On 6 November 2020 the High Court of Australia dismissed cases raising objections to the COVID response in WA and Victoria- see Elizabeth Byrne, ‘High Court dismisses challenge to Victoria’s coronavirus lockdown’ ABC News (Online) (6 November 2020). Although the High Court announced its decisions on 6 November, the judges did not immediately publish their reasons. When sharing the story via Facebook, I said “I will report on the judgments if they say anything relevant to the subject of my blog”.

On 31 December 2020 I reported on the decision of the Victorian Court of Appeal in Loielo v Giles [2020] VSC 722 and on the decision of the High Court of Australia in Gerner v The State of Victoria [2020] HCA 48 (see Two cases on the pandemic response (December 31, 2020)). Yesterday the High Court handed down the reasons for its decision in Palmer v Western Australia [2021] HCA 5 (24 February 2021). On 6 November 2020 the judges of the High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) had unanimously dismissed Palmer’s case but we had to wait to yesterday for them to publish their reasons explaining the issues and the basis of their decisions.

The issue before the court

The issue before the court was described by Edelman J who said (at [213]):

The central question in the special case in the original jurisdiction of this Court concerns the challenge by the plaintiffs, Mr Palmer and a privately held company under his direct and personal executive management, to the validity of the Quarantine (Closing the Border) Directions (WA). Those directions were made under the Emergency Management Act 2005 (WA) for the purpose of responding to the COVID-19 pandemic. The essence of the plaintiffs’ case is that the Quarantine (Closing the Border) Directions are invalid by operation of s 92 of the Constitution because they involve an impermissible derogation from one or both aspects of the guarantee in that provision, those aspects being freedom of trade and commerce and freedom of intercourse.

The relevant law

Section 92 of the Constitution says (emphasis added):

“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 Quarantine (Closing the Border) Directions (WA) were made under the Emergency Management Act 2005 (WA).  The relevant sections were sections 56 and 67. Section 56 says:

(1)       The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State.

(2)       The Minister must not make a declaration under this section unless the Minister —

(a)        has considered the advice of the State Emergency Coordinator; and

(b)       is satisfied that an emergency has occurred, is occurring or is imminent; and

(c)        is satisfied that extraordinary measures are required to prevent or minimise —

(i)        loss of life, prejudice to the safety, or harm to the health, of persons or animals; or

(ii)       destruction of, or damage to, property; or

(iii)      destruction of, or damage to, any part of the environment.

Section 67 says:

For the purpose of emergency management during an emergency situation or state of emergency, a hazard management officer or authorised officer may do all or any of the following —

(a)        direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around an emergency area or any part of the emergency area;

(b)       direct the evacuation and removal of persons or animals from the emergency area or any part of the emergency area;

(c)        close any road, access route or area of water in or leading to the emergency area;

(d)       direct that any road, access route or area of water in or leading to the emergency area be closed.

Kiefel CJ and Keane J

There was ‘no dispute that the Directions were authorised by the EM Act’ ([5]) that is that the Minister had made a declaration of a state of emergency, that in making that declaration the Minister had considered the advice of the State Emergency Coordinator and was satisfied of the matters listed in s 56(2). Further there was no dispute that the State Emergency Coordinator was an authorised officer who had issued the directions under s 67(a) for ‘the purpose of emergency management’.

The emergency area (s 56(1)) was the entire state of WA. The ‘effect of the Directions [was] to close the border of Western Australia to all persons from any place unless they were the subject of exemption…’ ([7]). At [12]-[14] their Honours said:

In proceedings commenced on 25 May 2020 in the original jurisdiction of this Court the plaintiffs [ie Clive Palmer and a company of which he was the Chair and managing director] claim a declaration that “either the authorising Act and/or the Directions are invalid, either wholly or in part … by reason of s 92 of the Constitution”…

The plaintiffs claim that the Directions impose an effective burden on the freedom of intercourse among the Australian people in the several States by prohibiting cross-border movement of persons, backed by a criminal sanction. Alternatively, they allege that the freedom of trade and commerce guaranteed by s 92 is contravened because the Directions impose an effective discriminatory burden with protectionist effect.

