BY DAVID HUME

Introduction

On 11 March 2020, the World Health Organization declared COVID-19 a pandemic. On 15 March 2020, the Minister for Emergency Services for Western Australia declared a state of emergency in respect of the pandemic under s 56 of the Emergency Management Act 2005 (WA), with effect from 16 March 2020. The area to which the state of emergency applied was the whole of the State of Western Australia. The Commissioner of Police for the State of Western Australia thereafter issued Directions, with effect from 5 April 2020, the effect of which was to close the border of Western Australia to all persons unless they were the subject of an exemption under the Directions. There were only limited exemptions.

Mr Clive Palmer, and a company associated with him, challenged the constitutional validity of the Act and the Directions, on the basis that they infringed s 92 of the Commonwealth Constitution. Section 92 of the Constitution, in well-known language, states that “trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free”.

The plaintiffs disavowed any argument that there was an individual right to travel between the states. They also did not put any argument that the Directions were invalid on what might be described as “administrative law grounds” ie grounds to the effect that the statute, though valid, did not authorise the Directions.

The plaintiffs’ argument was that the Act and the Directions burdened the freedoms protected by s 92 (particularly the freedom of intercourse) and were not sufficiently justified to survive scrutiny under s 92.

The plaintiffs commenced proceedings in the High Court on 25 May 2020. There was a hearing before the Full Court on 3-4 November 2020. Justices Bell and Nettle did not sit. Orders were made on 6 November 2020, and reasons published on 24 February 2021.

The High Court upheld the validity of the Act and the Directions 5:0. Chief Justice Kiefel and Keane J wrote a joint judgment; each of Gageler, Gordon and Edelman JJ wrote separately.

While there were some important differences in approach (reflecting well-trodden disagreements as to the role of proportionality in Australian constitutional law), there was underlying consensus that the Act was valid because it was justified by a legitimate end.

There was also consensus that the approach to the validity of statutes which burden a constitutional freedom applied in Wotton v State of Queensland (2012) 246 CLR 1 was applicable. The effect of the approach in Wotton is that constitutional limitations operate at the level of the statute such that, if the statute is valid, the validity of exercises of power under the statute falls to be assessed in accordance with general principles of administrative law and not by asking the constitutional question directly of the exercise of power.

The Palmer decision is important both for constitutional law in general and for s 92 in particular. It is now the leading case on the freedom of intercourse protected by s 92. All of the cases on s 92 since Cole v Whitfield (1988) 165 CLR 360 had wholly or primarily concerned the “trade and commerce” limb. In Palmer, it was necessary for the Court squarely to identify the test for burdens on interstate intercourse. In effect, the Court held that one asks whether the law discriminates against interstate movement and, if it does, one asks whether the law is justified by a legitimate end.

Palmer is also (save for the very recent LibertyWorks decision referred to below) the most recent decision on constitutional freedoms and the role of structured proportionality. Chief Justice Kiefel and Keane and Edelman JJ all adopted structured proportionality. Justices Gageler and Gordon rejected structured proportionality, instead asking whether the law was reasonably necessary to a legitimate end.

And the decision is an important affirmation of the principle from Wotton.

I wish to make two observations on the decision.

Structured proportionality and its future

The first is about structured proportionality, and the (surprisingly) ongoing doubts about its soundness in Australian constitutional law. Structured proportionality is an analytical tool for assessing the validity of exercises of power which prima facie infringe constitutional rights and freedoms. Structured proportionality, as it has been developed in Australia and as applied to the validity of laws, involves first identifying the purpose of a law, then asking whether the law has a rational connection to its purpose, then asking whether there are reasonable alternatives to the law which are less burdensome on the relevant right or freedom, and finally whether the law is proportionate having regard to the importance of its purpose and the extent to which it burdens the relevant right or freedom.

The High Court’s current approach to structured proportionality can be traced back to the decision of Justice Kiefel, as her Honour then was, in Rowe v Electoral Commissioner (2010) 243 CLR 1. Rowe was the (successful, by 4:3) constitutional challenge to the bringing forward of the date for the closing of the electoral rolls. Justice Kiefel, dissenting, articulated her Honour’s vision of structured proportionality, drawing on influences from German and European law and explaining its latency in existing jurisprudence relating to the implied freedom of political communication, and to s 92: see at [424]-[478].

