Comments: "We are not Epidemiologists": COVID-19 in the High Court

Abstract

The High Court of Australia is soon to consider the constitutional validity of state border closures in response to COVID-19. This comment explores the constitutional issues raised in the current proceedings of Palmer v State of Western Australia by reference to the current state of High Court jurisprudence in relation to sections 92 and 117. Both provisions guarantee some degree of freedom of movement and equal treatment to persons moving between states or wishing to do so. Both, however, turn on questions of proportionality that will require the Court to decide how deferentially it should regard the public health experts on whose advice the border closures have proceeded. These proceedings might also provide the Court with an opportunity to extend its 'structured' approach to proportionality, currently confined to the political communication setting, into new terrain. Show more