The high court has rejected Clive Palmer’s challenge against Western Australia’s border ban.
A majority of justices on Friday held that the state’s quarantine directions and the emergency management law authorising them did not breach the constitution.
The mining tycoon had argued the border directions infringed the guarantee that interstate trade, commerce and intercourse should be “absolutely free”.
The chief justice, Susan Kiefel, said the court had found the emergency laws – insofar as they deal with a “plague or epidemic” – comply with the constitution and the border closure “does not raise” constitutional questions.
Kiefel also noted that Palmer’s case did not argue that the border directions were not validly authorised by the emergency laws. The court ordered Palmer to pay costs.
The Western Australian, Mark McGowan, welcomed the result as a “significant victory”. “I will always fight to protect the health of Western Australians,” he said in a statement.
McGowan told reporters in Perth that Palmer would likely be liable for “hundreds of thousands” of dollars in legal costs.
Although no date has been set for the court to provide its reasons, the result demonstrates that the justices accepted that the directions were intended to prevent the spread of Covid-19 rather than discriminating against interstate movement.
Despite the federal court finding the border ban was “substantially effective” at preventing the reintroduction of coronavirus, Palmer had sought to argue it was not “reasonably necessary” because WA could have opted for less restrictive alternatives.
Western Australia countered that since justice Darryl Rangiah concluded the ban was “the most effective” policy there were therefore “no other measures available” that were less restrictive of movement.
Although Rangiah found some jurisdictions presented a low risk, the WA solicitor general, Joshua Thomson, argued that the risk was not zero and was worsened by the prospect of travellers “border hopping” from higher risk areas.
McGowan has announced WA will reopen to all states and territories from 14 November, with some restrictions remaining for residents of New South Wales and Victoria.
WA’s case was supported by other states and territories, which argued that it was entitled to a tighter border due to geographical differences and to pursue the aim of excluding the virus to a greater degree.
After months of backing Palmer’s challenge, the federal government pulled out of the case in August under sustained pressure from McGowan. Scott Morrison then asked Palmer to drop the case.
The federal shadow attorney general, Mark Dreyfus, said the court’s decision was a “humiliating rebuff” to the Morrison government’s earlier attempt to support the case. “The people of WA will not forget this,” he said.
The Australian Industry Group chief executive, Innes Willox, warned the result “should not be seen as a green light to keep internal borders closed or restricted longer than necessary”.
Willox welcomed WA’s decision to move to a “controlled border” with the majority of states and territories from 14 November but said there remained a “confused patchwork of restrictions that persist, sometimes unnecessarily, in our federation”.
Palmer has eight court actions against Western Australia and senior ministers, including a dispute over an iron ore project, a contempt of court case after WA passed a law to block that damages claim and a defamation case against the premier.
