Open the Borders – a High Court Australia Constitutional Challenge

Most of us know that Queensland’s borders are not currently open for all and sundry to cross at will for whatever reason they fancy. What you may not be aware of is that there is a constitutional  challenge to the High Court of Australia on foot in an attempt to put a halt to this.

The governments of Queensland and WA justify these restrictions as necessary for the protection of public health in the face of COVID-19 and assert that they are following the best health and scientific advice available. The public is largely in favour of the border closures due to concern about recurring outbreaks of the virus in New South Wales and Victoria.

High Court Challenges

Not everyone is happy about the border closures. Senator Pauline Hanson, who is no stranger to controversy, told SBS “This isn’t leadership, this is dictatorship, and there’s no clear reason to keep the borders shut.”

Hanson and others are asserting that the Queensland government’s decision to close the state’s borders, save to those with acceptable reasons to travel, is unconstitutional. Hanson says she is concerned about the impact on the tourism sector in particular. After Hanson put up a Facebook post seeking potential plaintiffs for a High Court legal challenge, an action was initiated on behalf of Queenslanders affected by the state’s border closure.

Businessman and former politician Clive Palmer has also initiated an action, after being refused an exemption from the ban on travel into Western Australia, where he proposed to attend meetings with potential United Australia Party candidates in May. His action was extended to Queensland’s restrictions and has been joined by other businesses.

When Will These Challenges be Decided?

Despite the possibility these challenges would be heard by the High Court at a hearing commencing on 29 June, this now seems unlikely after a preliminary ruling on 12 June, by Chief Justice Keifel, denied access to Queensland government health documents. In fact, the challenges in relation to Queensland’s borders may never be decided as the state has flagged 10 July as the date for reopening of the borders.

Western Australia still has its borders closed to the other states. Premier Mark McGowan protested the federal government’s support of the High Court challenge, saying it is not respecting the wishes of Western Australian residents.

Usually it takes several months for a matter to be heard by the High Court of Australia. However the constitutional challenge to reopen Western Australia’s borders is likely to be sped up because the Federal Government is involved.

What Does the Constitution Say About Interstate Travel?

The Constitution of Australia, as enacted by the Commonwealth of Australia Constitution Act in 1900 and commencing on 1 January 1901, is a document many have never read.

The section raised by the challengers is Section 92, which relevantly provides:

92  Trade within the Commonwealth to be free

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

The High Court’s interpretation of this provision has changed over time. That happens. After all, the way we live our lives has changed somewhat since 1901 and whilst the judiciary tends not to cut new trails, they do, ultimately, try to catch up.

Unsurprisingly perhaps, much of the litigation relating to section 92 over the years has focused on the freedom of trade and commerce. Commercial interests impeded by state or Commonwealth laws more frequently have the means and incentive to challenge them than do individuals.

There has been much less litigation about ‘intercourse among the States’ which refers to the movement of people. Some key decisions give a pointer to the issues that the High Court may have to weigh up.

Back in the early 20th Century, New South Wales criminalised entry into the state by anyone convicted and sentenced to prison for a year or more within three years of completing such sentence. The Justices, in quashing the conviction of Mr Benson in 1912, gave some rhetorical flourish to the term, ‘freedom of intercourse’: “a personal right in an Australian”, “no due effect can be given to the word ‘intercourse’ unless it is treated as including all migration or movement of persons from one State to another – or children returning from holidays, of friends visiting friends, as well as commercial travellers.”

One might expect to hear such phrases quoted by lawyers appearing before today’s High Court on behalf of Hanson’s and Palmer’s plaintiffs. They will garner further support from a challenge brought in 1945 over the wartime prohibition on interstate travel without a permit under defence regulations. In that case, Miss Johnson wanted to travel to Perth from Sydney to visit her fiancé. There might be thought to be similarities with current restrictions made under Queensland health regulations. The 1940s restriction was considered a “direct negation” of, and a “direct interference” with, the Constitutional provision in section 92. The section referred to a freedom “to pass to and fro among the States without burden, hindrance or restriction”.

If those were the only past pronouncements of the High Court, maybe Palmer and Hanson would be home and dry.

What is Reasonably Required?

In 1999 the High Court considered the validity of a Western Australian law permitting the WA Family Court to make orders preventing a parent from changing the primary residence of a child. Such an order would prevent a parent moving with their child to another State or Territory. Where the law is brought in for a legitimate purpose and incidentally restricts the freedom given by section 92, then this can be valid so long as the freedom of intercourse is not impeded more than is reasonably required.

This approach was again adopted by the High Court in 2005 in relation to NSW legal profession regulations that prohibited advertising by lawyers for personal injury legal services. The court applied a two-stage test: Is the purpose of the law to impede interstate intercourse? And, if not, is the burden imposed greater than ‘reasonably required’?

It is likely that the Palmer/Hanson challenge will encounter and test this approach.

Containing COVID-19

The health regulations made by the Queensland government are made to restrict interstate travel. However, this has not been done for the sake of restricting travel but to control the spread of a disease. The question is: are such restrictions reasonable? The court will be asked to make an assessment of the same arguments that separate those in favour and those against the border restrictions in everyday disputes about the subject.

Is the infringement of individuals’ general freedom to travel around Australia with all the consequent impacts on commerce and trade (tourism in particular) reasonable as against the effects of Covid-19 infecting larger numbers of people and probably killing some of them? The court might be urged to view the experiences of other countries around the world and to consider the situations in New South Wales and Victoria as opposed to Queensland, Western Australia, and the Northern Territory. They may be asked to also consider the economic and personal impact of the restrictions as being out of kilter with the general control of the disease within Australia, that the external boundaries of the nation are the real bulwark against the disease.

It is likely to be an interesting decision. However, there is a chance the challenges will never be decided as the COVID-19 threat may be eliminated and the borders reopened before the High Court gets its say.

BY Thomas Allen, Senior Associate – Brisbane

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