1B3 2021 Assessment 2: Clive Palmer v. Western Australia Report

This report analyzes the case of Clive Palmer v. Western Australia, focusing on the legal challenges to border restrictions implemented during the COVID-19 pandemic. The report examines the case's background, highlighting the division of Australia into regions and the restrictions on interstate travel. It delves into the core issue of whether the government's actions were justified, considering the impact on business operations and interstate trade. The report explores the arguments presented by both sides, including the government's rationale for protecting public health and Palmer's claims regarding the infringement of constitutional rights, specifically Section 92. It also discusses the court's decision, its reasoning, and the implications for future cases involving similar issues. The analysis considers the advantages and disadvantages of border closures, the impact on businesses, and potential alternative solutions. The report concludes by summarizing the key findings, emphasizing the balance between public health and economic considerations, and the significance of the court's decision in shaping the legal landscape during a pandemic. It also references the relevant legal precedents and constitutional provisions.

ASSESSMENT 2 RESEARCH Project 1B3,
2021

TABLE OF CONTENT
Introduction......................................................................................................................................1
Main body........................................................................................................................................1
Case issue.....................................................................................................................................1
Rules............................................................................................................................................2
Analysis.......................................................................................................................................2
Arguments (conclusion)...............................................................................................................4
Conclusion.......................................................................................................................................5
REFERENCES................................................................................................................................6

Introduction
In the current time of COVID-19, governments implement a series of consecutive steps, by
which it can ensure that civilian lives are being secured from the virus. Therefore in order to
accomplish this borders were being made within the country and regions are being developed
like eastern Australia and western Australia. Therefore because of which civilian travelling is
being affected with the transportation of the business raw materials for maintaining its business
activities. Analysis on the case study of Clive palmer v Western Australia is being done within
the report.
Main body
Case issue
Due to pandemic Australia was divided into two parts that is east Australia or west
Australia. As cases in the east Australia is rising so people who belongs to east Australia is not
allowed to move to west Australia in any situation. A businessman in the Australia whose name
is Palmer who is doing business in west Australia is also not allowed to do business because of
the close border decisions. He was facing problem in transporting their goods to west Australia.
He then file the case in the Australian court that government cannot stop him for moving one
place to another in the same country. As he is doing business in west Australia so should have
given permission to do so. But Palmer has lost the case of western Australia’s border ban. As the
chief justice Susan Kiefel and justice Patrick Keane said that this is not the discriminatory issue
and this decision is justified because of the pandemic (Clive Palmer v Western Australia: border
ban justified by risks of Covid-19, high court reveals., 2020).
As covid 19 cases are increasing day by day, so to control the cases government have to
ban inter state movement and this is not only happened in Australia but in many other countries
also government is imposing such decisions. After the decision has came Palmer said that it is
increasing the difficulty of the public. Court further said that the person who is infected with
covid 19 enters into west Australia and then the risk of community transmission increases and
then that can even become uncontrollable. The closing of the borders of west Australia is in the
benefit of the community only and no constitutional law has been breached in this as borders can
be closed when such situation arises. After this judgement has announced then the five high court
justices said that as per section 92 of the constitution is provide direction that prevent
discriminatory restrictions on interstate trade, commerce etc.
1

Rules
As per the health objectives, states can close their borders so that their citizens can be
protected against transmission from such disease (Is it constitutional for the States to close their
borders as a result of COVID-19? ., 2020). But it has arisen to debate that is it right according to
the section 92 of the constitution. As this section says that trade, commerce and intercourse
should be free among the states whether it is done by carriage or navigation. So this section only
saved Ms Johnson from being prosecuted by the high court of Australia. under the National
Security Act 1939-1943 (Cth) who has travelled from south Australia to west Australia just to see
her fiancé without the valid permit. This section has saved her as per this section and individual
have complete freedom to move via transport from one state to another state.
In Castlemaine Tooheys Ltd & Ors v State of South Australia (1990) 90 ALR 371, the promotion
on controlling litter and energy conservation is accepted by the law is considered invalid as per
section 92, as those objects can be achieved with exemption refillable bottles for payment
requirement of a deposit. On this high court said that the practical aspect of the law is
impermissible discrimination against inter state trade. As the court has also given right to the
state that they have power to close borders for the well being of the people. Court also said that
they are not denying section 92 but for people well being state can ban free movement of people
(Puig, 2020).
On Palmer case high court said that with the effect of emergency management act it is
valid to stop free movement of people and this decision cannot raise constitutional issues.
Analysis
Case,
The case of blue film versus Western Australian border, happens because in the present
time the government has to establish lockdown within in the country to eliminate the spread of
covid-19 virus and in order to accomplish this eastern and western Australian borders were being
made (The guardian, 2021). Due to this individual for not being able to travel within different
regions and because of which several business activities but also being affected since the
travelling of raw material which is being achieved from mining cannot be transferred for the
further process. Due to this several businesses not being able to maintained their work
productivity which make a significant impact on their sustainability within the market place.
Therefore in order to maintain the sustainability of the companies within the Marketplace
2

