Palmer v Western Australia
High Court of Australia · 2021
Palmer v Western Australia [2021] HCA 5
A Queensland company chairman was refused entry to Western Australia during COVID-19 and took s 92 to the High Court. He lost, but the reasons reset what the section says about people crossing a border.
What happened?
On 15 March 2020 the Western Australian Minister for Emergency Services declared a state of emergency over the whole State in respect of the COVID-19 pandemic, under s 56 of the Emergency Management Act 2005 (WA), and the Commissioner of Police, as State Emergency Coordinator, issued the Quarantine (Closing the Border) Directions, which took effect from 5 April 2020 [1]. Under para 4 a person could not enter Western Australia unless an "exempt traveller" [7].
The first plaintiff, a Queensland resident who travelled to Western Australia for business and other purposes, had his application to enter as an exempt traveller refused; the second plaintiff was a company with iron ore interests and litigation in the State [10]-[11]. They sought a declaration that the Act or the Directions infringed s 92, claiming a burden on interstate intercourse and, alternatively, a discriminatory burden of protectionist effect on trade and commerce [12]-[13]. Facts about the need for and efficacy of the measures were found on remitter by Rangiah J in the Federal Court [15]-[23], and a special case was stated for the Full Court [24].
What did the Court decide?
On 6 November 2020 the Court answered the question reserved: ss 56 and 67 of the Act, in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic, comply with s 92 in each of its limbs, and the exercise of power to make paras 4 and 5 of the Directions does not raise a constitutional question. The plaintiffs were ordered to pay the costs [25]. The reasons were published on 24 February 2021, and a bench of five delivered four sets of reasons: Kiefel CJ and Keane J jointly, then Gageler J, Gordon J and Edelman J separately.
Kiefel CJ and Keane J, Gageler J and Gordon J treated the constitutional question as one about the Act's authorising provisions rather than about the Directions made under them [63]-[67], [127], [201]-[202]; Edelman J also treated validity as a question about the empowering statute [224], assessed at a level of generality higher than the Directions but more particular than all applications of the provisions [234].
Proposition
What is the principle?
The intercourse limb and discrimination. Kiefel CJ and Keane J, Gageler J, Gordon J and Edelman J each treat the intercourse limb as concerned with discriminatory burdens, not every burden on interstate movement. The Court said at [40] that it had had no occasion since Cole v Whitfield fully to consider the question, so this is the case in which the intercourse limb was worked through.
Kiefel CJ and Keane J at [50]: a law "directed to discriminating against, or in fact discriminates against, interstate movement is invalid as contrary to s 92 unless it is justified by reference to a non-discriminatory purpose", and it may be justified "if it goes no further than is reasonably necessary to achieve a legitimate object, as this Court held in Betfair No 1". They accepted at [48] Queensland's submission that discrimination should be required for both limbs. Their Honours compare the effects of a law on interstate movement with its effects on intrastate movement [47], and hold that it is not necessary that the law favour intrastate movement [72].
Gageler J at [114]: the intercourse limb is "a guarantee that interstate intercourse is to be absolutely free from discriminatory burdens of any kind". His Honour read the earlier AMS v AIF and APLA formulations ("reasonably required") as indistinguishable in substance from reasonable necessity, and said at [113] of APLA that "Neither the outcome nor the reasoning therefore stands in the way of now recognising the intercourse limb to be confined to discriminatory burdens", because no argument had been put there that a burden need not be justified if it was not differential. He is the only Justice who addresses APLA in those terms. Kiefel CJ and Keane J noted at [49] that the cases framing the test as "reasonably required" predate Betfair No 1 and did not state a preference between formulations; Gordon J saw no difference of substance between "reasonably required" and "reasonably necessary" [193]. None said that APLA was overruled.
Gordon J at [188]: laws that restrict both interstate and intrastate intercourse without a differential burden would, on a limb not confined to differential burdens, give interstate movement a privilege over intrastate movement, and so "the burden on interstate trade, commerce and intercourse must be a differential one". Where there is no differential burden, "that is the end of the inquiry" [190]. For her Honour the discrimination in the trade and commerce limb is protectionist and in the intercourse limb is between intrastate and interstate movement [184].
Edelman J at [241]: the test for the intercourse limb "should involve an enquiry into whether the impugned law, without justification, discriminates between States by burdening one State more than another". His Honour included discrimination between two other States, not only between the local State and others [249].
On Cole v Whitfield's remarks about a personal freedom to pass between the States, Kiefel CJ and Keane J said it was "not fully explained" why the notion of a right of persons to pass between the States was retained [42], Gageler J said the remarks cannot be taken to suggest an individual right [105], and Edelman J said that the approach there, which saw s 92 as guaranteeing more than freedom from discriminatory burdens, "should not be followed" [241].
The method of justification. The Court was divided on how a discriminatory burden is justified, and the orders were the same. Kiefel CJ and Keane J would apply the three stages of structured proportionality to a s 92 burden, including adequacy in the balance [52]-[62]; Edelman J would too, treating adequacy in the balance as engaged only in extreme cases [264]-[276]. Gageler J rejected it ("Nothing is broken; nothing should be fixed" [151]) and Gordon J said that the inquiries "are not assisted by adopting structured proportionality as a tool of analysis" and that s 92 "neither permits nor requires" its balancing stage [198]-[199]; both kept reasonable necessity as an evaluative standard. Kiefel CJ and Keane J accepted that the restrictions were severe and that the importance of protecting health and life justified them [81].
Why does this case matter?
It is the case that students most often meet through its facts, and the facts are the trap. A border closure that survives a challenge in a pandemic invites a general conclusion about border closures, or about health prevailing over free movement. The report supports neither as a general statement. How far a measure is justified was decided on a particular evidential record: the findings Rangiah J made in August 2020 about a new disease [16]-[17], with Kiefel CJ and Keane J noting that circumstances had changed since his Honour's assessments and that nothing turned on it [20].
It also matters for how it is cited. Before attributing a point from this report, check whether one Justice makes it or several do: a point only one set of reasons makes belongs to that Justice.
Exam and application relevance
Start with the limb. Where the law burdens the movement of people or communications across a border, ask whether it treats interstate movement differently from comparable intrastate movement, and say whose formulation you are using. If it does, go on to justification and note that the Justices divided on method. If the burden falls on interstate and intrastate movement alike, on Gordon J's reasoning at [188]-[190] it falls outside the limb, and Gageler J's at [99] and [113]-[114] point the same way.
On trade and commerce, Kiefel CJ and Keane J [30], Gageler J [85], [114] and Gordon J [184] state the limb as a freedom from discriminatory burdens of a protectionist kind, and Kiefel CJ and Keane J rejected the plaintiffs' protectionism claim [82]. Edelman J alone raised a question about the protectionist element, saying that it "need not be finally resolved" [255].
When a problem turns on APLA or AMS v AIF, rely on what the Justices said about them, which is stated in the Proposition, and no more.
Check your understanding
1. Gordon J and Gageler J are both recorded as rejecting structured proportionality for s 92. Which stage of it did Gordon J say s 92 neither permits nor requires, and which Justices would have applied the full three stages? 2. A State law restricts travel between its own regional towns and across its border in identical terms. Using paragraph [188] of Gordon J's reasons, explain where the law stands in relation to the intercourse limb. 3. What did the Justices say about APLA and the "reasonably required" formulation, and which of them addressed APLA's outcome and reasoning?