Businessman Clive Palmer’s legal challenge against the West Australian border could still have implications for Tasmania, a constitutional law expert says.
Mr Palmer launched the legal action after being denied entry to Western Australia during the first wave of the COVID-19 pandemic.
Western Australia and Tasmania are the only two remaining state’s which have completely closed borders to interstate travellers.
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Both states, along with South Australia and the Northern Territory, have also had no community transmission of the virus.
University of Tasmania constitutional law expert Professor Brendan Gogarty said the court wouldn’t have allowed the trial to proceed if Mr Palmer didn’t have a case.
But, he said the fact the Commonwealth had withdrawn from the case will hurt his chances.
The Commonwealth initially supported Mr Palmer’s bid to get WA to reopen its border, but after Victoria and other Eastern states began to experience a second wave, it reversed the decision.
“[Mr Palmer] is relying on a range of supporting evidence that the Commonwealth had advanced to indicate the border closures weren’t necessary to contain the spread of COVID-19 in the state,” Professor Gogarty said.
“There are now questions about whether that evidence can be used by the High Court to make its decision – if not then there will certainly be delays so that he can produce new evidence himself.”
Professor Gogarty said if Mr Palmer were to win the case it could have implications for Tasmania.
He said the High Court decision would establish principles relating when states would be able to close borders during a health emergency.
“Without knowing what those specific principles are its not easy to say just how it would affect Tasmania’s power to shut its own borders,” Professor Gogarty said.
“But generally any constitutional rules affecting Western Australia would also equally affect Tasmania as Palmer’s arguments are based on the federal free trade provisions of the Constitution.”
A ruling on the case was expected in October after a four-day sitting last week.
However, Western Australia has since called for a retrial after the Commonwealth withdrew from the case.
Professor Gogarty said a decision would not be handed down in October if a retrial were to occur.
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