

KIEFEL CJ:   But still, he is just accepting – I take your point that here it is not unanimous but he is accepting expert opinion.  He is not undertaking an analysis himself.  I am just trying to work out what we take from his Honour’s findings with respect to the other States and territories about the probabilities of the risk being low.  

MR DUNNING:   In our submission, what your Honour should take from it is that his Honour did not conclude – as he had in respect of Victoria, New South Wales and Queensland – that the border restrictions should not be removed.

KIEFEL CJ:   It is a little bit difficult, is it not, because as Justice Gordon said, you are focusing on one aspect of his Honour’s reasoning and his Honour is at these points, with respect to each of the States and territories, reasoning about the probability of the risk of reintroduction occurring and he finds that with respect to the States you have identified that it is low.  But in the next topic that his Honour addresses is the probability that an infectious person who enters Western Australia would transmit the disease and the probability of it causing an uncontrolled outbreak and it is here, at paragraph 302, that his Honour concludes:

[I] am satisfied that, because the extent of the risk cannot confidently be assessed and the consequences of an uncontrolled outbreak are potentially serious, from a public health perspective, the application of the precautionary principle is required.

That is where the precautionary principle is invoked because of the seriousness of the consequences.  I am not sure – I just do not understand how we read this with his Honour’s assessment of the probabilities of reintroduction being low when his Honour is really going on and saying one case might do it.  What are we supposed to make of this, Mr Dunning?

MR DUNNING:   Chief Justice, can I backtrack slightly to answer a couple of matters, I hope briefly.  The first is, in relation to Victoria, it is true that was the unanimous view of the experts, but the language his Honour employed made it clear that he made a positive finding on the strength of that.  So, it was not a concession of the parties; it was a finding made by his Honour.

KIEFEL CJ:   So, it was self‑evidently clear.  His Honour could not rationally make a finding to the contrary of all of the experts.

MR DUNNING:   But Queensland and New South Wales did not fit into that category.

KIEFEL CJ:   No.

MR DUNNING:   The second matter, your Honours, that might bear upon this is, can I take your Honours to paragraph 24 on page 136.  I ask your Honours to read that.  His Honour was cautious not to ‑ ‑ ‑

KIEFEL CJ:   Not to decide the matters which this Court has to decide.

MR DUNNING:   Correct, and identified the fact that there was no necessary bright line to where that comes.  Now, that has a particular prescience when one goes to, for example, 365(i) and where his Honour uses the word “may” and at about halfway down the dot point:

It may therefore be possible to ease the border restrictions with some States ‑

In our submission, his Honour’s use of the expression “may” is there appropriate caution, that he did not trespass into what was ultimately a decision for this Court.  What is important in it ‑ and in addressing in a global sense the assessment of the risk of arrival and, Justice Edelman, taking into account the point you have made to me and which we accept ‑ even at a low level the more people who arrive the greater the occasion for a low risk to come to pass.  His Honour addressed that in considerable detail in his judgment.  He says, we are going to apply the precautionary principle, and he then ultimately comes to the conclusion that it may be possible to ease the border restrictions.

Now, in the context of what his Honour says at 24 and what he had said elsewhere, that is only consistent with the fact that the border restrictions are capable of being lifted consistently with the precautionary principle.  His Honour could not possibly be saying something different to that and, in our submission, the reason the language is chosen ‑ perhaps some of the difficulty that this exchange is demonstrating is this – his Honour was left with the task to make findings of fact that were themselves difficult because, as he concluded, they had to be dealt with in a qualitative fashion. 

His Honour was careful not to trespass on the ultimate questions that were to be resolved for this Court, which left his Honour to ‑ having accepted that the cautionary principle was correct, and having therefore accepted that qualitative assessments were the assessment to make ‑ recognise that hard border restrictions might do something that no other alternative would exactly do, but nonetheless to conclude that the risks associated with their removal were, in accordance with the precautionary principle, acceptable risks.  And that sees its clearest expression in his Honour’s choice of language in relation to stipulating where he thought the border restrictions should not be removed, and what his Honour says in 365(i).  There was one other illustration that I wanted to give ‑ ‑ ‑ 

EDELMAN J:  Just so that I can understand your submission, Mr Dunning, it is effectively, as I understand it, three propositions.  The first is that you accept that allowing entry to all persons into Western Australia from States which are low risk will introduce some, maybe small, additional risk to Western Australia.  But the second point, you say that the entry of as many people who wish to enter from low risk States, that is the ACT, South Australia and now Queensland, will not change the qualitative character or category in Western Australia from low risk to moderate.  And so the third point is that the compelling or obvious alternative to keeping the border closed to all States is to open the border to those low risk States because there is an acceptable risk to removable of the border in those cases.

MR DUNNING:   That is correct.

EDELMAN J:  Where do we find the second proposition in Justice Rangiah’s reasons?  That is, that the entry of as many people who wish to enter from low risk States – that is opening the border to ACT, South Australia, Tasmania – would not change the qualitative character from low risk to moderate. 

MR DUNNING:   I have taken your Honours to the best of the findings that I can point to in that regard, but there is one other set of findings I want to take where his Honour deals with the alternative measures and arrives at the same risk.  Can I do that first and then, Justice Edelman, I will come back to your question.

Your Honours, those assessments that I took your Honours to and we have been discussing such as that at 269, for New South Wales at the top of page 193, are all predicated upon the border restrictions being removed completely and nothing put in their place, and your Honours will see that from the heading above paragraph 236 on page 186. 

So, we are considering, in a sense, the extreme…..use it in a pejorative way, but the absolutist option of replacing the hard border restriction with no restriction whatsoever.  To adopt your Honour’s language, as many people from, say, South Australia who wanted to come would be permitted to come.

His Honour did consider alternative measures to the border closures, and your Honours see that discussion start at paragraph 308, on page 199.  So here his Honour is now comparing the situation of instead of just removing those persons, putting in place alternative measures.  And his Honour considers those alternative measures that were before him, recognises that, in effect, during the life of the litigation, some of those measures that were urged had in fact been introduced by Western Australia.  And then his Honour comes to his conclusions at paragraph 317 on page 201.  So you see there that:

if the border restrictions were replaced by the combination of exit and entry screening, face masks on planes –

and the like:

I conclude that there would be a high probability of infected persons entering from Victoria –

“Moderate” in relation to New South Wales, “uncertain” in relation to Queensland, but importantly in relation to 320 and 321, the risks continue to remain low or very low.

Now, as has been pointed out and as we accept, his Honour made findings that the removal of the border restrictions were – there was not another alternative that produced the same effect and that principle went to the issue of the number of people who might arrive.  But the matter of immediate relevance is that whichever way one looked at it, in respect of those low or very low risk jurisdictions, the risk does not change, whether you completely reopen the borders or you imposed serious testing regimes or the like.

And that is not because his Honour came to the view that those testing regimes were wholly inefficacious.  What it is is a reflection of the application of the precautionary principle.  Once you get to low or very low, albeit there might be a greater or lesser number of people present in the jurisdiction with the disease, that itself is at a level that is acceptable against that precautionary principle.

GORDON J:   Just so I understand that submission, Mr Dunning, at 315 his Honour concludes that they are less effective when dealing with that bag of measures than border restrictions and then goes on to deal with just those limited measures as you identify at 316 and following, and then what do we do with 329 when he deals with self‑quarantine and hotel quarantine and says that if they replaced current border restrictions there would be a substantially greater risk?

MR DUNNING:   Because that goes to the point, Justice Gordon, that if you overwhelmed the hotel quarantine it would go from providing a low measure of safety to a high measure of safety because, obviously, if hotel quarantining is overwhelmed not only will it not achieve its purpose but you run the risk of persons who are at a higher risk of having the disease either passing it on to others or being in the community.  His Honour had earlier assessed that, if I can put it this way, hotel quarantine per se, my language, produced a low risk.  So, that was the presence of hotel quarantine occupants in Western Australia produced a low risk.

Now, they are for present purposes persons arriving from overseas that obviously have an elevated risk profile because they are coming from outside Australia.  The point his Honour made at 325 and 326 is that an option of putting all interstate arrivals into hotel quarantine, it had a negative impact on the risk because you would overwhelm WA’s hotel quarantine capacity.  It was not, as I understand anybody’s case, that the alternatives here included putting everybody into hotel quarantine.

Now, I think that discussion really arose out of his Honour had to consider what were the risks in Western Australia with the hard‑border closure in place, with the directions in place, and two of those risks ‑ one was the arrival or the reintroduction by an exempt traveller and the other was the reintroduction by a hotel quarantine, and it was the latter point that embarked that discussion.

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

MR DUNNING:   It is, Chief Justice.  I was about to leave the topic.  Can I give your Honours, please, just one final reference ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DUNNING:   ‑ ‑ ‑ and that is paragraph 360 on page 209.  Now, this was referable to the measures that had been suggested as alternative measures which your Honours see set out in heading 5.1, and his Honour does find that they are – sorry, that 5.1 with the exception of the COVIDSafe app were reasonably practicable, and the same for 5.3.  After we return, Justice Edelman, I am concerned I may not have addressed fully your Honour’s second question.  I hope I will do a better job of it after the break.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn.

AT 11.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.46 AM:

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, Chief Justice.  Before I come to the facts, can I just return to ‑ ‑ ‑

KIEFEL CJ:   Could you speak up a little, please, Mr Dunning? 

MR DUNNING:   Yes, sorry.  In relation to Tasmania, the finding is that the risk with no border control is very low or negligible so as low a risk as you can get, and your Honours will see that - the analysis on Tasmania starts at 270 but critically that finding is at 274.  Now, in respect of persons from Tasmania, the exclusion of – sorry, the inclusion of those persons cannot against that qualitative risk factor add to the risk because it is what the science considered eliminated in the jurisdiction, and as low a risk as one could expect. 

So, in relation to Tasmania, there – it would be fair to say that you would be introducing somebody from an elimination jurisdiction and therefore there would be no risk at all.  That also, in our respectful submission, illuminates a point that I do not want to go over again in great detail, but when one reads how his Honour specifically made findings in respect of the moderate and above or uncertain states that they - the borders should not be reopened, together with what is said at 365(i), in our respectful submission, on a reading of the reasons, it reinforces the view that his Honour considered low and negligible to each be risks that did not, from a medical point of view require, or from the cautionary principle point of view, require the closure of the borders. 

GAGELER J:   Are we concerned with Tasmania?

MR DUNNING:   When your Honour says are we concerned with Tasmania?

GAGELER J:   In answering the question?

MR DUNNING:   Yes, we are, in our submission, because there would be no basis to exclude that State.  So that is, even if the findings were that in respect of all other States and Territories the hard‑border closure had a justification, that it did not in respect of Tasmania.  It would be bad or alternatively bad to ‑ ‑ ‑

GAGELER J:   Your clients have standing to challenge that, do they?

MR DUNNING:   My client is not from Tasmania and does not do business in Tasmania.  The standing has been accepted between the parties, but if my client commenced proceedings afresh only in respect of Tasmania, no, he would – he and it would struggle to have standing. 

Your Honours, could I then move from the facts to what we contend is the applicable test in this case.  In that regard can I ask your Honours, please, to take up this Court’s decision in Gratwick.  Your Honours will find that in volume 6, document 36 of the joint book of authorities, the case starting at page 1996. 

Can I ask your Honours, please, to go to page 9, in Chief Justice Latham’s reasons where his Honour sets out the instruments in question.  So your Honours will see at about point 2 on that page, under section 5 of the National Security Act, there was a power to make regulations securing public safety and defence.  Then your Honours will see there was provision for the making of some rules to do that.  Then, if I can take your Honours to the middle of the page:

Regulation 7(1) provides that:  “The Minister shall have power and authority to control, regulate and direct the transport of goods and passengers by rail or road within the Commonwealth.” . . . Regulation 7(3) provides that the Minister shall have power and authority to control all rail and road transport services and to direct the order of priority to be accorded to the carriage of specified goods, classes of good or passenger; to direct at what times and places and upon what terms and conditions and in what manner passengers shall be picked up for carriage by rail –

relevant for our present purposes.  Then, at about point 9 on that page, “The Restriction of Interstate Passenger Transport Order” and it described a “border station” as particular railway stations, the names, just along the border.  Then, at page 10, at about point 2 on the page, paragraph 3 of the order provided:

“Except as otherwise provided in this Order no person shall without a permit travel by rail . . . (a) from any State in the Commonwealth to any other State . . . (c) to or from any border station.”

At about point 5 on the page there was some provision in relation to what in the language of this direction in this case might be described as exempt passengers, but that only applied to defence personnel.  Then, from about point 5 on the page, his Honour sets out the process by which one sought a permit.

In our respectful submission, the directions in the present case and the order in that case are relevantly identical.  In each case there was a prohibition against crossing the border unless permission was given by the Executive.  So, in our submission, we are dealing with precisely the same character of restriction.

Can I then take your Honours, please, to how their Honours dealt with it in that case, starting with the Chief Justice at page 12 at about point 8 on that page, his Honour referring to section 92 in the last paragraph, about halfway through that paragraph:

The Order explicitly makes transit and access for persons between the States dependent upon obtaining official permission, and therefore imposes a barrier to such transit –

Then if I may take your Honours, please, to page 13, at the foot of that page ‑ ‑ ‑

KEANE J:   Before you go there, his Honour does go on to say:

and therefore imposes a barrier to such transit and access, as distinguished from other travelling, because, and only because, it is inter‑State.

One notices that the regulation or the direction did speak in terms of from one State to another.

MR DUNNING:   Yes.

KEANE J:   In terms of the character of the restriction, the restriction under the directions that you are concerned with is not explicitly about travel from one State to another, and it may have a different character.  It may not be only and only because it is “inter‑State”.

