It seems like a lifetime ago, but in March when WA Opposition Leader Liza Harvey first proposed closing WA’s borders, the idea was rubbished by Premier Mark McGowan and his ministers.
“We need to avoid propositions that are ill thought out and create panic,” Mr McGowan said.
“If we close the borders to the east, what will happen to the markets for some of our products?
“What will happen to our supply chains for important goods that we need?”
Treasurer Ben Wyatt was even more strident and called the opposition hypocritical for pushing the idea. He suggested an open border – our ability to ship our goods, to trade, to keep our products moving through our ports – was “the one thing we have to protect in this state” from the economic misery ahead.
But WA health minister and Deputy Premier Roger Cook, who is perhaps Labor’s most cautious and reasoned minister, had bigger problems on his mind than just the economic cost of a border closure.
“Well, there’s a little thing called the constitution and it’s really up to the national response in terms of how we can appropriately manage the public health risk in Western Australia,” he said.
“People have to move around … we need logistics to remain intact and, obviously, people have relatives and family in different parts of the country.
“I think we should be limiting and minimising non-essential travel in Australia, but we can’t turn around and say one Australian cannot meet and visit another Australian.”
Yet here we are, four months later, defending the state’s ‘hard border’ in the High Court against a legal challenge from mining billionaire Clive Palmer who argues they’re unconstitutional.
And for the reasons Mr Cook foreshadowed.
Mr Palmer says the restrictions should be struck down because they contravene section 92 of the Commonwealth Constitution, which provides that trade and movement among the states “shall be absolutely free”.
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
Commonwealth Constitution, section 92
On Friday, Mr McGowan ramped up the rhetoric on Mr Palmer, labelling him an “enemy of the state”, and telling a different story on the constitution than his deputy did in March.
“I mean, we’re in a pandemic. Constitutional niceties I think should go out the window,” he said.
To be fair, earlier in the week he conceded that if the High Court rules the borders must come down then “that is the law of the land”. The Premier urged the federal government to drop its involvement in Mr Palmer’s High Court challenge, which it did on the weekend.
But the letter from the Prime Minister to the Premier signalling the withdrawal contained a warning that echoed the concerns expressed months ago by Mr Cook.
“Under section 92 of our Commonwealth Constitution, it is required that movement be ‘absolutely free’ among the states – including travel across state borders,” Mr Morrison wrote.
“It is a provision that at its heart has a federating purpose and is one of the central constitutional provisions that establishes Australia as a single indissoluble and federal nation.
“Where a state unilaterally places restrictions on interstate travel which are found by the High Court to be disproportionate, this is contrary to the fundamental constitutional guarantee that residents of one state can move to another state.”
Anne Twomey, Sydney University’s professor of constitutional law, told this masthead the challenge against the ‘hard border’ would turn on whether the High Court finds WA’s laws reasonably necessary, or whether there was another way to protect the state from the pandemic without impeding freedom of movement.
“That’s where the danger is for Western Australia because you might say, ok you don’t need to shut your borders completely, you can do what the Northern Territory and Queensland are now doing and that is saying well we won’t take anyone who’s been in the last 14 days within a COVID hot spot,” she said.
“But there are places where COVID isn’t spreading and we’ll have people from there.
“It’s going to be more the question of whether there’s something else you could do that is just as effective in protecting public health and less burdensome.
“That’s what [former High Court justice] Ken Hayne used to call the killing field; that’s the place where the decisions get made.”
None of these “constitutional niceties”, as the Premier calls them, make WA’s ‘hard border’ any less popular with voters. Just as they’re not too fussed that the hard border isn’t all that hard. There were still at least 450 people coming into the state every day until a further clamp down saw fewer Victorians with exemptions.
As Attorney General Christian Porter said on Friday, “what is constitutional and what is popular is not the same thing”.
“If it were as easy as going into the High Court and saying 96 per cent of people in Western Australia would prefer this, we wouldn’t have an issue on our hands, but that is not the question before the High Court,” he said.
So it seems we’re right back to where we started. The High Court challenge predicted by the Prime Minister is playing out before our eyes. If Mark McGowan loses, an outcome some believe is more than possible, WA will be left negotiating its way out of a constitutional catastrophe.
And that “little thing called the constitution”? Not so little after all.
Nathan is WAtoday’s political reporter and the winner of the 2019 Arthur Lovekin Prize for Excellence in Journalism.