ANDREW FARRAN.- A New Constitutional Health Power for the Commonwealth

Could the Caronavirus (Covin-19) outbreak be a tipping point swinging the balance of Constitutional power with respect to health in favour of the Commonwealth, as happened previously with defence, income tax and civil aviation?

The Constitution as drafted in the late 1890s during the time of Queen Victoria could not have anticipated the world as we find it in the 2020s. To paraphrase John Maynard Keynes, when the circumstances change so must the division of powers as between the States and the Commonwealth.

In the case of the defence power it was accepted that Commonwealth authority should prevail over contrary State powers in the national interest while the nation as a whole was endangered. This was clear enough when the nation was at war but could it extend beyond that to when there was just a threat of war? The latter condition has been pretty much the case, as the government would have it, since WW2. Nowadays, with modern weapon technologies, a war could be over and done with in days. So constant readiness is the order of the day, every day. Extensions of the defence power have been upheld by the High Court (e.g. the Snowy Mountains scheme). By the same token extensions of an assumed health power could be determined by the Court as circumstances require.

Lethal viruses and other diseases are becoming more and more a clear and present danger to national health. While we need to be prepared and organised for military threats, it could be argued that we need similarly to be permanently prepared for health crises whether sourced abroad or otherwise, which do not and cannot respect boundaries, and for which consistent nation-wide policies need to be developed and put in place.

The imperative nature of this is being exhibited daily at this time. At his recent media conferences the Prime Minister (Mr Morrison) has constantly deferred to State powers as they respect many aspects of everyday life (school openings, hospitals, hotels and restaurants, public gatherings, etc.) which have prevented a coordinated and orderly approach to protecting and maintaining public health.

This deferral is out of date. Whether or not schools are kept open or closed, whether certain business activities should be allowed to continue, whether people should be allowed to travel, and so on, impacts directly on the Commonwealth’s finances and can imperil the national objective of defeating the threat at hand. How can the Commonwealth budget realistically managed when decisions about employment status is determined by other power centres and vary accordingly? There are direct consequences for the availability of essential workers and their health in the face of an epidemic.

For example, policies for income support and safeguarding business finances will be left in turmoil if the parameters of such policies can be affected and distorted by State government decisions without regard to a national policy – notwithstanding the innovation of a National Cabinet including State and Territory leaders. The fractioning of that arrangement is already apparent, beginning with varying school openings, inconsistent travel restrictions, and limits on public gatherings.

Above all else, allowing state boundaries to determine the geographical scope of specific measures can be quite inappropriate. Conditions in Australia across the continent vary widely. There are regions that straddle state boundaries for which a common policy would be appropriate, even essential. But where State determined regions are enforced with cross-purposes there may be negative consequences The determination of regions as distinct from states is reflected in Commonwealth tax practice where under the Constitution the Commonwealth cannot differentiate between States, only between regions. There could be a similar concept with respect to health practices and policies.

Another example are recent decisions of states to exclude or regulate entry to  and exiting from to their state. I live in Victoria within a relatively few miles of the South Australian border and two of our major service centres are just over that border. The nearest comparable centres are over 100 kms distant. It appears that we have to document our SA entries and exits and thereafter observe a separate self-isolation regime.

Recently on a Sky TV talk back program there was a lengthy discussion of prospective Queensland measures that would require a 14-day stand-off by ships before they could berth and off-load freight. Crews that landed would have to observe further self-isolation periods. The rumoured measures were said to extend to foreign vessels that would have to stand off for the same period before off-loading cargo. Of course neither of those supposed measures would go unchallenged legally. In the case of inter-state trade this would be protected by Section 92 of the Constitution; and the Commonwealth has clear overriding powers with respect international trade. But issues like this would not arise in the first place if the Commonwealth’s powers with respect to health, at least on a national emergency, were made clear and specific.

Once clear Constitutional authority for health was established there could be no more horse-trading between the Commonwealth and the States over hospitals, for the provision of facilities for medical practice (not least in rural areas); for the provision of preventive measures and supplies on a national basis, including the timely availability of materials such as face masks, sanitisers, etc.); and for the avoidance of nation-wide chaos resulting from inconsistent policies with respect to schools and the safeguarding of essential workforces in related areas.

Doctors would object strongly to this on the ground that it hints at conscription. Conscription has varying levels in any event, depending on time, circumstance and need. We have an unaffordable disparity between the over-supply of doctors in the cities and acute shortages in rural and remote areas where medical services fall below acceptable standards.

Like with defence ‘the threat’ is always there potentially. The task is to keep it  at bay. With health, national policies, including a national emergency power, should available and fit for purpose.

Andrew Farran, former diplomat, law academic and publicist, has written widely on public policy issues and on this occasion from the standpoint of a resident living close to a State border.

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Andrew Farran is former diplomat, trade adviser to government and senior academic (public law including international law).