MR DUNNING:   On the basis that it would also preclude international arrivals.  Yes.

KEANE J:   When one looks at the direction as the product of the legislation, one can see that the concern of the legislation and the character of the directions made under it is with this emergency, with the prospect of the pandemic.  The provisions in Gratwick were directed explicitly and only at interstate travel.

MR DUNNING:   Yes.  Our response, Justice Keane, to that would be the fact that you have a provision that seeks to not only preclude interstate intercourse, but also international intercourse is no lesser measure directed – that is, with a purpose of preventing interstate intercourse for that ‑ - -

KEANE J:   Well, except that when one is concerned with the character of the Act, the character of the restriction, one looks at it in terms of - if one is after the purpose of the restriction and one looks at the purpose in terms of a response to a mischief, the mischief at which the EMA is directed, and the directions made under it, is infection by this disease.  When one looks at the character of the restriction involved in Gratwick, it has no character other than the prevention of interstate travel.

MR DUNNING:   In our respectful submission, the same would be said of the directions here in relation to Tasmania.

EDELMAN J:   It is a difference between purpose and effect.  The purpose of the EMA and the directions is to prevent the spread of a pandemic.  At least one of the purposes of the regulations and the order in Gratwick is to prevent interstate travel.  In our case, there is no suggestion that the purpose is to prevent people travelling into Western Australia – although that be one of its effects.

MR DUNNING:   But if one takes a State where – as in the case of Tasmania – the risk is, in fact, lower than in Western Australia, the only objective purpose of the restriction on entry into Tasmania, in our submission, is the prohibition on interstate travel because it does not have, objectively, a purpose of reducing the prospect of introduction.

EDELMAN J:   Is that a submission then that the preamble to the Quarantine (Closing the Border) Directions is, at least in respect of Tasmania, a sham?

MR DUNNING:   No, no, we would not put it – and, in our respectful submission, do not need to put it in those terms because the character that the direction bears is a matter for objective determination.  The language that is employed is a feature in that but, as the authorities are clear, it is not anyone’s subjective intention we are looking to find here.  Once one accepts they are not going to find their subjective intention – if it turns out that the preamble does not accurately record what is, in fact, the operation – at least in respect of Tasmania – that is as far as one needs to go, in our submission.

If I can take your Honours, please, to the foot of page 13, Chief Justice Latham, speaking of the history of section 92, says that:

a distinction between laws of such a character that they did not interfere with the freedom which was guaranteed by s. 92 and other laws which did interfere with such freedom.  Thus a distinction was drawn between a law directed against inter‑State transport, or merely prohibiting inter‑State transport on the one hand, and, on the other hand, a law which, though it incidentally affected inter‑State transport, was not directed against it –

Then, if we can give your Honours the reference at the foot of page 14, the second‑last line:

It is in terms “directed against” such intercourse -

that is, nobody should be permitted to travel by rail from any State in the Commonwealth.  Over to the top of the next page, it:

does not provide any general system of regulation –

Justice Keane, I understand your point to me is to say in that case he explicitly refers to what Justice Dixon we all know calls the “interstatedness” of the transit.  But, in our submission, that – I would not say it is a relevant factor – it might be a factor but if, upon proper characterisation of the law, it operates as, in our submission, one would – if one State passes a law that says nobody may enter this State except on these terms – true, it is, it may have a certain application to international arrivals but it undoubtedly has an application to interstate arrivals and, in our submission, section 92 does not lose any of its vitality as a result of that.

GAGELER J:   All of this is an application of the law as understood from James v The Commonwealth when the two limbs of section 92 had not been separated out.  You are saying that James v The Commonwealth is the way to approach the intercourse, then, of section 92?

MR DUNNING:   No, Justice Gageler.  What I am seeking to develop is that the reasoning that was adopted by the Court in Gratwick was reasoning that has found favour from Cole v Whitfield onward, which is really in our submission the relevant inquiry.  That Gratwick may have referred to earlier cases, the correctness of which or the applicability of which may be in doubt or simply not apply, in our respectful submission is not to the point.  The real point is the reasoning in Gratwick found approval in Cole and has consistently found approval as recently as cases like ‑ ‑ ‑

GAGELER J:   Is there a test that emerges from Gratwick?

MR DUNNING:   Yes.

GAGELER J:   What is it?

MR DUNNING:   That test is, using the language of the day, that the provision operates to directly prevent interstate transport ‑ ‑ ‑

EDELMAN J:   Does “directed at” or “directly” mean anything different from having the purpose rather than merely a consequence or effect of?

MR DUNNING:   No.  It means that that is objectively the determined purpose of it, yes.

GORDON J:   Because the problem, Mr Dunning, with that submission, is it not, is that when you look at the reasoning of Justice Rich, Justice Dixon and even Chief Justice Latham, they each identify that there can be exceptions, exigencies of war, defence itself, even if it is absolute in its term.  So this test about “directed at” requires a process of characterisation.

MR DUNNING:    It is, Justice Gordon, a process of characterisation and our case has always been put on the basis that there might be interference with the interstate intercourse if that emerges from the reasonable necessity to achieve something other than the restriction of interstate intercourse.

We accept that and, in our respectful submission, far from the passages, which I was going to take your Honours to, where the Justices deal with that, gainsaying the applicability of the test being one of is its purpose to prevent interstate trade, they are consistent with it in the sense that what emerges from Gratwick and the cases that follow it is that a provision that is on its proper construction directed or aimed at preventing interstate intercourse, as opposed to a provision that is, say, on its proper construction directed to preventing the reintroduction of COVID into Western Australia from Tasmania is objectionable.

So it is actually a characterisation test and that is what we, Justice Gageler, would say the test is.  Once it is in those terms, there is nothing particularly remarkable or unusual about it and that is why it has been consistently referred to with approval in this Court.

GAGELER J:   So, let me understand it.  It is not enough that the prohibition against crossing the Western Australian border – something more is required, is it, on your submission?

MR DUNNING:   Well, in many cases that will be sufficient because what - and perhaps at least some of the issues that have had nomenclature here, where you have a freedom of intercourse, that is, to pick up Justice Dawson’s question, free from what, free from anything that is reasonably necessary to achieve another purpose within power then a prohibition against crossing the border will both facially say that but in terms of its purpose, objectively construed, also arrive at the same conclusion.  That is because of the nature of the freedom that is created by section 92 in relation to the intercourse limb. 

So that if there is a provision that simply prevents - that is, if there is a provision that operates upon the crossing of the border there may be occasions where, when that law is construed as to purpose by orthodox canons, arrives at a view that it is not a law to prevent the crossing of the border but rather it is reasonably necessary for the attainment of some other purpose, although those occasions will be, one would think, relatively rare, so, if we to try and give some practical content to it here, if we take the present situation it is not submitted by my side that to identify Victoria as an area of particular risk and to say that, well, because of people’s recognition of State boundaries and the like we are going to preclude arrivals from Victoria, that in a case like that the law will properly be characterised as about preventing interstate intercourse because in that case there would be an identified risk against, in this case, the precaution of principle of the reintroduction from Victoria and to meet that risk it is decided that the whole of the area of Victoria needs to be excluded so that upon its proper construction it is a law that is reasonably necessary to avoid the introduction of COVID into Western Australia.

That is to be compared to a situation like Tasmania where there has been elimination and the risk is as low as it can get and in that case, again, a law that is – by its terms to prevent intercourse between Tasmania and Victoria ‑ Western Australia, sorry.  On its proper construction, because there is no rational basis for excluding persons from Tasmania in relation to COVID, it is not a law that is reasonably necessary for achieving some other purpose, but it is properly characterised as a law to prevent the interstate arrival, is the response we give to your Honour’s question.

GAGELER J:   Very complicated.  That does not seem very different from the trade and commerce limb, when you articulate it. 

MR DUNNING:   Well, there is a component of the trade and commerce limb obviously that is missing, and that is in relation to a protections character, but the ultimate point of inquiry is what the ultimate protection is, and that is, if we are right in what we say the authorities say, that there is freedom of intercourse between the States, other than if for reasonable necessity in respect of another purpose, transit across States is – has to be prevented. 

GAGELER J:   Reasonable necessity?

MR DUNNING:   Yes.

GAGELER J:   Right.

MR DUNNING:   Your Honours, I am mindful of the time and we have given references here for Gratwick, and I am also obviously alive to the exchanges I have had with some of your Honours on this topic.  Set out in paragraph 9 are the passages that we rely upon in Gratwick, and rather than perhaps taking your Honours to each of them now, can we, in addition to the submissions we have already made, simply make these additional submissions. 

Gratwick was a case of national emergency.  The Second World War was underway.  The rationalising of transport services was recognised by their Honours as important matters.  What the equivalent declaration in Gratwick lacked was a rational connection between those imperatives and the reason to prevent the crossing of the interstate border.  It is our submission that the same applies here, in respect of those States where we have made that case.  Similarly, your Honours ‑ ‑ ‑ 

KIEFEL CJ:   I do not think their Honours expressed it in that way, did they?

MR DUNNING:   Their Honours were alive to the ‑ ‑ ‑ 

KIEFEL CJ:   Their Honours - I think that was found, or at least the Chief Justice considered that the order was made and the regulations were made under - were authorised by the head statute.  So, no question of the head statute – it just does not appear to be discussed at all.  The authorising statute’s connection with the defence power does not seem to have been discussed ‑ ‑ ‑

MR DUNNING:   No.

KIEFEL CJ:    Have I misunderstood what you were saying? 

MR DUNNING:   No, I expressed it poorly, Chief Justice.  The point I was seeking to make was their Honours, as some assert of Gratwick, were not saying that you could never prevent interstate intercourse in aid of a national imperative, in that case the Second World War.  What they found was that in respect of the prevention of interstate intercourse in Gratwick there was no need for it, that was, the trains that this woman was not permitted to travel on were not needed for something else.  The canalisation, I think the expression they used - or canalisation was not demonstrated to be necessary so that their Honours did not suggest that in Gratwick that you would always offend section 92 by preventing intercourse across the border ‑ ‑ ‑ 

KIEFEL CJ:   Yes.

MR DUNNING:   Provided there was – it was directed at something else and there was a need for that something else. 

GORDON J:   That something else was identified by Justice Isaacs to include quarantine.  Justice Higgins talks about what is within the State’s reserve powers.  I mean, is that not where we are with these directions?

MR DUNNING:   That is correct, Justice Gordon, and we have accepted in writing and we are endeavouring to accept on our feet that it is not said that section 92 prevents Western Australia acting to protect persons inside Western Australia.  And, if to do that, and to stop the spread of COVID back into Western Australia, that it becomes reasonably necessary to exclude persons from other high‑risk jurisdictions, that does not offend section 92.  But to do that it must be demonstrated that that in fact is reasonably necessary.

EDELMAN J:   Are you not conflating your two submissions?  As I understood, your primary submission is effectively that – put reasonable necessity entirely to one side – you cannot have a law which is directed at or has the purpose of undermining the very constitutional guarantee that exists.  If you have a law that is for that very purpose, it does not matter whether one tries to engage, and whether it is reasonably necessary or not, you cannot have it, it cannot exist.  But if it has some other purpose, and its effect or consequence might be to undermine the section 92 guarantee, then one has to consider issues such as whether it is reasonably necessary.

MR DUNNING:   That is correct.  But, respectfully, I would not agree that I am conflating them because in the former case, if, upon the proper construction of the law its purpose is to prevent interstate intercourse, it can never meet a reasonable necessity requirement because ‑ - -

EDELMAN J:   Well, one does not really even need to ask the question of reasonable necessity.

MR DUNNING:   That is right.  That is right.  Well, no, perhaps I will take that back.  When one comes to characterise the law, as here, one asks well, objectively, what is the purpose of this law and if we take the illustration of Tasmania, is the purpose of this law to prevent the introduction and spread of COVID in Western Australia?  If your Honours accept our submission that according to those findings it is not capable of that, then the only objective purpose that might be left to be held is that it prevents intercourse between Tasmania and so in a sense ‑ - -

EDELMAN J:   Or the alternative is that the law might be a little bit more blunt than it needs to be in achieving what is its express purpose, which is to limit the spread of COVID‑19 rather than assuming that there is some other hidden purpose in relation to Tasmania.

MR DUNNING:   Respectfully, we would not invite your Honours to assume it, but we would invite the ordinary canons of construction.  If, according to that construction, one arrives at the conclusion that, properly characterised, it is a law about preventing the arrival of COVID, but it has overreached, then that would be a matter within the reasonable necessity discussion.

The point I was trying to make and the reason I am reluctant to agree that I am conflating the two propositions is that in a sense what I am exchanging with your Honour is really the two sides of the one coin.  In that construction exercise, you might arrive at a conclusion in respect of two sets of facts which might look reasonably similar that there is some overreach.  So it is a law that, properly characterised, is about preventing COVID arriving but is picked up in places it should not have been, so it will not be reasonably necessary.

You could also have a characterisation that says, look, it is a law that is concerned with keeping out people from two States, but it is done to every State, and a law so characterised does not have that purpose.

EDELMAN J:   So, to take an extreme example, if there had been no case of COVID for five years and this law were passed, you might say its purpose is not really to prevent the spread of COVID, it is just directed at preventing interstate intercourse.

MR DUNNING:   That is correct.  The only reason I pause is that one is careful not to – and it is difficult because there is all of this discussion swirling around and people saying, “Why are they doing it?”, high‑value objectives.  We would never wince from that at all.

Ultimately, you are not looking to somebody’s subjective intention or the quality or the value or the sincerity with which they hold it.  You are just asking:  when I look at that law, properly characterised, can it be said that objectively it is about keeping the spread of COVID out of Western Australia?

