Date of Hearing: 3 & 4 November 2020 Date of Order: 6 November 2020 Date of Publication of Reasons: 24 February 2021
B26/2020
ORDER
The questions stated for the opinion of the Full Court in the special case filed on 22 September 2020 be answered as follows:
(a)Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?
Answer:
On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.
The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court.
(b)Who should pay the costs of the special case?
Answer:
The plaintiffs.
Representation
P J Dunning QC with R Scheelings and P J Ward for the plaintiffs (instructed by Jonathan Shaw)
J A Thomson SC, Solicitor-General for the State of Western Australia, with J D Berson for the defendants (instructed by State Solicitor's Office (WA))
P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan SC and A M Hammond for the Attorney-General for the Australian Capital Territory, intervening (instructed by ACT Government Solicitor)
M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S K Kay for the Attorney-General for the State of Tasmania, intervening (instructed by Solicitor-General of Tasmania)
G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka and K J E Blore for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
M J Wait SC, Solicitor-General for the State of South Australia, with F J McDonald for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))
P J Hanks QC with P P Thiagarajan and T M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor's Office)
T J Moses with L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Palmer v Western Australia
Constitutional law (Cth) – Freedom of interstate trade,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Palmer v Western Australia [2021] HCA 5
Case
[2021] HCA 5
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a constitutional challenge brought by Mr Palmer against the State of Western Australia. The dispute concerned the validity of Western Australia's border closure directions, implemented under the *Emergency Management Act 2005* (WA) in response to the COVID-19 pandemic. Specifically, the court was asked to determine whether these measures impermissibly infringed the freedom of interstate trade, commerce, and intercourse guaranteed by section 92 of the Australian Constitution.
The legal issues before the court were whether the *Emergency Management Act 2005* (WA), particularly sections 56 and 67, and the subsequent *Quarantine (Closing the Border) Directions (WA)*, imposed an impermissible burden on interstate trade, commerce, or intercourse, thereby infringing section 92 of the Constitution. The court was required to assess whether the authorising provisions of the Act or the exercise of the power to make the Directions raised a constitutional question regarding this freedom.
The High Court, comprising Kiefel CJ, Gageler, Keane, Gordon, and Edelman JJ, concluded that the relevant provisions of the *Emergency Management Act 2005* (WA), when applied to an emergency involving a hazard like a plague or epidemic, complied with the constitutional limitation imposed by section 92 of the Constitution. The Court found that the exercise of the power to issue the *Quarantine (Closing the Border) Directions (WA)* did not raise a constitutional question. Consequently, the Court answered the questions stated for its opinion, finding that the Act and the Directions, as properly construed, did not impermissibly infringe section 92. The plaintiffs were ordered to pay the costs of the special case.
Orders
Orders of the court
The questions stated for the opinion of the Full Court in the special case filed on 22 September 2020 be answered as follows:
(a) Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?
Answer:
On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.
The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court.
(b) Who should pay the costs of the special case?
Answer:
The plaintiffs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ
KEANE J
GAGELER J
Subsequently, Mr Barton said, in terms reflecting the first stage of structured proportionality, that "the power to prevent the introduction of diseases would still remain with the states, except in so far as any state law was found to be an intentional derogation from the freedom of trade"[467]. [467]Official Record of the Debates of the Australasian Federal Convention (Sydney), 22 September 1897 at 1064.Conclusion For these reasons, I join in the orders that were made on 6 November 2020.