Palmer v Western Australia: A Constitutional challenge in a time of crisis


The High Court delivered orders in Palmer v Western Australia [2021] HCA 5 (‘Palmer’) on 6 November 2020. The highly anticipated reasons for that decision were published 24 February 2021. The court considered whether the Quarantine (Closing the Border) Directions (WA) and/or the authorising legislation were invalid because they impermissibly infringed s 92 of The Constitution.

An extraordinary situation, in the form of the worldwide COVID-19 pandemic, arose in March 2020 which has seen unprecedented health and legal measures being implemented globally in response. In Western Australia (‘WA’) a state of emergency was declared on 15 March 2020 pursuant to s 56 of the Emergency Management Act 2005 (WA) (‘EMA’). Enlivened by this declaration, under s 67 EMA, the State Emergency Coordinator enacted the Closing the Border directions. These directions, effectively, shut the entire West Australian border and prevented travel into WA without an exemption.

Mr Palmer is a resident of Queensland and is the Chairman and Managing Director of a mining company with interests in iron ore projects in WA. He, regularly, travelled between the states for purposes related to his company and for other reasons. He provided evidence that he had not suffered any symptoms related to COVID-19 and it was accepted, at first instance, that there was a low risk of community transmission in WA with limited COVID-19 case numbers. Nevertheless, Mr Palmer’s application to enter as an exempt traveller was refused [10]-[11].

Plaintiffs’ primary arguments

In making submissions, the plaintiffs argued that ‘either the authorising Act and/or the Directions are invalid, either wholly or in part … by reason of s 92 of the Constitution’ [12]. They claimed the Direction imposed an effective burden on the freedom of intercourse by prohibiting cross-border movement (which is backed by a criminal sanction) [13]. Alternatively, they alleged the freedom of trade and commerce guarantee in s 92 was contravened as the Directions imposed a discriminatory burden with protectionist effect [13] and [213].

Respondents’ primary arguments

The respondents’ defence went directly to the purpose of s 67 and other provisions of the EMA. The allegations were denied on the basis that the provisions did NOT have the purpose of economically protecting WA. Rather, they have the legitimate purpose of protecting the population against risks arising from emergency situations including the COVID-19 pandemic. The ongoing extensions to the Directions do not have a protectionist purpose but, instead, are ‘reasonably necessary to achieve and compatible with, the legitimate purpose of protecting the WA population’ [14]. They stipulated that there were no other equally effective means to achieve this purpose that lessen the burden on interstate intercourse and this movement is only limited to the extent that is reasonably necessary [14].

Reconciliation of s 92 and structured proportionality

Previous authorities, especially Cole v Whitfield (1988) 165 CLR 360, Betfair Pty Ltd v Western Australia [No 1] (2008) 234 CLR 418 and Wotton v Queensland (2012) 246 CLR 1 (‘Wotton’), left gaps regarding the analysis of s 92. Palmer is the first case to consider the division of s 92 limbs of trade and commerce, and intercourse, and the requirement that protectionist burdens be placed upon trade and commerce to enliven a s 92 challenge. Although the limbs were understood to be burdened in different manners, all judges in this decision found they should be reconciled and subjected to the same standard of analysis.

Kiefel CJ and Keane J held that, although there was a significant burden on the freedom afforded by s 92, it was, nonetheless, justified through the protection of health and life [82]. In supporting this, their honours noted that the High Court has previously allowed for freedoms to be burdened to a significant extent if the burden could be justified.

The relevance of structured proportionality to the analysis of s 92 provisions was also examined in the judgements. Drawing on authorities from the United Kingdom, Canada and the Australian decision,  McCloy v New South Wales (2015) 257 CLR 178, their honours found the structured proportionality approach is the most appropriate, albeit, imperfect, method as it reflects a rational approach to whether a law which burdens a right or freedom can be justified.

Edelman J detailed a three-step approach to structured proportionality:

  1. Examine whether the law has a rational connection to a legitimate purpose i.e. the object, goal, or aim of the provision rather than merely the effect of the law [269]-[270].
  2. Where there is a legitimate purpose BUT the effect is to place a burden on trade and commerce and intercourse, it must be considered whether the means to achieve the purpose are reasonably necessary [271]. In determining this, other available means that would achieve the purpose without placing a burden, or place a lessor burden, must be assessed [271].
  3. Finally, it must be asked whether the law is adequate in its balance. It will be inadequate if the extent of the discrimination/incursion cannot be justified given the law’s purpose [275].

Whilst noting that universal acceptance was yet to occur, a majority determined that the structured proportionality approach achieves “a certainty to which the law aspires” as it discourages conclusory statements and exposes a court’s reasoning [55].

Whilst Justice Gageler came to the same overall conclusion as the other members, the approach in his analysis and reasoning diverged from the rest of the court. He categorically rejected structural proportionality and, instead, preferred the application of the standard of reasonable necessity applied in Betfair [No 1] [94], a case in which his honour had appeared as counsel, in answering a matter of constitutional validity in application of statutory provisions.

When answering the question of what constitutes ‘reasonable necessity’ in exercising a statutory power, all members reiterated the approach taken in Wotton. Where, on a proper construction, the application ss 59 and 67 of EMA comply with the constitutional limitations of s 92, without being read down to save their validity, the directions they impose are justified. See [65]-[66], [122], [126]-[128], [201]-[202], [224], [232]-[234]. The question is answered by determining whether a valid statute empowers an action.

The disposition

The court agreed in this case that the Directions did in fact impose a burden on trade and commerce and intercourse but it remained constitutionally valid and reasonably necessary in the context of a global pandemic. The Plaintiffs were ordered to pay costs.


Elise Anthony and Georgia Whybird

Higgins Chambers

9 April 2021