The defendants, the State of Western Australia and the Commissioner of Police for Western Australia, deny the plaintiffs’ allegations. In their defence they plead that s 67 and other provisions of the EM Act do not have the purpose of economically protecting the State of Western Australia, rather they have the legitimate purpose of protecting the population of Western Australia against risks arising from emergency situations. The continuation in force of the Directions, pursuant to the EM Act, does not have a protectionist purpose and is reasonably necessary to achieve, and is compatible with, the legitimate purpose of protecting the Western Australian population against the health risks of COVID-19 where there are no other equally effective means available to achieve that purpose which would impose a lesser burden on interstate trade or commerce. Likewise, it is pleaded that intercourse among the States, whether by movement or communication, is prevented only to the extent that is reasonably necessary and that there are no other, equally effective means which impose a lesser burden on that intercourse.

Ultimately the court decided that the orders under the Emergency Management Act did not raise questions of, and did not contradict, s 92 and did not raise any issue under the Australian Constitution.  Their Honours said (at [29]-[30], emphasis added):

… the guarantee in s 92, that interstate trade, commerce and intercourse be “absolutely free”, was not to be taken literally. The section should not be construed as precluding an exercise of legislative power which would impose any barrier or restriction on interstate trade or commerce or interstate intercourse…

The freedom which s 92 guarantees is freedom from discriminatory burdens which have a protectionist effect.

For example (and this is my example, not from the judgment), a fee that is imposed on a transaction in Victoria but not in NSW is not contrary to s 92 provided everyone trading in Victoria, whether Victorian or not, has to pay the fee. The fact that this imposes a cost on NSW traders of doing business in Victoria is not prohibited by s 92 as the fee is not discriminatory for protectionist purposes. It would be prohibited if the fee were imposed on interstate traders in order to make the price of interstate goods higher relative to goods produced in Victoria and thereby give a market advantage to Victorian traders.

Where a state legislature passes a law to achieve an appropriate purpose and the law has the incidental effect of imposes a cost or burden on interstate trade, commerce or intercourse, then the law will not be contrary to s 92 unless (at [62]) ‘… the burden cannot be justified as proportionate to the non-discriminatory, legitimate purpose of the law which is sought to be achieved. Whether it is proportionate is to be determined by the tests of structured proportionality …’

Their honours then considered (at [63]) that the issue of whether or not the law was contrary to s 92 question had to be considered by reference to the Emergency Management Act, not the directions made under it. The question was whether the Act imposed an unacceptable burden on the freedoms guaranteed by s 92. The Emergency Management Act did not impose any prohibited burden. The provisions of s 56(2) limited the Minister’s ability to make a declaration and a declaration was only in force for a limited time (albeit it could be renewed each time). At [72] their honours said ‘It cannot therefore be said that by their terms ss 56(1) and 67 of the EM Act discriminate against interstate movement…’ and there was no constitutional issue for the High Court to determine.

With respect to the Directions actually made, if they imposed burdens contrary to s 92 this would raise issues of whether the decision maker was acting according to law, not the constitutional issue of whether or not the law was a valid law. The Emergency Management Act including the power to declare a state of emergency and the power to restrict movement into a disaster area was a valid law. Was the decision to make the Quarantine (Closing the Border) Directions lawful under the Act. The plaintiffs argued (see [76]) that ‘the power to restrict the entry of persons into Western Australia’ was neither ‘suitable or necessary’ for the purpose of protecting the citizens of Western Australia from COVID-19.

Determining what was suitable or necessary required a consideration of factual matters. The High Court sits (usually) as an appellate court but in this instance the case started in the High Court because of the alleged constitutional issues. The High Court is not however a trial court and is not set up to hear witness and to take evidence. In order to determine the necessary facts, the matter had been referred to the Federal Court where Rangiah J had heard evidence and made findings. Kiefel CJ and Keane J summarised the outcome of the Federal Court hearing at [21]-[23]:

His Honour considered that if persons entered the Western Australian community whilst 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, the consequences would include the risk of death and hospitalisation, particularly for the vulnerable groups mentioned above. In a worst-case scenario, the health consequences could be “catastrophic”…

His Honour concluded that 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”.

Accepting (at [80]-[82]) that the State Emergency Coordinator, acting under s 67, must impose restrictions that are proportionate to the risk, the findings of fact made by Rangiah J supported ‘the defendants’ submission that there is no effective alternative to a general restriction on entry…’:

… the importance of the public health purpose [must] be measured against the extent of the restriction on the freedom. It must be accepted that the restrictions are severe but it cannot be denied that the importance of the protection of health and life amply justifies the severity of the measures.

