The Division of Powers
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This case study explains the High Court’s decision in Vanderstock v Victoria 2023, where Victoria’s road‑user charge for electric vehicles was struck down as an invalid duty of excise under section 90 of the Constitution. It outlines the division of powers between the Commonwealth and the states, the Court’s reasoning in expanding the meaning of “excise”, the sharp split between majority and dissenting judges, and the decision’s broader implications for state revenue, federalism, precedent, and future law reform as Australia adapts to emerging technologies.
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This case note examines the High Court’s decision in Palmer v Western Australia 20221, which confirmed that WA’s hard border was lawful under section 92 because it served a legitimate public health purpose and was proportionate to the risks at the time. It outlines the Court’s reasoning, the role of scientific uncertainty, and how the judgment shapes future challenges to border closures as vaccination rates rise and the balance between public health and free movement evolves.
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This case study explains the High Court’s decisions in Williams v Commonwealth 2010, which found that the Commonwealth could not fund the National School Chaplaincy Program without clear parliamentary authority. It outlines how the Court limited the scope of section 61 executive power, reinforced the principle that spending must be authorised by legislation, and highlighted the importance of accountability, federalism and the rule of law when the Commonwealth seeks to fund programs in areas traditionally managed by the states.
Clive Palmer’s High Court Challenge to the WA Border Closures
Palmer v Western Australia [2021] HCA 5
The High Court of Australia settles disputes about the meaning of the Constitution and is a check on Parliament to ensure laws do not go against the Constitution. Many people have come to the High Court to settle disputes about s92 to resolve whether their trade or movement into a State can be stopped.
In 2020, Clive Palmer went to the High Court of Australia to see whether the border closures by the Western Australian government in response to COVID-19 were in breach of section 92 of the Constitution and therefore unlawful.
The High Court in their judgment Palmer v Western Australia [2021] HCA 5 stated that the Western Australian border closures were indeed lawful under s92 of the Constitution. Based upon this judgement, the States can effectively shut their borders if they can show good reasons that the border closures are proportionate and for a legitimate purpose.
What does the Palmer Case mean for future challenges to border closures?
The WA border closures that were considered during the Palmer case were “hard border” closures. This meant that the WA border was closed to all persons outside of WA unless they fell into the small category of “exempt traveller.”
When considering effective alternatives rather than hard border closures, such as allowing persons to enter WA from States where COVID-19 was largely under control, the High Court stated that:
“because of the uncertainties about the level of risk and the severe, or even catastrophic, outcomes which might result from community transmission, a precautionary approach should be adopted…. These findings leave little room for debate about effective alternatives …. the defendant’s submission that there is no effective alternative to a general restriction on entry must be accepted”.
In response to this statement, legal academic, Professor Anthony Gray of the University of Southern Queensland in an interview with Chris Merritt stated:
“I respectfully, fundamentally, disagree with that. There were a multitude of other options available to the WA government short of the hard lockdown. They could have applied the border closure to Victoria alone, they could have insisted on a fourteen day quarantine, they could have insisted that people have a COVID test before crossing the border”
Interestingly in April 2020, Professor Stellios from ANU College of Law in an article by ABC entitled “Is it illegal under the Constitution for a State to close its borders to other Australians?” stated that:
“.. it’s likely that preventing the spread of COVID-19 would count as a legitimate reason for regulating the free movement of people and, depending on the science of how it spreads, perhaps interstate trade and commerce … The fact that the states are taking different measures might create some difficulties for the states that take more stringent approaches. If lesser measures can achieve the same risk prevention as the more stringent measures (or if the impact between them is minimal), then the more stringent measures might be seen to be unreasonably burdensome and, thus in breach of section 92 of the Constitution.”
George Williams wrote in the Australian on 3 September 2021 ‘Federal parliament has the power to rule on borders’:
“The High Court should be the last resort to resolving this issue. Attention should instead focus on the federal parliament. Reopening our borders requires weighing up the public health, economic, social and political considerations. This is best undertaken by our elected representatives from across the nation. They can go much further than determining whether border closures breach the Constitution. They can set down specific rules for hot spots and to cater for vulnerable people and children, and ensure that borders are not opened prematurely. … Further legislation can be passed under parliament’s quarantine or other powers in the Constitution to mandate the national plan as a legally enforceable standard. These national rules can override state laws.”
Are there principles that need to be considered when States apply their emergency powers?
Laws must be clear, transparent and predictable.
In times of emergency, the Courts and every Australian citizen has a role in ensuring that emergency declarations are carefully considered and they are clear, transparent and predictable.
They also must be proportionate to balance the protection and public health of our nation with our individual rights and freedoms to move freely around Australia to do business, holiday, and visit friends and family.
Related Resources
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This fact sheet explains how power is shared across Australia’s three levels of government—Commonwealth, State/Territory and Local—under the federal system created by the Constitution. It outlines the Division of Powers in section 51, the responsibilities retained by the states, the role of local councils, and how High Court interpretation and Commonwealth funding have expanded federal influence. It highlights why dividing power matters for accountability, community responsiveness and protecting people from concentrated authority.
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This classroom activity uses a flood‑crisis scenario to help students apply the Division of Powers by analysing how local, state and federal governments respond during emergencies. Working in groups, students examine town‑specific crisis cards, identify each level of government’s responsibilities, develop a coordinated emergency plan, and present how cooperation across jurisdictions supports effective disaster management under Australia’s federal system
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