The closure of Queensland’s borders would be declared unconstitutional, unreasonable and discriminatory under a High Court challenge filed on Monday by businesses and individuals who say the state has gone beyond what is necessary to control the spread of COVID-19.
The six plaintiffs behind the challenge say the border closure is invalid because it breaches provisions of the Constitution requiring trade, commerce and intercourse between the states to be absolutely free; and that state governments are not permitted to discriminate against other parts of the nation.
The Constitution allows states to restrict entry for public health reasons, but documents filed in the High Court on Monday say Queensland has gone beyond what is reasonably necessary.
The six plaintiffs, who include Queensland and interstate companies and individuals, say the severity of the border closure has imposed financial hardship on their businesses and has breached their constitutional right to travel freely throughout the nation.
Their writ of summons lists a series of alternative measures they believe could have left the state’s borders open to most people while validly imposing targeted restrictions to prevent the spread of the virus.
Instead, they say the border closure’s “criterion of operation” is the prohibition of interstate intercourse which enjoys a guarantee of freedom under section 92 of the Constitution. They say the border closure also breaches section 117 of the Constitution by discriminating between trade and commerce within Queensland and commerce between Queensland and other jurisdictions.
The alternatives listed by the six plaintiffs include allowing people to enter the state if they have tested negative for the virus; subjecting new arrivals to quarantine; and allowing people to enter the state from jurisdictions that have not experienced a case of the virus for 28 days.
The challenge is backed by a Brisbane travel agent, a Cairns charter boat operator, a national linen-hire service, two would-be travellers based in Sydney and Darwin and a resident of Bribie Island who says he has been unable to travel regularly to other states and return to Queensland.
The lead plaintiff is Travel Essence, a travel agency based at Mount Ommaney in suburban Brisbane, which says it continues to suffer financially because of the border restrictions.
This comes soon after businessman Clive Palmer unveiled High Court proceedings targeting the border closures of Queensland and Western Australia.
Premier Annastacia Palaszczuk has said the state’s borders would remain closed for June and the earliest they would reopen would be mid-July. However, north Queensland tourism operators have urged the government to reopen the state to interstate travellers before the end of the peak winter season.
Cairns charter operator Mermaid 007 is backing the challenge because it says the border closure has hurt its business, known as Reefinity Adventurers, which provides charter boats and light aircraft for fishing and reef trips.
The third plaintiff is linen hire company Super Services Group, which has warehouses at North Lakes in Queensland and Granville in Sydney’s west.
It says it has been trying since March to expand its business to Melbourne, Adelaide and Darwin but those efforts have been hindered by the border closure.
The challenge is set to be accompanied by legal action aimed at forcing the state’s Chief Health Officer, Jeanette Young, to disclose the material that formed the basis for the border closure. A request for Dr Young to provide that material had not been complied with, the writ of summons said.
The Travel Essence case is being partly paid for by a GoFundMe campaign while the legal team backing the challenge, from Queensland law firm Mahoneys, will take a fee only if it wins.
Originally posted by Chris Merritt on 2nd June, 9:52am, 2020 for The Australian