At the time of Rowe, structured proportionality was anything but an accepted approach to testing the validity of burdens on constitutional freedoms. Although the language of “proportionality” was often used (and sometimes used as a synonym for “reasonable necessity” or “reasonably appropriate and adapted”), no judge had expressly adopted structured proportionality. Some judges were, if anything, hostile to structured proportionality, with its European roots: see, eg, Roach v Electoral Commissioner (2007) 233 CLR 162 at [17] (Gleeson CJ).

In the years after Rowe, Kiefel J steadily gained more adherents to her Honour’s vision of structured proportionality.

A year later, in Momcilovic v The Queen (2011) 245 CLR 1, Crennan J joined Kiefel J in referring approvingly to structured proportionality: see at [556].

Then, in early 2013, in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 (the “Corneloup Case”) and Monis v The Queen (2013) 249 CLR 92, Kiefel J joined with Crennan and Bell JJ in adopting structured proportionality.

In December 2013, in the joint judgment of French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW v State of New South Wales (2013) 252 CLR 530, the High Court used the language of “proportionality” interchangeably with the then-favoured language, “reasonably appropriate and adapted”: see, eg, at [44]. And a majority of the Court locked in place at least key elements of structured proportionality testing: the need for a legitimate purpose, and the relevance of alternative measures: see at [44]-[60].

In Tajjour v State of New South Wales (2014) 254 CLR 508, the coalition from the Corneloup Case and Monis – Crennan, Kiefel and Bell JJ – again affirmed structured proportionality testing. Justice Hayne also applied a form of necessity testing: at [79]-[91].

Finally, in McCloy v New South Wales (2015) 257 CLR 178, a majority of the Court (Kiefel, Bell and Keane JJ, together with French CJ, who had dissented in Tajjour) adopted structured proportionality. Of the other three judges, Gageler J rejected structured proportionality, Nettle J did not expressly affirm it (while nevertheless asking questions that one would ask if applying a structured proportionality approach) and Gordon J expressed scepticism about the assistance to be gained from European proportionality.

Structured proportionality then took a step backwards (or at least sideways) in Murphy v Electoral Commissioner (2016) 261 CLR 28, in which Kiefel J wrote separately; French CJ and Bell J, while affirming structured proportionality, were reluctant to apply it; and there were varying degrees of indifference by the other judges. (Murphy was sufficiently a sideways step that the Full Court of the Federal Court felt it necessary in Chief of the Defence Force v Gaynor (2017) 246 FCR 298 at [92] to confirm that, despite what was said in Murphy, structured proportionality remained the law applicable to the implied freedom.)

The standing of McCloy structured proportionality was tested in Brown v State of Tasmania (2017) 261 CLR 328. By the time of Brown, Kiefel CJ had replaced French CJ as Chief Justice, and Edelman J had joined the Court. In Brown: Kiefel CJ, Bell and Keane JJ again wrote together, and affirmed McCloy; Nettle J applied the McCloy test without unequivocally affirming it in all contexts; Gageler J and Gordon J remained critical of structured proportionality, and Edelman J did not clearly indicate a view either way.

Two years later, in Clubb v Edwards (2019) 267 CLR 171, the Court again considered structured proportionality. Chief Justice Kiefel, Bell and Keane JJ wrote together again, affirming McCloy. Nettle J and Edelman J each applied structured proportionality. Meanwhile, Gageler J restated his scepticism of structured proportionality, but accepted it was part of Australia’s constitutional structure and doctrine. Justice Gordon was somewhat critical of structured proportionality, but found it unnecessary to decide its correctness.

One might have thought that, after more than ten years of effort, starting with a separate judgment (in Rowe), then a 2-judge judgment (in Momcilovic), then 3-judge judgments, and finally a 4-judge judgment in McCloy and acceptance by majorities in Brown and Clubb, Kiefel CJ could have been confident of the place of structured proportionality in Australian law.

However, what is clear from Palmer is that structured proportionality remains contested at multiple levels. Structured proportionality was only barely accepted by a majority, 3:2, and Gageler J and Gordon J continue to criticise the doctrine. The Chief Justice turns 70 (the constitutional retirement age for High Court Judges – see s 72 of the Constitution) in January 2024; and Keane J, who has consistently written joint judgments with her Honour, turns 70 in October 2022. Meanwhile, Gageler J (July 2028) and Gordon J (November 2034) potentially have many years in which to persuade their colleagues to disavow structured proportionality.  Most recently, the views of the two newest judges on the High Court – Steward J and Gleeson J – have come into sight via the decision in LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 which concerned the implied freedom of political communication. Justice Gleeson joined with Kiefel CJ and Keane J in applying structured proportionality. While Steward J was content to apply structured proportionality as an analytical tool, he nevertheless expressed doubt as to the very existence of the implied freedom (at [304]).

