Transcripts → 2020


ABC Radio Perth - Breakfast

Senator the Hon. Mathias Cormann
Minister for Finance
Leader of the Government in the Senate
Senator for Western Australia


Date: Friday, 31 July 2020

High Court challenge to WA borders

NADIA MITSOPOULOS: But is it only Clive Palmer that needs to read the room? I am sensing a lot of anger out there being directed at the Federal Government as well, which has joined Clive Palmer in his legal action. Does it understand how this is being viewed by you the public. 1300 222 720. I would be curious to hear what you think about the Federal Government’s role in all of this. Do you accept that it is trying to clarify an important point of law, as is their right? Or is it meddling? Or is it playing politics? And will you punish them for it at the next election?

RUSSELL WOOLF: 1300 222 720. If you would like to call and have a chat with us this morning. Mathias Cormann is a WA Liberal Senator and also the Federal Finance Minister. And he joins us. Minister thanks for making the time this morning.

MATHIAS CORMANN: Good morning.

RUSSELL WOOLF: Let’s get straight to this to start off with. Why has the Federal Government joined with Clive Palmer in his legal action?

MATHIAS CORMANN: Firstly we did not initiate this legal action in the High Court. Every citizen who feels that their rights have been inappropriately infringed by a government decision has that right to have these matters resolved through the High Court. Where there are serious matters of Constitutional law involved, the High Court expects that the Federal Government will be part of the proceedings in order to explain its perspectives on important matters of Constitutional law. This is not a matter of us siding with any particular litigant. There were three cases initially including two out of Queensland which have fallen away because the Queensland State Government has made adjustments to their border arrangements. But when Constitutional matters are raised in the High Court the Federal Government has a role to play. That is the reason. That is the context. 

NADIA MITSOPOULOS: But had Clive Palmer not launched this legal action you would not have done this yourself to clarify that muddled piece of law.

MATHIAS CORMANN: No. We have not and we would not have. As I say we did not initiate this … interrupted

NADIA MITSOPOULOS: So it does look like you are siding with Clive Palmer. That is the feeling from the members of the public who are watching this from a distance. That is what it feels like.

MATHIAS CORMANN: But that is not true. The thing is, all the way through this period, the Federal Government has worked very closely with the State Government to protect people’s health, to protect people’s livelihoods, to make the best possible decisions in what is a very difficult circumstance. Of course we understand the need to protect people’s health in the face of community transmissions and outbreaks in other parts of Australia. Of course we support hard borders and strong borders in relation to those areas. But in the end, nobody is going to be protected from arrangements that do not survive a challenge in the High Court. What needs to happen here is that we need to do what we have done across the board all the way through successfully. Instead of having the State Government make unilateral and arbitrary decisions, which ultimately are likely to fail in the High Court, we have to work together to ensure that whatever arrangements are put in place to protect people’s health here in Western Australia survive any such challenge and are Constitutionally sustainable. That … interrupted

NADIA MITSOPOULOS: But you are not working together, you are working with Clive Palmer. Because you personally believe the hard border policy should be relaxed.

MATHIAS CORMANN: I believe that the hard border policy must be in place in relation to those areas where there is risk, where there is community transmission … interrupted

NADIA MITSOPOULOS: We are not talking about the Eastern States. I am sorry to interrupt you. We are talking about WA. Let’s not worry about the Eastern States borders at the moment. They are in a very different situation. We are talking about the WA hard border. You want it to come down.

MATHIAS CORMANN: That is not right. You are misrepresenting the position that I have argued. I want the hard border to remain in place towards those areas where there is risk and where we need to ensure that people can’t travel from where I do not think people should be allowed to travel to Western Australia. The issue now is, if we have borders in place in a way that ultimately does not survive the High Court, people are not actually protected by that. We need to ensure that the arrangements put in place ultimately are effective and sustainable. That is where we need to go back to where we have been so successful all the way through in relation to all other matters. The Federal Government and the State Government need to work together. The Prime Minister will be reaching out to the Premier today again, in order to come up with a sensible way forward in relation to this. I reached out to him… interrupted

RUSSELL WOOLF: So what would be a sensible way forward then?

MATHIAS CORMANN: There is a very sensible way that this was handled between New South Wales and Victoria for example. You need to put these sorts of arrangements in a way that is coordinated, in an appropriately Constitutionally valid way, as has taken place between New South Wales and Victoria for example. There is an agreement involving New South Wales, Victoria and the Commonwealth in the context of making sure that border closures between those jurisdictions are managed in an appropriate fashion in a way that is Constitutionally valid. To put a border closure in place in a way that is ultimately not going to be found to be Constitutionally valid will put people in western Australia at risk. That does not ultimately help anyone.

RUSSELL WOOLF: But we have seen cases where Victoria has had coronavirus bleed into New South Wales. We have now seen that bleed into Queensland. So having those understandings in place between New South Wales and Victoria and the Commonwealth Government hasn’t stopped it from occurring. Whereas in Western Australia we are in a fairly unique position as you understand better than most in the Federal Parliament. We should be protecting that.

