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ABC News News Home Fact Check Latest updatesAsk a question Share # Clive Palmer says WA\'s vaccine passport border restrictions are in breach of section 117 of the constitution. Is that correct? RMIT ABC Fact Check * Topic:Laws Tue 31 Aug 2021Tuesday 31 August 2021Tue 31 Aug 2021 at 3:38am ![\\'Clive](\\" cdn.net.au/41b1dfb9f6746a9696510e6c1be70508?impolicy=wcms_crop_resize&cropH=529&cropW=940&xPos=0&yPos=98&width=862&height=485\\"/) Display caption United Australia Party chairman Clive Palmer says WA\'s requirement that travellers from high or extreme risk states are in breach of section 117 of the constitution. (AAP: Dan Peled) abc.net.au/news/fact-check-clive-palmer-vaccine-passports-breach- constitution/100407330 Link copied ShareShare article ## The claim As the vaccine rollout gains pace, the national conversation is turning to the question of whether vaccines should be mandated in some contexts. In Western Australia, Premier Mark McGowan has beefed up the state\'s already hardline border policy by requiring all eligible returning travellers from NSW to be at least partially vaccinated against COVID-19. The move has prompted United Australia Party chairman Clive Palmer to announce he will launch a High Court challenge to WA\'s policy on the grounds that it is unconstitutional. \"Clive Palmer confirmed today that the actions [of] Premier Mark McGowan to introduce an interstate vaccination passport for people travelling to WA was in breach of section 117 of the Australian constitution,\" a press release from the UAP said. So, how does Mr Palmer\'s claim stack up? RMIT ABC Fact Check investigates. ## The verdict Mr Palmer\'s claim is doubtful.Experts told Fact Check that in order to mount a successful challenge to WA\'s border restrictions under section 117 of the constitution, Mr Palmer would need to demonstrate discrimination on the basis of state of residence. WA authorities told Fact Check the vaccine requirement applies equally to non- residents and residents of WA, creating a significant hurdle to proving a breach of section 117. Since announcing the new rule, Mr McGowan has referred explicitly to WA residents returning from NSW requiring proof of vaccination. Furthermore, experts told Fact Check that section 117 was not absolute in its application and would be subject to a so-called \"balancing test\", where the High Court would weigh up the rights of an individual against the social protections offered to residents of WA by measures designed to prevent the spread of COVID-19. In a previous constitutional challenge brought by Mr Palmer, which relied on section 92 of the constitution, the High Court ruled that WA\'s border closure laws complied with the constitution during \"a plague or epidemic\". ![\\"A](\\" cdn.net.au/c1e8d1135e67615098b2e76d5534c780?impolicy=wcms_crop_resize&cropH=1000&cropW=1498&xPos=1&yPos=0&width=862&height=575\\"/) WA\'s border restrictions apply not only to residents of other states, but to WA residents travelling from other states. (ABC News: Hugh Sando) ## What are the rules for entry into WA? WA has a \"controlled border\" policy which regulates entry according to where an interstate traveller has come from. On August 13, 2021, the government announced a \"new, strengthened risk matrix\" which upgraded the conditions imposed on travellers from \"high risk\" states and introduced an \"extreme risk\" category. As Mr Palmer noted, both these categories now require \"proof of receipt of at least one dose of COVID-19 vaccine, where eligible\". At the time of Mr Palmer\'s claim, NSW was declared \"high risk\". It has since been upgraded to \"extreme risk\". ## What does section 117 say? Section 117 of the constitution deals with \"rights of residents in states\". It says: \"A subject of the Queen, resident in any state, shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state.\" Associate professor of constitutional law at Monash University, Luke Beck, told Fact Check: \"In very simple terms, section 117 bans states from discriminating against residents of other states or imposing disabilities on residents of other states.\" Fact Check has previously examined whether state border closures designed to prevent the spread of COVID-19 were in breach of section 117, after former foreign minister and high commissioner to the United Kingdom Alexander Downer published a tweet saying: \"I don\'t think an Australian state can legally close its borders to other Australians under section 117 of the constitution.