LAWS4001- Case Anaylsis -C3324817 PDF

Preview

Summary

case analysis Palmer v WA...

Description

Student: C3324817, Kira Montgomery Seminar: Thursday 12-2pm LAWS4001 – Case Analysis Assessment

i.

Name and citation of the case

Palmer v Western Australia (2021) 95 ALJR 229.1

ii.

Material facts of the case

On 11 March 2020 the World Health Organisation declared a pandemic in relation to the global COVID-19 outbreak. On 15 March 2020, the WA Minister for Emergency Services declared a whole state emergency pursuant to s 56 of the Emergency Management Act 2005.2 An ‘emergency’ for the purposes of the act included a ‘plague or epidemic’3. An authorised officer was appointed under s 61 and that individual had the power to ‘ d i r e c t ,o rb yd i r e c t i o n , p r o h i b i t ,t h emo v e me n to fpe r s o n s ,a ni ma l sa n dv e hi c l e swi t h i n ,i nt o ,o uto fo ra r ou n da n 4 Delegated legislation, that is the e me r g e n c ya r e ao ra n yp a r to ft hee me r g e n c ya r e a . ’

Quarantine (Closing the Border) Directions5 was made pursuant to the act and enforced as of 5 April 2020. These directions provided that a person ‘must not enter Western Australia unless the person is an exempt traveller.’6 The Plaintiffs, Minerology Pty Ltd and Clive Palmer who was a Queensland businessman had business interests in WA. Despite presenting no symptoms of COVID-19, Mr Palmer’s application for a traveller exemption was denied. The Plaintiffs bought a Constitutional claim in the High Court contending that this harmed and inhibited their business operations as the legislation was in breach of s 92 of the Constitution.

iii.

How the case arrived in the High Court

The case arrived in the original jurisdiction of the High Court as the proceedings were brought by writ of summons. It was ordered on 4 September 2020 by Kiefel CJ that a Special Case be referred to the full court for consideration.

1 Palmer v Western Australia (2021) 95 ALJR 229 (‘Palmer v WA’). 2 Emergency Management Act 2005 (WA) (‘EMA’). 3 Ibid s 3(d). 4 Ibid s 67(a). 5 Quarantine (Closing the Border) Directions (WA) (‘Quarantine Directions’). 6 Ibid para 4.

1

Student: C3324817, Kira Montgomery Seminar: Thursday 12-2pm iv.

Issues for determination

Whether or not the EMA7 and/or the directions made pursuant to the Act were wholly or partially invalid due to an infringement upon s 92 of the Commonwealth Constitution.8 v.

Core submissions for each party

Submissions for the Plaintiffs: The plaintiffs primarily submit the provisions made under the Quarantine Directions 9 imposed a complete restriction on the freedom of intercourse amongst the people of Australia through the prohibition of intrastate movement, supported by criminal sanction.10 In the alternative, the Plaintiffs submit that the freedom of trade and commerce as authorised by s 9211 is directly infringed upon by the directions as they effectively imposed a discriminatory burden with protectionist effect.12

Submissions for the Defendant: The Defendant submit that s 6713 as well as the other provisions of the EMA14 are for the purpose of protecting the entire Western Australian population from COVID-19 and its associated health risks rather than providing economic protection.15 Therefore, there is no infringement in relation to s 9216 as the Act has no economic component nor purpose. In the alternative, the Defendant submits that the Directions had no protectionist purpose.17 The directions were reasonably necessary to achieve the purpose of protecting Western Australians from COVID-19 where there was, at the time, no other ‘equally effective means available … which would impose a lesser burden on interstate trade and commerce.’18 Therefore, the legislation was not invalid under the necessity component of structured proportionality. Furthermore, it was submitted that intercourse among the states is only restricted to the extent that is be reasonably necessary to protect against COVID-19. That there was no other effective mean to substantially reduce the risk of COVID-19 entering the 7EMA (n 2). 8 The Commonwealth Constitution s 92. 9 Quarantine Directions (n 5). 10Palmer v WA (n 1) 236 [13]. 11 The Commonwealth Constitution s 92. 12Palmer v WA (n 1) 236 [13]. 13EMA (n 2) s 67. 14Ibid. 15 Palmer v WA (n 1) 236 [14]. 16 The Commonwealth Constitution s 92. 17 Palmer v WA (n 1) 236 [14]. 18 Ibid.

