Palmer v Western Australia: Pandemic Border Closures and Section 92 of the Australian Constitution

Abstract

In Palmer v Western Australia, the High Court of Australia found unanimously that the Western Australian Government’s pandemic border restrictions were not invalid under s 92 of the Australian Constitution. The bench delivered its decision in four judgments, expressing significant disagreement regarding structured proportionality testing’s applicability to s 92 and its place in Australian constitutional law broadly. This case note examines the hardening of differences between proponents and critics of structured proportionality and suggests that structured proportionality is not the appropriate analytical tool for assessing invalidity claims under s 92. It also explores two other notable, and unanimous, findings of the High Court: the reunification of ‘trade, commerce and intercourse’ in s 92 as a composite expression subject to the same test used to invalidate statutes, and the affirmation of the Court’s earlier decision in Wotton v Queensland that the constitutional question is determined at the level of the statute, rather than the ministerial exercise of power under the statute.