Quarantine: States also have powers to make laws

Feb 12, 2021

Commentators have repeatedly drawn attention to the section of the Commonwealth Constitution that apparently makes the Federal Government responsible for quarantine. However, this is not an exclusive Commonwealth power.

As was made clear during Clive Palmer’s unsuccessful challenge against the Western Australian government’s action in preventing him from entering that state, the states also have powers to make laws and regulations about quarantine to protect their residents.

It is true, however, that the Constitution gives the Commonwealth power to make its laws about quarantine (and just about everything else in section 51 of the Constitution) exclusive. Using section 109 of the Constitution, which allows laws of the Commonwealth to prevail when there is conflict with state laws on the same subject matter, the Commonwealth can displace any legislative regime established by one or more states in this area.

What’s more, the Commonwealth already has in place a law – the Biosecurity Act 2015 – that allows the Commonwealth to make rules and regulations that can in fact overrule and displace the quarantine laws of all the states and territories.

But it has not done so in relation to the current pandemic.

There are good reasons why, and also why it has been wise for the Commonwealth not to have acceded to the demands of critics and so prevent the states and territories from imposing their various border closures and city and state lockdowns.

It can be argued that the best way for Australia to respond to outbreaks of Covid-19 is on a local level – something that would have been extremely difficult for the Commonwealth bureaucracy and its political masters to handle.

Additionally, that same Commonwealth bureaucracy would have found it extremely burdensome, if not impossible, to properly administer and police any regulations it imposed. It should be remembered that the Commonwealth had to contract out to the NSW authorities responsibility for handling the Ruby Princess – the border force apparently doesn’t handle most shipping. Airports are its specialty. And Indonesian fishing boats.

Although the Commonwealth was relatively quick to impose a ban on flights out of China once it was clear Covid-19 was spreading there, it failed to impose a similar ban on flights from the United States when Covid-19 was beginning to spread in that country. Wouldn’t want to offend the American President (who didn’t believe the virus existed at that stage), would they. That should have been an irrelevant consideration. Was it?

Most Australians are better off that the Commonwealth did not assert leadership and control. Had it done so the views expressed by the Treasurer and other senior ministers would have meant that lockdowns, had they occurred at all, would have been much shorter, and that state borders would probably have never been used to limit travel within Australia.

As it turned out, the States (though NSW with some hesitation) put health and safety above economics. Most people would probably agree the States were right to do so. As it also turned out (though no one predicted this) the economic consequences of shutdowns and isolation were nowhere near as severe as the Commonwealth and other critics feared.

Now we are moving into a new phase, where the Commonwealth is solely in charge. It alone is responsible for obtaining and distributing the vaccines (though it will depend partly on the states and territories to assist in the administration of the inoculations).

We have been led to believe the Commonwealth has done a superb job in this area. Back in August the Prime Minister declared that Australians would be ‘among the first in the world to receive a Covid-19 vaccine’.

Subsequently there was some toing and froing about exactly when the first vaccines would be administered – March perhaps, or mid-February – but it now seems that it will be towards the end of February before the any serious quantity of vaccines will be administered.

To put this in perspective: as at 7 February (according to Bloomberg) 128 million doses of vaccine had been administered in 73 countries. In the US, which thanks to ex-President Trump was less prepared than most other countries for the pandemic, more than 40 million doses have already been administered and the current rate of inoculation is just over 1.4 million a day. By the time Australians get their first shots, about 70 million Americans will have had their first shots, as will about 20 million people in Britain.

It is true that Australia is better off than those countries – indeed, most of the world – because the disease has been controlled here better than almost everywhere else.

Its also true that we won’t be ‘among the first in the world’ to get the vaccine.

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