Senator the Hon Mathias Cormann

QUESTION: So Minister message do you have for Clive Palmer and this Federal court matter?

MATHIAS CORMANN: The Commonwealth is no longer a party to the High Court proceedings in relation to State border closures. That is well understood. Clearly the Constitutional risk remains. So I would ask Clive Palmer to seriously consider pulling out of those proceedings. That is the only way that we can have absolute certainty that current border arrangements can remain.

QUESTION: Will you support the WA Government’s bid for a fresh trial?

MATHIAS CORMANN: The WA Government has asked us to withdraw from the proceedings. We have done that. We are no longer party to those proceedings. We have acted in good faith consistent with the request of the WA Government. We are no longer part of those proceedings.

QUESTION: But that is like shutting the gate after the horse has bolted. Your evidence has been heard, that is now part of the case. So you are sort of having a bob each way aren’t you?

MATHIAS CORMANN: No, that is not right. What has happened so far is an assessment of the facts in the Federal Court. The High Court has not sat in relation to this at all. At the moment all that has happened is an assessment of the facts. Clearly, the WA Chief Health Officer has given evidence. A number of other people have given evidence. In the end, the facts are what they are. The question here always was what the Constitutional legal position is ultimately. You have to remember, people have a very short memory in the media sometimes, dare I say it. In March, it was actually Liza Harvey who first suggested hard borders for WA. When she did, the Premier, the Deputy Premier, the Treasurer all argued against it. The Deputy Premier in fact said that it would be unconstitutional. He pointed out the fact that there is a little thing called the Constitution I think were the words that he used. The Treasurer said that it would be bad for our economy to do so, that people had to be allowed to move freely around the country. I am not saying this in a way that is critical. I am not intending to be partisan. The point is that we are dealing with a rapidly evolving crisis. Back in May, and June we were in a context where we were easing restrictions, where we were opening up the economy, because overwhelmingly around the country we were on top of this virus. Since then, the situation has changed. We have had significant outbreaks of community transmission, in particular in Victoria, but also in other parts of the Eastern States. The context has changed. That is why we made the decision that we made as a Government to pull out of the case last week. That is why I am calling on Mr Palmer to seriously consider pulling out of this case as well so that the country and the people here in Western Australia can have certainty moving forward.

QUESTION: You got involved because it was a Constitutional matter. Isn’t it still a Constitutional matter, that hasn’t changed?

MATHIAS CORMANN: You are quite right. The reason we got involved in May was in an entirely orthodox fashion, because there was a Constitutional matter before the High Court. Us pulling out of any case of this nature is unorthodox. But the circumstances we are in are unique. The level of public anxiety in the context of a terrible pandemic, a terrible virus, a highly infection virus is clearly unique. So that is the context in which we have made this decision. But let me just be very clear though, the reason the Commonwealth got involved in this case, it was initially initiated by three parties, not just by one, by three parties against border arrangements in Queensland and in Western Australia, was in support of a Constitutional legal position. Not in support of any party. This is the way these things are handled always, when it comes to Constitutional matters in front of the High Court. But this is a unique set of circumstances. That is why we have made the decision that we did last week.  

QUESTION: The Commonwealth didn’t just provide assistance on Constitutional questions though. It provided an expert witness, Profession Collingnon from the ANU. He is an infectious diseases expert. That is definitely going beyond a Constitutional assistance role.

MATHIAS CORMANN: No. With the greatest of respect that is not true. Part of this process, because there was no agreement on the facts between the parties, before you could get to the assessment of the law, there was a process, an initial process in front of the Federal Court to assess the facts. It is part of a normal process exploring whether or not certain arrangements are or are not Constitutional. The Federal Government did not make a judgement to support a particular litigant. The Federal Government made a judgement on a Constitutional legal position to support. Something that we need to remember, law and justice are meant to be blind. We might not like somebody, but when it comes to the law, the application of the law and justice, that is actually not what should matter. We made a judgement based on our assessment of the Constitutional legal position, which was consistent incidentally with the assessment of the Constitutional legal position of the Deputy Premier Roger Cook earlier this year. We have made a judgement now in the context of how this pandemic has continued to evolve. We call on Mr Palmer to join us in pulling out of this case.

QUESTION: Today, in the court hearing Justice Rangiah said he found it extremely discourteous that he read about your withdrawal, the Commonwealth’s withdrawal from the case in a media report. He didn’t officially hear via a court process until Wednesday. Has the Commonwealth embarrassed itself in these proceedings?

MATHIAS CORMANN: I am not going to comment on court proceedings. I am going to leave commentary on court proceedings to the Attorney General. Our decision in relation to this matter was well publicised. As I understand it, relevant papers were submitted on Sunday, 2 August. But in terms of the ins and outs of this, I will let Christian Porter comment on those.

QUESTION: There will be some who say that you are pulling out because you are deeply unpopular within Western Australia. Is there any weight to that?

MATHIAS CORMANN: We are very conscious of the level of anxiety in the community about the spread of this virus in the wake of what has been happening in Victoria. The context back in May was very different. Let us just remember the two other parties that challenged State border closures were tourism operators and small businesses out of Queensland. When they initiated a challenge against State border closures out of Queensland in the High Court, the Queensland State Government changed their arrangements. They limited travel restrictions essentially to travel out of Victoria and made their arrangements effectively Constitutional, which meant that those particular challenges fell away. That is not what happened in Western Australia. But back then, the context and the outlook was very different. The facts have changed. We have changed our judgements accordingly.  

QUESTION: How concerned are you that this is going to bite politically? There are people who have said that they have always voted Liberal, but because of this, they are now not going to back you.

MATHIAS CORMANN: Let me tell you, I am just not interested in the politics of this. All of us, all the way through a pretty difficult period, every single day, we make judgements based on what we think is right, what we think is in the best interest of our communities, of our State, of our country. Clearly, from time to time in a rapidly evolving, difficult situation, you are going to have to adjust your judgements. We are big enough to do that. That is all there is to it. In the end, people will form their judgements. That is entirely a matter for them. But I have never been focused on the politics of this.   

Thank you very much.