States of chaos: internal border closures a disaster during pandemic

Dec 9, 2021
Queensland state border
Keeping state borders closed is at odds with the constitution. (Image: AAP/Jason O'Brien)

Free movement between the states is central to the Constitution — long-term lockdowns and officious regulation will have dire consequences.

It is understandable that the Australian constitution was drafted to exclude the Commonwealth from having exclusive health powers over the states. The infamous and perilous post-World War I influenza pandemic hadn’t then been experienced — nor had the nationalisation of industries been raised as a legitimate economic measure. Health issues and their control were seen as being too close to home to centralise and so remained with the states.

Since 1901 Australia had been seeking to establish a national identity that could embrace and display to a wider world. World War I exploits were seen as indicative of the national emergence. As Paul Keating has pointed out, our World War II exploits in the Pacific did that even more so. The events of November 11, 1975, questioned whether we were still to some degree tied to the colonial yoke, but few would question now that we are a nation among nations, particularly in our region. But the 2019 pandemic has posed serious questions as to the viability of the nation federally.

The constitutional founders might have been advised not to leave health matters where they did. But the states, being vested with the residual powers, have seized the opportunity which the pandemic has provided to assert those powers and their ‘‘sovereign’’ status within beyond reasonable measure and in doing so threatened national unity.

The founders anticipated such domestic expansions by injuncting in Section 92 that trade, commerce and intercourse among and between the states shall be absolutely free. For example, following World War II there was public advocacy to nationalise the medical profession, and then the banks, which were resisted tooth and nail until the judiciary and a change of government in 1949 removed the danger. Section 92 was central to the process.

It is worth noting that Section 92 is the only provision in the constitution that addresses an issue of human rights — the individual’s right of freedom of movement. A recent judicial challenge to state border closures in the High Court pursuant to Section 92 was unsuccessful at the time as the closures were seen to be justifiable as a means of containing the pandemic. The decision turned on the facts of the case rather than the letter of the law. Notwithstanding the circumspect nature of the judgments they provide a clear indication of the court’s broader thinking should a stronger example of government overreach arise in the future.

Jurisdictional issues between the Commonwealth and the states are well and good in the abstract but can compound difficulties and create confusion on the ground when demarcated without regard to the variable nature of regions when dealing with the spread of a lethal virus with variable manifestations. State borders do not define inherently the appropriate units for disease management especially when common regions encompass extensive areas on both sides of a given border. To perpetuate state sovereignty on that basis is not conducive to national unity, especially as individual lives can be arbitrarily and adversely affected by what is in effect an organisational anomaly.

Some earlier border closures may have appeared proportionate, as found by the High Court, but were nothing compared to disruptions since to critical supply chains involving massive trade and transport operations throughout the nation. Those closures adversely affected the daily lives of ordinary citizens living on or close to a border, especially the borders of Victoria, NSW, Queensland and South Australia. Not uncommonly citizens were denied access to doctors, hospitals, and other essential services without reason or compassion when access would be just a few kilometres away but for a state line.

Emergency responses were often too late or cumbersome to make due to red tape. The social fabric was torn within otherwise natural regions. The logic and sense of that was rarely explained because it couldn’t be.

The exemption system in Victoria designed to allow exceptions for hard cases or prioritised persons has just been condemned by the State Ombudsman as unjust, inhumane and lacking in compassion. Only a small percentage of applicants (8 per cent of 33,252) were in fact approved, in spite of many being fully vaccinated and returning negative Covid tests, causing incalculable distress to numerous families in particular. Clearly it is a system, or its administration, that should never be repeated anywhere in Australia.

The border bubble system has worked satisfactorily to a point but where a resident has need to leave the bubble, for instance to deal with a matter or situation close by or to visit a major service centre outside the bubble, this can result in the loss of crossing permission, to be regained only a week or two later after further on-line applications and Covid tests. Permission to cross can be withdrawn at any time without explanation, trapping a traveller unexpectedly in quarantine or compulsory isolation on the wrong side of the relevant border. Farms straddling borders have been treated like as being in separate countries.

Testing requirements can be described as excessive and onerous for many, particularly tradespeople and farmers who need to transit regularly. Finding a convenient testing facility, especially when in an unfamiliar location, can be problematical. Overly frequent and thoughtless nasal probes can be damaging. These testing regimes reached ridiculous levels, especially in the Albury-Wodonga region and along the Murray River. Too frequently the kerfuffles caused in those locations could only be compared to a mad-hatters’ tea party. Is this how we choose to be governed!

Over and above are the varying conditions for entry, without rhyme or reason in numerous cases; and their enforcement by sometimes inadequately briefed police and officials administering laws and regulations (particularly the latter) often difficult to understand, and often at cross purposes.

Even more problematic is the unrealistic reliance by public authorities on the public’s understanding of complex digital systems for communication. The assumption that all citizens are tech-savvy and have full command of relevant systems is brave if not heroic. Being required to apply for border passes through so-called MyGov and related apps can prove a nightmare. It is worse when responses to attempts at correcting factual errors in the system come via ‘‘no reply’’ links. One can be caught in a perpetual trap, unable to interrogate the system sensibly. As a consequence of these complex processes a user can be led to an inadvertent dead end, with little or no evident means of redress without having to resume another circular process with lengthy delays.

This is a particular issue for Victorians wishing to travel by air from Melbourne and transit to their homes or businesses in the Western District or the Wimmera, in that the air service concerned terminates only in Mount Gambier and passengers are faced with the full regulatory rigmarole as if they were intending to reside in South Australia. Apart from car and dangerous roads there is no practical alternative.

The above measures and processes are designed essentially to avoid states having to come to terms with living with the virus of whatever variety, and will continue until the political balance changes. It has done so in Victoria and NSW and possibly in Queensland, where regression remains an ongoing concern. Western Australia and South Australia may argue as being sui generis on account of Indigenous vulnerabilities to the virus but their stance would seem more political than scientific, pandering to popular views about containing the virus. Lockdowns and officious regulation are self-defeating in the long run and if continued will lead to the atrophy of the nation, including the economy and a loss of enterprise.

What is needed is a National Joint Health Commission consisting of experienced commissioners advised by a panel of experts in the areas of medicine/infection current or emerging, and that decisions, whether they be on testing, tracing and lockdowns, be directed to where incidents exist, exercising proportionality with due attention to facts on the ground. There should be a national legislative framework around this to which all governments — Commonwealth, state and territory — should subscribe. Funding would be joint in much the same way as at present but responsibility for quarantining should remain with the Commonwealth which should complete extended projects for establishing acceptable complexes in all regions where they are clearly required. We cannot assume that pandemics are not here to stay, foreseeably anyway.

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