You can find the Federal Court’s decision on the substantive matter
here, and another brief decision on the matters arising from the Commonwealth’s withdrawal
here.
Numbers below are paras in the main judgement. An interesting discussion of the credibility of the witnesses, a contest won by Assoc. Prof. Lokuge, at 48-62. In any case, the experst submitted a report on matters about which they agreed and disagreed. At 64, the report included:
We are agreed that rapid uncontrolled transmission resulting from the introduction of a single infected individual to a community has been demonstrated to have occurred in multiple settings where there is otherwise good surveillance/testing control ... We are agreed that border restrictions are important to ensure higher transmission risk populations do not spread Covid-19 to lower risk transmission populations.
The court accepted the ‘precautionary principle’ that you manage an outbreak on the basis of what could happen, rather than waiting for evidence that it has happened. (72-76) and it was logical where the consequences of a risk are catastrophic but the likelihood is small.
The court then made some findings at about 82-102 about the consequences (e.g. death and hospitalisation rates) difficulties in testing, lag time in identifying chains and clusters, and a risk assessment, cncluding at 117 that, while there is negligible risk in WA, the border restrictions guard the WA population against a risk of community transmission elsewhere.
The fact f every state closing its borders against Vic gets a mention at 131, and at 134, perhaps perversely, the relaxation of other controls within WA means that border controls assume greater importance.
At 137, the evidence of Prof. Collignon (for the Commonwealth) includes mention in his report on ‘common measures’ agreed among all the states, that includes internal movement controls within States. Coupled with restrictions on the National Border, the Commonwealth’s case against interstate movement is looking somwehat illogical, and various containments other than border containments were not lost on the Court (138). The National Border controls are mentioned when the court concluded that state border controls are effective, based on the evidence of Assoc. Prof Lokuge, and Prof. Blakely (the latter, for the Commonwealth, conceded the point under cross examination). On the relative value of border closures and ‘common measures’, the conclusion at 170 is ‘impossible to say’. However, at 171,
I conclude that the border restrictions offer a tangible and substantial layer of protection to the Western Australian community over the protection offered by the Common Measures.
There follows a discussion of the probability of cases being imported if border restrictions were removed. Here is Prof. Blakely (Along with Prof. Collignon the Commonwealth’s expert) at 191
Professor Blakely calculates, assuming 44,000 Victorians travelling to Western Australia per month (half the pre-COVID-19 numbers), that 21.84 undetected infected Victorians would arrive each month into Western Australia. On that basis, and assuming that travel was unrestricted, he calculates a 100% chance of at least one outbreak of COVID-19 in WesternAustralia each month.
The court follows with a reality check on Prof. Blakely’s estima‘, reduced by the border comtrols to on compliance) noting that not everyone is compli’low’.ant, hence there is criminal justice (206) and outbreaks and rapid case growth blew one of Prof. Blakely’s estimates, by his own admission , out of the water (207).
From 254 to 291, the Court pulls out a risk model and makes its own State by State assessment of the risk of importation from each state, starting with Victoria and noting
The experts seem to be agreed that Western Australia should not remove its border restrictions with Victoria, given the current high levels of community transmission in Victoria.
but also noting the impact that Victoria’s own movement restrictions would have on travel to WA. The ratings, for what they’re worth, are ‘high’ for Vic, ’moderate’ for NSW, ‘low’ for SA, Tas and NT, with Queensland too hard to figure. For WA (292-307) the risk of importation is assessed as ‘high’, and of uncontrolled outbreak as ‘moderate’, reduced to ‘low’ by the border restrictions.
An interesting twist toward the end of what read so far as a demolition of the factual basis of the case of Palmer and the recently departed Commonwealth.
326 Subject to one issue, if mandatory hotel quarantine replaced the current border restrictions for all travellers, I consider that the risk of transmission of the virus to the Western Australia population would not be increased in comparison to the risk that already exists under the current border exemptions and having regard to the current numbers of people in quarantine. However, the issue is the capacity of Western Australia to safely manage increased numbers in quarantine.
The court goes on to note that WA can ‘safely‘ manage seven hotels, and it already manages six, concluding that it can’t safely quarantine the resulting tide if the border floodgates were opened.
The final issue was the relative merits of a targeted restriction or hotspot regime, targeting sub-statecareas. The court noted the problems with finding hotspots that were expanding silently (e.g. Melbourne Suburbs) as detection lags the spread of infection
cheers skip