\" ### Fact check: State border closures Photo shows alexander downer\'s claim is doubtful, with an orange asterisk![\\"alexander](\\" cdn.net.au/a56cd623c9195b740c55764d59326b3f?impolicy=wcms_crop_resize&cropH=529&cropW=939&xPos=0&yPos=96&width=862&height=485\\"/) As some states imposed border restrictions to curb the spread of coronavirus, former Liberal cabinet minister Alexander Downer took to Twitter to claim that closing state borders would be illegal under the constitution. RMIT ABC Fact Check investigates Fact Check found that claim to be doubtful. ## Mr Palmer\'s 2020 failed bid Mr Palmer has previously challenged the WA government in the High Court, alleging that the state\'s 2020 border closure in response to COVID-19 breached section 92 of the constitution. Section 92 in part says that \"trade, commerce, and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free\". The High Court ruled that the border closure sections of WA\'s Emergency Management Act complied with section 92 of the constitution \"in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic\". In relation to Mr Downer\'s claim about the constitution, experts told Fact Check the court has long accepted that there are valid exceptions to section 92, including where it is necessary to protect the people of a state from the risk of injury from inbound goods, animals and people. ## Determining discrimination under the constitution In his media release, Mr Palmer said the WA government\'s COVID-19 eradication strategy was unconstitutional because it restricted free movement of Australian citizens within Australia and created \"an island within an island\". He said the requirement for travellers from NSW to show proof they have had at least one vaccine dose discriminated against the people of NSW. Dr Beck said that should Mr Palmer\'s case proceed, the High Court would make a hypothetical comparison of how individuals would be treated depending on their state of residence. \"To work out whether there has been discrimination or the imposition of a disability, the High Court says you need to compare the plaintiff\'s actual situation with the hypothetical situation of the plaintiff having their home in the state being sued,\" he said in an email. ![\\"A](\\" cdn.net.au/b9edeb87324109559984f4401aa5dab4?impolicy=wcms_crop_resize&cropH=1997&cropW=3000&xPos=0&yPos=0&width=862&height=575\\"/) Experts say a successful challenge would need to prove WA\'s restrictions discriminate against residents of other states. (AAP: Richard Wainwright) \"If the WA ban applies equally to WA residents and interstate residents then there\'s no breach of section 117 because there\'s no discrimination against residents of other states.\" Similarly, law professor at the University of NSW George Williams told Fact Check discrimination on the basis of state would need to be established in order to prove a breach of section 117. \"It would need to be shown that people are being treated differently because of their state residence. If WA residents are being treated the same as residents from other states, it undercuts the argument,\" he said. Sydney barrister Daniel Reynolds told Fact Check it was \"far from clear that the direction in question does involve discrimination of the kind that section 117 prohibits\". But he added: \"The important question is whether, as a matter of substance rather than form, it nonetheless involves discrimination of the prohibited kind.\" Mr Reynolds said an argument could be made that WA\'s health directions disproportionately impacted residents attempting to return home, as opposed to those wishing to visit. However, he noted that section 117 was directed at \"discrimination of the opposite kind, that is, discrimination against out-of-state residents, not against local residents\". ## Does the new vaccine passport apply equally to WA residents and residents of other states? ![\\"A](\\" cdn.net.au/20fae4599ea5f73ac0c22ede8e190ab5?impolicy=wcms_crop_resize&cropH=622&cropW=829&xPos=0&yPos=249&width=862&height=647\\"/) The WA Department of Health says residents and non-residents entering the state would be treated equally with regards to vaccine passports. (Supplied) Senior lecturer at the University of Western Australia\'s Law School, Murray Wesson, told Fact Check that the WA Government\'s website showed border directions applied to all travellers equally. \"There is no exception for WA residents seeking to return to the state,\" he said. \"Travel from \'high\' risk and \'extreme\' risk jurisdictions is only possible with approval through the G2G pass system. All travellers from these jurisdictions must provide proof of receipt of at least one dose of COVID-19 vaccine.\" Prior to NSW being upgraded from \"high\" to \"extreme\" risk, Mr McGowan said some guidelines had been adjusted to allow a right to return for some WA residents from NSW, but only if they met the relevant border conditions, including proof of vaccination. \"Western Australians who left the State for NSW this year and are seeking to return can apply to do so on compassionate grounds, subject to the following conditions: …. Have received at least one dose of a COVID-19 vaccine (provided that they are eligible) ….