ANDREW FARRAN. State border closures and Section 92

May 21, 2020

It is surprising that there has been little comment on, let alone challenge to, the extent of the States’ overreach with their Covid-19 border closures in the face of Section 92  of the Australian Constitution. This may be changing

Section 92 reads:

On the imposition of uniform duties of customs, trade, commerce ,and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

How absolute can absolutely be?

Initially it was as absolute as one could get it until the States began imposing unspecific fees and taxes on all transportation the interstate truckies got clever and turned intra-State journeys into interstate journeys by picking up in one State, off loading at the border, and reloading for the balance of the journey interstate, thereby exploiting Section 92 to avoid, not evade, the State taxes and charges.

Eventually the States challenged this practice and the High Court decided that where this circumvention was apparent it offended the intended meaning of Section 92 – in effect a qualification on the absolute.

What reasoning would justify further qualification? Administrative law would assist here. Where a law or regulation grants a power to prohibit an activity such prohibition must be directly related to that activity or its underlying purpose (e.g. prevention of fruit fly infection in its horticulture). A broad prohibition of everything would exceed the power and would be invalid or void depending on circumstances.

Currently we have States closing their borders even though they are not prohibiting all crossings. Indeed some border posts have been quite obliging towards residents of an adjoining State living close to the affected border, treating them as part of a wider local community – sometimes with a bit of inconvenience for the visiting resident.

Even if a High Court were to accept that ‘absolute’ could be qualified further with respect to a State’s administration or enforcement of its health laws, there would seem to be, or should be, a burden on the State concerned to demonstrate the necessity to impose controls State-wide on its borders. The presumption that the vulnerability to infections is coterminous with the boundaries of a State and not more appropriately dealt with and responded to  identifiable regions within the State is not beyond challenge.

States like Western Australia  and Queensland are huge and may well have quite geographically limited outbreaks of a disease, in this case Covid-19. Looking at the situation analytically there might be little justification for  crippling a vast tourist industry, or putting breaks on industrial activity, causing massive unemployment and bankruptcies as a precaution against a remote possibility of spreading an infection very much further. Against this some would adopt a ‘proportionate’ approach. Opponents would argue in support of the ‘precautionary principle’.

Not easily resolved. But resolved it can be. But only the High Court can do that. And in the light of some recent decisions, particularly those concerning the eligibility of persons with some measure of ‘foreign’ ancestry to sit in Parliament, that may be less difficult to predict. In the case of Section 92 we might recall the Court’s black-letter reading of Section 44. To do so now over Section 92 would require the States with closed borders to do some fine tuning of their border arrangements.

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