ANDREW FARRAN. Pandemics, paradoxes and the Federal system

There is still a question as we continue to confront the coronavirus whether the Constitution with respect to health and education needs clarification so that the imposition of border closures, regional lockdowns, school closures, etc., and decisions having legal implications, can be better determined.

At the Commonwealth level we have departments of Health and Education.

At the States’ level we have departments of Health and Education.

As for the Commonwealth, it was not granted legislative power under the Constitution with respect to either health or education, though some health matters may be seen as incidental to its border powers (e.g. bio-security and quarantine). What (political) power the Commonwealth has in these areas is derived from its capacity to fund the States and steer them in preferred directions. The States do have legislative powers with respect to health and education by way of a residual power, in that any head of power not granted specifically to the Commonwealth remained with the States.

The question of the adequacy or otherwise of personal protective equipment for front-line medical staff treating Covid-19 cases in particular, and the populace more generally, is for the Commonwealth a political matter concerning funding and the execution of its import and export controls. Otherwise it is largely the responsibility of the States.

The question whether schools should be open or closed, and over what periods, is a matter essentially for the States, regardless of consistency from one State to the other. That is, education at pre-tertiary levels is primarily a States matter.

The National Cabinet arrangement (Commonwealth, States and Territories) is hybrid in structure and is not vested with legislative or executive powers of its own. While it facilitates a useful measure of coordination between the respective authorities, it is not accountable to anyone directly and entails a democratic deficit.

For my earlier item on the health power per se, click here.

Where recent experience gets interesting are the border controls imposed by States over lock-downs. These would seem to fly in the face of the still significant Section 92 of the Constitution which states that “trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free”.

What these words mean have been the subject of extensive litigation before the High Court, mostly in relation to interstate transport, where most States had imposed fees and charges specific to interstate transport.

Following half a century tapping into this once inexhaustible litigious gold mine, the High Court ultimately determined that ‘absolute’ in Sect 92 did not mean absolute in all situations, and that its meaning had to be determined in a more specific context, not just one in which its exploitation was focused on the avoidance of taxes and charges. The games that the transport industry got up to avoid any charge, reasonable or not, are legendary and evidence of these can still be seen in towns close to either side of a State border.

In the present Covid-19 situation many people have been adversely affected by some pretty rough and ready border controls, and ‘regulations’ imposed allegedly to prevent cross infection of the virus. These people may have legitimate grievances. The issue essentially arises from poorly drafted regulations that may have overstepped the mark and led to absurd consequences where, for example, a farmer has to travel a hundred kilometres or more to get from one side of his property to the other, as the only long-standing crossing point at the border – a bridge just down the road – has been closed (absolutely).

This is where Section 92 comes in. The closure of the bridge may be legitimate for a larger public purpose properly defined but not where it ignores the purpose and intent of the section entirely; that is, where no facility or opportunity exists for differentiating respective purposes – that of the State and that of the section in its wider sense. To block the bridge and walk away should not do.

The unprecedented regulation of truck queues at the SA/WA border in the early stages was another example of arbitrary rule at best. So too for the elderly negotiating borders close to home when seeking medical assistance.

More people than one might think have been caught up in these anomalies, indeed absurdities, since the virus struck and have felt powerless to deal with adverse situations. Of course they could run to the High Court with all the cost and uncertainty that would entail. Obviously they would not do so unless they had suffered some dire consequence. But that unreal option doesn’t deal with real day to day issues in the face of a sometimes uncomprehending bureaucracy.

The immediate lesson is that State officials could be better versed in the drafting of regulations, mindful that their purpose is not the only consideration on the day.

Another issue is whether the Constitution itself with respect to health and education needs clarification so that the imposition of border closures, and the determination of acceptable and unacceptable activity in a lock-down, and ‘reasonableness’ in its administration, can be better managed in future. Perhaps a zoning system in some areas that does not necessarily follow state boundary lines but which describes and embraces a discrete locality might also work better.

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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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