In which Australian Prime Minister and MP for Cook Scott Morrison tries to pretend he was never involved in the decision to support Clive Palmer's attempts to force Western Australia to open its state borders during a surging global pandemic which has already seen over 20,000 Australians infected and nationally 266 people dead.
WAtoday, 7 August 2020:
Western Australia's Solicitor-General claims the Commonwealth’s eleventh-hour withdrawal from Clive Palmer's legal challenge to WA’s hard border has created "an egg that must now be unscrambled".
During submissions in the Federal Court on Friday, Solicitor-General Joshua Thomson SC made an application for the July trial to be vacated and a new trial granted without the Commonwealth’s evidence.
"It’s a most unusual situation where you have an intervention by somebody, in this case the Commonwealth, which in effect sends them to the field of battle, it goes in and has that battle and then seeks to withdraw from the field of battle," he said.
"What you are left with is a mixed up trail of evidence." Mr Thomson himself is currently adhering to WA’s hard border policy, making his application via video-link from his home while in self-isolation.
At one point during his submissions he received a phone call from police checking up on his quarantine and referred to the situation as like being in prison.
Mr Palmer’s lawyer Peter Dunning argued the WA government "didn’t own" the witness evidence given by the Commonwealth in trial, and that it would be improper for the entire proceedings to fall over because one party had lost interest due to "political" pressures.
"It is one thing for the Prime Minister to agree with another leader for political reasons to abandon something, that arm of government is perfectly entitled to be engaged by those considerations, but it is quite inappropriate for a Federal Court to do so," he said.
"It doesn’t mean the proceedings collapse if there are still main parties interested in the outcome.
"What brings proceedings to an end is if there ceases to be a genuine contest."
Mr Dunning said the witnesses in the trial were the "court’s witnesses" and could be recalled or subpoenaed in a retrial by Mr Palmer if required.
The Commonwealth intervened in Mr Palmer’s legal bid to have WA’s hard border torn down and in effect became a "co-plaintiff", with both parties claiming the state’s all-or-nothing approach to reopening was unconstitutional.
During a four-day trial heard in the Federal Court in late July, the Commonwealth produced evidence from two public health experts, Professor Peter Collignon and Professor Tony Blakely, cross-examined other expert witnesses and submitted reports.
WA enlisted its Chief Health Officer Andrew Robertson and Associate Professor Kamalini Lokuge as its witnesses, while Mr Palmer relied on the evidence of Associate Professor Sanjaya Senanayake.
Mr Thomson said that due to the nature of the combined expert witness evidence being heard throughout the trial, the entire proceedings ought to be disregarded as they disadvantaged the state.
Commonwealth Solicitor-General Stephen Donaghue QC said since the Commonwealth withdrew its interest the day after the trial, it was not appropriate it make any further submissions on whether or not the evidence it adduced be considered in the High Court other than to say it no longer relied on it.
It follows comments made by Prime Minister Scott Morrison on Radio 6PR on Thursday that his government wished the legal action had never been brought in the first place.
"I'm pleased we're out of it," he said.
"We've got no issue with [the proceedings] being redone or restarted ... we don't have any objection to that."
During the hearing, Judge Darryl Rangiah blasted Mr Donaghue after the Federal Court became aware of its withdrawal from the case through the media, with an application to the court not made for a further three days.
"Was it more important to notify the media before this court?" he asked, arguing Friday’s case management hearing should have been listed for Monday given the urgent nature of the application.
Premier Mark McGowan, in response to the hearing on Friday, said he would have preferred the Commonwealth had actively supported WA's application for a retrial.
"The Commonwealth has withdrawn from the case but unfortunately did not support Western Australia's application to have the case struck out," he said.
"With or without the support of the Commonwealth government, WA will keep fighting for what is our right and that is to protect the citizens of this state. We will continue our battle, in fact, our war with Clive Palmer."
Following the four-day trial between Mr Palmer and the State of Western Australia in July, the Federal Court adjourned to determine the facts of the case.
The matter is then due to go to the High Court for determination of whether or not they were constitutional, which is touted to occur from September.....
[my yellow highlighting]
BACKGROUND
The Australian, 3 August 2020, p.4:
Mining magnate Clive Palmer has “thanked” Scott Morrison for contributing to his court bid to dismantle Western Australia’s hard COVID-19 border and says the federal government has played its part in his case, despite the Prime Minister pulling his support.
Mr Morrison wrote to West Australian Premier Mark McGowan at the weekend to end federal co-operation with a High Court bid to remove the hard border, saying he wanted to work with the Labor leader to reach a compromise.
Federal officials have already testified on Mr Palmer’s case in front of the Federal Court last week, presenting facts to show there were alternatives to the border closure.
Mr Palmer on Sunday said the federal contribution to the case would still help determine whether he won his fight to overturn the closure.
“The important issue in this case is revealing the truth that the experts from the commonwealth and WA governments had to say in court,” Mr Palmer said.
“In the coming weeks, the Federal Court will make their determination on the facts and all Australians will be better for that decision.”
Mr Morrison’s move to withdraw backing for Mr Palmer’s bid came days after he said he had serious constitutional concerns about Mr McGowan’s internal border closure, which is hailed by the Premier as the key to WA’s success in eliminating COVID-19.
Both WA and federal bureaucrats testified in front of the Federal Court to lay out the facts around the state’s border closure and the constitutional issues, before legal arguments started.
University of Sydney law professor Anne Twomey said on Sunday Mr Morrison’s move was political and would not stop federal evidence playing a role in the ultimate decision on Mr Palmer’s bid.
“The commonwealth has already contributed on the critical issue over whether these laws are reasonably necessary to protect public health … it’s already played its major role,” she said.
Townsville Bulletin, 3 August 2020:
The border closure to all states, regardless of their level of infection, is hugely popular in WA.
Queensland Premier Annastacia Palaszczuk criticised Mr Palmer for his legal challenge to state border closures, saying it could put at risk “all the hard work we have done”.
“Honestly, these legal challenges are ridiculous during this time,” she said.
“Everybody should respect that states have a job to do to protect their families and not go through the courts and do these legal challenges, putting everything at risk because that’s what will happen. It will put all the hard work that we have done at risk.”
Christian Porter and the Morrison Government threw everything but the kitchen sink at @MarkMcGowanMP and Western Australia in support of Clive Palmer’s border challenge.— Mark Dreyfus (@markdreyfusQCMP) August 5, 2020
Just look at this list. What will the Morrison Government do to fix the damage it has already done? pic.twitter.com/F3bTE0wAOF