If in fact your Honours are only with me on Tasmania and none of the rest of them, then it would most likely fit into the category your Honour has raised – that is, it is overreach.  If we persuade your Honours that, properly understood, Justice Rangiah’s reasons would mean that the only jurisdictions remaining were New South Wales and Victoria, then the construction we would contend for would be accepted because you would say, if what you wanted to do was to exclude people from two States but you are excluding them from every State, however sincerely the view might be held, objectively that cannot be for the prevention of COVID.

Your Honours, in relation to Smithers – if your Honours have any questions about Smithers I am happy to address them but I am very mindful to make sure our learned friends have adequate time, otherwise I am content to rely upon our description of Smithers in our primary written outline and the passages that we have given your Honours in paragraph 10 of our outline, which will largely correspond with that.

Can I say of Smithers ‑ though just quite pass over it ‑ we accept that the reasoning of Justices Isaacs and Higgins is the only reasoning that applies section 92 and the other two members of the Court approached the matter, if I can say, more holistically in a constitutional sense, no doubt a function of the time.  Smithers again is a decision that has been repeatedly considered as correct in terms of not only the decision but the manner in which it dealt with the matters it dealt with.

Can I then move please to this Court’s decision in Nelson which is said against us to be inconsistent with the way we put our case?  Your Honours will find Nelson ‑ ‑ ‑

GAGELER J:   Could I just really understand what your case is?  Does it all come down to posing the question:  is the border restriction reasonably necessary to prevent the spread of COVID in Western Australia?  It seems to be what you are saying.

MR DUNNING:   Yes.  The reason I am a little tentative about it is the alternative to that, as the exchange I was having with Justice Edelman, is if properly characterised it cannot meet that description then it is simply a restriction on ‑ ‑ ‑

GAGELER J:   I follow, that is the negative answer to that question that says it is something else but – all right.  That is where all this case law heads?

MR DUNNING:   Yes.

GAGELER J:   Right.

KIEFEL CJ:   That means that your question of characterisation or purpose depends upon reasonable necessity.  You are not necessarily accepting that its purpose is to deal with the COVID pandemic.  You are saying it might be said to be directed merely to interstate trade if the directions go too far.  Is that what you are saying?

MR DUNNING:   No, I would put it this way, Chief Justice.  If properly construed, there is no rational basis for saying that it is directed to prevent the introduction of COVID from, let us say, Tasmania to Western Australia, then it cannot be of that character and the only character you are left with is that it is an imposition on interstate intercourse.

KIEFEL CJ:   You reached the conclusion that it cannot rationally be directed to that purpose how?

MR DUNNING:   By reference to the findings that I took your Honours through this morning.

KIEFEL CJ:   That is reasonable necessity – a kind of reasonable necessity test?

MR DUNNING:   Sorry, we may be at a cross‑purpose.  The matters that one would look to to see whether it was reasonably necessary in aid of, in this case, the goal of preventing COVID involves an objective inquiry into is it capable of achieving that and then one measures that against a test of reasonable necessity. 

KIEFEL CJ:   Just to be clear, your starting point is not that this is, on its face, a law directed at interstate trade and it is invalid on interstate intercourse or trade and it is invalid on that account as per Gratwick.  That is not your first proposition?

MR DUNNING:   It is, but the fact that the preamble to it speaks of it as being directed to COVID, in our submission, is not the answer.  The point starts with the proper construction of the direction and arriving at a view as to whether it is objectively directed at preventing the spread of COVID and if it is not objectively directed to preventing the spread of COVID objectively all that is left to do for it is ‑ ‑ ‑

KIEFEL CJ:   In any event, you accept that if its purpose is directed – if, on its proper construction its purpose is directed to dealing with the COVID pandemic then the reasonable necessity test applies.

MR DUNNING:   Absolutely, yes.

GAGELER J:   Is it any different from the reasonable necessity test as articulated in Betfair (No 1)?

MR DUNNING:   No, in our submission.

EDELMAN J:   Are you just relying upon reasonable necessity in the sense in which it is used in the structured proportionality approach and not upon considerations such as adequacy in the balance?

MR DUNNING:   Yes.  Yes, is the answer to your Honour’s question.  I am applying it in the way that it has been applied in cases like Betfair and, prior to that, APLA.  I will come to deal with ‑ ‑ ‑

KIEFEL CJ:   I suppose, on one view, it is not for you to justify.  These are justifications which are applied to infringements with any of the constitutional freedoms that you are guaranteed.  It is up to Western Australia to point to that aspect of structured proportionality to see whether it is adequate in its balance on the strict proportionality test.  Speaking for myself, I do not see that Western Australia has sought to justify it on that ground.  I do not think your submissions have addressed it, perhaps for that reason.

MR DUNNING:   The answer to your Honour’s question is, yes.  We have taken the view that it is a matter for Western Australia to justify it.  There is a question raised between the parties ‑ ‑ ‑

KIEFEL CJ:   Do you understand whether – I mean, what are you saying?  Does Western Australia seek to rely upon that aspect of what was discussed in McCloy?

MR DUNNING:   It is not completely clear to us – so that was a matter that we have responded to as well as we can against that and, obviously, we will listen carefully to how it is developed in oral argument but, certainly, the submissions of Queensland and South Australia seem to take that point further than Western Australia does.

KIEFEL CJ:   It is really a matter for Western Australia though.

MR DUNNING:   Your Honour has taken the words of my mouth but, ultimately, it is a matter for Western Australia as to how it justifies its law.  Your Honours, can I very briefly deal with Nelson.  It is volume 6, tab 34, of the joint book of authorities.  I will not take your Honours through all of it.  Can I just ask your Honours, please, to notice these aspects of the case?  The first is, it is not an intercourse case.  There is a suggestion against us that it is an intercourse case, but it is, plainly, a trade and commerce case.  It is about the passage of cattle across the Queensland/New South Wales border and that it is not an absolute prohibition but rather, in every sense, regulating against – an obvious purpose is, in fact, best seen in Justice Higgins’ reasons.

Can I ask your Honours, please, to go to page 245 of his Honour’s reasons?  At about point 5 on the page, his Honour discusses the provisions in question, starting with section 143.  The critical one is 154, which starts at about point 7 on the page.  So, it was an entitlement to prohibit the introduction of stock from another State where there was reason to believe that it was infectious or contagious.  But, then, if we go down to the foot of that page:

by clause 11 of the proclamation, it was provided . . . [that] no . . . cattle . . . shall be introduced –

from a particular area within Queensland – so it was not all of Queensland – but the cattle in question did not come from that area.  Then, this is about point 2:

According to clause 13, cattle from that territory, if they have received their last treatment at Helidon (Queensland) and otherwise complied with certain Queensland regulations, may be admitted at Wallangarra (on the border) on certain conditions ‑

The purpose of taking your Honours to that is it is said against us in relation to Nelson that Nelson was an identical case to Gratwick and it was not.  It was not a case about intercourse and it was not a case of an absolute prohibition.  Rather, it was a case whereby there were restrictions placed around cattle coming from Queensland to New South Wales that were very calibrated to ensuring infected cattle did not arrive in New South Wales.

So, in our respectful submission, the antithesis of that provision in Gratwick and, relevantly, the sort of provision one does not see in the directions here because there it was focused upon identifying infected cattle and putting arrangements around their arrival into New South Wales so as to afford the appropriate protection, whereas here we are concerned with a direction that does not concern itself with the differential risks across the Australian States and territories and just prevents arrival.

I will not take your Honours through it.  I have given your Honours the references at paragraph 11 of our oral outline.  Once your Honours understand the legislative or regulatory scheme in question it is clear that it is a regulation case.  It is not a prohibition case.  And, in fact, what divided the Court was not any difference of principle, but it was a difference as to how – there was a difference to the characterisation exercise, so the plurality of Chief Justice Knox, Justices Gavan Duffy and Justice Starke in the end were persuaded that the provisions I have just taken your Honours to were provisions that were in the language “reasonably necessary” for the purpose of preventing the arrival of infected cattle into New South Wales.

The other three members of the Court took the view that, upon their proper characterisation, they were not directed at that.  Unless your Honours have got any other questions, that is all I was going to say in relation to Nelson.

KIEFEL CJ:   Just an observation, Mr Dunning, that there the Court was concerned in the final result with the validity of the section of the Act, rather than the proclamation; a matter for you to come back to.

MR DUNNING:   Yes, I understand, thank you.

KEANE J:   The other thing that might be said about it is that the very strict approach that appears from Justice Isaacs and the others – certainly in Justice Isaacs’ case ‑ is of the very strict view that any law by the State trenching upon interstate trade is invalid, because he was applying McArthur’s Case.

MR DUNNING:   Yes. 

KEANE J:   While that was still regarded as stating the law.

MR DUNNING:   Yes.  Your Honours, can I then move to Cole, and how Cole dealt with Gratwick and this area of the law, but in the sense it is necessary for the doing of that to start with Miller which had been decided two years before.  Your Honours will find Miller at volume 8, tab 49, page 2751 of the joint book of authorities and if I can ask your Honours, please, to go to the reasons of Justice Brennan ‑ ‑ ‑ 

EDELMAN J:  Sorry, what tab was that?

MR DUNNING:   Sorry, Justice Edelman, that was tab 49, at page 2751.  If I can ask your Honours, please, to go to page 603 of the report, and as your Honours might recollect this was a case about the regulation of radio bandwidth.  At about halfway down that page his Honour said:

The proposition that a law which fixes “priorities for journeys when the facilities are overtaxed” is not, on that account, inconsistent with s. 92 is not contradicted by Gratwick v. Johnson.

And his Honour then goes on to say, in fact:

it is affirmed by implication in two of the judgments (of Rich and Dixon JJ.) ‑

Now, that passage in relation to Gratwick then finds favour in Cole two years later.  Can I ask your Honours, please, to go to volume 5, tab 30, page 1594?  In the joint judgment starting on page 393 at point 5, can I invite your Honours to read, about four lines into that paragraph starting at “constitutional guarantee” to the second last line on that page.

GORDON J:   But you have the qualification in the middle of that paragraph.

MR DUNNING:   That is correct, Justice Gordon, and we accept that qualification.

GAGELER J:   What is meant by a “personal freedom”?

MR DUNNING:   Your Honour, in our respectful submission, no disrespect is intended but it may have been a looseness of language, that where you have what is a limitation upon legislative power, that you may not legislate to prevent a person travelling between States.  It is very easy, as a matter of common speech, to refer to that legislative constraint as a personal freedom to do something.

GAGELER J:   So we are not back to an individual rights view?

MR DUNNING:    No, and even though that subscribes to Justice Isaacs in ‑ ‑ ‑

KIEFEL CJ:   In Gratwick or was it Smithers?

MR DUNNING:   In Smithers ‑ even though that is ascribed to Justice Isaacs in Smithers at page ‑ ‑ ‑

KIEFEL CJ:   Page 113.

MR DUNNING:   At the foot of page 113, in our submission, if your Honours were to look at what his Honour then says in Nelson at page 230, point 2, it does not appear that his Honour was in fact treating it as the Australian Constitution creating a personal right in an individual rather than it was, in truth, a limit on legislative power.  Your Honour has directed my attention to what was said in the passage I have just taken you to in Cole.  In our submission, it is the same thing.  It is just as a matter of economy of language, when what you are talking about is a legislative constraint on your power to legislate regarding peoples’ movement across ‑ ‑ ‑

KIEFEL CJ:   So you say it is a freedom of persons more generally that is involved, rather than an individual right?

MR DUNNING:   Rather than an individual right.  Yes, I would.  I perhaps would be more inclined to describe it as a legislative constraint on ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DUNNING:   ‑ ‑ ‑ preventing the freedom of movement of persons.  But, yes, I did not mean to split hairs with your Honour, but that is so.  Then at the top of page 394, their Honours record as it is settled that the test between the two limbs of section 92 are not the same.  And then if I can ask your Honours, please, to go to page 406, at about point 7 on that page and at the paragraph starting “In conformity with” through to about point 2 on the top of the next page.

GAGELER J:   When you say, or when their Honours say that the tests are not the same, as I understand your submission, the tests are not very different.  Perhaps with intercourse all that is missing is the element of protectionism.

MR DUNNING:   It is certainly different to that extent but, in our submission, the authorities seem to contemplate that the freedom of intercourse is a higher order value.  So that the test of what might be a reasonable regulation of a reasonable necessity is in that context and, indeed, the discussion by South Australia in its submissions and to some extent our friends Western Australia recognise that.

GAGELER J:   Same words, stricter application?

MR DUNNING:   I would not probably give it that epitaph so much as it is a composite expression.  It is accepted that the two components are different, they have a different history, they are directed at different matters and so one starts from the point of saying, well, as against that constitutional text albeit they have been put in the same provision, what does it require?

Now, it may be the same or it may be different but for the reasons that were identified in Cole and later, one should not start from an assumption that they should be identical, or near identical, nor should one start from the assumption that they must be markedly different.  It is a matter of looking at what is the constitutional freedom or limit on legislative power that is created in respect of each of them and formulating a test that is appropriate.

Can I just ask your Honours, please, to notice a couple of matters in relation to those passages?  The first is their Honours do draw this dichotomy, in our submission, between what they call the constitutional guarantee and matters that go to regulating some other purpose.  So, Justice Gageler, I accept and I do not seek to repent of it that the ultimate question comes down to:  is it reasonable regulation?  In most cases it is going to come down to that because very few legislatures or executives are going to promulgate an order that goes out of its way to say it is meaning to interfere with interstate trade or nothing else.

Yes, I accept that ultimately that is the inquiry we are left to.  It does not mean there is not content in and understanding of why an absence of reasonable necessity means that the law is otherwise invalid.  It picks up the discussion in Miller that I took your Honours to as well.  Can I take your Honours, please, to the top of page 407?  In the fourth line, their Honours say:

The criterion of operation test did nothing to alleviate this problem.