Gageler J

Gaegler J said (at [85]) that the guarantee provided by s 92 ‘is of absolute freedom from laws imposing differential burdens on interstate trade or commerce (in comparison to intrastate trade or commerce) which cannot be justified’ as a proportional means to obtain a legitimate non-discriminatory purpose.

With respect to whether the court should be concerned about the Act or about the orders made by those authorised by the Act, Gaegler J said (at [119]):

Where executive action purporting to be taken pursuant to statute imposes a burden argued to infringe … the express constitutional guarantee of absolute freedom of trade, commerce and intercourse among the States, two distinct questions accordingly arise: one constitutional, the other statutory. The statutory question is whether the executive action is authorised by the statute. The constitutional question is whether the statute complies with the constitutional guarantee if, and insofar as, the statute authorises the executive action.

In this case the constitutional question was whether the [Emergency Management Act] complies with the constitutional guarantee …’. The answer to that question was that the Act is not inconsistent with s 92. The purpose of the Act – to facilitate the management of an emergency – is a legitimate purpose even if, in some cases, it may impose a burden on interstate trade, commerce or intercourse. At [164]-[166] His Honour said:

What is significant is that the purpose of emergency management is the sole purpose for which the power of direction can be exercised. And the discretion to exercise the power for that purpose is subject to the standard implied condition that it can only ever be exercised by the authorised officer reasonably on the basis of the information available to the authorised officer.

The result is that, whilst the discretionary power of direction can extend to authorise the giving of a direction which on its face or in its practical effect imposes a differential burden on interstate intercourse (which might or might not be in trade or commerce), the power can only ever be exercised reasonably for the sole purpose of managing a designated emergency in a designated emergency area for so long as there is in force a state of emergency declaration, of the continuing need for which the Minister must periodically be stringently satisfied.

My conclusion was, and remains, that the cumulation of those statutory constraints means that a differential burden on interstate intercourse that might result from an exercise of the power of direction is justified according to the requisite standard of reasonable necessity across the range of potential exercises of the power. Being justified, such a differential burden is not discriminatory. Much less is it protectionist.

In other words, all the factors that had to be considered before the Minister could make a declaration under s 56 and then all the factors that the State Emergency Coordinator had to consider before making directions under s 67 mean that any action taken under the Act, even if it imposes a burden on interstate trade, commerce or intercourse, would be justified. If the argument was that the Minister did not in fact hold the beliefs required under s 56 or that the Coordinator’s actions were not for the purpose of emergency management or were not ‘exercised … reasonably on the basis of the information available to the authorised officer’ that would be a different issue; but that was not the issue before the High Court.  The issue before the High Court was whether the Act was contrary to s 92, and it was not.

Gordon J

Gordon J set out the requirements for making a declaration under the Act.  She said (at [168]):

The Directions could not lawfully be made unless certain statutory conditions were met. A state of emergency had to be declared by the Minister for Emergency Services (“the Minister”). The Minister could do that only if they had considered the advice of the State Emergency Coordinator and if satisfied that, relevantly, extraordinary measures were required to prevent or minimise loss of life, prejudice to the safety, or harm to the health, of persons from, in this case, an epidemic. That declaration being in place, the State Emergency Coordinator had then to be satisfied that, for the management of the adverse effects of the epidemic (including mitigation or prevention of the potential adverse effects), the nature and magnitude of the epidemic required a significant and coordinated response, which included, by direction, prohibiting the movement of most people into Western Australia.

Critically for those who were hoping this case may have been a test of there are sufficient reasons, or evidence to support, the Minister’s declaration and/or the State Emergency Coordinator’s directions, the ‘… plaintiffs did not allege that these statutory conditions had not been met…’ ([169]).  The plaintiffs’ argument was, accepting all the conditions necessary for the making of a declaration existed, the executive government could not make the orders restricting moving into WA.

At [180]-[181] Her Honour said:

Section 92 does not confer a personal right to engage in interstate trade, commerce and intercourse; it is a limit on legislative and executive power. And the guarantee in s 92 that “trade, commerce, and intercourse among the States … shall be absolutely free” does not confer immunity from all regulation. It does not prevent the making of laws which impose a differential burden on interstate trade, commerce and intercourse if the differential burden is reasonably necessary to achieve a legitimate object of the law.

