Palmer v Western Australia

Case [2021] HCA 5


HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON AND EDELMAN JJ

CLIVE FREDERICK PALMER & ANOR  PLAINTIFFS

AND

THE STATE OF WESTERN AUSTRALIA & ANOR         DEFENDANTS

Palmer v Western Australia

[2021] HCA 5

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,…

Continue reading Palmer v Western Australia

Sign in free to access the full text

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.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE J, GAGELER J

Full text does not contain this section.