Section 92 case decided but Court’s reasons still awaited

Jan 14, 2021

If national unity and the Federation were endangered in 2020 it was thanks to the Commonwealth government, the States, and the High Court, which bypassed a fundamental principle of the Constitution designed to secure the Federation and prevent discrimination among the States and their citizens.

The principle enshrined in Section 92 – concerning the ‘absolute freedom’ of movement’ within the Commonwealth – is the touchstone against which any derogation from the principle in any particular circumstance is to be judged. Section 92 exists in the national context. It is not a separate source of power to either the Commonwealth or the States. It is a constraint on their powers. It is designed to protect national integrity and to ensure that all citizens of Australia are treated as citizens of Australia. We are all connected. One’s State of residence is secondary and circumstantial. In health and other matters States may be found to exercise their powers extraterritorially. In so far as they impact on other States and the Commonwealth generally, not just incidentally, the national implications may be direct and damaging and should be contained.

Both the Commonwealth and the States, through the current pandemic and beyond, have been happy to ride roughshod over Section 92; yet the High Court and the Commonwealth Attorney General have both failed to uphold this fundamental principle, guaranteed as it was to all generations by the Founding Fathers.

The opportunity to provide some clarity as to the scope of Section 92 in relation to freedom of movement in the context of a pandemic arose in the case of Palmer v. Western Australia decided on 6th November 2020 . The Court found that the relevant WA statute and the regulations made pursuant to it restraining cross-border movement did not raise a Constitutional issue notwithstanding the argument submitted that they offended Section 92. The Court indicated that it would publish its reasons at a later date. So far the Court has not done so. Given the existing confusion not to say chaos surrounding the closure of Stare borders, and the imperative need for some clarity in this regard, the delay is unfortunate.

By way of background it will be recalled that heads of legislative power were granted specifically to the Commonwealth under Section 51 of the Constitution in 1901. Public health per se was not as the States were keen to retain that area subject to the other powers granted to the Commonwealth. When the Constitution was reviewed in 1928 responsibility for Public health was again an active issue but nothing changed except for the fact that the States became more than ever dependent on the Commonwealth to finance their hospitals and health care nationally by way of social welfare. As with other heads of power they tended to expand or evolve in the light of experience. It cannot be said that pragmatically the states were ever ‘sovereign’ in this area as public health impacts on many other areas of national life. A specific health matter that bears on this is the Commonwealth’s power with respect to quarantining overseas entrants to the commonwealth and its territories whether they be nationals or foreigners however defined. In the ordinary way the quarantine power itself must be exercised proportionately. For the Commonwealth to extend the exercise of that power so as to frustrate the purpose of Section 92 would be an overreach. We are yet to know how the High Court might view this. In all these matters there will remain questions of the national interest.

The exigencies of a pandemic emergency, properly determined, may displace a presumptive principle where the exception can be shown to be proportionate. Given the variable factors that make an emergency an ‘emergency’ there will be difficulties in determining the limits of this exception. Case law is lacking to assist this process in regard to pandemics, which makes it all the more desirable that the Court should take the opportunity to outline a framework of construction within which predictable situations might be anticipated – in particular border closures and the potential to take account of varying regional specificities. The lack of consistency across the Commonwealth is clearly prejudicial to national cohesion, efficiency and personal justice. The legality or illegality of enforcement measures is left in a vacuum. If the Commonwealth government were confident about its legal standing in this area, as it should be, it could provide the national leadership needed but now evidently lacking.

When citizens are advised at short notice that they must return to their State of residence by an arbitrary deadline to avoid being kept from their homes, regardless of family circumstances, current whereabouts, and other practicalities, all without redress, prima-facie something is amiss. There have been numerous accounts in the media lately about the distress and endangerment these arbitrary impositions have caused – with ill explanation or justification as to their basis. The confusion and congestion on the Victorian/NSW border at Albury/Wodonga was notorious and insufferable for the locals. Less understood is why, for example, the whole of Queensland, an enormous State (as with Western Australia), should be closed off when incidences of the virus were localised or otherwise well distanced from a border.

Citizens have a reasonable expectation if not a right to equitable consideration unless one takes the view that Australians, for all their struggles, have no rights to speak of or that such as they may have can be circumscribed and trammelled into non-existence. A further incalculable cost or consequence of these bureaucratically driven actions is the social and mental harm they ordinary people.

Over and above these considerations is the disruption to trade commerce and business, especially in the border regions, that these border actions cause, not least the impediment to the movement of cross-border trades and agricultural labour, essential for local production and the viability of local businesses and the wider economy. The creation of border bubbles, the boundaries and administration of which can be haphazard, often defying logic. Even with some form of ‘passport’, delays at or approaching border checkpoints, and their inordinate queues, can cause serious agitation and distress, especially in life threatening situations.

The Hugh Court’s reasons in the Palmer v. WA case are still awaited

Reasons for the decision can only be speculated upon in their absence.

It might have been expected, following the Court’s decision in the Parliamentary eligibility case (concerning the meaning of the words ‘foreign power’) that it would maintain a strict construction in this case of the words ‘trade, commerce and intercourse among the Stares shall be absolutely free’ – without qualifying the words ‘absolutely free’. But qualify those words the High Court must have done. We will learn why and how the word ‘absolute’ can mean other than what it says.

When the Court’s reasons have been published we will attempt to come to grips with their implications in the light of recent experience and what can be anticipated for the future.


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