Quigley and Porter both take positives from court decision

The Federal Court judgment on WA’s border restrictions has given both state Attorney-General John Quigley and federal Attorney-General Christian Porter more confidence in their respective positions on the issue. File picture

STATE Attorney-General John Quigley says he is very confident WA’s stance on border restrictions will be successful as the Clive Palmer case is set to return to the High Court in coming months.

Mr Quigley, who is also the Butler MLA, told Yanchep News Online on Wednesday, August 26 that his increased confidence stemmed from the fact that even though the High Court could take into account economic and social matters they were not part of Queensland businessman Clive Palmer’s pleading.

“There’s no evidence before the court as to the economic or social impact whatsoever,’’ he said.

Mr Quigley said federal Attorney-General Christian Porter had been raising the issues on radio but there was no evidence put before the court.

Mr Porter, who is also the Pearce MHR, said the Federal Court did not decide the constitutional issues and could not take into account the social, economic and other costs of border restrictions.

“The (Federal Court) assessed evidence by making determinations of the risk of importing the virus into Western Australia if the border restrictions were removed,’’ he said.

“The court determined the risk of importing the virus from Queensland, which is the jurisdiction relevant to the court process, is uncertain and that the risks from other jurisdictions varied from ‘high’ to ‘very low.”

He said the judge specifically found that it might be possible to ease the border restrictions with some states and territories without a significantly increased risk of morbidity and mortality in the Western Australian population while there was ongoing community transmission within other states and territories.

“This is entirely consistent with the Commonwealth’s position that evidence suggests low risk in establishing travel bubbles with bordering states such as South Australia and the Northern Territory which have lower infection rates than WA.’’

But Mr Quigley said Mr Porter had totally withdrawn from the case so he could not make any submissions in any event.

In the Federal Court WA had alleged the easing or relaxation of the border restrictions contained in the quarantine (closing the border) directions issued by WA state emergency coordinator that applied to people travelling from interstate could only occur without an increased risk of morbidity and mortality within WA while there was no community transmission within other Australian states and territories.

Justice Darryl Rangiah said he did not accept the allegation had been proven.

“The experts conclude that the risk is higher from some states and territories than others and that the disease can be considered to be ‘eliminated’ when there has been no community transmission from an unknown source for 28 days.

“It may therefore be possible to ease the border restrictions with some states and territories without a significantly increased risk of morbidity and mortality in the Western Australian population while there is ongoing community transmission within other states and territories.’’

But one of his findings was that 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 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 Federal Court finds border closures safest way to protect public health in Clive Palmer case published on The Conversation website on August 25 University of Sydney Professor of Constitutional Law Anne Twomey said Justice Rangiah’s judgment on the risks and probabilities of the spread of Covid-19 if the border restrictions were removed was cautious but appeared to favour the WA position.

She said when the High Court considered the constitutional issue, it would take matters other than public health into account when considering the application of section 92.

“But the important aspect of the Federal Court’s ruling is the assessment about whether other approaches could equally protect public health while still allowing the movement of people across state borders,’’ she said.

“Once you remove hotel quarantine and hot spot exclusions as effective alternatives, this really only leaves the “travel bubble” idea of permitting entry of people from those states or territories where the risk of transmission of Covid-19 is low or very low.

“The assessment of such risks is a moving feast – not even Justice Rangiah, who is based in Queensland, could give an assessment of Queensland’s risk status at the moment, labelling it as ‘uncertain’.

“This makes it very difficult to apply such a risk assessment as a basis of constitutionality.

“Of course, all of this is a matter for the High Court, taking into account a range of additional factors.

“But the Federal Court’s judgment is very helpful in providing a factual base from which to proceed.’’