2

Student: C3324817, Kira Montgomery Seminar: Thursday 12-2pm state which would allow absolute intercourse freedom and therefore, the legislation was not invalid under the necessity component of structured proportionality.19

Queensland Intervening: Queensland intervening submit that, a law will only burden interstate intercourse for the purposes of s 9220 where it does so in a discriminatory nature.21 That freedom from burdens on interstate intercourse simpliciter is insufficient to infringe upon s 92.22 That discrimination is a requirement for both limbs of s 92,23 as while both limbs are distinct, they are also interrelated. Furthermore, the State submitted that a law which is said to burden interstate intercourse must be subjected to the same test for validity as is a law that is said to burden upon trade and commerce.24

Victoria Intervening: Victoria as an intervenor submit that the court in determining the legal issue must do so by direct reference to the authorising EMA25 provisions rather than consideration of the respective delegated legislation.

vi.

Outcome of the case and orders from the Court

The Plaintiffs were unsuccessful. The court found that both sections 56 and 67 of the EMA26 in their application to the COVID-19 epidemic complied with s 92 of the Constitution27 entirely. It was held in unanimity that restrictions contained in the EMA28 had the effect of burdening interstate intercourse freedom, that is de facto discrimination. However, the legislation was proportionate and justified means to attain a legitimate end. That legitimate end being the necessity to manage ‘the adverse effects of a plague or epidemic of a nature that requires a significant and coordinated response.’29 Furthermore, it was unanimously held that the exercise of the power granted in ss 56 and 6730 through the enactment of paragraphs 4 19 Ibid. 20 The Commonwealth Constitution s 92. 21 Palmer v WA (n 1) 243 [48]. 22 Ibid. 23 Ibid. 24 Palmer v WA (n 1) 243 [48]. 25 EMA (n 2). 26 Ibid ss 56-7. 27 The Commonwealth Constitution s 92. 28 EMA (n 2). 29 Palmer v WA (n 1) 260 [153] (Gageler J). 30 EMA (n 2) ss 56-67.

3

Student: C3324817, Kira Montgomery Seminar: Thursday 12-2pm and 5 of the Quarantine Directions 31 did not give rise to any Constitutional questions of law. The legal issue was to be determine by direct reference to authorising Act itself. The court additionally ordered that no issue be taken in regard to the validity of the Quarantine Directions32 and therefore no further questions remain for determination by any court. The Plaintiffs were to pay the costs of the special case.33

vii.

Majority and minority judgements reasoning

In regard to the issue on the trade and commerce limb of s 92,34 that being what exactly is trade and commerce to be absolutely free from, the court ruled in a 4-1 majority. The majority, that being Kiefel CJ, Keane, Gageler and Gordan JJ ruled that the guaranteed freedom of trade and commerce provided by s 9235 is the absolute freedom from laws which impose discriminatory burdens of a protectionist kind on trade and commerce.36 The majority upheld the judgement of Cole v Whitfield37 in that s 9238 should be interpreted as a concurrent limitation on Commonwealth and State power which precludes laws that impose discriminatory burdens of a protectionist kind. It held that a law will prima facie discriminate where ‘it treats interstate trade or commerce differently, as compared with intrastate trade and commerce, and effects a disadvantage to intrastate or commerce.’39 Edelman J, however mentioned in obiter that discrimination of trade and commerce should not be limited to that of a protectionist kind. Although no reasoning for this judgement was provided since ‘it was not necessary to decide this point finally in this case…’40 However, the court did rule in unanimity in that both the trade and commerce limb and the intercourse limb of s 9241 while distinct are to be re-integrated. Re-integration requires discrimination whether de dure or de facto to be present in both limbs for a law to be invalid by s 92.42 However the intercourse limb requires only discrimination simpliciter and not of a protectionist kind. The previous distinction between the two limbs resulted in a sense of incoherence which was ‘not

31 Quarantine Directions (n 5) paras 4-5. 32 Ibid. 33 Palmer v WA (n 1) 290 [293]. 34 The Commonwealth Constitution s 92. 35 Ibid. 36 Palmer v WA (n 1) 238 [30]. 37 Cole v Whitfield [1988] 165 CLR 380 (‘Cole v Whitfield’). 38 The Commonwealth Constitution s 92. 39 Ibid 238 [31]. 40 Ibid 273 [216]. 41 The Commonwealth Constitution s 92. 42 Ibid.

