Palmer v Western Australia: A Critique of the High Court of Australia’s Approach to Constitutional Review of Executive Exercises of Power

Abstract

In Palmer v Western Australia, the High Court of Australia dismissed a challenge to Western Australia’s border closure, which was implemented to prevent the spread of the COVID-19 virus. Mr Palmer challenged the Quarantine (Closing the Border) Directions (WA), which were authorised by the Emergency Management Act 2005 (WA), on the basis that they infringed freedom of intercourse between the states guaranteed by s 92 of the Australian Constitution. The High Court dealt with several constitutionally significant issues, but an aspect of the decision that has received less attention is the Court’s further endorsement and application of the approach to constitutional review of executive exercises of power taken in Wotton v Queensland, which only allows constitutional analysis to be directed at the impugned legislation, not the exercise of executive power under that legislation. This case note suggests that this approach has several shortcomings, and the approach will be difficult to apply in practice. As such, the High Court may wish to reconsider this approach to constitutional review of executive exercises of power.