Today’s question is about Clive Palmer’s challenge to the border lockdown in Western Australia. The matter is still before the court so I don’t have details of exactly what the application is or the arguments made. I’m asked:
Without going into detail about the State laws could you please tell me what the relatively recent case law concerning s92 of the Constitution points to if a restriction on interstate intercourse was not intended to be discriminatory?
Could you also illuminate the procedure being adopted in Palmer v WA for me. Is it usual for the evidence to be given outside of the State concerned and in the Federal Court? What is the relationship between the Federal Court hearing and the High Court decision, eg do Counsel still address the High Court before they deliberate?
In Mr Palmer’s case I assume that the event that triggered his cause of action is the refusal of an entry application he made to the WA Police Commissioner some time ago. If the fact that he and the Federal Attorney General allege makes Western Australia’s regime unconstitutional is that it doesn’t discriminate between the risks (ie level of community spread) in the various States, is the time at which the Court considers whether the legislation was invalid the time that Mr Palmer was refused entry, the time that evidence is given to the Federal Court or the time when the High Court hands down it’s decision? The practical situation is likely to be very different at each point in time.
They are good questions. I don’t think I could do a better job that refer readers and my correspondent to a blog published by AUSPUBLAW, the Australian Public Law Blog established by the Gilbert + Tobin Centre of Public Law at UNSW. See:
Henry Cooney and Harry Sanderson ‘Border Closures and s 92: Clive Palmer’s Quest to Enter WA’ on AUSPUBLAW (04 August 2020) <https://auspublaw.org/2020/08/border-closures-and-s-92-clive-palmers-quest-to-enter-wa/>
I would add this on the relationship between the Federal Court and the High Court. When originally established the High Court would hear ‘first instance’ cases, that is some cases could start in the High Court. As the population has grown more cases arise and that puts demands on the courts. The High Court sits as the ultimate appeal court in all Australian jurisdictions and with only seven judges it is not appropriate for the court to sit as a trial court. The Federal Court was created by the Federal Court of Australia Act 1976 (Cth). As a trail court the Federal Court has the capacity to hear evidence and determine what are the facts.
In this case there are critical issues of fact, what Cooney and Sanderson call ‘the complicated epidemiological evidence required to determine the necessity of the border closure’. The Federal Court will hear the relevant evidence and determine the facts. The High Court judges will then determine how the Constitution applies to the factual situation identified by the judge so yes, counsel will still address the High Court once the Federal court has determined the factual situation.
In these sorts of cases it doesn’t really matter where the evidence is taken. Justice Rangiah is based in Brisbane and I understand Mr Palmer is also based in Brisbane (or at least Queensland) so hearing the matter in Brisbane may have been convenient for everyone involved.