Federal Court of Australia

Palmer v State of Western Australia (No 3) [2020] FCA 1220

Palmer v State of Western Australia (No 4) [2020] FCA 1221

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared. The summary is intended to assist in understanding the outcome of this proceeding, and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgement which will be available on the internet at the Court’s website. The summary is also available there.

1    On 11 March 2020, the World Health Organisation declared COVID-19 to be a pandemic. On 5 April 2020, the State Emergency Coordinator for Western Australia issued the Quarantine (Closing the Border) Directions (WA) (the Directions).

2    The Directions have since been amended several times, most recently on 19 July 2020. The Directions were made pursuant to the Emergency Management Act 2005 (WA).

3    The Directions prohibit entry into Western Australia of persons other than those defined as “exempt travellers”.

4    On 25 May 2020, the applicants, Clive Frederick Palmer and Mineralogy Pty Ltd (the Palmer parties), commenced proceedings in the High Court of Australia seeking a declaration that the Emergency Management Act and/or the Directions are invalid, in whole or in part, on the basis that they contravene s 92 of the Constitution.

5    Section 92 of the Constitution provides that, “trade, commerce, and intercourse among the States…shall be absolutely free”.

6    On 16 June 2020, the Chief Justice of the High Court remitted to the Federal Court of Australia for hearing and determination the issue of the reasonable need for and efficacy of the community isolation measures (that is, the border restrictions) contained in the Directions.

7    From 27 to 31 July 2020, the Federal Court conducted a hearing of the remitted issue. The Palmer parties, the respondents (Western Australia) and two interveners, the Attorney-General for the Commonwealth of Australia (Commonwealth) and the Attorney-General for Queensland (Queensland), actively participated in the hearing.

8    Western Australia called two expert witnesses to give evidence, while the Palmer parties called one expert witness and the Commonwealth called two expert witnesses. The Commonwealth supported the Palmer parties’ case, and Queensland supported Western Australia’s case. Each party cross-examined each of the witnesses and made opening and closing submissions.

9    On 2 August 2020, after the hearing had been concluded and the decision reserved, the Commonwealth notified the High Court that it was withdrawing from the proceeding. On 5 August 2020, the Commonwealth notified the Federal Court of its withdrawal.

10    Western Australia claimed to be prejudiced by the Commonwealth’s withdrawal because the Commonwealth had already called evidence and made submissions in support of the Palmer parties’ case. Western Australia argued that the Commonwealth required the permission of the Federal Court to withdraw, and that the Commonwealth should only be permitted to withdraw on conditions including that there should be a new hearing.

11    In Palmer v State of Western Australia (No 3) [2020] FCA 1220, the Court has determined that there should not be a new hearing. That is for reasons including the following. First, the Commonwealth is entitled to withdraw from the proceedings without permission, so the basis asserted for a new hearing is not established. Second, the prejudice to Western Australia has not been caused by the withdrawal, but by the Commonwealth having intervened in support of the Palmer parties’ case in the first place. Third, as the Palmer parties indicated that at any new hearing they would adopt the Commonwealth’s submissions and call the witnesses already called by Commonwealth, there would be no point in having a new hearing.

12    Accordingly, in Palmer v State of Western Australia (No 4) [2020] FCA 1221, the remitted issue has been determined on the basis of the whole of the evidence called and the submissions made at the hearing.

13    The remitted issue requires determination of factual matters involved in Western Australia’s defence of the proceeding in the High Court. That defence involves contentions that the border restrictions under the Directions are justified because:

(a)    they are reasonably necessary for the protection of the Western Australian community against the health risks of COVID-19;

(b)    they are reasonably appropriate and adapted to advance that object or purpose;

(c)    there are no other equally effective means, which would impose a lesser burden on interstate trade, commerce and intercourse, available to achieve that object or purpose.

14    These issues require the Court to assess the risk that COVID-19 would spread into the Western Australian population if the border restrictions were removed. That risk depends substantially upon the ability of public health authorities to control the outbreaks presently occurring in several States. However, the extent of those outbreaks is changing day-by-day. While the facts must be determined on the basis of the evidence presented at the hearing, there has necessarily been a lapse of time between the hearing and delivery of these reasons. These reasons, therefore, cannot take into account any factual developments since the hearing. That lends a degree of artificiality to the findings made.

15    The Court’s findings are only concerned with the health risks posed by COVID-19 to the Western Australian community. They cannot take into account any economic, social or other consequences of COVID-19 or the border restrictions.

16    The findings made by the Court include the following:

    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.

    The existing border restrictions do not eliminate the potential for importation of COVID-19 from other States or Territories, since they allow “exempt travellers” to enter Western Australia. However, the restrictions have reduced the numbers of people entering from interstate to approximately 470 people per day, compared to approximately 5,000 per day in 2019 and approximately 3,500–4,000 per day in March 2020 (that is, to 9% – 13% of the previous level).

    The border restrictions have been effective to a very substantial extent to reduce the probability of COVID-19 being imported into Western Australia from interstate.

    The probability of persons infected with COVID-19 entering Western Australia in a hypothetical scenario where the border restrictions are removed cannot be accurately quantified because of the substantial uncertainties involved in predicting all the relevant factors. The uncertainties include the absolute numbers of persons in other States who may be infected, the behavioural characteristics of the disease and the unpredictable behaviour of people who are or may be infected. For example, it is difficult to predict what the numbers of infected people will be in Victoria and New South Wales in the short to medium term when those numbers are in a state of flux. Attempting to predict the numbers of people who would travel when infected involves predicting factors such as the numbers who would be asymptomatic or pre-symptomatic when travelling. The unpredictable aspects of human behaviour include the proportion of people would engage in risky behaviour by travelling when symptomatic, and the proportion who would undergo testing if they exhibit symptoms.

    However, based on the evidence currently available, the following qualitative assessments of the probability that persons infected with COVID-19 would enter Western Australia if the border restrictions were completely removed have been made:

Australia as a whole — high.

Victoria — high.

New South Wales — moderate.

Queensland — uncertain (due to the recent introduction of the disease).

South Australia, the Australian Capital Territory, the Northern Territory — low.

Tasmania — very low.

    If persons enter the Western Australian community while infectious, there would be a high probability that the virus would be transmitted into the Western Australian population; and at least a moderate probability that there would be uncontrolled outbreaks.

    If there were uncontrolled outbreaks in Western Australia, 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.

    Western Australia has not had any cases of community transmission since 12 April 2020 as a result of the combination of the border restrictions and the range of other measures in place including isolation, testing, social distancing and hygiene measures and requirements for some exempt travellers to wear masks or be quarantined.

    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.

    If the border restrictions were replaced by a suite of measures including exit and entry screening, mandatory wearing of facemasks on aeroplanes, PCR testing on the second and twelfth days after entry and mandatory wearing of face masks for fourteen days after entry, they would be less effective than the border restrictions in preventing the importation of COVID-19.

    If the border restrictions were replaced by that suite of measures plus a “hotspot” regime, involving either quarantining or banning persons entering from designated hotspots, they would be less effective than the border measures in preventing the importation of COVID-19.

    In view of the uncertainties involved in determining the probability that COVID-19 would be imported into Western Australia from elsewhere in Australia, and the potentially serious consequences if it were imported, a precautionary approach should be taken to decision-making about the measures required for the protection of the community.

17    The costs of the hearing have been reserved to the High Court.

Justice Rangiah

25 August 2020