… s 92 is to be treated as a whole and is centrally concerned with discrimination – an unjustified differential burden on interstate trade, commerce and intercourse, compared with intrastate trade, commerce and intercourse.

Her Honour set out an approach to be followed when considering whether a law infringed s 92 of the Constitution. She said ([197]):

… the answer … depends on the objects of the impugned law and whether the … burden imposed is reasonably necessary to achieve a legitimate object – an object other than imposing a differential burden on interstate trade, commerce or intercourse in favour of intrastate trade, commerce or intercourse… the inquiry is whether the true purpose of the law, in its legal and practical operation, is to achieve a legitimate object or to effect a form of prohibited discrimination.

The mere fact that there are alternative ways to achieve the legitimate object does not determine whether the pathway elected by the legislative or executive government is ‘reasonably necessary’ (see [198]-[199]).

If the Act does not breach s 92, then the question of whether administrative action authorised by the Act imposes an improper burden on interstate trade, commerce or intercourse does not raise a constitutional issue.  With respect to the Emergency Management Act Her Honour said (at [205]-[209]):

… Sections 56 and 67 are evidently concerned with managing a state of emergency. That object is one other than erecting State borders as barriers against freedom of trade, commerce or intercourse and it is a legitimate object….

The power in s 67(a) may only be exercised when a state of emergency has been declared under s 56. In addition, the statutory conditions in s 67(a) to the power of an authorised officer to prohibit movement, by direction, are so confined that any exercise of the power is reasonably necessary for the object of managing a state of emergency.

Each discretion is “effectively confined so that an attempt to exercise the discretion inconsistently with s 92 is not only outside the constitutional power – it is equally outside statutory power and judicial review is available to restrain any attempt to exercise the discretion in a manner obnoxious to the freedom guaranteed by s 92”. … Put in different terms, the discretion granted by these provisions is not wider than the Constitution can support; it cannot be exercised in a manner obnoxious to the freedom guaranteed by s 92. The statutory indicia are so tightly constrained that a differential burden can be placed on interstate trade, commerce and intercourse only in extraordinary and highly particular circumstances, namely to meet an emergency constituted by, in this case, an epidemic, the management of the adverse effects of which required a significant and coordinated response. That differential burden is not discriminatory. …

Again one has to remember the role of the High Court. Here it was asked to determine whether the legislation was contrary to s 92. What Gordon J (and Gageler J) considered was whether the Act, as written, would allow orders to be made that would impose a discriminatory burden on interstate trade, commerce or intercourse. Having decided that it did not, because the circumstances in which orders could be made under s 67 were so limited, that was the end of the matter. Neither Gordon J (nor Gageler J) went onto to ask whether the actual orders that had been made imposed an impermissible burden because it had not been argued that the conditions required for action under ss 56 and 67 had not been met. To quote again Kiefel CJ and Keane J ‘There is no dispute that the Directions were authorised by the EM Act’ ([5]).  If there was a claim that an ‘authorised officer’ issued directions for purposes other than those set out in the Act, or that the burden of the directions were disproportionate to the risk to be addressed, then that would require a different sort of action. As Gordon J said (at [211]):

It was open for the plaintiffs, when the Minister issued the state of emergency declaration and every 14 days when it was renewed, and when the State Emergency Coordinator issued the Directions and each time the Directions were amended, to challenge one or more of the exercises of those statutory powers on the grounds that the relevant actions were beyond power. No such challenge was ever made.

Edelman J

His Honour agreed that the appropriate level of analysis was not the effect of the actual orders made but (at [224]) the ‘… level of an empowering statute, leaving questions concerning the validity of actions taken under the statute, including regulations, directions and administrative action, to be resolved by reference to whether the valid statute empowers that action.’

At [261] His Honour said (emphasis added):

The constitutional guarantee that “trade, commerce, and intercourse among the States … shall be absolutely free” imposes a requirement that laws concerning movement across a border – whether it be goods, persons, or communications or other intangibles – cannot discriminate by imposing an unjustified burden on trade, commerce, or intercourse in one State compared with another.

Edelman J explained his preferred approach at [265] (which has been re-formatted below to make his three grounds clear):

Structured proportionality makes explicit and transparent the only three independent grounds upon which a law might be held invalid as contrary to s 92.

