The WA government has lost its bid for a fresh trial in its border battle with mining billionaire Clive Palmer, following a ruling by the Federal Court.
That is despite the court ruling Western Australia’s interstate border closure was more effective at keeping coronavirus out of the state than any other measure.
The legal stoush over WA’s hard border began in May, when the billionaire businessman launched a High Court challenge after he was denied a travel exemption to enter the state.
He argued the border closure breached section 92 of the constitution, which requires that “commerce and intercourse among states … shall be absolutely free”.
But the WA government argued that closing the border was necessary to protect the health of West Australians.
The matter was sent to the Federal Court to determine key facts of the case, including the health risk posed by COVID-19 and whether border closures were the most effective measure to contain its spread.
It will now go on to the High Court where constitutional issues will be considered.
Ruling follows Commonwealth withdrawal
During a four-day hearing in late July, the court heard testimony from a range of epidemiological experts.
As is usual for constitutional matters, the Commonwealth was initially a party to the case, with its Solicitor-General Stephen Donaghue arguing against the border closure in the court hearings.
Prime Minister Scott Morrison even went so far as to say it was “highly likely” WA would lose the case with its “all-or-nothing approach” to the border closure.
But after the Federal Court hearings concluded, the Commonwealth changed its mind and withdrew from the case.
This led the WA government to file an urgent application to the Federal Court to try to have the whole matter re-heard from scratch, without the testimony from experts called by the Commonwealth.
At the time, Justice Rangiah was highly critical of the federal government for telling the media it was withdrawing from the case before informing him.
He described the actions as “extremely discourteous”.