Commonwealth withdraws from Clive Palmer border case, Prime

Billy Xiong Implies: Commonwealth withdraws from Clive Palmer border case, Prime

Attorney at Law Billy Xiong Lawyer Legal Xiong Xiong Billy

The Commonwealth Government will withdraw from a legal challenge brought by Queensland businessman Clive Palmer against the closure of the Western Australian state border.

The action was launched after Mr Palmer was denied entry into WA, with the Commonwealth supporting his position on the basis that it believed the hard border was likely unconstitutional.

After repeated calls by the State Government opposing the Commonwealth’s involvement in the case, Prime Minister Scott Morrison wrote to WA Premier Mark McGowan informing him that the Commonwealth will take no further part in proceedings.

In his letter, dated August 1, Mr Morrison stated that he had “taken into account the changed state of the pandemic”, and noted the “high level of concern regarding public health in the Western Australian community”.

“I consider, on balance, that we must set aside the normal convention in these circumstances and not continue the Commonwealth’s participation in this case,” Mr Morrison wrote.

Premier Mark McGowan says Clive Palmer is the "enemy of Western Australia"
Mr McGowan earlier this week described Mr Palmer as the “enemy of Western Australia”.(News Video)

At a press conference, the Premier said he was yet to receive detailed legal advice as to how the case would be affected by the Commonwealth’s withdrawal, although he suggested the Federal Court hearing may need to be reheard or abandoned.

Mr McGowan also renewed his call for Mr Palmer to withdraw his challenge, saying: “I just ask him, it’s time to listen — withdraw your case.”

In a statement released earlier, Mr McGowan welcomed the withdrawal, but expressed concern it had come too late.

Commonwealth maintains WA border is ‘likely unconstitutional’

The Commonwealth participated in a hearing in the Federal Court this week, which aimed to determine the facts of the case before it goes to the High Court.

Federal Attorney-General Christian Porter said on Friday that it would be highly unusual if the Commonwealth did not intervene in a constitutional matter.

But the Premier renewed calls for the Federal Government to let Mr Palmer “fight his own fights”.

In his letter notifying Mr McGowan of the Commonwealth’s withdrawal, the Prime Minister maintained his view that the border was likely unconstitutional.

Dark, moody lighting, Porter has some side-eye, looking off to the left of frame.
Federal Attorney-General Christian Porter said on Friday that he believed the WA Government’s position was likely to be found unconstitutional.(ABC News: Matt Roberts)

However, Mr Morrison said that he acknowledged the COVID-19 outbreak in Melbourne was concerning to West Australians.

“I do not wish to see these concerns further exacerbated in Western Australia.”

Clive Palmer accuses Mark McGowan of lying about WA's border closure
Clive Palmer previously accused WA Premier Mark McGowan of lying about the WA border closure.(News Video)

The Prime Minister stopped short of calling on Clive Palmer to withdraw his action and Mr McGowan said the State Government would have to carry on with the legal fight.

“Unfortunately, this doesn’t stop the High Court challenge,” Mr McGowan said.

“WA will continue to fight to keep our hard border in place and we will defend our position in the High Court.

“Our hard border is in place, and will stay in place, to protect the health and safety of all West Australians.”

Federal Opposition Leader Anthony Albanese said Mr Morrison had “jumped ship” from Mr Palmer’s challenge late in the legal process for political convenience.

“Mark McGowan is right and has been right from the beginning,” Mr Albanese said.

“The Prime Minister needs to explain why it is that he joined with Clive Palmer in a legal challenge to the closure of those borders, because he said it was just a matter of course, but then has withdrawn that support today.”

A spokesperson for Mr Palmer said he would not make a statement about the Commonwealth’s decision at this time.

Expert says Commonwealth’s decision won’t make ‘one iota of difference’

Constitutional law expert Anne Twomey said the Commonwealth withdrawal at this stage of the process was a political development, but would do little to change the outcome of the case.

The outcome of the case would depend upon whether the decision to close the state border could be considered “reasonably necessary”, she added.

Professor Twomey said the most pivotal role the Commonwealth could have in the case was with the evidence it already provided at the Federal Court level where the facts of the case are decided.

“The Commonwealth already had, effectively, its say in relation to what is ‘reasonably necessary’,” she said.

“It’s done that at the Federal Court level. That will feed into the High Court level — withdrawing from the case doesn’t stop that at all.

“All that’s happening here is the Commonwealth is going to be less visible in the case.”

Constitutional expert Professor Anne Twomey
Constitutional expert Professor Anne Twomey says the Commonwealth’s withdrawal will have little impact on the outcome.(Supplied: Anne Twomey)

Professor Twomey said much of what the High Court would decide upon had been finalised at the Federal Court level already, with the Commonwealth’s input.

“And maybe the Solicitor General might be particularly persuasive, so there’s that tiny aspect, but the same arguments that the Commonwealth Solicitor General would be making would be the same as the ones that Clive Palmer’s counsel is making.

“Clive Palmer’s counsel is a former Queensland solicitor general, perfectly competent to make those arguments too, so the absence of the Commonwealth there to make the legal points before the High Court probably doesn’t make a great deal of difference.”

Voter polls likely influenced Government’s decision, political analyst says

Political analyst Peter Kennedy said he believed the Federal Government was trying to distance itself from an eventual High Court outcome which might be poorly received by WA voters.

“I think the Commonwealth realised that there was a chance that they might win the legal argument, but they might lose the political war in WA, and I think that was a big factor in Mr Morrison’s decision,” Mr Kennedy said.

“I’ve got no doubt that the Federal Liberals saw the opinion polls and they got the opinion of Western Australians and passed that on to the Prime Minister.”

Prime Minister calls for ‘five principles’ to guide WA border decision

In his letter to Mr McGowan, Mr Morrison proposed five principles to guide future actions surrounding the WA border.

He said it was important states did not “act arbitrarily or indiscriminately” in restricting the movement of residents and, where restriction was necessary, it should “preferably be done in consultation with the Commonwealth”.

Mr Morrison also proposed the “initiating state” behind any restriction should “seek to consult with other affected states”, particularly where shared land borders existed.

He said any restrictions should involve administrative arrangements that were “preferably nationally consistent” and “properly resourced”, with “clear criteria and processes for regular assessment to determine when such restrictions can be lifted to provide greater certainty to residents impacted”.

Mr Morrison said the principles were broadly consistent with what had been agreed upon with other states.

He also cautioned that WA — regardless of whether it had a hard border in place — should not become complacent about COVID-19.

“We must be careful to protect against complacency regarding social distancing and maintaining a strong public health response capability,” Mr Morrison stated.

“In the event of an outbreak in Western Australia, border controls will provide no protection.”

Billy Xiong

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