Writes extensively on international affairs and defence, contributing previously to major newspapers (metropolitan and rural). Formerly director of major professional publishing company; now of a major wool growing enterprise.

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4 Responses to ANDREW FARRAN.- A New Constitutional Health Power for the Commonwealth

  1. Avatar ANDREW FARRAN says:

    I wouldn’t necessarily disagree with some of these observations. The Commonwealth’s record on effective delivery is not great, especially in the welfare domain. It’s not great either with Defence procurement. I think the Founding Fathers scanning performance over recent decades would be disappointed. The issue essentially is that parochial politics have displaced purpose as envisaged. Things will continue that way while politics and the parties behind it fail to broaden their base and create conditions for quality recruitment. The base narrows with each generation which must be of acute concern.

    In principle the Commonwealth realm should be the exemplar of Federation.

  2. Avatar roma guerin says:

    I can see that this makes perfect sense, but we are not living in a perfect world. There has been unforgiveable dithering at a National level for far too long which has forced State Premiers to take charge of their jurisdictions. What would be preferable, in my opinion, is a dedicated and independent national medical bureau for response to infectious disease, with the responsibility of advising governments on essential requirements, including mandatory stages of response.

  3. Avatar Dufa Wira says:

    There is plenty of evidence that Australia’s federal system of government is overdue for maintenance but I am not convinced that a wholesale transfer of power to the Commonwealth is any solution. All three spheres of government need urgent maintenance upgrades but a simple top down fix could make matters worse.

    The Commonwealth has a long and inglorious record of poor service delivery. Is there anything that it does consistently well? Social security (36%) – a minimalist approach that leaves millions of Australians living in poverty; revenue assistance to states (20%) – a manipulative short term approach that undermines state strategic management capacity; health (17%) – a wasteful insurance based regime that enriches corporations and fails to support public health and illness prevention strategies; defence and public order (7.5%) – a woeful litany of waste, shameful and egregious wars and offshore concentration camps; education (7%) – ever minimalist and partisan, among the worst in the OECD; and the rest (12.5%) – thin pickings for research, arts & culture, public broadcasting, international diplomacy, foreign aid, transport, environmental services and climate change mitigation.

    The states and local government are pretty crook but they are more transparent and unlike the Commonwealth, they create lots of useful jobs and deliver a range of passable essential services, e.g. NSW: hospitals (30%), roads & public transport (25%); education (22%), police and emergency services (15%) and environment protection and other public services (13%).

    This is not to dispute Mr Farran’s statement of facts, just his conclusion.

    I am deeply ashamed at the dereliction of duty recently displayed by the Australian Customs Service (aka Border Force) by releasing hundreds of people with Covid-19 disease from a cruise ship into the community. The hubris of Border Force officers shifting blame onto NSW Health just goes to confirm my fears about competence in Canberra. The Border Force seem to have fallen for the CofA New Speak, and forgotten they are the Australian Customs Service. Don’t they know that the states ceded their customs functions to the CofA in 1901?

    Over the past few days we have seen the CofA promulgate fresh sets of vague, half baked ‘New Speak’ rules every day, with no clear strategy, no transparency and lots of victim blaming. When they wheel out the bureaucrats to take the heat off their stuff-ups, we see the sort of self serving bullies and bumbling lackeys they appoint to top public service jobs. No wisdom, compassion or vision on show there.

    The poor and disadvantaged who trust them, suffer most. Did they think what they were doing when they renamed the dole, aka NewStart, as JobSeeker, and the dole office, aka CenterLink, as Services Australia. When one million people were thrown out of work in one week, most of them couldn’t work out where to lodge an application. Do they care?

    The one positive thing the CofA has done is to form a national cabinet with the premiers (basically the Council of Australian Governments COAG group – no representation from the federal opposition). I am told this probably happened because a senior Melbourne doctor bailed up Greg Hunt at a party and convinced him they had to do it.

    It hasn’t stopped the stuff ups. Fearing that the CoA’s determined focus on salvaging the economy was threatening the collapse of their service capacity (hospitals and schools) the states have felt they had no option but to close their borders. Families everywhere are panicking about their, often elderly or disabled, family members stranded over the border, a few streets away in some cases. Tough times in Mildura, Tweed Heads and Wodonga.

    If the CofA was less of a bully and more of a leader it need not have happened.

  4. Avatar Malcolm Crout says:

    Calm down folks. The war rhetoric is a nice analogy, but this is hardly wartime and unlike federal taxation, health delivery is a local service that doesn’t remotely share the nature of federal taxation or armed forces.

    Using the same justifications, there would be more reason to nationalise police services than health, but can anyone imagine that scenario. Centralisation sounds a great idea until we drill down and find out the how, where, when and by what means local services are delivered. Taxation may be collected nationally, but it is dispersed by States without any delivery of services.

    We’ve all got pet projects bubbling away in the back of our minds. Don’t let’s get ahead of ourselves and use a crisis to advance our own interests,

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