Just as the Ardern government apparently acted illegally in at least the initial stages of its lockdown, questions have been repeatedly raised in Australia about the constitutionality of various state government responses. Legal experts have especially questioned whether border closures are in breach of section 92 of the Constitution.
As far back as May, the federal Attorney General warned that state governments needed to carefully consider the legality of travel restrictions. Many commentators have wondered whether or not someone with deep enough pockets to mount a High Court challenge would emerge.
Well, one has – just…why does it have to be billionaire buffoon Clive Palmer?
Clive Palmer’s federal government-aided challenge to Western Australia’s tough border stance is wrapping up in the Federal Court, as the prime minister repeatedly tips the state will lose.
The Queensland billionaire argues WA’s border closure is unconstitutional and damaging trade.
But Premier Mark McGowan says it is necessary to protect citizens and is based on expert health advice.
That’s all very well for McGowan to say – and if social media, which increasingly looks like a virtual Nuremberg rally is any guide, he has the support of many West Australians – but the fact remains that even governments are bound by the Constitution. This has been a foundational precept of our law and government ever since King John was forced to eat a very unpleasant sandwich and sign the Magna Carta.
This principle has survived for 800 years, through plagues which make COVID-19 seem like a bad sniffle.
Perhaps instead of thundering at the admittedly unpleasant figure of Clive Palmer, McGowan needs to explain, should he lose the case, why he failed to ensure that his rules were in fact legal.
The case continued for the fourth and final day in Brisbane on Friday, with WA’s Solicitor-General Joshua Thomson saying no community transmission in the state since mid-April shows the border closure is working.
If that’s the case, and if West Australians are so terrified of contagion from Victoria, then why has South Australia, with an open land border with Victoria and no hard closure, remained notably infection-free?
McGowan said he expects a judgement in September or October, and has repeatedly lashed Palmer as “selfish” and “irresponsible” for taking the action.
Palmer might be selfish, but the fact remains that either the restrictions are constitutional – or they are not. This is the bedrock rule of law in Australia. West Australians have a boorish habit of imagining themselves to be above the rest of Australia, but no government can be allowed to hold itself above the Constitution.
Prime Minister Scott Morrison is taking a principled stand, for which he can expect little reward. This will not aid the federal government’s popularity in a key state, but the commonwealth has to defend the Constitution whatever the political convenience.
Scott Morrison said the judgement “could leave Western Australia in a weaker position” if its border closure was found not to be justified by scientific evidence.
“The constitution doesn’t provide for unilateral decisions to close borders without there being a proper basis for those decisions. That is our understanding,” Morrison said.
It’s all very well for those cowering in fear of the Xi Plague to claim that “It’s for our own good!” and that we should “trust the government!” but, as one of the architects of Australia’s Constitution said, if we could trust the government, we wouldn’t need a written constitution.
The Constitution is the fundamental law of the nation. If governments disregard the law of the nation, especially to win popular approval, then what can it be called but a dictatorship?
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