In one relatively short section of the Australian Constitution, section 92, you will find this phrase:
[…] trade, commerce, and intercourse among the states […] shall be absolutely free.
You would think there is not much in it, but it turns out this section is one of the most litigated sections in the constitution.
Australians have taken a special interest in section 92 since mid-March. Debating the constitutionality of state border closures in response to COVID-19 seemed to be trending with everyone staying home to help flatten the curve.
Legal challenges on border closures are already underway in the High Court, with arguments of its constitutionality.
Now, this interest in section 92 is being rekindled with the partial re-opening of borders between South Australia, Western Australia, the Northern Territory and Tasmania.
With Australia being one country, it was hard enough to accept it is constitutional for states to close their borders, but now South Australia seems to be offering travellers from these states and the territory special treatment.
West Australian Premier Mark McGowan has more recently suggested the partial opening of borders may be unconstitutional. Is it?
The issue is not the partial opening of borders. It is the rationale for these actions.
When South Australia announced this partial re-opening, it also indicated it plans to open its borders to all remaining states by July 20. The issue then is whether South Australia’s discrimination against New South Wales, Victoria and Queensland can be justified by efforts to prevent a second wave of COVID-19 deaths.
Since 1988, the High Court has interpreted section 92 as prohibiting discrimination of a protectionist kind – that is to say, the section prevents states from passing legislation to restrict trade. In the 1988 case of Cole v Whitfield, the High Court, in a unanimous decision, upheld Tasmanian regulations prohibiting a person from taking, buying or selling crayfish of less than a prescribed size, whether or not taken in Tasmanian waters.
In the course of his interstate trade, David Whitfield brought crayfish from South Australia to Tasmania for the purpose of sale to mainland and overseas markets. The crayfish were less than the prescribed size under the Tasmanian regulations, though above the prescribed size under comparable regulations in South Australia. The court explained in the decision that the legislation was not protectionist in nature. It was intended to help protect Tasmanian crayfish rather than restrict trade. The court elaborated in the following terms:
[D]iscrimination commonly involves the notion of a departure from equality of treatment. It does not follow that every departure from equality of treatment imposes a burden or would infringe a constitutional guarantee of the freedom of interstate trade and commerce from discriminatory burdens […]
As was the case when all states decided to close their borders, the legal issue is whether the purpose of the closures is to restrict trade or to help protect the citizens of each state from becoming infected with COVID-19.
The orthodox view among Australian constitutional jurists is that section 92 does not allow for a balancing exercise between the competing interests of free trade and combating a pandemic. This might well be a question for the High Court to elaborate on when deciding the legal challenges brought against the Queensland government.
At a different analytical scale, the issue is not the interpretation of section 92, but rather the effect of crises on the interpretation of our constitution.
This interpretation is not impervious to pandemics or other crises. We see this in what are known as purposive powers, such as the defence power in section 51. In times of war, the core of this power will expand to equip the Commonwealth with the type of intervention necessary to keep Australia safe. There is no reason this rationale would not extend to pandemics.
Enter the principle of subsidiarity. Elsewhere, I have argued the Commonwealth Constitution is superior to the Canadian and US constitutions, because it is more efficient. It allows for a wider area of concurrent powers. Our federal model is more agile, in the spirit of true subsidiarity, with its rules of assistance, non-interference and helping states acquire more competencies over time.
It is this principle of subsidiarity that holds the key to understanding the constitutionality of border closures and partial re-opening in response to the coronavirus pandemic. The states are best positioned to judge what intervention will work best in their case.
In the time of crises, no one size fits all.
Editor’s note: this article adds to the information we already published for New South Wales, Queensland and Victoria, and we will endeavour to update with information as we are able to collect it.
What you can and can’t do under the coronavirus restrictions seem to vary from place to place so no wonder people have turned to Google for answers.
According to Google Trends, some of the top coronavirus searches nationally in the last few days include “can I visit my parents coronavirus Australia?”, “can I go fishing during coronavirus?” and “can I go for a drive during coronavirus Australia?”
“Can I visit my boyfriend during coronavirus Australia?” was also a common one.
This time we asked legal experts – Benedict Sheehy in the Australian Capital Territory and Mark Giancaspro in South Australia – to help shed some light on what the new rules might mean for residents of their state or territory.
Benedict Sheehy, ACT: The ACT government is rolling over a set of declarations and there are day by day changes. That is what you might hope for with a small population and a government that is seeking to be flexible.