\" an August 19 Facebook post from Mr McGowan reads. The WA Department of Health confirmed in an email to Fact Check that there was no scenario in which a non-resident would be treated differently from a resident of WA in respect of the need to be vaccinated prior to entry. ## Applying a balancing test ![\\"Exterior](\\" cdn.net.au/bde49241d7a55267ce0fa31aa4624e46?impolicy=wcms_crop_resize&cropH=1997&cropW=3000&xPos=0&yPos=248&width=862&height=575\\"/) If the High Court heard Mr Palmer\'s case, it would apply a \"balancing test\", according to Amelia Simpson, of ANU\'s College of Law. (ABC News: Gregory Nelson) In a recent article in the UNSW Law Journal, Mr Reynolds described section 117 as \"a curiously under-litigated provision of the Australian Constitution\". He wrote that a landmark 1989 High Court case established that section 117 was \"not absolute in its operation\". For example, states may limit voting in state elections to their own residents. However, he said the court has not defined the limits of section 117. Associate professor at the Australian National University\'s College of Law, Amelia Simpson, told Fact Check that if discrimination on the basis of state was shown to be present, the court would apply an additional \"balancing test\" to establish whether the measure was \"proportionate to the attainment of a legitimate public policy objective\". Dr Simpson said the court would balance the individual\'s interest, in this case to not be discriminated against on the basis of state, against the public interest — to protect the WA population against the spread of COVID-19. She said Mr Palmer\'s previous litigation under the closely related section 92 of the constitution demonstrated the High Court\'s willingness to trust the judgment of state law-makers on matters relating to COVID-19. \"Australian Federal and High Court judges are comfortable taking expert health advice at face value and are inclined to defer to expert judgment on how to weigh the risks and benefits of Covid-related restrictions,\" she said. \"It would be very difficult to convince judges to second guess the reasonableness of those restrictions given the very serious risks presented by Covid-19.\" Mr Reynolds also said there was \"ample scope\" for WA to argue the health direction was a justifiable measure. ## What are Mr Palmer\'s prospects of success? Professor Williams said Mr Palmer\'s previous challenge showed the High Court was likely to rule in favour of upholding health orders in the context of a pandemic. \"[Mr] Palmer litigated these issues last year under section 92 of the constitution in the High Court and lost. The result demonstrates the difficulty of challenging border closures during a pandemic. The High Court is likely to see closures and restrictions as being reasonable to protect public health,\" he said. Dr Simpson said any challenge on the basis of section 117 where health orders applied equally to residents and non-residents of the WA was likely to be unsuccessful. \"If vaccine passports were instituted in WA in a way that burdened the state\'s own residents (wanting to leave and re-enter) as well as non- residents then I would expect any section 117 based challenge to fail,\" she said. Dr Beck said that even if a discrimination on the basis of state were to be established, it would not guarantee the success of Mr Palmer\'s case. \"Section 117 does not require states to treat residents of other states equally with their own residents in every situation,\" he said. \"A West Australian entering WA is \'returning home\', but a Queenslander entering WA is not \'returning home\'. There\'s a meaningful difference here that is likely to lead the High Court to rule that there is no breach of section 117,\" he said. Mr Reynolds said: \"It is impossible to be definitive about the merits of any challenge based on section 117 of the constitution, as the law is far from settled. \"If compelled to make a choice, I would back the state in this case. But you never know your luck in the High Court.\" **Principal researcher: Sonam Thomas** ## Sources * United Australia Party, press release, August 14, 2021 * RMIT ABC Fact Check, Fact Check: Is it illegal under the constitution for a state to close its borders to other Australians?, April 23, 2020 * WA Department of Health, COVID-19 coronavirus: Controlled border * WA Government, WA\'s controlled border arrangements strengthened, August 13, 2021 * WA Department of Health, COVID-19 coronavirus: Controlled border frequently asked questions * High Court of Australia, Palmer v Western Australia, February 24, 2021 * AUSTLII, Commonwealth of Australia Constitution Act * Daniel Reynolds, UNSW Law Journal, Defining the limits of section 117 of the constitution, June 2021 * Mark McGowan, Facebook, August 13, 2021 ## Get a morning news briefing in your inbox Subscribe to our ABC NewsMail bringing you breaking news from overnight, plus a heads-up on the stories that will shape your day. Your information is being handled in accordance with the ABC Privacy Collection Statement. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Email address Subscribe Posted Tue 31 Aug 2021 at 3:38amTuesday 31 Aug 2021 at 3:38amTue 31 Aug 2021 at 3:38am, updated Tue 31 Aug 2021 at 9:19amTuesday 31 Aug 2021 at 9:19amTue 31 Aug 2021 at 9:19am Share options * Copy link * Facebook * X (formerly Twitter) ## ![\\"Fact](\\"/news-assets/logo-fact-check.png\\"/) Fearlessly follow the facts no matter where they lead. More Fact Check stories ### Attributing this article This article was undertaken through a collaborative partnership between RMIT University and the ABC, which concluded in June 2024. 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Clive Palmer confirmed today that the actions of Premier Mark McGowan to introduce an interstate vaccination passport for people travelling to WA was in breach of section 117 of the Australian constitution