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

Mar 26, 2020

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This deferral is out of date.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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