Section 92 of the Constitution lost to shortsightedness

It is a pity that the Commonwealth has formally dropped out of the Clive Palmer challenge in the High Court over State boundary closures as offending Section 92 of the Constitution – though prior to that it had made a written submission to the Court. The issues transcend Mr Palmer’s interests.

Politically the governments of Western Australia, South Australia and Queensland may have strong electoral support for their border policies. But that should not deter the Commonwealth Attorney General from performing his duty as the Commonwealth’s chief law officer to protect and uphold the integrity of the Constitution.

The above States have imposed blanket measures to pursue a single purpose, critical though that purpose might be. Just as the objective of curbing the virus may be at cross purposes with those of protecting the economy, so too are comparable cross purposes between maintaining the ‘absolute’ right of citizens to freedom of movement throughout the Commonwealth and the achievement of an asserted transcending legislative purpose of a State, far in excess of what the law might justify. A heavy handed approach by the States does not assist in resolving these important conflicts of aims. What is required in this area are clear criteria, consistency and legality.

While Section 92 binds both the Commonwealth and the States it behoves the Commonwealth to take the initiative given that Section 92 would not by its intended purpose preclude necessary measures being taken in the national interest. In the initial phases of the pandemic it was thought, as with the First World War, that it would be over in a few months; and governance issues were developed randomly without regard to their rationality and consistency across the board. It is now more than likely these border regimes could go on and on for many more months, requiring (but unlikely) greater certainty as to the law and citizens’ rights.

It would also assist if the respective powers and responsibilities of the Commonwealth and the States with regard to national health could be clarified in law so that accountability can be made more real. There was an expectation that the so-called National Cabinet would obviate buck-passing in this regard but experience has demonstrated otherwise. Now an increasingly urgent task for the future (see also: https://johnmenadue.com/andrew-farran-a-new-constitutional-health-power-for-the-commonwealth/).

A principal concern about the existing situation is the fact that many of the State measures are far wider in scope and severity than they need to be for the achievement of their alleged purpose; the fact that they lack consistency from State to State creating negative consequences and anomalies in different parts of the nation. For instance, it doesn’t make sense to treat those living and working in what geographically is a common region apart from the border demarcation as if they were closely aligned to far off but separate metropolitan regions where viral spikes and clusters may actually exist. Regulations drawn up in the capital cities may easily turn out to be unreal when applied in undifferentiated rural locations.

Farmers and truck drivers living and operating on and over a border can face specific difficulties. One is a SA requirement that they be Covid tested within seven days before each crossing which creates a catch 22 situation when available testing on their side of the border is beyond the 40 kms distance from the border that qualifies them as being members of a designated border crossing community. Some States do not have designated border crossing communities (NSW) which would otherwise facilitate, often critical, cross border activity, e.g. medical services, orchard planting and picking, and sowing and harvesting crops, thereby avoiding the many difficulties experienced along the course of the Murray.

In short, what is lacking for a sensible regime is settled criteria to measure and determine what kind of constraints and restrictions would not violate the spirit and intention of Section 92, so that those that would violate its spirit and intent may be held invalid. Meanwhile the latter may have, and do have, serious but avoidable negative consequences for communities, consequences that adversely affect significant sectors of economic activity as well as the mental well-being of vulnerable people in the affected areas. The only body that has authority to provide a legal basis with the requisite criteria for these situations is the High Court of Australia. To keep it on the sidelines in these circumstances is tantamount to an omission somewhere of a legal duty.

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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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