This comes on from a discussion in the case about the criterion of operation test.  It is alleged against us that we are effectively trying to breath life back into the criterion of operation test.  We have made, we thought, clear enough in our primary written submissions but again in our reply submissions and now that that is not the case, and what is, in our submission, clear from that passage in Cole is that the Court in Cole did not consider an approach such as that which was taken in Gratwick and endorsed by that Court as involving any return to a criterion of operation test.

Your Honours, I was going to move to the next case.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, when we broke for lunch I had got to paragraph 13 of our written outline.  In the light of the time I was going to move over those matters that are dealt with in paragraph 14.  As the narrative suggests, in our submission, what one sees in those cases from Cole through to Cunliffe is further positive recognition of the law as it had been laid out in Gratwick and by the time we come to the decisions in AMS and APLA one sees less discussion of Gratwick and Smithers…..some and instead a discussion of Cunliffe and those cases that had led up to it.

Can I, briefly as I can, please take your Honours, first of all to AMS, which your Honours will find at tab 3, case 17 – sorry, volume 3, tab 17, page 498.  The passages that I particularly wanted to draw your Honours’ attention to, starting in paragraph 40 on page 177 of the judgment of Chief Justice Gleeson and Justices McHugh and Gummow at about point 5 on that page, their Honours say the matter was taken further in Cunliffe and refers to the way Chief Justice Mason had spoken of cross‑border movement and this distinction between an incidental burden or something regulating it would not necessarily fail and then, if I can take your Honours, please, to 43:

The formulations of principle by the members of the Court in Cunliffe v The Commonwealth differ, but . . . reflect reasoning akin to that adopted by the Privy Council in the Bank Nationalization Case . . . as “reasonable regulation”.

Then, at 45, on the next page - this was the case about the child who was the subject of an order of the West Australian Family Court:

The 1975 WA Act did not in terms apply to impose a burden or restriction upon movement across the borders of Western Australia.

Then, about halfway down that paragraph spoke of its practical application and then about two‑thirds of the way down:

The question becomes whether the impediment so imposed is greater than that reasonably required to achieve the objects –

Your Honours, Justice Hayne agreed in those reasonings at 221 – I will not take you to that.  Justice Kirby at 162 reasoned to a like effect, and at 153 refers favourably to Smithers.  The same might be said of the other members of the Court.

Can I then go to APLA, which your Honours will find volume 3, tab 18, page 583.  By the time of APLA, an issue had arisen in the state of the authority to that point as to whether this concept of reasonable necessity was to be measured against the requirements of an ordered society, which some Justices have preferred, or measured against the attainment of the purpose of the Act – and as your Honours are no doubt aware, it was the latter of those matters that ultimately prevails.

Your Honours, all judgments are important, but Justice Hayne in particular carefully essays the relevant considerations around this, starting at paragraph 410 on page 458.  Your Honours, all of what his Honour says, in our respectful submission, pays rereading through to paragraph 425.  But can we particularly emphasise 416, at about halfway down that paragraph.

In both cases, s 92 may be understood as striking down laws aimed at interstate trade, commerce or intercourse.  It is no less evident, however, that the interstate intercourse limb has not been understood as confined to striking down laws aimed at impeding intercourse –

Then at 420, about halfway through that paragraph:

Leaving aside, then, laws which are specifically aimed at interstate intercourse, the test stated in the joint reasons in AMS v AIF invites attention to consideration of the objects of the law in question.  And as Gummow J concludes in his reasons in the present matter, the principle stated in AMS v AIF should now be accepted as the applicable doctrine.

We would also give your Honours the references that I have set out at the end of paragraph 15.  I apologise for that sort of staccato, but I am mindful of the time.  Effectively, the matter is carefully, or I hope carefully, summarised in our primary written submissions and the passages to which we would draw most attention are those that are set out in paragraph 15. 

Could I move then, please, to the reasonably required test because this invites the difference between the parties as to whether, as in our submission is the case, the test is one of reasonably required or reasonable necessity and whether instead an adaptation of the test in the implied freedom area of learning should be incorporated into section 92.  We say it is the former.  We say there are clear decisions of this Court recently that have affirmed the reasonable necessity test and there is no reason to depart from it.

If I could…..paragraph 16 of our oral address, if I could ask your Honours to go back to AMS, I have already taken your Honours to paragraph 45 where that topic was dealt with by Chief Justice Gleeson and Justices McHugh and Gummow.  Could I take your Honours, please, to paragraphs 100 to 101 in the reasons of Justice Gaudron.  Sorry – AMS was the case I should have been taking your Honours to, my apologies.  It is in volume 3, tab 17, page 488.  I have already taken your Honours to paragraph 45.  I will not take you back to that.  Can I ask your Honours to go to paragraphs 100 and 101 in Justice Gaudron’s reasons on page 193.

GAGELER J:   The starting point is no longer our starting point, is it, that is, the first sentence in paragraph 100 no longer represents the doctrine of the Court, does it?

MR DUNNING:   No, that is correct, Justice Gageler.  It was more the imperative in 101 that I was wishing to focus on and whilst the starting point in 100 might have changed – that was set out in 100 might have changed, it does not take away from the correctness of what her Honour says in 101.  I am sorry; I should have made that a little clearer.

KIEFEL CJ:   What is her Honour saying at paragraph 101?  Why is there a more stringent test?

MR DUNNING:   The reason her Honour raises for that is that the implied freedoms are subject to the terms of the Constitution, that is, an implied term must yield to any express provisions whereas section 92 is itself an express provision and, therefore, is construed among it.

KIEFEL CJ:   I read that – what are the two different tests, one more stringent than the other that her Honour is referring to?  What is the more stringent test?

MR DUNNING:   Well, the more stringent test is that ‑ ‑ ‑

KIEFEL CJ:   Is it “more reasonably necessary” than “reasonably necessary”?

MR DUNNING:   No, it is ultimately there must be one of reasonable necessity or reasonable requirement.

KIEFEL CJ:   Well, what is the difference?

MR DUNNING:   Sorry, between necessity and requirement?

KIEFEL CJ:   What is the difference between an express freedom that tests for an express freedom and an implied freedom in relation to reasonable necessity then that her Honour is referring to?

MR DUNNING:   As I understand her Honour, she is referring to that over, for example, the test that starts in Coleman v Power or gets expressed in Coleman v Power and most recently is expressed in cases like McCloy and Brown and that instead her Honour saw “reasonable necessity” as a more stringent test than that is what I understand her Honour’s reasoning to be.  As I have indicated to your Honours, Justice Hayne agreed with the plurality and Justice Callinan is at paragraphs 277 to 278.  Finally, your Honours, can I take you ‑ ‑ ‑

KIEFEL CJ:   Sorry, just to go back to that, your understanding of what her Honour is saying is that the test of reasonable necessity is more stringent than the test of reasonably appropriate and adapted?  Is that what you are saying?

MR DUNNING:   Yes.  Finally, your Honours, may I take you, please, to the Court’s decision in Betfair, which your Honours will find in volume 3, tab 24, page 1220.  The relevant passages are from 101 to 103, starting on page 476 of the report.  Their Honours at 101 discussed the “appropriate and adapted” criterion, but it is at 102 that I particularly wanted to draw your Honours’ attention, just above the quote:

They suggest the application here, as elsewhere in constitutional, public and private law, of a criterion of “reasonable necessity”.

Then at 103 their Honours say that:

That view of the matter should be accepted as the doctrine of the Court –

consistent with Cole.  Now, the purpose of taking your Honours to the decisions in AMS and Betfair is they are relatively recent decisions of the Court, well after the Court’s decision in Cole and well after the development to maturity of the test in relation to implied freedom.  In a considered judgment the Court there expressed the view that “reasonable necessity” is the appropriate test.

Now, in our respectful submission, in those circumstances, unless there be shown to be some reason as to why the Court should now depart from what was in that case said to be something that should be treated as accepted doctrine your Honours should measure these directions as against a test of “reasonable necessity”.  It is neither necessary nor desirable to adapt the test from the implied freedom context when there is – one is the subject of careful consideration recently by the Court and appears to be working.

KIEFEL CJ:   And, in doing so, according to Betfair, at paragraph 110 the Court would consider whether there are any – in determining whether or not they were reasonably necessary the Court would consider whether there are alternatives reasonably available.

MR DUNNING:   That is correct. 

KIEFEL CJ:   That is not at all different from how it has been applied in the implied freedom cases.

EDELMAN J:   It sounds remarkably similar.

MR DUNNING:   The difference appears to be as one reads, for example, at passage 110 in Betfair that that is ‑ - -

KIEFEL CJ:   Tasmania had regulations which could have applied, therefore they could not say that there was an alternative which, at an evidentiary level, could be said to have met the purpose for which Western Australia contended, namely the integrity of the racing industry.

MR DUNNING:   Yes.  But if we take, for example, the illustration in Betfair, it was not necessary to meet that reasonable necessity test.  For example, there to be something the equal of the Western Australia arrangement, the Tasmanian provisions, which sought to regulate rather than prohibit, were considered in that case to be an acceptable alternative.  It is in that regard that – sorry, I am just looking for the passage.

KIEFEL CJ:   Is that not because there was no other way that they could protect the resource, the natural resource of the crayfish?  I think they used words like “there is no other way”. 

MR DUNNING:   Sorry, Chief Justice, I was not meaning to refer to Cole.  I was meaning to refer to in Betfair ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DUNNING:   ‑ ‑ ‑ the comparison was with the way the Tasmanian racing regulator had sought to regulate ‑ - -

KIEFEL CJ:   Yes, so there was an alternative available which Western Australia could have applied.  The word “alternative” is used in paragraph 110.

MR DUNNING:   I am not doubting that, and any assessment of necessity, and certainly reasonable necessity.

KIEFEL CJ:   Logically must require such a consideration.

MR DUNNING:   Require a comparison, that is exactly right.  Then, your Honours, in relation to the – they are the submissions we wish to make as to why “reasonably required” should remain the test.  We then deal with the adaptation of the implied freedom test and, as I made the submission prior to lunch, we understand WA not in a sense to go as far as South Australia and Queensland do in their aspects of stringency as to the tests that are made in writing by our learned friends for Western Australia, that we would like to better understand in the course of their oral argument and will – we will deal with them accordingly.

Can we then simply make these couple of final submissions in relation to that issue?  Our learned friends for Queensland have sought to frame a test at paragraph 33 of their written submissions of what an adaptation of the implied freedom test would look like.  Now, we have no difficulty with the first formulation of it and, subject to tensions and qualification, no particular issue with the second, but the third would be to, in effect, embed structured proportionality as the test to be applied in section 92. 

Now, in our submission, if that course was to be adopted, it should be appropriate and adapted as it is in the implied freedom context, and then the question of structured proportionality would be a tool of analysis.  It is, in our submission, not right to – if that is the course to be adopted – to leave it as a tool of analysis in the implied freedom context, but in fact embedded into the terms of the test.

KIEFEL CJ:   I know we just end upgoing around and around on these matters with words, but looking at your paragraph 19, you resort to the words “reasonably appropriate and adapted”.  As I have understood your submission, the appropriate test here is reasonable necessity.  Are you saying that equates with and “reasonably appropriate and adapted” is no more than that or only in this circumstance?

MR DUNNING:   Not only in this circumstance.  We say this.  If I could step back a moment, we adopted “reasonably appropriate and adapted” on the basis that, were the implied freedom test to be adapted to section 92, then it should exactly mirror it.  So if it was reasonably appropriate and adapted, then ‑ ‑ ‑

KIEFEL CJ:   I see.

MR DUNNING:   Sorry, Chief Justice.  The point I was trying to make, perhaps inadequately, was that the test and implied freedom context is reasonably appropriate and adapted and then one has as a tool of analysis structured proportionality.  The Queensland test would actually import that tool into the test.  That was consistent with the…..we were seeking to make.

EDELMAN J:   You are arguing then as the plaintiff for a less stringent test than that for which Queensland is arguing.

MR DUNNING:   Our primary position is that it is a test of reasonably required, but even if one gets to appropriate and adapted, appropriate and adapted without structured proportionality ‑ ‑ ‑

KIEFEL CJ:   You mean strict proportionality?  Is that what you are really talking about?

MR DUNNING:   My apologies, I do mean strict proportionality.

KIEFEL CJ:   Adequacy of balance.

MR DUNNING:   Yes, would ensure that – sorry, I should not say “ensure”.  The consequence is not that it would be stricter, in our submission.

EDELMAN J:   If one assumed just for the moment that there is not much difference, if any, between “reasonably required” and “reasonably necessary”, that on a reasonable application of either approach you are asking basically the same question, then the difference between what you are suggesting and what Queensland is suggesting is whether there is an additional stage to ask whether the law is adequate in the balance.

MR DUNNING:   It is the step anterior to that, that there are no reasonably practical alternatives equally as effective.  Now, in our submission, that is not what one finds in, for example, reasonable ‑ ‑ ‑

EDELMAN J:   I thought you conceded in response to the Chief Justice about two minutes ago that any reasonable necessity question requires you to consider alternatives.

MR DUNNING:   It does require to consider alternatives.  It is the stringency of them.  One cannot approach a question of necessity, much less its reasonableness, without comparing it to alternatives.  The question, in our submission, is one that focuses on this idea that there has to be a reasonably available alternative no less effective.