  • First, a law will be invalid if its very purpose is to undermine the freedom guaranteed by s 92.
  • Secondly, a law will be invalid if its means of achieving its legitimate purpose are not “reasonably necessary”, in the sense that those means burden the freedom guaranteed by s 92 substantially more than obvious and compelling alternatives which could achieve the purpose of the law to the same extent.
  • Thirdly, and in absolutely exceptional cases, a law will be invalid if its legitimate, but trivial, purpose is inadequate to support the extent of the burden placed upon the high constitutional purpose of s 92.

(It should be noted that there was disagreement between the judges about the use of ‘Structured proportionality’ as explained by Edelman J. Kiefel CJ, Keane and Edelman JJ all favoured a ‘structured proportionality analysis’. Gageler and Gordon JJ did not; they preferred stopping at the test of ‘reasonable necessity’ (Edelman’s second point, above). Gageler and Gordon JJ would not allow the court to hold that the purpose of legislation – a purpose adopted by Parliament – was too trivial for the burdens imposed as a legitimate means to achieve that purpose. That is, it is for Parliament not a court to determine what is a proper purpose to be achieved by legislation. It is not for the courts to judge the value of a purpose that Parliament seeks to achieve. Edelman recognised the objection, he said (at [267]; [275]-[276]):

One objection to this form of structured proportionality is that there is no place for the third stage of the analysis… The third stage requires a comparison of the importance of competing policies, upon which Parliament is far better suited to judge in a representative democracy. There is great force to this objection. In Clubb v Edwards, I explained why this third basis for invalidating laws must be highly exceptional. The third stage permits the invalidation of a law even though the purpose of the law is legitimate and despite the means adopted being reasonably necessary to achieve that purpose. In other words, invalidation at the third stage of a law that has satisfied the first two stages might have the effect that Parliament can never legislate to achieve that legitimate purpose. Ultimately, however, … there may be extreme examples of laws whose legitimate but trivial purpose cannot justify a necessary, but extreme, burden upon the important freedom of trade, commerce, and intercourse…

… A law will be inadequate in the balance if, notwithstanding that the law is the only reasonable means of achieving the purpose, the extent of the discrimination and thus the incursion into the freedom of trade, commerce, or intercourse cannot be justified given the purpose of the law.

… the description of the s 92 freedom as “absolute” supports the possibility of invalidity where Parliament puts a necessary but extreme burden on the subject matter of s 92 in order to achieve a purpose that is trivial…

This debate will be of interest to constitutional lawyers and in future cases but for this blog we can put that particular issue aside. We can identify that there is a 3:2 majority for ‘structured proportionality analysis’ but in this case, nothing turned on it as none of the judges thought the purpose of the Emergency Management Act so trivial that any burden on interstate trade, commerce or intercourse could not be justified.)

Discussion

This blog cannot, of course, do justice to a High Court judgment that runs for 115 pages and 4 separate judgements and protracted argument about tests for legislative validity. What can be taken from the decision and is of relevance to readers of this blog is the following:

