The West Live: Top law experts claims crisis laws often just a ‘political message’, questions basis

Defence personnel have no legal powers to detain people while assisting COVID-19 quarantine operations, with the use of soldiers labelled more of a “political message” by one of Australia’s top constitutional law experts. University of Sydney constitutional law expert Professor Anne Twomey has said while soldiers give “the impression of having power and frightening people by the fact that they have uniforms” they can't legally obstruct someone. “They're not allowed to use any coercive power at all. If you're stopped by an army person on the street and you run away, they actually can't grab you or do anything to you. All they’re doing is supporting the police,” she told The West Live on Friday. Prof. Twomey said much of the emergency regulations pushed during the COVID-19 crisis could merely be an exercise in smoke and mirrors, with little legal backing. She said WA Health Minister Roger Cook’s “no Victorians welcome” warning yesterday was a prime example, as no legislation would have been able pass for the directive because Parliament hadn’t sat. "In terms of excluding people from coming into Western Australia, the first thing you need to do is have some sort of legal power to do that. That's normally done either directly by legislation but if Parliament is not sitting then it may be that there are some powers in statutes that allow you to do it by way of regulation,” she said. Prof. Twomey said laws could have been introduced but that process often hadn’t been disclosed throughout government messaging amid the crisis. A State of Emergency was declared in WA on March 19, meaning COVID-19 related directions could be applied under the Emergency Management Act by WA Police Force Commissioner Chris Dawson, who has been named the State Emergency Coordinator. Earlier today, Premier Mark McGowan announced that West Australians returning from overseas would have to pay for their own hotel quarantine after July 17 and said he expected legislation would passed on the new ruling after August 11 when Parliament resumes sitting. Prof. Twomey said while the constitution clearly stated that Australians have to be allowed to freely pass between States and Territories, closing borders for a “legitimate purpose” could be accepted by the High Court. Given the public health concern surrounding the Victorian COVID-19 outbreak, Pro.f Twomey said WA had a “stronger hand” in Queensland billionaire Clive Palmer’s hard border lawsuit. “The High Court has previously accepted that you can limit people’s intercourse across State borders if you do it for a legitimate purpose, which can include protecting the health of the State, but only if you're doing it in circumstances where it's responsibly necessary,” she said. Mr Palmer has argued WA’s ban on Eastern States travellers was unconstitutional because it restricted the free movement of Australians throughout the country and has been a “substantial” barrier for him to manage his business interests. Yesterday, the legal challenge was delayed two-weeks after State’s expert witness, epidemiologist Kamalini Lokuge, was drafted into the Victorian coronavirus response. The grounds for a requested adjournment in the High Court case, which has been remitted to the Federal Court, had previously been labelled “baseless” by the Queensland billionaire’s lawyer. "The question is whether it's ‘responsibly necessary’. That's the issue that will be determined, eventually, in terms of facts by the Federal Court. Then once the facts are determined, be sent up by the High Court," Prof Twomey said. “When Clive Palmer brought that case (forward) there were hardly any COVID-19 being spreading anywhere in Australia. “Now that we're got the situation in Victoria and even NSW now recognises that there's a legitimate reason for blocking the State borders to stop the spread.” WA Premier Mark McGowan had used NSW's new border with Victoria post-outbreak to call on the Federal Government to formally remove their intervention backing Mr Palmer's case. Yesterday, one of Australia's leading scholars in constitutional law Australian National University School of Law associate professor Amelia Simpson predicted Canberra would back down from its strong stance following the rising COVID-19 case numbers interstate. Victoria recorded 288 new coronavirus causes on Friday, the biggest ever daily total recorded by a State in Australia since the pandemic began. Only 26 were connected to known outbreaks, the rest are still under investigation. Prof. Twomey said the dire situation in Victoria may change the Federal Government’s stance on the border stoush with the mining magnate. “I think that Western Australia has a much stronger case in the High Court - but it did before because there's general recognition that closing borders really does help stop the spread of this virus. Even the Commonwealth is now recognising that,” she said. “Western Australia has a much stronger hand [but] the real question will be when they say is it reasonably necessary.”