WA Premier Mark McGowan (Image: AAP/Richard Wainwright)

Western Australian Premier Mark McGowan just raised a middle finger to the national COVID plan, and anyone separated from loved ones in the state, announcing the hard border, set to fall on February 5, would remain in place indefinitely.

“It would be reckless and irresponsible to open up now; I can’t do it,” McGowan said, pointing to the Omicron wave causing high case numbers across the country.

It’s a major U-turn from McGowan, who just last month promised to stick to the reopening date despite Omicron’s emergence barring an “unforeseen emergency or catastrophe”. Instead WA will keep the border closed until 80% or 90% of eligible Western Australians had received a third vaccine dose. Currently, 88% of Western Australians over 12 are double vaccinated, but with just 25% boosted, and many ineligible, that vague target seems months away.

Until then, the state will expand compassionate reasons to enter, but still require anyone doing so to quarantine for 14 days. It means WA remains the last jurisdiction in Australia, possibly the Western world, to remain committed to zero COVID. 

It’s a decision that will prove immensely popular among many in WA. McGowan won an unprecedented super-majority at the state election last year on the back of his hardline approach to keeping COVID out. But it’s one that will pile anguish on separated families, further isolate WA from the rest of the country, and cause huge political frustration on the east coast as a federal election looms. 

Can the border be forced open?

McGowan’s insistence on keeping his border has annoyed the Morrison government no end. It’s also reminded Australians that we live in a federation, and there’s very little Canberra can do to make WA keep its borders open. 

Only the High Court can potentially force McGowan’s hand. In November 2020, a constitutional challenge against the hard border brought by mining magnate Clive Palmer failed. Last year Attorney-General Michaelia Cash threatened that if the state failed to reopen at 80% vaccination, another stronger challenge could come its way.

But it’s likely that in light of the Omicron wave, the High Court could uphold the validity of the hard border, University of Sydney constitutional Law Professor Anne Twomey says.

“The position legally is still the same. The High Court upheld the validity of WA’s emergency legislation,” she said.

“The question is whether the orders made under those laws to close the border come under the scope of the power.”

Twomey says despite high vaccination rates and the mildness of Omicron for individuals, evidence of its increased transmissibility, and stressed hospitals in the eastern states, could be used by WA to mount a reasonable case for defeating any legal challenge.

“From a policy point of view McGowan did accept the need to open up in February, but the decision has changed because the factual circumstances have changed,” Twomey said.

“That actually strengthens his argument because it shows he was open to reopening on principle, but responded to changing circumstances.”

What happens to the election?

Some of the frustration at McGowan stems from a government getting antsy about defending battleground seats in the west. Electorates like Swan, Pearce, Hasluck and Tangney are being targeted by Labor. Despite a disappointing showing there in 2019, the opposition hopes McGowan’s immense popularity will deliver gains at a federal level.

The problem is the hard border means Albanese and Morrison could be unable to campaign in WA until election day. According to analysis by Guardian Australia, on current projections, WA won’t be 80% boosted until May 16. An election is due by May 21, with May 14 firming as the current favourite. Unless McGowan backs down, campaigning in those seats will look very different.

The growing distance between WA and the rest of the country makes it hard enough to predict what might happen in those key electorates. Throw in WA’s natural unpredictability, the sheer devastation of the state Liberal Party, heightened feelings of separatism parochialism and deification of “State Daddy” McGowan, it could be tough going for a government perceived as constantly trying to tear down the wall. 

And yet, its election chances might now depend on a handful of electorates Morrison might never get to visit.

Has Mark McGowan done the right thing by his state, or has he gone too far this time? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name if you would like to be considered for publication in Crikey’s Your Say column. We reserve the right to edit for length and clarity.