There is every reason to think that Gageler J and Gordon J will continue to resist any extensions of structured proportionality, and may even seek to relitigate battles already lost.

One can perhaps sense in some of the language in the reasons of Kiefel CJ and Keane J in Palmer a degree of surprise that structured proportionality remains contested (see, in particular, the first sentence of [58]: “There may not be universal acceptance of the application of the three tests of structured proportionality to s92, although it is difficult to comprehend what criticism could be levelled at a requirement that a law be suitable to its non-discriminatory purpose.”). We will need to wait and see how future contests resolve themselves.

The Wotton approach

The second point I wish to make is about the Wotton approach to testing constitutional validity.

The Wotton approach can be traced back to oral submissions made by Gageler J, in his Honour’s then role as Solicitor-General, in the Wotton litigation, which were adopted in the joint judgment in Wotton at [22]-[23]. The effect of the Wotton approach is that, where there is a “constitutional” challenge to the exercise of a power under a statute, one first asks whether the statute is valid and, if the statute is valid, one does not then apply the relevant constitutional principle in assessing whether the particular exercise of power is valid. Instead, one asks only whether the exercise of power was authorised by the statute, properly construed. So, for example, in Wotton, there was a question as to whether certain parole conditions, imposed in the exercise of statutory power, were consistent with the implied freedom of political communication. The Court concluded that the statutory power to impose parole conditions was valid and consistent with the implied freedom. That being so, it was not necessary or appropriate to ask of the particular decision imposing the parole conditions whether it was consistent with the implied freedom. Rather, the only question was whether the particular decision imposing the parole conditions was authorised by the statute, properly construed.

The Wotton approach works powerfully in favour of the validity of statutes, particularly once it is joined with the principle that generally-expressed statutory powers can be read (if necessary) as subject to constitutional limitations such as the implied freedom and s 92. When those two principles are put together, a discretionary power the exercise of which may burden a constitutional freedom will generally be valid provided that the power has a legitimate end. Once the power has a legitimate end, it will be able to be read (if necessary) as subject to the relevant freedom, and (if necessary) so as only to authorise exercises of power which are proportionate to the relevant end. And, if there be doubt as to whether the power has a legitimate end, presumptions designed to ensure that the law is valid (for example, the Acts Interpretation Act 1901 (Cth) presumptions that a law is to be read as subject to the Constitution and not to exceed legislative power – s 15A) will typically enable a court to ascribe to the law a legitimate end (and not an illegitimate end).

Once a law is valid, as in Wotton and Palmer, challenges are confined to individual exercises of power under the statute. This can have consequences for those who wish to pursue structural reform litigation: where the exercise of a statutory discretion is apt or even likely to burden constitutional freedoms, it is not possible to strike down the whole power; and instead challenges must be brought to individual exercises of the power.

There are also difficulties in applying the Wotton approach in the Australian constitutional context. By and large, as the High Court has repeatedly told us, the Commonwealth Constitution recognises constitutional freedoms, not individual rights. One methodological consequence of this is that one does not assess the validity of an exercise of power by looking at its effect on a particular individual – for example, in assessing whether there has been an infringement of the implied freedom of political communication, one does not ask how the law has affected the particular plaintiff. There remain substantial difficulties in ascertaining how constitutional freedoms and values affect the “administrative law” task of assessing whether a particular exercise of power is valid when it is made in the exercise of a statutory discretion that is valid by reason of the Wotton approach. The effect of the exercise of power on the constitutional “freedoms” of the individual plaintiff (to the extent one can even speak of such things) is prima facie irrelevant to that task since the effect on the individual is constitutionally irrelevant.

The effect of Palmer is further to entrench the Wotton approach, something which polities will no doubt note in future constitutional litigation.

David Hume is a barrister at Six Selborne Wentworth Chambers and a Fellow of the Gilbert + Tobin Centre of Public Law.

Suggested citation: David Hume, ‘Palmer v Western Australia(2021) 95 ALJR 229; [2021] HCA 5: trade, commerce and intercourse shall be absolutely free (except when it need not)’, on AUSPUBLAW (23 June 2021) <https://auspublaw.org/2021/06/palmer-v-western-australia-2021-95-aljr-229-2021-hca-5/>