The declarations are currently less restrictive than those in New South Wales and Victoria. They include fines of $8,000 for breaches by individuals.
The declarations have the same emphasis on reducing gatherings of more than a few people, through to mandatory closure of “non-essential” venues such as gyms, restaurants and museums in line with the national government.
The declarations are likely to become more restrictive in line with spread of COVID-19 and national government policy. Like other parts of Australia there are uncertainties about specific aspects, particularly how they will be interpreted by the police and ordinary people.
At this stage there aren’t tough restrictions. Visits by children who do not normally live with their parents are permitted for “care and support”, including food delivery and other assistance. Visits by friends are also permitted.
The declarations aim to restrict unnecessary visits rather than provide a comprehensive lockdown of elders living at home. But aged care facilities are restricted.
Mark Giancaspro, SA: The SA government has taken direction from the federal government in advising South Australian residents to stay home unless it is absolutely necessary to go outside. There are fines of $1,000 for people who fail to follow the rules on self-isolating.
“Non-essential” visits include social visits to family and friends. But in SA, gatherings of ten people or fewer are currently permitted provided social distancing rules are adhered to (though a limit of two people per gathering is “encouraged”).
If your parents are in a residential aged care facility then a recent direction from the Chief Executive of SA Health prohibits visitation.
In any event, the federal government advises those aged 70 or over (or 65+ with chronic medical conditions) to avoid contact with others to reduce risk of infection.
An obvious exception, which is regarded as “essential” contact, is where care or support are being provided by the visitor.
Benedict Sheehy, ACT: There is no specific restriction but considerable uncertainty. Campgrounds, playgrounds and information centres in Namadgi National Park and the Parks and Gardens facilities are closed.
Most wildlife areas and parks are still open “providing the community access to nature for recreation, health and wellbeing”. The declarations allow non-social outdoor exercise.
As things stand people can apparently go bushwalking or fishing as long as they are not in a closed location (sometimes still closed after the bushfires) and maintain physical distancing 1.5m from others.
Mark Giancaspro, SA: Again, SA is taking advice from the federal government and stipulates that South Australians may leave home for “essentials”, including exercise “in a public space such as a park”, with a limit of two people applying.
South Australians are permitted to visit parks, including bush and walking tracks, provided they have not been ordered to isolate and the parks are in their local neighbourhood. Most South Australian parks remain open to local visitors.
There is no firm direction as to fishing but the federal government said Australians are required to stay home unless it is essential they go outside.
Recreational fishing, therefore, would not be deemed essential. But if this is in the course of employment or to attain seafood for consumption, this would appear to count as an “essential” activity and be allowed (subject to social distancing requirements).
Can mosquitoes spread coronavirus?
Benedict Sheehy, ACT: Occupancy in major carparks appears to be down by around 80% . There are no reports of police pulling over motorists with questions about whether travel is essential.
Public transport and taxis are still operating. The expectation is that people will use common sense. Public and private transport will be used for travel to workplaces with an essential status, childcare, for buying food and other supplies, visiting the doctor (queues for flu shots in several locations) and visiting friends.
Mark Giancaspro, SA: Yes, provided this is for the purposes of undertaking an “essential activity”. This includes travelling to: markets for food shopping; public spaces such as parks for exercise; medical facilities or pharmacies for appointments or to collect medications; to work (if you cannot work from home); or to another person’s home to provide them with vital care or support.
It is otherwise required that you stay home and avoid travel.
If you drive beyond the state borders, which is highly discouraged, you may be subject to entry requirements. On return you will also be subject to strict measures including compulsory isolation for 14 days.
Benedict Sheehy, ACT: People are still visiting loved ones or friends, subject to restriction on visits by people who are quarantined.
You are not permitted to visit boyfriends/girlfriends if either are subject to any are in self-isolation (people who have been diagnosed as having COVID 19) or self-quarantine (people who are travellers returning to the ACT from an international trip).
Mark Giancaspro, SA: Yes, provided you adhere to the limitation as to gatherings of people, as well as the social distancing requirements.
Benedict Sheehy, ACT: The declarations allow outdoor exercise and walking to the shops. The restriction emphasises physical distancing rather than a curfew or ban on being outdoors.
The declarations contains no specific instruction concerning park benches.
Mark Giancaspro, SA: Yes. In fact, this is recommended if you plan to exercise, as open spaces provide opportunities to stay active and healthy while also abiding by social distance requirements.
This is again subject to limitations on the number of people assembling. You should not go for a walk or sit on a park bench with more than one other person.