If one looks at the illustration in Betfair where the distances between prohibition and regulation, the view there was taken that regulation was reasonably necessary, but prohibition was not, yet it would be a paradigm example of something that is not equally or precisely as effective if you ‑ ‑ ‑

EDELMAN J:   Could I give you an example and maybe that will assist in the – suppose directions like these were enacted in response to an annual flu season, the flu coming in from overseas every year and suppose there is expert evidence that says that the only way in which the flu can be prevented from crossing into Western Australia is by closing the border.  In other words, it is reasonably necessary to do so, there is no reasonably alternative measures that can be taken to stop that.  Do you say there would be no adequacy in the balance‑type question that would be asked in order to assess whether section 92 had been contravened?

MR DUNNING:   No, I do not say that.  I was focusing on the formulation of the test.  Any of the tests will necessarily require an assessment of the measure in question against the alternatives.  The difference as we respectfully perceive it is that under, for example, a test of reasonable necessity another alternative adequate measure that may not be precisely as effective as the measure in question might still be good enough where it is unlikely to survive the structured proportionality analysis.

Your Honours, unless there are any other matters you want me to raise, I was just going to deal with the last question of the Wotton issue. 

KIEFEL CJ:   I think Justice Gageler has a question for you.

GAGELER J:   I have a question about the question.  Do you have the question reserved in front of you?

MR DUNNING:   No.  Can I have a moment to ‑ ‑ ‑

GAGELER J:   Yes.

MR DUNNING:   Yes, I do now, thank you, your Honour.

GAGELER J:   It is a complex question.  It has “and/or” and then it has some brackets “in whole or in part, and if in part, to what extent”.  Can you tell us exactly how you want the question answered?

MR DUNNING:   Your Honour is looking at 84a).

GAGELER J:   Yes, I am not concerned with 84b).

KIEFEL CJ:   If I might interrupt, I think from what you said at the outset you are not asking – you are not now suggesting that the Emergency Management Act is invalid in whole or in part, so it is only the direction.

MR DUNNING:   That is correct.  So, it would read – are the directions invalid in whole or in part and if so to what extent?

GAGELER J:   What is the answer?

MR DUNNING:   We would respectfully submit the answer is they are invalid in whole because what the directions do is they prohibit interstate intercourse between places of equivalent or lesser risk of COVID arising and, therefore, they would not meet the primary base on which we put the case, that is, that you cannot have a law that directs itself against interstate intercourse, if that its proper construction or alternatively as a matter of reasonable necessity or in the alternative to that that for those same reasons the directions would fail, the proportionality analysis if it were adapted from the implied freedom ‑ ‑ ‑

GAGELER J:   They cannot be read down to apply to travel from some States but not others?

MR DUNNING:   In our submission, certainly if our primary position on the facts is correct, that is, it is everywhere but New South Wales and Victoria, no, because in our submission it would end up being a distant provision.  It would be a little more finely balanced if it was just Tasmania, but our primary response to your Honour is to say, no, they should not be read down because one cannot be confident that is how the Western Australian Government would have – the Western Australian Parliament, ultimately, for reasons I will come to in a moment – would have ‑ ‑ ‑ 

GAGELER J:   What has the Parliament got to do with it?

MR DUNNING:   Well, it is a very ‑ ‑ ‑ 

GAGELER J:   On your case?

MR DUNNING:   It takes – the directions take statutory force.  I was going to come to that in a moment.  But our submission is no, they would not be capable of being read down.  If your Honours took a different view the form of reading down would be one that involved limiting their operation to only those areas where, if I can pick a midway point, it was reasonably necessary to exclude persons from those States. 

GORDON J:   At what point in time?

MR DUNNING:   As at the date of this hearing, your Honour.  Then, can I then deal with the point about Wotton?  Can I first of all take your Honours to the passage in Wotton that our friends in Victoria rely upon.  Your Honours will find it in volume 12 at page ‑ ‑ ‑ 

KIEFEL CJ:   Sorry, which case is this ‑ ‑ ‑ 

MR DUNNING:   Wotton, your Honour.  Volume 12, page 4458. 

EDELMAN J:   Which tab is that?

MR DUNNING:   It is tab 70, your Honour.  If I can ask your Honours, please, to go to paragraph 22 on page 14 of the judgment.  The submission at the end of paragraph 22 is accepted by the Court on behalf of the Commonwealth is that which is set out at the beginning of 22.  Now, the first aspect of that test is – for this case, for present purposes, it will be the “putative burden” on interstate intercourse:

has its source in statute, the issue presented is one of a limitation upon legislative power –

So, if we can demonstrate to your Honours that the declarations which create the burden are statutory in character then one goes no further.  It follows from that that when one gets to (ii):

whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law –

It is, effectively, an administrative law matter.  The question here is not about, for example, whether somebody was made an exempt traveller.  The question here is about the application of the directions themselves.

In relation to how those directions are formulated, can I ask your Honours, please, first of all, to go to the Emergency Management Act.  Your Honours will find that in volume 1 of the joint book of authorities.  And can I ask your Honours, please, to go to page 134 of that book.  Your Honours will see in section 67 the statutory power to regulate movement within Western Australia.  Then if I can ask your Honours, please, to go to page 140 ‑ ‑ ‑

KIEFEL CJ:   Which section?

MR DUNNING:   Section 72A, which deals with the general powers during an emergency situation.  Now, they are the powers that gave the statutory entitlement to the creation of the declaration.  Can I then take your Honours, please, to subsection (4) of 72A:

(4)A person is not excused from complying with a direction given to the person under subsection (3) on the ground that –

those matters might tend to incriminate them.  Can I then take your Honours, please, to section 77, at page 145, and in subsection (2A), “A direction under” those provisions “that is given in relation to a class of person or thing”.  Then:

(b)despite the Interpretation Act 1984 section 41 (to the extent to which it applies), need not be published in the Gazette –

And I will take you to the Interpretation Act shortly, but the effect of that is it is consistent with the fact that the declarations are in fact subordinate legislation.

Can I then take your Honours, please, to Part 8 in the offences provision and, in particular, section 86.  You will see there that in subsection (1):

A person given a direction . . . must comply with the direction.

At pain of a fine or imprisonment.  Then in subsection (2):

A person must comply with a direction referred to in subsection (1) despite the provisions of any other written law, and the person does not commit an offence by reason of that compliance.

So, compliance with these directions is punishable by fine or imprisonment, and also they take priority over all other written law in Western Australia.

Can I then take your Honours please to the Interpretation Act?  Your Honours…..it turns out that the Interpretation Act that is set out in volume 2, starting on page 256, does not have section 5 which is the definitions provisions.  There are a couple of definitions I want to take your Honours to; I have got copies of them. 

KIEFEL CJ:   I think we are all reading from pamphlets, so you are saved from that exercise.

MR DUNNING:   Thank you, your Honour.  Can I ask your Honours, please, to go to the definitions in section 5 and if your Honours would notice, please, the definition of “subsidiary legislation”?  It means, amongst other things, an order “made under any written law and having legislative effect”, and in relation to having legislative effect, they were the reasons I took your Honours to the penalty that attended non‑compliance with a direction and the fact that a direction prevailed over any other written law of Western Australia which, in our submission, are potent indicia of legislative effect.

Can I then take your Honours, please, to the definition of “written law” on the next page and your Honours will notice that “written law” includes “all subsidiary legislation”.  May I then ask your Honours, please, to go to section 7 which provides that:

Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power ‑

Now, the expression “written law” picks up the definitions. Can I then take your Honours, please, to section 41? Your Honours might recollect I took you to the reference in the Emergency Management Act itself that reference section 41, and section 41 deals with the relatively typical requirements about the promulgation of subordinate legislation and no doubt understandably the Emergency Management Act made some provisions that provided for some relaxation of those requirements, granted, it is said, to the extent necessary.

The upshot of all of that is that the directions take effect in Western Australia as subordinate legislation and if one then returns to the test as promulgated in Wotton in paragraph 22, it becomes clear that the complaint asserted against us by Victoria fails at the first hurdle, that is, the burden on section 92 here being the limitation upon movement across the Western Australian State border as a result of the declaration has its source in a statute and, therefore, it is to be treated as a limitation on legislative power.

It also follows that the – one does not need to go any further and, in a sense, should not go any further than that, but as it happened it also failed because for like reasons the declaration – sorry, directions take effect as part of the written law of Western Australia and is, in fact, the decision, for example, as to whether somebody would be an exempt traveller, that is the matter that is the subject of the second component of the Wotton test.

In our respectful submission, that is a complete answer to that and it is an unsurprising answer, it explains cases like Gratwick, which was a case that dealt with subordinate legislation; it explains cases like APLA which were also in that category; Levy and Cornwall are the two others to give an illustration.  Wotton, of course, was a different case, it was an exercise of the Executive discretion in relation to parole.  Your Honours, that was our response to that matter and I regret it was not set out in that full way in our written submissions.

EDELMAN J:   Why is not subordinate legislation an example of an application to particular circumstances of the primary legislation?

MR DUNNING:   In our submission, because that is not the structure that is adopted in Western Australia.  It is to – by provisions I can take your Honours to ‑ treat subordinate legislation as part of the statutory or legislative regime of that State.

EDELMAN J:   Well, put it this way, if the primary legislation did not allow its application to those particular facts would the subordinate legislation be valid?

MR DUNNING:   I am sorry, I am not quite sure I follow your Honour’s question.

EDELMAN J:   If primary legislation did not enable subordinate legislation directions here to extend to particular circumstances could those directions be valid?  They have to be sourced ‑ ‑ ‑

MR DUNNING:   They have to be sourced.

EDELMAN J:   ‑ ‑ ‑ in the primary power.  If the primary power provides a source of power then how can any constitutional restriction act only upon the delegated or the subordinate legislation?

MR DUNNING:   Well, if we take the present example, a state of emergency is declared across all of Western Australia to deal with a terrible natural disaster, so one can see why there would be a power in somewhere like Western Australia to be able to declare a state of emergency over the whole of Western Australia.  So, there is a power to do that.  If in the exercise of that power in different circumstances here it is relied upon to do something which takes the force of the statute to, in this case, offend an express constitutional freedom then it will not be the Act that will have offended that because there is nothing exceptional in the fact that the Western Australian Act might cover all of Western Australia.  It is that a direction that is made under it offends section 92.

Another way of illustrating the same point is let it be assumed that it be determined that the directions were issued in circumstances where it was reasonably necessary to exclude persons from some States but not others there would be a real tension with challenging the power to declare a state of emergency over the whole of the State and make orders consistent with that when, in truth, the complaint is that that power when it became – when it took a particular statutory force in respect of a particular set of circumstances trenched on section 92.

KIEFEL CJ:   Mr Dunning, is it possible to frame the question about the reasonable necessity for these directions in connection with the Emergency Management Act, perhaps in this way, looking at section 72A(2).  From the plaintiff’s perspective could it be said that there is a question about whether the action taken by the authorised officer for the purpose of emergency management during an emergency situation, namely by making the directions, is reasonably necessary to prevent control or abate the risks associated with the emergency and, if the directions are not reasonably necessary to that end, is there not a question whether or not they are authorised by the statute? 

MR DUNNING:   Framed in that way, yes.  Unless we can assist your Honours any further, those are our submissions. 

KIEFEL CJ:   Yes, thank you.  Yes, Mr Solicitor.

MR THOMSON:   May it please the Court.  Can I commence with a couple of housekeeping things, and the first relates to the supplementary court book?  That contains within it two affidavits of Mr Jacobson, and they are found at tabs 23 to 24.  The supplementary court book and the further supplementary court book have been provided to the Court.  We had some objections to the inclusion of Mr Jacobson’s affidavits, which are set out at pages 78 to 79 of the supplementary court book.  Part of those objections is that we did not understand what use might be made of them by reference to any subjective purpose of the Premier.  It does not appear as if any use has been made of them and so, in those circumstances, we maintain what is said in our letter of objection and also correct the transcript that is provided there in any event. 

Can I commence by making some comments about the directions and, as your Honours know, a consolidated version of those directions is contained in the supplementary case book.  Perhaps I can make reference to those that have been made by my friend.  The first comment I would make is that the directions were first made in April and were amended eight times subsequently, and I should just mention where you will find the amendments, and the significance of them.

The initial directions are found in the joint book of authorities at volume 2, and behind tab 14 at page 266.  They go from page 266 to 289.  Then immediately following, between pages 290 and 340, there are the amendments that have occurred between amendments 2 and 7.  Amendment 8 was made last week on 30 October, and that amendment is contained in supplementary court book at pages 156 to 160.

Before I come to the significance of those amendments, I will just indicate to the Court how the directions operate.  If you go to the consolidated directions at page 122 of the supplementary court book, you will see, as your Honours have already noted, that there is a preamble which states the purpose of the directions and that is preceded by the circumstances in which the directions have been made.

In that respect, we adopt what has been said, that they are in stark contrast to, for example, the order that was the subject of the challenge in Gratwick.  Incidentally, your Honours have the precise terms of that order in I think it is – I beg your pardon, you have the precise terms of the order in Gratwick in your joint book of authorities.  It is in volume 2 of the joint book of authorities at tab 2, page 232.  Can I go back to the consolidated directions at page 122 of the supplementary court book.  Paragraph 4 says that:

A person must not enter Western Australia unless the person is an exempt traveller.

Can I draw your attention to the definition of “enter”, which is contained in paragraph 26 on page 128 and it includes disembarking from an affected aircraft or disembarking from an affected vessel or crossing the border into Western Australia by rail or by road or by any other means.

Now, the terms “affected aircraft” and “affected vessel” are defined in paragraphs 18 and 19, and they simply mean vessels or aircraft that have come from places outside Western Australia.  I mention this because it demonstrates that the directions do not distinguish between international arrivals and between interstate arrivals.