travelling has to be permitted through which raw material processing activities can be performed
and businesses can ensure that it is been able to work as per customer requirement and hence
maintain their sustainability. In order to accomplish this Palmer pleased to the court for or
removal of the concept of borders within the country with this approach it can maintain the
sustainability of its company.
Advantages
In the present time of covid-19 the spread of corona virus has force the government to implement
lockdown to secure its citizen from getting affected by the virus. This can also be seen in case of
Australia in which the country was being divided into several regions primarily it has been
focused on Eastern Australia and Western Australia (Noguera, 2020). In case of eastern Australia
the spirit of corona virus has been significantly higher than compared to Western Australia and
therefore travelling between regions is being eliminated by the government through which it
ensure that proper well-being of the citizen is being established. The segregation of geographical
locations is also effective because it allows the government to concentrate its efforts on specific
areas through which higher work productivity can be accomplished and the spread of virus can
be minimised within the shortest span of time. In order to accomplish this borders were being
made within regions and only e specific individuals which are being travelling for providing
essential services are being allowed to travel with also reduced the traffic stress upon the road
and because a witch better communication within regions is been established through which
effectiveness of the implemented steps is being increased.
Disadvantages
The spread of covid-19 has force the government to developed borders within its premises. Due
to the development of borders within the region travelling off individuals from Eastern Australia
to Western Australia is being affected and several individuals are not being allowed to reach
their residential who are working within the Eastern side of the Australia (Zarnett, 2020). The
significance of developed borders can also be seen in the case in which citizens like travellers
and tourists were being forced to live within hotels and daily expenditures have to be paid by
them self only because of which their financial balance is being affected. Also with that due to
closure of borders several entrepreneur as well are not being able to maintain their business
activities as compared to regular business operations. It can be seen in the case of Palmer in
which the entrepreneur was not being able to maintain its business operations because since it
3

tends to operate within the mining sector which is being perform within the Western Australia
and further business operations are being done on the eastern coast of the country. Therefore
because of which its business operations was significantly eliminated because of lack of
travelling of raw materials from one region to another. The significance of this becomes higher
increase because entrepreneur like Palmer tensed provide employment to a wide range of
individuals. Therefore if the entrepreneur business activities are being eliminated then it will
drastically increase the unemployment rates within the country while also at the same time the
total revenue collection to the government it will also be reduced.
This is an effective approach which is being implemented by the governments to secure its
citizens, but also at the same time it is affecting the economic activities within the country.
Therefore because of which the sustainability of the companies is drastically being affected.
Therefore a temporary pass system can be developed. Through which the business raw materials
are being allowed to pass, by which their sustainability will not being affected.
Arguments (conclusion)
Although the court decision is highly satisfied that closing states borders in order to stop the
spreading of coronavirus is right but there can be some alterations which court can make. It is
clearly seen that court has taken this decision in order safeguard people wellbeing. But court
should have also understood that what will happen to the people of who are doing trade in west
Australia as after the restriction on free movement of inter state people will not able to trade with
west Australia. After this pandemic rate is unemployment is already increasing drastically and
doing this is also destroying the businesses of the people who were trading in west Australia.
Court should have given some exemption in travelling. They should have allowed those people
to move in west Australia who are going in for the purpose of trading or have any emergency
concern. As closing borders is not the permanent solution for this problem.
As covid 19 will not stop spreading because borders have closed. So here court should also
have considered the interest of people whose travelling in west Australia is very important. As
section 92 also said that for the purpose of trade and commerce and individual is allowed to
move interstate freely (Shafiullah, Selvanathan and Naranpanawa, 2017). Court has only
considered pandemic and people’ health and ignore everything else. As this is also right that
health and safety of citizen should be the priority but trade is also important because this will
provide employment to many people and also help business to grow. As after pandemic it has
4

been observed that the growth of the business has reduced. So doing such practice which mean
closing borders is creating hurdle in the growth of the business.
Conclusion
From the above report it can be concluded that Palmer who was the businessmen has filed
case in the high court of Australia because he was stopped to enter in west Australia to east
Australia. It has done because of increasing covid 19 cases. To control the cases government has
restricted free movement of individuals within interstate. It is the positive thing because by doing
this covid cases can be reduced. But along with positive it has negative aspect also because it
will affect business growth and will also lead to unemployment. In the report such cases have
also discussed in which government has restricted free movement of people.
5

REFERENCES
Book and Journal
Puig, G.V., 2020. The Judicial History of the Federal Market of Australia: Free Trade Versus
Free Enterprise. In World Trade and Local Public Interest (pp. 155-172). Springer, Cham.
Shafiullah, M., Selvanathan, S. and Naranpanawa, A., 2017. The role of export composition in
export-led growth in Australia and its regions. Economic Analysis and Policy. 53. pp.62-
76.
Zarnett, D., 2020. Knowledge is a Weapon. Arm yourself. Maclean’s.
Noguera, J., 2020. Seeding Transformation for Seven Generations: A Case Study of Roses in
Concrete Community School. University of California, Los Angeles.
Online
Clive Palmer v Western Australia: border ban justified by risks of Covid-19, high court reveals.,
2020. [Online]. Available through: <
https://www.theguardian.com/australia-news/2021/feb/24/clive-palmer-v-western-australia-
border-ban-justified-by-risks-of-covid-19-high-court-reveals>
Is it constitutional for the States to close their borders as a result of COVID-19? ., 2020.
[Online]. Available through: <https://www.linkedin.com/pulse/constitutional-states-close-
borders-result-covid-19-tsacalos?articleId=6648600160085602304>
The guardian, Clive Pamer v Western Australia: border ban justified by risks of COVID-19, high
court revels, 2021 [Online]. Available through:< https://www.theguardian.com/australia-
news/2021/feb/24/clive-palmer-v-western-australia-border-ban-justified-by-risks-of-covid-
19-high-court-reveals >
6

7