The Western Australia government received a boost in its defence against Clive Palmer’s border challenge, winning factual findings the travel ban is effective at preventing the spread of Covid-19.
The federal court judgment on Tuesday, however, rejected the government’s bid for a fresh trial, paving the way for a high court hearing as early as October into the constitutional validity of the border restrictions.
Justice Darryl Rangiah concluded the restrictions were “effective to a substantial extent” at decreasing the coronavirus risk.
Palmer has challenged the WA border ban on the basis it infringes the constitutional guarantee that interstate trade and commerce “shall be absolutely free”.
The commonwealth assisted Palmer with expert evidence and proposed findings, but was forced out of the case after a vocal campaign by WA premier Mark McGowan.
Rangiah rejected Western Australia’s bid for a fresh trial, stating that prejudice to WA was caused not by the withdrawal but “by the commonwealth having intervened in support of the Palmer parties’ case in the first place”.
In a judgment summary read in court on Tuesday, the judge said Palmer could call the same witnesses and make the same submissions so there was “no point in having a new hearing”.
But despite the procedural setback, the judge made a series of factual findings that will boost WA’s defence in the high court, including that “a precautionary approach should be taken to decision-making about the measures required for the protection of the community”.
Rangiah said border restrictions had cut the number of people entering WA from 5,000 per day in 2019 to just 470 people per day currently.
Although the restrictions cannot “eliminate the potential for importation of Covid-19” they had “been effective to a very substantial extent to reduce the probability of Covid-19 being imported into Western Australia from interstate”, he said.
The judge warned the “hypothetical scenario” of removing border restrictions is difficult to assess due to “uncertainties” about the number of people infected in Victoria and New South Wales as well as traveller behaviour.
However, the judge said he assessed the risk as “high” from Australia as a whole and Victoria, “moderate” from NSW, “uncertain” from Queensland, “low” from South Australia, the Australian Capital Territory and the Northern Territory, and “very low” from Tasmania.
“If persons enter the Western Australian community while infectious, there would be a high probability that the virus would be transmitted into the … population; and at least a moderate probability that there would be uncontrolled outbreaks.
“If there were uncontrolled outbreaks … the consequences would include the risk of death and hospitalisation (particularly for vulnerable groups, such as elderly and Indigenous people).
“In the worst-case scenario, the health consequences could be catastrophic.”
Rangiah said if border restrictions were replaced by mandatory hotel quarantine, “Western Australia could not safely manage the number of people” in quarantine.
Measures including mandatory masks on planes and the first fortnight of arrival, coronavirus tests on the second and 12th day after arrival, and bans or quarantine on travel from hotspots would all be “less effective” than the border restrictions.
“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.”
Rangiah ordered the commonwealth to pay costs for the 7 August hearing dealing with its late withdrawal, with costs for the rest of the case to be determined in the full high court hearing.
Earlier in August, high court chief justice Susan Kiefel indicated the court would reserve dates to hear the full case in October.
Source: The Guardian