Having said that, I should mention that in relation to travellers who come from international places, they are governed by the Migration Act and the ability to arrive into Western Australia or another place in Australia will be the subject of visas under sections 29, 42 and 43 of the Migration Act and the ability to arrive is outside the State’s control because of the Commonwealth legislation and the operation of section 109 and that is why there has to be agreement between the States and the Commonwealth in relation to a cap for international arrivals.

KEANE J:   That might affect the effect.  It does not alter its purpose.

MR THOMSON:   No, that is right, but I thought I would just draw your attention to how they interact.

GAGELER J:   An Australian citizen does not need a visa.

MR THOMSON:   No, that is true, but I think that the Commonwealth also has the power to control entry through the Migration Act or through other Commonwealth legislation for the return of Australian ‑ ‑ ‑

GAGELER J:   What is the relevance of all this?

MR THOMSON:   To explain that while the directions operate both nationally and internationally, there is a practical difference between international and national arrivals in terms of who controls that and I did not want the Court to be misled, by reference to the fact that the directions operate both nationally and internationally, into thinking that directions are the only thing that affect international arrivals.  So, in a broad sense, the Commonwealth has control over international arrivals in some ways although they also have to comply with the directions except to the extent of any inconsistency, but the directions are the only thing that apply to interstate visitors.

Now, there is a suite of exemptions that are contained in the directions and you will see that if you start at paragraph 5 on page 122, it says that:

A person who is an exempt traveller must not enter Western Australia if the person:

(a)has symptoms –

of the coronavirus:

(b)has received oral or written notice from a responsible officer that the person is a close contact; or

(c)is awaiting a test result after having been tested; or

(d)      has received a positive test –

Now, that is how the directions stand as of today, but in times that have gone by through amendments 2 to 7 there has been a narrower set of exemptions that have been applicable to visitors to Western Australia from Victoria and from New South Wales and that is by reason of the addition of a paragraph 5(e) in the directions. 

Perhaps I can illustrate that by taking you to the consolidated directions as they stood as at 16 September which is in court book 4 at page 1450.  You will see paragraph 5 is reproduced there but that the prohibition against an exempt traveller entering into Western Australia is also subject to paragraph 5(e) and that includes where that person:

has been in New South Wales or Victoria in the previous 14 days unless –

certain other things are satisfied.

EDELMAN J:  What dates are these directions effective as at?

MR THOMSON:   This is at the date of 16 September 2020.  It says ‑ ‑ ‑ 

GORDON J:   I am a bit lost, Mr Solicitor.  Why have we been taken to 5(e) if we are only concerned with the consolidated directions as at today’s date?

MR THOMSON:   The reason is to demonstrate that the directions have been amended in order to take into account the changing nature of the coronavirus conditions over the period which they have applied.  One of the allegations that has been made is that the directions are indiscriminate and do not take into account varying circumstances and this is to demonstrate that in fact they do. 

In fact I was about to mention that objectively the type of amendments that you see through amendments 2 through to 7 reflect the course of the pandemic and various spikes that have occurred as have been agreed in the special case demonstrated through the matters stated in the court book in volume 2 at pages 240 to 241. 

If you look at those pages you will see that there is a history since the decision of Justice Rangiah about how there have been spikes in Victoria and New South Wales in particular which correspond with the types of amendments that I have just mentioned, and there is also a recitation of other spikes that have occurred throughout other States.

Finally, can I mention the nature of the exemptions that apply to make somebody an exempt traveller, and they are contained in paragraph 27 of the directions.  If you go to the consolidated directions, you will see that paragraph 27 starts at page 128 and there are quite a significant number of exemptions, and they fall into various categories. 

There are exemptions for personnel who are relevant to national and State security and governance, and that includes Commonwealth and State parliamentarians.  There are exemptions for health services.  There are specific exemptions for people who are involved in the delivery of freight and logistic services into and out of Western Australia.  There are exemptions for people who have specialist skills that are not available in Western Australia.  There are exemptions for FIFO workers and their families, although that is subject to 14 days of quarantine.  There are exemptions for emergency services workers, for courts, tribunals, and commissions, and then lastly there are some exemptions that are available on a specific basis for compassionate reasons, and for any other grounds that may be approved. 

I would suggest that the nature of those exemptions is entirely different, once again, to the nature of what occurred in Gratwick.  I think my friend tried to persuade the Court that really all that mattered was the ability of the Executive to approve or not approve somebody coming in on any grounds in the last exemption, and that was somehow equivalent to the situation in Gratwick where a person had to apply for an exemption to cross the border and it was entirely at the discretion of the Executive whether or not to grant that exemption. 

Can I then say something about the course of the case and how it is that we come in terms of health matters to the position of the directions that have been made on 30 October.  The course of the case has been outlined in some detail in our written submissions which we filed yesterday about whether or not this case should proceed, and those submissions set out the history of the pandemic, the making and amendment of the directions and the forecast changes.

Can I take you specifically, however, to the health advice that was given by the WA Chief Health Officer, which has led to the changes contained in the most recent directions and also forecasts particular changes which are proposed to take effect on 14 November 2020, subject to circumstances permitting as they are assessed at that time.

The relevant health advice is found at pages 340 to 345 of the supplementary court book, and it is dated 28 October 2020.  This health advice goes through some background about the situation as it has existed in various jurisdictions  – and I will not read all of that to the Court.  If you go to the second section, it talks about “Proposed immediate amendments to border controls” at page 341.  If you go over the page to 342, you will see that at line 20, the Chief Health Officer says:

In New Zealand, there have only been cases in hotel quarantine since 22 October 2020.  As their situation is similar to NSW, where they have been able to enter without quarantine since 16 October, and given the robust testing and contact tracing being undertaken, New Zealand is expected to continue having no community cases with an unknown source over the next two to three weeks.

Now, I should just point out that the ability of people from New Zealand to enter into New South Wales without quarantine from 16 October is 28 clear days prior to 14 November, so that is the first matter that I should draw to your attention.  The relevance of 28 clear days is that it is two incubation periods for the coronavirus, and the decision of Justice Rangiah at paragraph 113 states that he makes a finding that:

The expert witnesses agree that where there have been no reported cases of community transmission of COVID‑19 for two incubation periods (28 days), the disease can be described as “eliminated”.  The experts also agree that where there have been no reported cases of community transmission with an unknown source of infection for 28 days, that is “as low risk a situation as can reasonably be hoped for”.

So the reason I am drawing your attention to this point is because there will be two incubation periods passing from the time when New Zealanders come into New South Wales without quarantine.  Then if you look at the section that starts at the bottom of page 342, it talks about “Proposed future amendments to border instructions”.  The Chief Health Officer says, in the third‑last line on that page:

Many of these jurisdictions –

and he is referring to Australian jurisdictions:

have announced their intentions to open to NSW and Victoria over the next 5 weeks, with all jurisdictions planning to open to NSW by 02 November 2020 and several to Victoria by 01 December 2020.

So, I just emphasise that all jurisdictions are planning to open to New South Wales by 2 November 2020 and that is about 14 days prior to 14 November, which is the anticipated date for forecast changes in WA, and that is about one incubation period.  If you look at page 343 you will see that, in the second paragraph, the Chief Health Officer says:

If the NSW and Victoria cases continue to improve as anticipated, the border control exemptions should be eased on 14 November 2020 to permit entry to all travellers who have been in NSW or Victoria in the last 14 days, while continuing home quarantine and day 11 testing to prevent any importations from any ongoing outbreaks.

KIEFEL CJ:   What does the Chief Health Officer say about Queensland?

MR THOMSON:   Queensland is dealt with as part of the other Australian jurisdictions.  He has not gone into it specifically.

KIEFEL CJ:   I see at page 341, at about line 15, he says there were:

8 new cases on 09 September 2020, which has now resolved with no community cases reported for more than 28 days.

MR THOMSON:   Yes, that is in relation to the history.  In relation to what is proposed for future amendments the Chief Health Officer is drawing a distinction between New South Wales and Victoria, and other Australian jurisdictions.  I was about to try to explain the basis for that, if that would help the Court to understand.

KIEFEL CJ:   Yes.

MR THOMSON:   So the Chief Health Officer, just after where I was on page 343, at about line 15, says:

If NSW and Victoria continue to have no community cases, from either an unknown source or where the contacts were not in quarantine, for 28 days, the border controls should be amended to reflect those of other Australian jurisdictions.  If New Zealand continues to have no community cases with an unknown source for 28 days, the interstate border controls should be amended to reflect those of other Australian jurisdictions.

He then mentions the review of Phase 4 and, because of the success in WA of avoiding coronavirus within its borders there has been an ability to relax social distancing and other measures, and the Chief Health Officer says, around line 22, that:

Current modelling continues to show that WA, even in Phase 4, remains the most susceptible to a major outbreak of all the States, only surpassed by the Northern Territory, due to the increased numbers of people moving around in our society and the mixing between non‑family groups.

So because of the way in which the health situation has progressed in WA there is a greater level of mixing and, therefore, to bring down the borders at this point in time will involve a greater risk to WA.  So that is part of the reason why there is a need to defer it until 14 November, and to work out about the incubation periods that are applicable.  If you look at the bottom of the page, you will see that the Chief Health Officer says in the last two lines:

I recommend that all visitors make a declaration as to their whereabouts in the last 14 days and a declaration of their current health status.

That is to help to understand whether there has been any border hopping.  Then he goes on and says:

The health declaration and temperature check at airports could be reviewed and any symptomatic people would be either requested to undertake aCOVID-19 test, if they were from a non-COVID jurisdiction, or required to take a test, if they came from NSW, Victoria or New Zealand, at the airport.  The health screening measures should be reviewed after 28 days to ascertain their ongoing efficacy.  Once cleared, people will be free to enter WA without quarantine if they have been in a non-affected jurisdiction.  If they have been in NSW, Victoria or New Zealand in the last 14 days they can enter; but they would be required to home or self‑quarantine for 14 days and to undertake day 11 testing. 

So what has been proposed by the Chief Health Officer and what has then been announced is that he is of the view that the directions should be amended from 31 October to essentially bring Victoria into line with other jurisdictions for the period up until 14 November and then his forecast, subject to confirmation as at 14 November 2020. that:

·any person who has been in a non-COVID affected jurisdiction for 14 days to enter WA without the requirement for quarantine testing; and

·any person who has been in Victoria, NSW or New Zealand in the last 14 days to enter WA across state borders with requirements for day 11 testing and home quarantine only, subject to confirmation of the public health status of the jurisdictions at the time.

So the Chief Health Officer has quite carefully considered how the directions need to be amended as they presently stand and that led to the removal of paragraph 5(e) from the directions on 30 September to the ones that are now in place, and that deals with taking Victoria and making them align with everyone else. 

It follows that by 14 November, if all other things are equal, there will have been 28 days or two incubation periods which have elapsed since New Zealand visitors were allowed to enter New South Wales without quarantining, there will have been 14 days or one incubation period since all other borders were open to New South Wales and it will be possible to confirm that the improvements in each jurisdiction have continued and that there have not been any other further unexpected outbreaks. 

KIEFEL CJ:   Do I take it from this, Mr Solicitor, that the position of States such as Queensland and the Territories are viewed by the Chief Health Officer through the prism of New South Wales, the risk being  persons coming to New South Wales and then the borders being opened to New South Wales. 

MR THOMSON:   Yes, to some extent.  Can I explain what has been announced and perhaps the easiest way to do that is through the media release which is at page 411 and following on in that book.  Your Honour’s question raises exactly the point that I was just about to come to.  If you go to the bottom of page 411, the Premier announces what is proposed.  He says:

Pending latest health advice, effective from 12:01am on Saturday November 14, Western Australia will enact the new controlled interstate border under the Emergency Management Act. 

Then, you go over the page, he says that:

The Chief Health Officer has recommended a 14‑day rolling average of less than five community cases per day in each State and Territory . . . be required before progressing to the new border controls.

So, that is to look at the rolling average across all of Australia but you would expect that to be based upon cases in New South Wales and Victoria.  Then, from other jurisdictions people can enter without quarantine if there have been no community cases in those jurisdictions.  So, if the rolling average across all of Australia has dropped and there have been no community cases in your jurisdiction such as, say, Queensland, you could then come into WA without quarantining, but if you came from New South Wales and there had been community cases in that jurisdiction for the last – within the last 28 days then you would be the subject of home quarantine and day 11 testing for COVID.

Now, the question that I think your Honour has asked me is what is the connection then between an Australia‑wide rolling average and coming from a jurisdiction ‑ ‑ ‑

KIEFEL CJ:   Yes, really what I am asking is that Queensland is one ‑ and Northern Territory, I think, have had more than the required period of 28 days but I infer that the – as much as I can, I do not pretend to be on top of this, but I infer that borders have not opened to those regions of Australia, those State and territories, because their borders are in turn open to places like New South Wales and from there New South Wales feeds in from New Zealand, so although they have been clear there is – the rolling average takes effect because it takes a while for people coming into those areas to – for it to be clear that there is no community transmission from people coming in.

MR THOMSON:   Your Honour is absolutely right and there is other things to take into account and that is that each of those jurisdictions may have had their own border changes in the last few weeks.  So, let me give you Tasmania which has been the focus of some discussion as an example.  So, in Tasmania ‑ on 26 October, Tasmania announced that it was going to change its border entry protocols and those were going to be different from the restrictions that applied at the time of Justice Rangiah’s judgment.

Can I just find my references for what Tasmania has actually said that they will do?  If you look at the supplementary court book at page 216 you will see that there are some new directions in relation to persons arriving in Tasmania and those new directions, I think, are dated 24 October and take effect on the 26th and they classify entry from various jurisdictions that might be high risk and medium risk and then by default they are low risk jurisdictions.  Those matters are perhaps more conveniently explained if you go to page 346 which identifies what the regime means in coming to Tasmania.  It identifies low risk areas and medium risk areas and high risk areas.

