No government, whether Commonwealth or State, has primacy over movement across State borders. Primacy lies in the Federal Constitution which states in Section 92 that “trade, commerce, and intercourse among the States … shall be absolutely free”. A distribution of powers does not come into it.
Whatever powers a State may assert in this regard cannot be absolute in nature or involve the total prohibition of cross-border movement. At best they can involve some reduction from the prescribed absolute standard without vitiating free movement overall. How and in what respects that degree of reduction may be found has to date been a matter of unilateral determination by individual States. In other words anarchy prevails.
Clearly this is a most unsatisfactory situation as it goes to the heart of the nation’s viability in key areas of its existence. Indeed, the present situation poses nothing less than an existential threat with potentially profound negative consequences. If this were an external threat we would be mobilising military forces to meet it. But instead this vacuum is being exploited for parochial political purposes by all parties with little regard for the fact that over and above we are one nation. Any threat to the Federation, such as threatening secession, would be suppressed in short order. The threat here and now is no less.
Well one might say, the pandemic has presented an even greater threat to all than might secession. But if it can be shown that in tackling the former the cure can be seen as being worse than the disease, which would allow one to examine in what respects the ‘cure’ is excessive of need. To that extent State regulation which negatively affects cross-border border movements would prima facie be in breach of Section 92. The High Court has acknowledged that some derogations from the ‘absolute’ are both necessary and permissible. But these were cases involving the regulation of cross-border movements, not their prohibition, and largely related to tax avoidance issues concerning what in reality was intra-state as distinct from inter-state transportation.
Other issues arise from the appropriateness or otherwise of State boundaries being the delineating units for disease control without regard for the different circumstances and interests of rural and remote areas, or the dislocation of common border communities otherwise remote from the disease. Or where border communities straddling a major highway are subjected to absurdly incompatible State administrations as has occurred around Albury/Wodonga, Mildura, and the South Eastern Queensland/North Eastern NSW borders. Difficult practical and scientific questions concerning relevance and proportionality may contradict or overlap, making it impractical to seek resolution other than by arbitrary unilateral determination on one side or the other.
A difficulty in obtaining a High Court determination is that the court is not disposed to making Declarations of an all-encompassing nature. Rather it deals with matters case by case, turning on the specific circumstances, which means that it takes time to build up a body of case law from which generalisations may be drawn. This means also that there needs to be sufficient litigants with the wherewithal to fund the cases. However there is nothing to preclude either the Commonwealth or the States, or both, from approaching the Court and in the public interest requesting clarification on Section 92 drawing on recent experience with the pandemic.
While the Court might respond by saying the remedy might lie within existing constitutional processes, to wit a Referendum. But even the Court might appreciate how difficult it would be formulate an intelligible proposal on these issues that could be put to the people free of manifest complications.
One thing which is clear is that for the sake of national cohesion and economic survival we cannot again go through similar border experiences in future. While the question of where the legislative power with respect to health should lie was contentious at the time of Federation and again when the Constitution was reviewed in the late 1920s – hence it was not granted to the Commonwealth – it alone has, as as we have seen, the potential to take over and subsume aspects of national life, even survival, far outweighing the health issue alone. Again it is a question of proportionality in all things, not least control over State borders.
Next time there should be a central co-ordinating power at the controls to steer the national interest in these crucial matters.
Andrew Farran in his younger days was a diplomat, Commonwealth civil servant and law academic (Monash). His subsequent business interests included international trade, intellectual property and publishing, and wool growing. He was a regular contributor to Pearls & Irritations from 2017 – 2020.
Writes extensively on international affairs and defence, contributing previously to major newspapers (metropolitan and rural). Formerly director of major professional publishing company. Currently apart from writing he directs a registered charitable foundation with links in both Australia and overseas.
Comments
9 responses to “The High Court must rule on State border controls before more businesses are bankrupted and family relations traumatised.”
Farran appears to be a sycophantic apologist mouth-piece for the COALiiton arguing that commerce is more important than citizen health & well being. I guess that is to be expected given his stated career and present occupation as a proponent of rural socialism.
Perhaps readers should look at England, the USA (united States of Apartheid), India, Europe and discover what happens when commerce is put before public health enforcement. No voters means no commerce.
Were it not for border controls the second wave of the virus would have swept though SA, WA and the NT killing hundreds, if not thousands. The eastern states would have been cross infected and Australia would rapidly move into the scenario being experienced by the UK and parts of Europe who are recording thousands of daily infections which are no longer able to be traced by virtue of the huge numbers. At particular risk would be the elderly, social disadvantaged and those managing chronic illnesses. Victoria is quickly coming out of the second wave because of a tight lock down and SA and NSW would definitely have been experiencing their own second wave if border restrictions were not in place. Now is NOT the time for academic discussions about States’ rights and the Federal Constitution. Nor is it the time to be wringing hands about the economic damage to the economy as it has shown that states that manage strict lock downs have higher GDP outcomes than those that don’t. It’s a pandemic. It staggers me that this discussion is even being had.
Irrespective of the legalities in this matter it appears that for some their right to freedom (and to infect and indirectly kill some others) is regarded a higher right than the need for public health protection. It seems the almighty dollar overrules every other consideration.
In order to save lives, the judges will have to muddy the water.
As I read section 92 of the Constitution, it refers to the imposition of duties, and not all to the movement of people. State governments therefore have an implicit right to close their borders. A High Court clarification would of course be most welcome.
I think Mr Farran is right, but may not go far enough.
s.92 refers to trade commerce and intercourse, the last includes movement of people.
It is not the only legal obstacle to State border closures.
There also is s.117 which prohibits a State discriminating against residents of another State, for example by requiring a person to live in a State to practice at its bar. Think now of the FIFO rules in States.
There also have been suggestions the fact of federation makes border closures by States against people illegal – even against those people who threaten public safety because of their criminality. High Court justice Higgins referred statements from the US Supreme Court:
“We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.” This result of the Constitution is said to be implied in the American Constitution; it is expressed in sec. 92 of our Constitution, so far as regards State boundaries”.
Best wishes
It’s a long bow to draw that preventing entry across borders is discrimination. I doubt any Court would be sympathetic to that reasoning.
I doubt we need to import ideas from the USA Constitution. It’s working so well over there?
Mael: On s.117 (discrimination) its not a bow I alone draw.
Aspects of the FIFO examples – (as did earlier reports of freedom of say Qld residents to visit NSW and return) look in point with the situation in the High Court’s case in Street v Queensland Bar Association (1989). The issue is the apparent discrimin is not public health but place of residence. Justice Gaudron put it: ‘instances of differentiation between different classes or groups that turn on “considerations which are irrelevant to the object to be attained.”
On the USA (Constitution) many of the ideas of Australia’s Constitution are in fact imported from it – over 120 years ago e,g ‘It is well known that the framers of the Australian Constitution drew extensively upon the United States constitution for many aspects of their creation.’ https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/~/link.aspx?_id=62157B3AE2F04D79A23615AA882A326B&_z=z
Higgin’s point was that s.92 makes explicit in Australia what is implicit in the US. Some issues are noted in https://www.thejadebeagle.com/covid—may.html, and updated for July. Regards
Where a central authority, such as our “Border Force” failed under its responsibility to impose quarantine on incoming passengers and a myriad excuses forwarded by the Ministers responsible, including the Prime Minister, and then the Commonwealth Government sloughing that responsibility onto State authorities, the duty of care constitutionally required of the Federal government is correctly assumed by the State governments.
The current Commonwealth Government has been delinquent in so many facets of it responsibilities in this and other matters that it has become evident that it does not consider itself a “Government of the People for the People.”