MATHIAS CORMANN: We are not in a unique position. That is actually the point. South Australia has been in a better position than Western Australia for longer. The Northern Territory has been in a better position than Western Australia for longer. So our position is not unique. So the question really here is, how do you ensure that Western Australia is protected, absolutely and utterly protected from those areas where there are outbreaks of community transmission, but how do we also ensure that things are put in place in a way that is sensible and proportionate. That is why there is exposure in the High Court, because the Constitutional risk here is that the Government in Western Australia, by acting unilaterally and on the face of it arbitrarily, has exceeded its power, that they do not have the power to do what they are currently doing. Ultimately, the worst scenario would be for all protections to be torn down because they are found to be Constitutionally invalid. What we need is an arrangement that protects people in Western Australia from the risk of anyone coming here that is infected, but in a way that ultimately is not able to be torn down in the High Court. In the end, every government needs to act consistent with the law. Every government needs to act consistent with the Constitution. It is not optional for us as a Federal Government to pick and choose which parts of the Constitution we accept to comply with or we do not. We might want to be able to make decisions whichever way we want and for nobody to be able to challenge that, but that is not the constitutional arrangement in a parliamentary democracy where we have to comply with the rule of law.

RUSSELL WOOLF: Mathias Cormann is out guest, WA Liberal Senator and the Federal Finance Minister as well, on ABC Radio Perth and WA. Just trying to get a feel for what it is the Federal Government would like to see happen with regards to Western Australia’s hard border. We should not be open to Victoria, we should not be open to New South Wales, it is questionable about whether we should be open to Queensland. Would you accept that?

MATHIAS CORMANN: I totally accept that as circumstances change, you have to make judgements, as long as there is a proportionate and a reasonable foundation. Of course you need to keep adjusting these things. In the end you have to make decisions and you have to put arrangements in place that are Constitutionally sustainable, where there is minimum risk that the High Court will find that they are in breach of the Constitution. There is a way to do this. We believe that the State Government should work with the Federal Government to make sure that whatever arrangements are in place will not be thrown out by the High Court, that we minimise Constitutional risk to whatever border protections we put in place so that we do not see the re-emergence of the coronavirus here in Western Australia. You have to remember, I live here, my family lives here. I do not want to see the coronavirus come back into Western Australia. Of course not. But in the end, if we have an arrangement in place that the High Court brings down, then nobody is ultimately going to be protected the way we would want to be protected. It would be much more sensible for the Premier to engage with the Prime Minister, for the State Government here to engage with the Federal Government, as we have on so many other issues. We have a very good working relationship. As we have worked through many, many issues before this crisis and through this crisis in a way that is good for the people of Western Australia. We want to see that happen here too.

NADIA MITSOPOULOS: So just on that point then Senator, if the State Government loses and it would then have to go to the Commonwealth, this is what the Premier was saying earlier this week and then work with the Commonwealth to see if you could stop people coming from specific states. So if they then said okay we do not want anyone from Queensland, New South Wales and Victoria, you would be open to that? You would be okay with that?

MATHIAS CORMANN: Of course we would be open to that. To be frank I do not believe we should wait for that. I understand, when this crisis was first unfolding and the infection rate and the growth of infections was growing rapidly all around the country and everybody was doing the best that they could to get on top of this. Yes, here in Western Australia, the Government has done a good job. In Australia generally we have done a good job. I understand that decisions had to be made very quickly. But there is now a clear constitutional risk. In fact, on the balance of probability it is likely that the arrangements put in place unilaterally by Western Australia would not survive a challenge in the High Court. Why would we wait for that outcome? Why would we not sit down and ensure …interrupted

NADIA MITSOPOULOS: Because the public wants us to wait, because the public, the majority of the people living in Western Australia do not want that border open. Do you understand and accept that there is a level of anger out there directed at your Government for being part of this? They do not like what you are doing.

MATHIAS CORMANN: Nadia, Members of Parliament and leaders have a responsibility to make judgements on what is right in protecting people’s health. It would be absolutely irresponsible for us to wait until a decision is made that brings those borders down without anything in place to ensure that we can prevent people coming here that pose a risk to the West Australian population. In the end, we want people’s health here in Western Australia to be protected. For us to sit back, let this play out in the High Court, when we know the level of Constitutional risk that people are facing would be absolutely reckless and irresponsible. It might well be politically convenient for us to just sit back and say yes, overwhelmingly most people want the arrangements to stay in place as they are, but we know that that is unlikely to be the case, once the case has been heard by the High Court. We would be knowingly putting people’s health at risk. It would be an absolute dereliction of our duty not to try and deal with this in a way that ensures that arrangements to protect people’s health here in Western Australia are Constitutionally sustainable over the medium and very long term.

RUSSELL WOOLF: Mathias Cormann we appreciate you talking to us this morning.