So, there is a change in the way that Tasmania is operating its borders.  As I have indicated, what the Chief Health Officer has said in his advice that I have shown you is that all of the jurisdictions have indicated that they will be  opening their borders to New South Wales by I think it was 1 or 2 November.  He is then allowing one incubation period to pass to see whether or not the rolling average goes up or down as a result and whether those jurisdictions have other people who have come into them.  Then as a result of evaluating that, it is possible to then know whether it is safe to come into WA.  WA, as I have indicated, has the situation where it has loosened its social distancing restrictions and so forth and therefore has a high risk.

Another point that I should make about WA is that it has specific indigenous communities which are at higher risk as well.  If I can take you to the judgment of Justice Rangiah, he found that specific particular to be proven.  If I can take you to page 211 of the volume 1 of the court book, paragraph 363, you will see particular f, which has been pleaded by us and you will see that he has found proven:

the consequences of community transmission of SARS‑CoV ‑2 and the development of COVID‑19 are substantial, including the increased risk of mortality, particularly for members of the population who are over 70 years of age, members of the population with pre‑existing medical conditions, or members of the Aboriginal and Torres Strait Island population, and the risk that the hospital system in Western Australia will be unable to accommodate a substantial number of cases ‑

So there is that specific overlay where WA is concerned.

KIEFEL CJ:   If I might interrupt, your reference to this – these are particulars of the broader allegations of justification in paragraph 47(d)(iii) to (v).

MR THOMSON:   Yes.

KIEFEL CJ:   His Honour’s finding at paragraph 364, which I took up with Mr Dunning, is that these factual particulars are made out.  His Honour does not suggest that he is answering the broader questions of reasonable necessity; rather, his Honour is focusing upon the particulars as set out in paragraph 363.

MR THOMSON:   Yes, he is making a finding that as a matter of fact those particulars are established and then he does the same thing in relation to the matters of fact that are alleged in paragraph 39C in paragraph 365.  There is a significant similarity between the matters that are pleaded as facts and in paragraph 39C and the matters that are particularised in paragraph 47(d)(iii) to (v).  I propose to return to how to deal with some of things a little bit later but I just thought I would draw your attention to the finding of fact about the indigenous populations and at‑risk populations in WA. 

Can I say something about the nature of the plaintiffs’ case and as we apprehend it, ultimately, it seems to turn upon questions of fact and we think that those questions of fact have been decisively found against the plaintiffs by reason of the way in which Justice Rangiah has framed his reasons.

The primary submission which the plaintiffs make is that the intercourse freedom in section 92 means that interstate intercourse shall be absolutely free of any burden which is aimed at or pointed directly at a cross‑border movement, and I use that language derived, of course, from Gratwick and Smithers in various paragraphs of their primary submissions.  But, as we endeavour to point out in our oral outline of submissions, we do not think that they give a particular conceptual meaning to those words aimed at or directed at, instead they illustrate what those words have been said to mean in Gratwick  and in Smithers.

KIEFEL CJ:   I had understood the plaintiffs now to no longer suggest that the directions were aimed at or directed only at interstate travel, they accept that they are directed to the protection of Western Australia, and the test really comes down to reasonable necessity.  I thought it was really the case had reduced to about that.

MR THOMSON:   Yes, I think that is precisely right and I think your Honour has taken away what I was going to say about the case because the question then of reasonable necessity perhaps becomes a question of fact.  As a result, it is our submission that it is probably helpful to just understand it with a little bit more precision exactly the nature of the facts that are under consideration in this case.  Maybe the easiest way to start that is to go back to the judgment of Justice Rangiah and the summary of findings that he has set out at page 366.  The first point which I think we need to emphasise is this – and it is the point that is contained in the first bullet point in paragraph 366 and it is that:

The risk to the health of the Western Australian population is a function of two factors:  the probability that COVID‑19 would be imported into the population; and the seriousness of the consequences if it were imported.

So, he has divided the analysis up into those two different things.

GAGELER J:   Although he does not use the word “risk” consistently, I think.  Sometimes he uses it to mean “probability”.

MR THOMSON:   Yes.  I think that is right, but I think that, broadly speaking, the division between the two different types of matter that he has considered is clear from the way he has approached the judgment and it is also something that he started out with in paragraph 79, at page 150.

KIEFEL CJ:   To take up Justice Gageler’s point, though, Justice Rangiah speaks at many points about the risk of reintroduction of the disease into Western Australia in that context.  It is a risk, but he is actually referring to the risk of harm.  He is not talking about an assessment of something occurring.

MR THOMSON:   This is the way the expert witnesses also divide it up.  There is a question about the risk of somebody who carries the disease coming into Western Australia and then there is the question of the risk of that person spreading the disease once in Western Australia.

KIEFEL CJ:   Yes, and the evaluation that his Honour undertakes is with that secondary aspect, so the risk is of it spreading once it comes in or ‑ ‑ ‑

MR THOMSON:   No, it is the first aspect.

KIEFEL CJ:   It is the first aspect.  That is right.  I am getting confused.

MR THOMSON:   So it is important to understand the two different things, for this reason.  The operation of the, if you like, hard border or the exclusion of people, means that people with the cases do not come into Western Australia.  Now, there are other measures.  There is a suite of measures that can be adopted if you do not have that type of restriction that prevents the spread, once you are in Western Australia, to minimise the risk of a case spreading.

But the point that Justice Rangiah makes is that there is nothing as effective as keeping somebody out who has the disease or at least making them go into quarantine, if that is necessary, for 14 days, which is the one incubation period.  So the things that he finds are, in effect, that there is no as effective means for reducing the overall risk of spreading of COVID‑19 into the community as keeping out the people who have the disease in the first place and that the suite of measures that may be adopted, such as social distancing and face masks and all of those things which contain the transmission of the disease from people that might have it within the community once they are introduced into the community are not equally effective.

KIEFEL CJ:   Well, given that his Honour, as you said earlier, is assessing the risk of reintroduction of the disease, I take it that his Honour then takes as a given that if it is reintroduced it is likely to spread, with all of the serious consequences?

MR THOMSON:   That is exactly right.

KIEFEL CJ:   So the assessment, though – the risk that is being assessed is the reintroduction of the disease?

MR THOMSON:   That is exactly right, but when he is talking about low, very low or high or so forth, he is talking about the risk of it coming in or the reimportation.

KIEFEL CJ:   Yes, quite.

MR THOMSON:   So in a sense, if there is such a risk, then there should be no debate at all that there is certainly a risk that it will then spread within the community and increase the mortality and morbidity rate within the community.  So, in effect, the only time that you get to a situation where the hard border or the exclusion is not relevant is if there is no real risk at all of reimportation.

GAGELER J:   In his Honour’s language, no real probability of reimportation.

MR THOMSON:   Yes.

GAGELER J:   That is a distinction he is drawing in that first dot point.

MR THOMSON:   Yes, but yet his Honour has certainly not made any finding to the effect that there is any jurisdiction in Australia from which travellers may come without there being any risk of reimportation of the disease.  He has made an assessment in relation to Tasmania at the time that there was a very low risk of travellers from there, but he has also made that subject to an exception in relation to border hopping.  The difficulties of border hopping were completely ventilated at the trial before his Honour.

In effect, the reasons why we say that this becomes a factual matter is because this Court cannot conclude and Justice Rangiah did not conclude that there was no risk of reimportation.

EDELMAN J:   There is also the issue of number of low risks combining to become a higher risk.

MR THOMSON:   Precisely, yes.

GORDON J:   Mr Solicitor, do you accept that what is in the fourth bullet point in 366 is an accurate summary still of the position about the probability of reintroduction?

MR THOMSON:   Is it still an accurate summary?  Is that the question, your Honour?

GORDON J:   Yes.

MR THOMSON:   Well, in terms of Queensland ‑ ‑ ‑

GORDON J:   To pick up Justice Gageler’s question, the way that Justice Rangiah identified it, as I read it, is that he addressed the probability of reintroduction of the disease – that is the fourth point.  “I can’t assess it”, he said.  “It’s too uncertain” because of the number of factors which are themselves hypothetical and unpredictable, and then makes a qualitive assessment by reference to what was then known in the next bullet point.

MR THOMSON:   Yes, and some of those matters about the particular States have altered and we have endeavoured to try and outline how they have altered in our submissions and, even since those submissions were filed, we have pointed out just now that Tasmania has altered its own border restrictions and that there is going to be a change by 2 November whereby all Australian jurisdictions, apart from WA, will open their borders to New South Wales and there has been another change that I have mentioned, which is that New Zealanders, without quarantining, will be admitted into New South Wales or have been admitted into New South Wales since 16 October.

So those are relevant matters that inform the way in which the Chief Health Officer has given advice about how to deal with the existing situation and then forecasting changes that might, subject to other confirmation of the circumstances at the time, apply on 14 November.  But can I take the Court to paragraph 10 of our oral submissions.  We point out that applying entry restrictions to travellers from Australian jurisdictions with no cases is still presently justified where there are other Australian jurisdictions which have recently had cases of unknown sources of community infection.  That is because border hopping between Australian jurisdictions is a real and not fanciful risk. 

If you go to the relevant paragraph in Justice Rangiah’s judgment, he says exactly that.  He also illustrates it at the time that the trial was occurring, and he sets this out in his judgment.  You will recall that there were two young ladies who were in Melbourne and then went to Sydney and then managed to obtain entry into Queensland.

KIEFEL CJ:   I think there were three, actually.

MR THOMSON:   Maybe three.  That actually introduced a significant number of cases into Queensland – and that is a good example of border hopping.  That is set out in the judgment of Justice Rangiah.  He also says that any alternative strategy which is based upon detection of localised hotspots inevitably suffers from a lag time, which allows transmission of several generations of the disease because if you have an incubation period with a median incubation time of five days, or five to seven days, you do not know whether or not you have the disease for some period of time and as a result of that you can go around infecting other people.  In circumstances where there is significant travel in these days, the difficulty is that you may infect people quite widely.

Justice Rangiah also made the point that there was rapid, uncontrolled transmission resulting from the introduction of a single infected individual to a community, which has occurred in multiple settings where there is otherwise good surveillance and testing control, and he has illustrated that by reference to quite a number of different places.  He also said that it was appropriate to adopt a precautionary approach where there was substantive uncertainty and important harms are plausible. 

So all of those things we submit mean that it is appropriate for the present directions to be in place.  There is the forecast of a possible change.  The health reasons for doing so have been set out by the Chief Health Officer in the advice that I have taken you to.

Now, if I could go to an example which was an extreme case that Justice Edelman gave, if all of this was being put into place five years after any coronavirus case whatsoever, then it would be a much more difficult situation to say that any of this was justified; but that is certainly not where we are sitting in this present time.

So it is not sufficient for the plaintiffs to say you cannot keep a hard border or an exclusion of people subject to the exemptions in place for another two weeks until 14 November to places that have had no community transmission for the last 28 days, because that does not take into account all of the other matters that I have just enumerated.

It does not take into account the nature of the coronavirus and the precautionary approach and it does not take into account the prospect of border hopping.  It does not take into account the fact that you cannot expect people to necessarily act honestly – and that was another point that Justice Rangiah made.

So, we are talking about directions with temporary effect and we are talking about directions in circumstances where there has been a forecast change but subject to confirmation at the relevant time that the health conditions are appropriate for that change.  So it is not a case that a decision has been made finally at this point that these borders can be lifted.  It is a case where this has been a calibrated approach based on the circumstances that factually exist. 

So, if, indeed, we are correct in saying that you cannot conclude that there is no risk of COVID‑19 being imported from any of these jurisdictions which have not had any community transmission cases in the last 28 days, then the findings of Justice Rangiah are quite abundantly clear that there is no other less – equally effective means to achieve the protection of the WA community than the border restriction strategies that are contained within the directions as they presently stand. 

We would make the submission that at that factual point the plaintiff’s case must fail and it must fail whatever test of reasonable necessity is adopted because the factual findings that have been made by Justice Rangiah are quite plain. 

Perhaps I can just mention some of the factual matters that have informed his thinking and then I will come back to the particular finding in relation to paragraph 39C(i).  But in our primary submissions we set out the 11 things that Justice Rangiah found about the nature of the disease.  Those 11 things are identified in paragraph 9 of our primary submissions and can I just emphasise some of those matters. 

Apart from the fact that as is widely known there is presently no known vaccine or cure for COVID‑19, it is important to recognise that it is asymptomatic and that asymptomatic and pre‑symptomatic transmission of the virus, coupled with people who are mildly symptomatic, leads to persons unknowingly spreading the virus.  That was the fifth matter that Justice Rangiah identified. 

The sixth matter was that it is highly infectious and is transmitted exponentially unless it is controlled.  The seventh matter is that testing for it is imperfect and infectious persons can return negative results on occasion.  A very important matter is the eighth matter and that is that when you talk about the number of cases you have to recognise that they do not represent a linear average in any way, shape or form, but they represent a stochastic progress of the disease through a community because they rely upon people’s behaviour and so you cannot say that it spreads in an average way but you have perhaps one person with the disease who then perhaps is in contact with another person in their community and that leads to chains or clusters of infection and, therefore, it is not possible to talk about this sensibly in a linear or an average type of fashion.

Justice Rangiah also mentioned the lag time, which I have already spoken about, which has an effect in relation to hotspots, and using those a means to prevent the spread of the disease and he concluded that the hotspot strategy was less effective than the border restrictions contained in the directions that Western Australia had implemented.  He also found that the efficacy of containment measures depends upon people’s willingness and ability to comply and that that dwindles with time, and that there were uncertainties with the disease and the overall health impacts are not yet fully known.

