Hardline states who impose tough Covid border closures could be taken to court by anguished Australians who have suffered due to their strict policy, an expert says.
The premiers of Queensland and Western Australia are reluctant to commit to the national Covid-19 recovery plan to reopen borders once 80 per cent of eligible Australians are fully-vaccinated.
But Annastacia Palaszczuk and Mark McGowan's tough border stance could leave their states vulnerable to unprecedented legal challenges.
In an interview with The Sunday Project, constitutional lawyer Professor Kim Rubenstein said anyone who was negatively affected by states' refusal to open borders could take legal action.
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QLD Premier Annastacia Palaszczuk (pictured) and WA Premier Mark McGowan have shown reluctance to commit to the national plan to reopen state borders once 80 per cent of eligible Australians are fully-vaccinated
'Any person who is impacted by these restrictions and who can show that this is a disproportionate burden on trade [would have grounds for a case],' she said.
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'So that if it can show that it is, in fact, protecting one state over the other, without a legitimate or proportional response, then it really is available for challenge. And we may, in fact, see that ahead of us.'
Professor Rubenstein said the Australian constitution was 'motivated by a desire to travel freely across the country.'
'Colonies were finding it difficult to have barriers around trade. Section 92 was placed there to discourage any restriction of travel within Australia,' she said.
'The reason we have tough border measures in place is because there is a massive outbreak at the moment in New South Wales and Victoria and their hospitals are going to be overwhelmed,' she said.
A hard border has been in place between Queensland and NSW for much of the pandemic (pictured, border control warnings are seen on the Gold Coast Highway)
Professor Rubenstein said states that withdrew from the national exit strategy in coming months would be more 'vulnerable' to legal action. Pictured: WA Premier Mark McGowan
Professor Rubenstein said if premiers withdrew from the national Covid roadmap in coming months it would strengthen legal cases against them since all state and territory leaders had previously agreed to the plan.
The tough premiers' unrelenting border closures have left tourism businesses crippled, families seperated and citizens banned from moving around their own country.
In the September quarter alone, tourism on the Gold Coast will see a $1billion slump compared to the same time last year, an industry group has revealed.
'These are the issues the court would actually need to take into account in determining whether these restrictions are needed for the purpose that they‘re seeking to achieve in terms of health protection,' the legal expert said.
Gold Coast tourism businesses are set to lost $1billion in the September quarter compared to last year (pictured, Burleigh Heads on the Gold Coast in July)
Constitutional lawyer Professor Kim Rubenstein (pictured) said states that disproportionately close their border to protect themselves over another could be open to legal action
'The fact that there are other circumstances showing a different approach does in fact make it [the state] more vulnerable.'
Queensland and Western Australia have the lowest vaccination rates in the country, both with almost 45 per cent of residents 16 and over fully-vaccinated compared to 60.1 per cent in NSW.
Epidemiologist Dr. Catherine
