Federal Court says hard border best at stopping coronavirus from entering WA in Clive Palmer case

The Western Australian Government is claiming a "comprehensive victory" in a key legal battle with mining billionaire Clive Palmer, after the Federal Court ruled the state's border closure was more effective in preventing the spread of COVID-19 than any other measure.

Key points:

• Justice Darryl Rangiah said an outbreak in WA would risk lives
• His ruling on key facts precedes the final High Court decision
• Premier Mark McGowan said the ruling was a 'comprehensive victory'

The legal stoush over WA's hard border began in May, when the billionaire businessman launched a High Court challenge after he was denied a travel exemption to enter the state.

The matter was sent to the Federal Court to determine key facts of the case, including the health risk posed by COVID-19 and whether border closures were the most effective measure to contain its spread.

In a summary of his judgement, Justice Darryl Rangiah ruled the border closure did not eliminate the potential of importation of COVID-19 from other states and territories, because "exempt travellers" were still allowed to enter WA.

However, he said the border restrictions had reduced the number of people entering the state to about 470 people a day, down from 5,000 a day in 2019.

"The border restrictions have been effective to a very substantial extent to reduce the probability of COVID-19 being imported into Western Australia from interstate," he said.

He said WA had not had a case of community transmission of the virus since April 12.

He said that if an infected person entered the state, there would be "a high probability that the virus would be transmitted into the Western Australian population; and at least a moderate probability that there would be uncontrolled outbreaks."

"If there were uncontrolled outbreaks in Western Australia, the consequences would include the risk of death and hospitalisation, particularly for vulnerable groups, such as elderly and Indigenous people.

"In the worst-case scenario, the health consequences could be catastrophic."

Border better than hotel quarantine, face masks and screening

Justice Rangiah said if the border restrictions were replaced by mandatory hotel quarantining, WA could not safely manage the number of people affected.

He said if the border closure was replaced by other measures like exit and entry screening, mandatory face masks, and a "hotspot" regime, they would be less effective in preventing the importation of COVID-19.

Justice Rangiah noted there was a "degree of artificiality" to the court's findings because the court could not take into account any factual developments since the hearing in July, and the extent of COVID-19 outbreaks was "changing day-by-day".

He said the court's findings were only concerned with "the health risks posed by COVID-19 to the Western Australian community" and the court could not "take into account any economic, social or other consequences of COVID-19 or the border restrictions."

Premier: WA 'vindicated' by ruling

Speaking in Port Hedland after the judgement, Premier Mark McGowan said it was a "vindication" of the stand WA had taken on its hard border.

"This is a comprehensive victory for Western Australia and for the people of this state," he said.

"All I would say to Mr Palmer now is 'back off, end your action, stop the selfishness, stay in Queensland and leave us alone'."

Mr McGowan said he was confident in the strength of the state's case heading into the High Court.

"We are very confident because the facts show that the borders have saved people's lives, that there could have been catastrophic outbreaks here in Western Australia but for the border."

Ruling follows Commonwealth withdrawal

During a four-day hearing in late July, the court heard testimony from a range of epidemiological experts.

As is usual for constitutional matters, the Commonwealth was initially a party to the case, with its Solicitor-General Stephen Donaghue arguing against the border closure in the court hearings.

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Prime Minister Scott Morrison even went so far as to say it was "highly likely" WA would lose the case with its "all-or-nothing approach" to the border closure.

But after the Federal Court hearings concluded, the Commonwealth changed its mind and withdrew from the case.

This led the WA Government to file an urgent application to the Federal Court to try to have the whole matter re-heard from scratch, without the testimony from experts called by the Commonwealth.

At the time, Justice Rangiah was highly critical of the Federal Government for telling the media it was withdrawing from the case before informing him.

He described the actions as "extremely discourteous".

Why did the court rule against a re-trial?

The WA Government applied for a fresh hearing when the Commonwealth withdrew from the case, claiming it had been prejudiced by the move because submissions had already been made in support of Mr Palmer's case.

The state argued the Commonwealth required permission from the court to withdraw, and should only be allowed to do so on conditions including that there should be a new hearing.

However Justice Rangiah determined there should not be a new hearing because the Commonwealth was "entitled to withdraw from the proceedings without permission".

"Second, the prejudice to Western Australia has not been caused by the withdrawal, but by the Commonwealth having intervened in support of the Palmer parties' case in the first place."

"Third, as the Palmer parties indicated that at any new hearing they would adopt the Commonwealth's submissions and call the witnesses already called by the Commonwealth, there would be no point in having a new hearing."

The court ordered the Commonwealth Attorney-General pay the costs relating to the hearing which considered WA's application for a fresh trial.

The matter will head to the High Court later this year, as early as October.

Mr Palmer has been contacted for comment.

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