Can I mention to you that if you go to page – paragraph 272 of the decisions of Justice Rangiah, he has previously - he was talking about Tasmania.  He said, in paragraph 271, that:

At the time of the hearing, there had been no reported cases of community transmission within the last 28 days in Tasmania.  On that basis, and on the basis of the experts’ opinions, it must be concluded that the probability that there is presently any community transmission of COVID-19 in Tasmania is very low or negligible. 

He then goes on with a qualification in paragraph 272. He says:

However, another factor affecting the probability that a person infected with COVID-19 would travel from a State in the position of Tasmania to Western Australia if the border restrictions were removed is the issue of “border hopping” to which Dr Robertson referred.  Given that this practice has been detected by Western Australia on at least four occasions in the past, it is a real, and not fanciful, risk. 

Then he says, and this is no longer the case:

The risk is lessened by the border controls presently in place in Tasmania.  Tasmania requires people entering the State to remain in specified quarantine for 14 days, subject to certain exceptions.

He mentions in respect of the ACT, the vulnerability of Western Australia to border hoppers in paragraph 280.  He mentions again that vulnerability in paragraph 283 in relation to the Northern Territory, and paragraph 290 in relation to Queensland. 

So, quite clearly, his Honour had in mind that that was a significant issue.  The findings that his Honour makes about the risks that are involved do not segregate jurisdictions within Australia and say, well, because the risk of importation from that particular jurisdiction is low or very low that it is not appropriate to have a border in respect of that jurisdiction. 

In fact, we would make this submission.  There is no finding of fact that there is no need for a border restriction in respect of low‑risk jurisdictions.  There is no finding of fact that there are equally effective means of preventing travellers from low-risk jurisdictions causing a COVID-19 outbreak in Western Australia . There is no finding of fact that there is zero risk of importation of COVID-19 from low‑risk jurisdictions.  In fact, the judge was really asked to make those findings, but he did not make them. 

If you look at issue number 7 on page 210 - this was in the agreed questions – the agreed statement of issues – issue number 7 is:

Whether the risk of a person introducing SARS‑CoV‑2 is reduced by alternative measures -

and then the postulate is this:

Assuming that a person enters Western Australia from:

(a)any or all of Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory;

(b)New South Wales;

(c)Victoria, or

(d)any of these places,

whether the risk of such a person introducing SARS‑CoV‑2 into Western Australia and increasing the risk of morbidity and mortality in the Western Australian community is reduced (and to what extent) by the border entry restrictions contained in the Directions with the measures in paragraph 5.1 (to the extent implemented by Western Australia)), compared to:

7.1.where there are no border entry restrictions contained in the Directions but all of the measures in paragraph 5.1 are implemented . . . or

7.2where there are no border entry restrictions contained in the Directions but all of the measures in paragraphs 5.1 and 5.2 are implemented . . . or

7.3where there are no border entry restrictions contained in the Directions but all of the measures in paragraphs 5.1 and 5.3 are implemented -

So, in effect, the judge has been asked to make some findings about entry from the particular areas and the comparative risks between the situation of the directions applying and whether they are equally effective or more effective or less effective than certain other restrictions.  He has said that he has dealt with these issues, but he never makes any finding of fact that the plaintiffs can hang their hat on to the effect that there is no need for the border restrictions in respect of low‑risk jurisdictions or that there are equally effective means of preventing travellers from low‑risk jurisdictions causing - or importing COVID‑19 into WA.

In fact, to the contrary, in his summary, in the last four bullet points at page 216 he makes express findings that various other measures would be less effective than the border restrictions.  That is the case in the last three bullet points.  He makes express findings in respect of two matters that have been pleaded, really to the same effect.  If you look at page 211, subparagraph k in the particulars to paragraphs 47(d)(iii) to 47(d)(v), it is pleaded that:

no Isolation Measures, apart from those contained in the Directions, would be equally effective in reducing the risk of re‑introduction of COVID‑19 into the community of Western Australia and the risk of community transmission of SARS‑CoV‑2 within Western Australia, so as to prevent further community transmission from a Case which is infected and to prevent an increased risk of morbidity and mortality within the Western Australian community or population -

Now, that identifies both types of risk, the risk of the importation and the risk of increased morbidity and mortality, and he finds that that particular has been made out.  That is also the case in relation to paragraph (h) set out in paragraph 365 on page 213, which is in the same terms.

Now, can I say something about the finding that is made by Justice Rangiah in respect of subparagraph (i) in paragraph 365, at the top of page 214.  The allegation is that:

The easing or relaxation of the Community Isolation Measures contained in the Directions that apply to persons travelling from interstate can only occur without an increased risk of morbidity and mortality within the Western Australian community or population while there is no community transmission within other Australian States and Territories.

Now, that is clearly a prospective pleading, “can only occur” in the future.  And he says:

I do not accept that this allegation has been proven.  The experts conclude that the risk is higher from some States and Territories than others, and that the disease can be considered to be “eliminated” when there has been no community transmission from an unknown source for 28 days.  It may therefore be possible –

So he does not say it should happen, he does not say it must happen, he says:

It may therefore be possible –

at some point in the future:

to ease the border restrictions with some States and Territories without a significantly increased risk of morbidity and mortality in the Western Australia population while there is ongoing community transmission within other States and Territories.

That is precisely what has been forecast as going to occur on 14 November, that is to say that there is going to be an assessment of the Australian rolling average of cases and that may or may not mean that there is ongoing community transmission in New South Wales and Victoria, and, if there is, then people from those jurisdictions may have to go into home quarantine.  But in relation to those jurisdictions where there has not been any community cases, the health conditions have now progressed to a point – assuming that this is confirmed on 14 November ‑ that people from those other jurisdictions will not have to go into quarantine.

So, in that respect, all that has happened is that Justice Rangiah has said something about a proposition which was abstract and non‑specific which ultimately looks like it may come to pass if the health conditions are correct.  We have dealt with what is meant by this particular finding in our primary written submissions, at paragraphs 20 through to 22, or 23.  I think I have covered everything in substance that we have said in those paragraphs but we have set out in those paragraphs quite specifically why that finding is of no assistance whatsoever to the plaintiffs in this case. 

Having said all of that, what I have hoped to persuade the Court is that ultimately, whatever test of reasonable necessity applies and however the proper test for looking at whether a burden is permissible or impermissible on interstate intercourse is devised, the plaintiffs just do not meet the test factually in the present case.  So in that circumstance, to some extent this is not a suitable vehicle for then going on and explicating all of the nuances and all of the matters that might arise in other types of cases. 

Having said that, I can make certain submissions about the other cases and the tests that might or might not apply, but I will try and do that in a reasonably brief fashion, if that is convenient.

GAGELER J:   Could I just ask you about the Act?  Are you going to come to the Act at any stage?

MR THOMSON:   The Emergency Management Act?

GAGELER J:   Yes.

MR THOMSON:   I can certainly go to the Act.  Is this in respect of the particular question that might be asked in the ‑ ‑ ‑

GAGELER J:   No, I just wanted to relate the paragraphs of the direction that are in issue to the provisions of the Act.

MR THOMSON:   I see, yes.

GAGELER J:   But if this is not a convenient time ‑ ‑ ‑

MR THOMSON:   No, no, this is perfectly convenient.

GAGELER J:   As I understand it, it is really paragraphs 4 and 5 of the direction combined with the defined terms that we need to focus on.

MR THOMSON:   That is right.

GAGELER J:   So I am looking for the source for the power of paragraphs 4 and 5.

MR THOMSON:   Yes.  I beg your pardon, I just lost my place.  I think to some extent this might be addressed in the submissions that we filed yesterday.  We might have set out some of this in writing, if I recall correctly.

GAGELER J:   If it is not a convenient time, we can ‑ ‑ ‑

MR THOMSON:   Yes.  No, the declaration of the state of emergency is made pursuant to section 56 of the Act.  So if you go to section 56(1):

The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State.

For the purposes of the present situation, the state of emergency covered the whole of WA.  Perhaps I can show you that that was an agreed matter.  If you look at the special case in case book 2 at page 239 you will see that there is a definition of “state of emergency” and it is agreed that the state of emergency which was declared by the Western Australia Minister for Emergency Services over the whole of the State of Western Australia to address the hazard described as:

the pandemic caused by virus COVID‑19 . . . as extended from time to time.

GORDON J:   That is the emergency for the purposes of paragraph (b), is it?  That is, the definition of “emergency” picks up the hazard?

MR THOMSON:   Yes, that is right.  Then the state of emergency may be extended by the Minister for a period of up to 14 days, and that is pursuant to section 58 of the Act, if you look at subsection (3) and 4(a).  So, what has happened in this case is that every 14 days the state of emergency has been extended by the Minister, and if you look at ‑ ‑ ‑

GAGELER J:   At each occasion does the Minister have to be satisfied in terms of section 56(2)?

MR THOMSON:  I think so, yes.  Can I just show you the ‑ ‑ ‑

GORDON J:   Mr Solicitor, does that extend to (2)(c), being:

satisfied that extraordinary measures are required to prevent or minimize —

loss of life or harm to health?

MR THOMSON:   Yes.  The latest extension is in the further supplementary court book at page 61.  You will see that the Minister for Emergency Services, Francis Michael Logan, made a declaration on 28 October with effect from 12.00 am on the following day.

GAGELER J:   Was that on the basis of the health advice you have taken us to?

MR THOMSON:   I think that is right, yes.  If you look at – well, certainly that health advice was provided to the Premier and to the State Emergency Coordinator because if you look at page 62 you can see the email that is there.

GORDON J:   Does that mean it gets picked up by 56(2)(a)?  In other words, the Minister cannot make the declaration unless he:

has considered the advice of the State Emergency Coordinator ‑ ‑ ‑

MR THOMSON:   That is right.  Then the directions are made under section 67.  So, the directions were made on 5 April as I have indicated and as you have seen in the initial directions and there is no challenge to the initial making of the directions.  It is expressly pleaded that all that is challenged is the continuation of the directions on the basis of section 92.  There has been no challenge at all to the vires of the directions and that what is challenged – sorry, what is directed is within paragraph 67(a) so the State Emergency Coordinator may give a direction which prohibits:

the movement of persons, animals and vehicles within, into, out of or around an emergency area or any part of the emergency area ‑ ‑ ‑

GORDON J:   But they can only do that, is that right, for the purposes of emergency management which, as I understand it, is management of the adverse effects of the emergency here, the hazard, where it is of such magnitude or nature that it requires significant and coordinated response including prevention, preparation, et cetera.

MR THOMSON:   Yes, so if you go to the definition of “emergency management” in section 3, it 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 -

preparedness, response and recovery.

GAGELER J:   We are only concerned with prevention here, are we not?

MR THOMSON:   Yes, that is right.  Yes, insofar as the restrictions are against the importation of COVID-19 in this case, but there is some aspect of it that response, because some of the requirements include testing and wearing face masks and things like that.  So those directions are part of the response to the emergency.  Now, the directions will remain in place until they are amended, revoked or until there is no longer a state of emergency.  So what happens is that the state of emergency is renewed every 14 days, or for such shorter period as might be necessary, but the directions continue while so ever the state of emergency continues. 

GAGELER J:   Now, you said section 67 is a source of power for paragraphs 4 and 5.

MR THOMSON:   Well, it is one of the sources of power, and there are a couple of other sources of power later in the Act.  Can I come back to those tomorrow - I just noticed the time. 

GAGELER J:   And perhaps the relationship between the multiple sources of power. 

MR THOMSON:   Yes.  Can I emphasise that the challenge in this case is – not to the vires of the directions but to the directions themselves.  There has been some discussion about Wotton.  Can I just make this submission?  Wotton is a case about the implied freedom of political communication which represents a limitation upon legislative power.  But it is clear from what has been said in Cole v Whitfield that the express constitutional freedom of intercourse is a freedom from any legislative or executive interference. 

So to the extent that these are powers that have been exercised by the Executive, if they contravene the express constitutional freedom, it may be that there are different intellectual or conceptual ways of analysing how they become invalid, but it is the fact that they infringe the constitutional freedom that we would say is the matter that is in issue. 

So one intellectual route is to say that there has been a direct interference with the constitutional freedom.  Another route might be to say, and I think this might pick up on what his Honour Justice Edelman was saying, that a legislative power can never – a statutory power can never authorise breach of any express constitutional freedom.

So you are driven to analysing the constitutional freedom to understand – sorry, driven to analysing the exercise of the power to see

whether or not there has been a breach of the constitutional freedom.  Another way of saying that it is invalid intellectually might be to say well, the statute could never have authorised that because it is a breach of the constitutional freedom and, therefore, the exercise of power is invalid because it could never have been authorised, but it is still a focus upon the directions themselves.  So there are perhaps two different intellectual…..but we would make the submission that ‑ ‑ ‑

EDELMAN J:   Well, it is a focus upon the directions themselves insofar as they are an application of the primary statutory power.

MR THOMSON:   Yes.  But you have to analyse the directions themselves to understand whether they breach the express constitutional freedom.

KEANE J:   But you cannot really appreciate the character or the purpose of the directions without knowing that they are derived from the Act.

MR THOMSON:   We would accept that, yes.

GORDON J:   To take that one step further one has inbuilt into the statutory indicia, arguably, tests themselves which must be met before the power can be exercised.

MR THOMSON:   Yes.

GORDON J:   Which would meet any of the constitutional hurdles.  In other words, one looks to 72A just by way of example, and one sees that there must be an assessment made that what is to be done by way of direction or otherwise:

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

as we have discussed, and there is no challenge to it.

MR THOMSON:   I would gratefully adopt that.

KIEFEL CJ:   Yes, that is a convenient time.  The Court will adjourn until 10.00 am tomorrow.

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 4 NOVEMBER 2020