The High Court must rule on State border controls before more businesses are bankrupted and family relations traumatised.

Sep 28, 2020

No government, whether Commonwealth or State, has primacy over movement across State borders. Primacy lies in the Federal Constitution which states in Section 92 that “trade, commerce, and intercourse among the States … shall be absolutely free”. A distribution of powers does not come into it.

Whatever powers a State may assert in this regard cannot be absolute in nature or involve the total prohibition of cross-border movement. At best they can involve some reduction from the prescribed absolute standard without vitiating free movement overall. How and in what respects that degree of reduction may be found has to date been a matter of unilateral determination by individual States. In other words anarchy prevails.

Clearly this is a most unsatisfactory situation as it goes to the heart of the nation’s viability in key areas of its existence. Indeed, the present situation poses nothing less than an existential threat with potentially profound negative consequences. If this were an external threat we would be mobilising military forces to meet it. But instead this vacuum is being exploited for parochial political purposes by all parties with little regard for the fact that over and above we are one nation. Any threat to the Federation, such as threatening secession, would be suppressed in short order. The threat here and now is no less.

Well one might say, the pandemic has presented an even greater threat to all than might secession. But if it can be shown that in tackling the former the cure can be seen as being worse than the disease, which would allow one to examine in what respects the ‘cure’ is excessive of need. To that extent State regulation which negatively affects cross-border border movements would prima facie be in breach of Section 92. The High Court has acknowledged that some derogations from the ‘absolute’ are both necessary and permissible. But these were cases involving the regulation of cross-border movements, not their prohibition, and largely related to tax avoidance issues concerning what in reality was intra-state as distinct from inter-state transportation.

Other issues arise from the appropriateness or otherwise of State boundaries being the delineating units for disease control without regard for the different circumstances and interests of rural and remote areas, or the dislocation of common border communities otherwise remote from the disease. Or where border communities straddling a major highway are subjected to absurdly incompatible State administrations as has occurred around Albury/Wodonga, Mildura, and the South Eastern Queensland/North Eastern NSW borders. Difficult practical and scientific questions concerning relevance and proportionality may contradict or overlap, making it impractical to seek resolution other than by arbitrary unilateral determination on one side or the other.

A difficulty in obtaining a High Court determination is that the court is not disposed to making Declarations of an all-encompassing nature. Rather it deals with matters case by case, turning on the specific circumstances, which means that it takes time to build up a body of case law from which generalisations may be drawn. This means also that there needs to be sufficient litigants with the wherewithal to fund the cases. However there is nothing to preclude either the Commonwealth or the States, or both, from approaching the Court and in the public interest requesting clarification on Section 92 drawing on recent experience with the pandemic.

While the Court might respond by saying the remedy might lie within existing constitutional processes, to wit a Referendum. But even the Court might appreciate how difficult it would be formulate an intelligible proposal on these issues that could be put to the people free of manifest complications.

One thing which is clear is that for the sake of national cohesion and economic survival we cannot again go through similar border experiences in future. While the question of where the legislative power with respect to health should lie was contentious at the time of Federation and again when the Constitution was reviewed in the late 1920s – hence it was not granted to the Commonwealth – it alone has, as as we have seen, the potential to take over and subsume aspects of national life, even survival, far outweighing the health issue alone. Again it is a question of proportionality in all things, not least control over State borders.

Next time there should be a central co-ordinating power at the controls to steer the national interest in these crucial matters.

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