Palmer v Western Australia [2021] HCA 5

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON AND EDELMAN JJ

CLIVE FREDERICK PALMER & ANOR PLAINTIFFS

AND

THE STATE OF WESTERN AUSTRALIA & ANOR DEFENDANTS

Palmer v Western Australia

[2021] HCA 5

Date of Hearing: 3 & 4 November 2020

Date of Order: 6 November 2020

Date of Publication of Reasons: 24 February 2021

B26/2020

ORDER

The questions stated for the opinion of the Full Court in the special case filed on 22 September 2020 be answered as follows:

(a) Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?

Answer:

On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.

The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.

No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court.

(b) Who should pay the costs of the special case?

Answer:

The plaintiffs.

Representation

P J Dunning QC with R Scheelings and P J Ward for the plaintiffs (instructed by Jonathan Shaw)

J A Thomson SC, Solicitor-General for the State of Western Australia, with J D Berson for the defendants (instructed by State Solicitor's Office (WA))

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan SC and A M Hammond for the Attorney-General for the Australian Capital Territory, intervening (instructed by ACT Government Solicitor)