  1. In argument, Palmer (via his lawyers) accepted that the orders closing the WA border were lawfully made under the Act. That means he accepted that the Minister had taken advice from the State Emergency Controller and that the Minister was satisfied that there was an emergency as defined by the Act and that ‘that extraordinary measures [were] required to prevent or minimise — (i) loss of life, prejudice to the safety, or harm to the health, of persons…’  Palmer also accepted that the State Emergency Controller had made the border closure order for the purpose of emergency management.  The case was even though all of that was true, it was still impossible to close the border because of s 92 of the Constitution.
  2. Despite claims in s 92 that interstate trade, commerce and intercourse shall be ‘absolutely free’ it is not to be read literally. Interstate trade, commerce and intercourse can be subject to a ‘burden’ or restriction provided that the aim is not to advance intrastate – local – traders over interstate ones and provided the purpose that a legislature is seeking to achieve is a legitimate purpose and the burden is reasonably necessary to achieve that purpose.
  3. When considering whether or not a law offends s 92 the relevant analsysis is to look at the Act of parliament, not the subordinate legislation, orders or directions made under that legislation. There may be questions of whether or not those subordinate instruments are authorised by the Act, recognising that there is an implied limitation that any restrictions must be reasonable and proportionate. But whether they are, or are not, raises a question of whether the subordinate orders are authorised by the Act, not a constitutional question about the validity of the Act.
  4. This case was about the Emergency Management Act 2005 (WA) and in particular ss 56 (the power of the Minister to declare a state of emergency) and 67 (powers to be exercised by an authorised officer during a declared state of emergency). Looking at Edelman J’s three criteria for invalidity:
    1. The laws passed the first test, neither the Emergency Management Act nor the border directions were in place for the purpose of interfering with interstate trade, commerce or intercourse in order to favour those in WA over those outside WA.
    2. The laws passed the second test, emergency management is a legitimate purpose of state government (see [155] (Gageler J)). The procedures to be followed, and the state of mind that a decision makers must have before acting under ss 56 and 67 limited the power of those involved to act only in the most serious cases. Assuming that the decision makers (the Minister and an ‘authorised officer’) are acting as required by the Act, it will follow that any burden imposed will meet the test of ‘reasonably necessity’. Given those findings the Act was not invalid by virtue of s 92 and that meant there was no constitutional issues raised.  As for the actual orders made, Kiefel and Keane JJ noted, given the findings of Rangiah J sitting as the Federal Court, the burdens in imposed by the actual orders were ‘reasonably necessary’ to meet the Act’s legitimate purpose.
    3. As noted there was disagreement as to whether Edeleman J’s third test was a legitimate test but for our purposes nothing turns on that as there was no suggestion that the purpose of the Emergency Management Act was ‘trivial’. For Gageler and Gordon JJ the third test was not a legitimate question to ask, for Kiefel CJ, Keane and Edeleman J the legislation was not designed to obtain a trivial purpose so the issue did not arise.

As a result all five judges agreed that the case did not in fact raise a constitutional issue as the Emergency Management Act 2005 (WA) did not have as an express, or necessary purpose, imposing prohibited restrictions on interstate trade, commerce or intercourse. To the extent that the orders made under that Act did impose a burden on ‘interstate trade, commerce or intercourse’ then that was not a constitutional issue and not an issue for the High Court. The question of whether a decision maker – such as the State Emergency Coordinator – had acted in accordance with the law (including s 92) was a matter of administrative law but in this case, there had been no allegation that either the Minister or the State Emergency Coordinator had acted contrary to the legislation. The plaintiffs ‘did not allege that the express statutory conditions for the exercise of the power to make the Directions had not been met’ ([171] (Gordon J)).

What the case did not decide

What might be disappointing for those that still see the COVID response as excessively burdensome is that the case did not decide that the COVID pandemic is a fraud. In the Federal Court (see [16]-[18];[21]):

… Rangiah J found that certain facts relating to COVID-19 and SARS-CoV-2, which had been pleaded by the defendants as particulars of the justification for the Directions, had been proved

The facts so found included the following. COVID-19 is a disease caused by the coronavirus SARS-CoV-2. Clinical and epidemiological knowledge about them is relatively uncertain, their being a new pathogen and disease. SARS-CoV-2 may be transmitted by a person who is asymptomatic and unaware that they have the disease. Where there is community transmission of SARS-CoV-2 its natural growth rate is exponential and must be minimised through certain measures. The risk of community transmission is substantially increased if measures of the kind contained in the Directions are removed. There are no known testing measures which are themselves sufficient to prevent community transmission.

The consequences of community transmission of SARS-CoV-2 and the development of COVID-19 are substantial, including the increased risk of death – particularly for members of the population who are over 70 years of age, members of the population with pre-existing medical conditions or members of the Aboriginal or Torres Strait Islander population – and the risk that the hospital system in Western Australia will be unable to cope. There [was] no known vaccine, and no treatment presently available to mitigate the risks of severe medical outcomes or mortality for a person who contracts COVID-19…

… if persons entered the Western Australian community whilst 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, the consequences would include the risk of death and hospitalisation, particularly for the vulnerable groups mentioned above. In a worst-case scenario, the health consequences could be “catastrophic”.

Conclusion

Given there was no allegation that the conditions for action under ss 56 and 67 had been met, Palmer’s argument, in effect was that the state executive could not impose a burden on interstate trade, commerce or intercourse even where that burden was a legitimate and reasonable response to an emergency.  That argument was rejected.  The outcome is to recognise that the conditions required for action mean that the exercise of emergency powers is limited to extreme cases but because they are so limited, where they are lawfully used, they justify action that burdens interstate trade, commerce or intercourse and I would predict, other recognised rights. See also: