Defending border protections

Diversity – not unity – is what federalism is about. Australia is a federation and that is not going to change.

But despite this, last Friday’s national Cabinet was supposed to pull the states into line with what Prime Minister Scott Morrison and big business interests wanted – the creation of national rules for border closures, in the belief that such rules would lead to state borders being opened in the immediately foreseeable future. It didn’t happen – it was never going to happen.

The best the Prime Minister could achieve was to persuade the national Cabinet to set up an expert working group to define Covid-19 ‘hotspots’. Presumably the purpose of that exercise would be to introduce an external guideline that would determine when state borders could be lifted (when the ‘hotspots’ are no longer ‘hot’, presumably) or limit state quarantine measures to those hotspots rather than covering entire states as is the case at present.

It will be a pointless exercise, however, for a number of reasons, some of which were discussed by Federal Court Justice Darryl Rangiah in his judgment on Tuesday in the case brought by Clive Palmer against Western Australia over its border closure.

‘First, there is necessarily a time-lag in identifying a hotspot. A person who is infected will be infectious during the incubation period when they do not exhibit symptoms…

‘Second, there are difficulties with geographical identification of a hotspot, for example, by reference to a suburb or region. That is particularly so when considering the time lag in identifying a hotspot and that people have, in the meantime, come into and gone out of the area.

‘Third, a hotspot regime may more readily be circumvented by people providing misleading information as to where they have travelled within the last 14 days. This can be difficult to check and relies substantially upon the honesty of people in circumstances where they have an incentive for dishonesty…’

Later the judge said, ‘Assuming that a targeted quarantine regime or a hotspot regime does not cover the whole of a state or territory in which there is ongoing community transmission, it would be less effective in preventing infected persons from travelling into Western Australia than the existing border restrictions.’

Additionally, the hotspot definitional exercise would be pointless because borders will be opened or closed on the advice of state health officials, who won’t be obliged to take much notice of what may or may not fall within the ‘hotspot’ definition.

The states are moving slowly to ease border restrictions in advance of the High Court’s consideration of Mr Palmer’s challenge to WA. Over the past week Queensland has made it easier for NSW residents to border-hop for business, education, pastoral and other purposes.

Queensland currently bans all travellers from Victoria, NSW and the ACT and its government is in no mood to make major changes.

South Australia is easing restrictions for Victorians living close by while the Tasmanian government is set to reconsider its isolation from the mainland, but not until December 1.

Western Australia is the most interesting, given the Palmer litigation. The High Court referred Mr Palmer’s challenge to the Federal Court for fact-finding, so that the High Court did not have to sift through the evidence of the various experts about the health impact of the WA border closure.

(It is significant that the economic impact has not been litigated – section 92 of the Constitution says trade, commerce and intercourse among the states shall be absolutely free. But the only real issue in the Palmer case is whether the border closure is appropriate and adapted to protecting public health. However, the broader political debate between Canberra and the states has gone beyond the health issue – at least in the view of the federal government and its business allies. Concern about the economy appears to have trumped health as the primary issue.)

Five experts gave evidence in the Federal Court hearing, two called by WA, two for the Commonwealth, and one for Mr Palmer. The judge, for the most part, accepted the opinions of one of the experts for WA, and rejected contrary views of Mr Palmer’s expert.

As a result, Justice Rangiah came to this crucial conclusion: ‘I find that the border restrictions have very substantially reduced the probability that the virus will be imported into Western Australia from interstate. I find that they are effective.’

He also found that other measures, including ‘exit and entry screening, mandatory wearing of face masks on aeroplanes, PCR testing on the second and 12th days after entry and mandatory wearing of face masks for 14 days after entry’ would be less effective than the border restrictions.

However, he said there would be a very low risk of people with Covid-19 entering WA from Tasmania and only a low risk for people from South Australia, the ACT and the Northern Territory.

This finding may suggest to the WA government that it could or should ease restrictions for these states and territories before the High Court comes to decide whether WA’s border closure regime was appropriately adapted to its purpose of protecting the health of everyone in the state.

In the meantime, Justice Rangiah’s findings should put an end to the demands of those who want all border restrictions removed in the name of uniformity, consistency and the national economic interest. Those of us who are fearful of catching the dreaded virus are very happy to have politicians willing to use state borders to help protect us.

David Solomon

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David Solomon is a former legal and political correspondent. He has degrees in Arts and Law and a Doctorate of Letters. He was Queensland Integrity Commissioner 2009-2014.

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