Prime Minister Scott Morrison says Commonwealth will no longer participate in Clive Palmer’s court fight to open WA border

The Commonwealth has pulled out of Clive Palmer’s High Court case to bring WA’s hard border down, with Prime Minister Scott Morrison writing a detailed letter to Premier Mark McGowan trying to reach a compromise. In a stunning development, the Prime Minister informed Premier Mark McGowan by letter that the Commonwealth would not continue to participate in Mr Palmer’s court fight to force WA to open up its interstate border. Mr Morrison’s decision, taken after discussions with Finance Minister Mathias Cormann and Attorney-General Christian Porter, is a major blow to Mr Palmer’s chances of winning the high-profile trial. “While taking our constitutional responsibilities seriously in seeking to respect established conventions, I also accept that recent events in the Eastern States, especially Victoria, are creating real concerns to residents in other States less impacted,” Mr Morrison said in his letter. “I do not wish to see these concerns further exacerbated in Western Australia. “Having taken into account the changed state of the pandemic that has worsened since these matters were first brought to the High Court, the high level of concern regarding public health in the Western Australian community, and our desire to work with you cooperatively on a constitutionally sustainable way forward, I consider, on balance, that we must set aside the normal convention in these circumstances and not continue the Commonwealth’s participation in this case.” Through his lawyers, Mr Palmer argued in the Federal Court this week that Mr McGowan’s hard border stance was ‘unconstitutional’. The Commonwealth, through Mr Porter, made the decision to also participate in the trial, agreeing with Mr Palmer’s position that’s WA’s actions were unconstitutional — sparking a public backlash. The High Court is scheduled to deliver its final verdict in September-October, with the Commonwealth up until today also scheduled to participate in that hearing. Mr Morrison said in his letter he had no intention of forcing WA to open its borders. “Let me be clear, the Commonwealth is not requesting the Western Australian Government to change its current border settings,” Mr Morrison said. “While the administration of border arrangements can always be improved to avoid unintended consequences, making any substantive changes to these arrangements, especially now following the outbreak in Victoria, would give rise to significant and unnecessary public concern.” But he maintained the Commonwealth’s view that WA — by going it alone and closing its border to all States and Territories — now risked being overruled by the High Court. “Where a State unilaterally places restrictions on interstate travel which are found by the High Court to be disproportionate, this is contrary to the fundamental constitutional guarantee that residents of one State can move to another State. Whether this has occurred will be a matter for the Court,” Mr Morrison warned in his letter. Senator Cormann negotiated on behalf of the Prime Minister with Mr McGowan during the week on a way forward which was constitutionally sustainable. In his letter, Mr Morrison suggested to Mr McGowan a plan which he believed would not only help WA’s case in the High Court, but make sure that future decisions on border control were constitutional. He wrote: “I propose the following principles to guide our future action. “1. Within our Federation it is important for States not to act arbitrarily or indiscriminately in relation to the restriction of movement of Australian residents between State borders. “2. Where it is considered necessary to restrict such movement it should preferably be done in consultation with the Commonwealth on the basis of clear and transparent advice addressing the cause and necessity of any proposed restriction, in this case protecting public health and safety. “3. Where any such restriction is to be imposed, the initiating State should also seek to consult with other affected States, especially in relation to land borders that are shared with any such State. “4. Where any restrictions are put in place, administrative arrangements should also be put in place that are preferably nationally consistent, properly resourced, seek to minimise disruption and set out clear criteria and processes for regular assessment to determine when such restrictions can be lifted to provide greater certainty to residents impacted.” Mr Morrison said such an approach could also be adopted through National Cabinet. In a statement issued to The Sunday Times today, Mr Morrison gave an insight into the thought-process behind behind the letter. “In fighting this pandemic we have to be flexible and pragmatic,” he said. “I just want to keep people safe, to protect their lives and livelihoods. “That is what I have been doing from day one of this crisis. There is no time for getting precious or distracted by politics and disagreements. “Throughout the pandemic I have simply sought to work with whoever I have to — Premiers, medical experts, business owners, union officials, doctors, nurses, teachers, lawyers, Generals — to get the job done. “Circumstances change and we have to move with them. I’m not going to get bogged down in keeping score. I look forward to getting on with the job with the WA Government.” Today Mr McGowan confirmed to The Sunday Times he had received the PM’s letter. “On behalf of Western Australia, the Federal Government’s decision to withdraw their support for Clive Palmer’s action is welcomed,” he said. “I thank the Prime Minister for listening to West Australians and taking on my advice, I just hope it’s not too late in the legal process. “Unfortunately, this doesn’t stop the High Court challenge. WA will continue to fight to keep our hard border in place and we will defend our position in the high court. “Our hard border is in place, and will stay in place, to protect the health and safety of all West Australians. “It’s based on the best health advice for WA and won’t be coming down unless it’s safe to do so.” The Premier urged Mr Palmer to also reconsider his position, saying: “This could all be solved now if Mr Palmer did the right thing and withdrew the High Court challenge.”