4

Student: C3324817, Kira Montgomery Seminar: Thursday 12-2pm consistent with a modern approach to Constitutional interpretation.’43 The text of the Constitution itself provides no avenue for a suggestion that the two limbs be treated in a separate manner or that different tests are to be applied to them.44 The court also agreed in unanimity that even if it is proven that a law burdens interstate trade, commerce or intercourse and is of a discriminatory and protectionist kind (if in reference to the trade and commerce limb), a law may still be valid under s 9245 if it can be justified as a Constitutionally permissible to achieve a legitimate end. However, it was spilt in regard to which test is to be applied in determining proportionality to a legitimate end. The case of Cole v Whitfield46 provided no precedent for which test is to be applied in determining proportionality to a legitimate end. The court ruled in a 3-2 spilt with the majority favouring the structured proportionality test as suggested in McCloy v New South Wales.47 The majority, Kiefel CJ, Keane and Edelman JJ provided reasoning that the test was a structured means allowing for a rational approach and ‘calibrated scrutiny’.48 While the restrictions set by s 6749 were severe there was at the time no other ‘effective alternative’50 proportionate to achieve to legitimate end of protecting the health and safety of Western Australians. The majority relied on a range of previous international decisions to support the structured proportionality test. The minority, Gordon and Gageler JJ however disagreed, rejecting the structured proportionality approach and rather adopted the test of reasonable necessity. The minority applied the authoritative judgement of Betfair Pty Ltd v Western Australia51 as well as the judgement of Gleeson CJ in Mulholland v Australian Electoral Commission.52 The justices reasoned that the test of structured proportionality was too rigid, the standard of reasonable necessity rather allowed for a flexible approach which guided evaluative judgements.53 The legal question required for determination could not be answered 5 4 by the simple ‘p r e s e n c eo ra b s e n c eo fas i n g l ef a c t o ro ro fap r e d e t e r mi n e dr a n g eo ff a c t o r s . ’

43Palmer v WA (n 1) 243 [45]. 44Ibid. 45The Commonwealth Constitution s 92. 46Cole v Whitfield (n 37). 47McCloy v New South Wales (2015) 257 CLR 178. 48Palmer v WA (n 1) 243 [56]. 49EMA (n 2) s 67. 50Palmer v WA (n 1) 247 [80]. 51Betfair Pty Ltd v Western Australia (2008) 234 CLR 418. 52Mulholland v Australian Electoral Commission (2004) 220 CLR 181. 53Palmer v WA (n 1) 258 [144]. 54Palmer v WA (n 1) 257 [137].

5

Student: C3324817, Kira Montgomery Seminar: Thursday 12-2pm Th e i rr e a s o n i n g ,h o we v e r ,d i dn o tr e c e i v et h ema j o r i t ys u pp o r tr e q u i r e da n dh e n c et h e a p p r o a c ho fs t r u c t ur e dp r o p or t i o na l i t yh a sno wb e e na d o p t e d .

viii.

Why the case is a landmark in federal Constitutional law.

The COVID-19 pandemic has been unlike any other experience in our lifetimes, restrictions were placed on our individual movement, unemployment was at an all-time high and the health risks were immense. A finding of unconstitutionality in regard to the boarder restrictions would have serious global consequences in regard to the protection of health and safety from the COVID-19 virus. Therefore, making this case a landmark case as it has had a significant impact on the individual rights and liberties of Australians. The unanimous outcome of the case has resulted in the re-integration of both limbs of s 9255 in that both limbs are to be subjected to the same test. Clarifying the questions left previously unanswered by Cole v Whitfield56 and redefining the Constitutional approaches for determining s 92 issues.

55 The Commonwealth Constitution s 92. 56 Cole v Whitfield (n 37).

6...