The wild west channels those old secessionist dreams by refusing to get on Scott Morrison’s COVID bus


Michelle Grattan, University of Canberra

The national cabinet, created to impose maximum unity on Australia’s response to COVID, has formally fractured. It hasn’t broken altogether, but the rubber band holding it together has been stretched too far and has now dramatically slackened.

Scott Morrison, who created the body to maximise his authority in a situation where the federal government did not have constitutional power, finally came up against the limits of his construct.

Morrison announced after Friday’s meeting that from now on, national cabinet will no longer operate on a consensus model; it will acknowledge differences rather than striving for unanimity.

Of course, previously there wasn’t unanimity on some critical issues – schools, borders. They were pushed off and states simply went their own ways.

On Friday, seven of the eight states and territories agreed to aim to open things up by Christmas, using some “hotspot” approach as a basis.

Western Australia was the one jurisdiction that opted out. With an election next year and sky-high popularity based on the success of a hard border, WA premier Mark McGowan was never going to limit his options.

The other major rebel, Queensland’s Annastacia Palaszczuk, has signed up to the December aim, but she has left herself the wriggle room she needs.

She hasn’t agreed to a particular definition of a hot spot. The Queensland election will be over by the end of October, and you can be confident she’ll run her own race until then.

Morrison likened the situation to getting people onto a bus. “Not everyone has to get on the bus for the bus to leave the station”, he said. “But it is important the bus leaves the station, and we all agree on that. […] Even when, on occasions, some might not want to get on, they know we need to keep moving forward.”

Morrison originally had hoped to have the health advisers settle on a hotspot definition, on the basis of which he could pressure states to bring down borders.

But it became clear that hope would fall at two hurdles. The federal and state health officials, who come together in the Australian Health Protection Principal Committee, did not all embrace a definition. And the outlier states would not cede their autonomy.

Like the national cabinet, the illusion of unity in the AHPPC – which operated on a “consensus” basis – has ended. The federal government has produced its own definition, but what will be more generally accepted as defining a hotspot remains a work-in-progress.

The federal government has been for weeks trying to arm-twist Queensland in particular. But the power over borders resides with the states, and they will use it when it’s in their interests to do so.

McGowan was blunt. At a news conference after the meeting, he described WA as an “island within an island” (shades of that old WA secessionist feeling), and boasted how well it was doing economically.

“We’re very, very proud West Australians but we’re also loyal Australians. States rights mean that premiers and state governments can do what they have to, in my view, to protect our citizens and protect our jobs. But we’re still part of the commonwealth, we’re still part of the nation. We still serve in the defence forces. We’re still Anzacs.”

He hoped the east of Australia would come to an “even greater appreciation” of what WA did for the country. “We carry the nation’s economy.”

McGowan spoke positively about Morrison; earlier Morrison had stressed special circumstances applied to WA. Their mutual public amiability reflected there had been a test of strength, and McGowan had won. It wasn’t for the first time. Some weeks ago, the federal government pulled out of Clive Palmer’s case against WA, under the weight of WA public opinion.

It’s part of Morrison’s pragmatic style to pivot when he is rebuffed. He seeks another route to his objective. An assertive stance is replaced by a conciliatory one. When you don’t have the power to coerce, you have to cajole.

Morrison wants to encourage Victoria to ease its restrictions as fast as the health imperatives allow; he wants Queensland welcoming tourists. But Dan Andrews’ Sunday roadmap will be cautious. As for Queensland, Morrison will have to wait until after the state election, when Palaszczuk might be more amenable – she did get on the Friday “bus” – or will have been replaced by a compliant new government.

On Thursday, Morrison told parliament the leaders should aim to make Australia “whole” again by Christmas. That deadline is looking very arbitrary.

“Wholeness” will eventually come, but certain conditions will have to be met. The Victorian outbreak must be conquered. The situation in NSW must be further stabilised.

Morrison talks of twin health and economic crises, but the polls suggest the health issue has the dominant grip on the public psyche. Until community transmission is stopped or minimal in Victoria and NSW the public mindset will impede the economic recovery.

Above all, that recovery requires public confidence – and that in turn needs the removal, or near removal, of fear of infection. Even where that fear may be excessive, it has become a roadblock to a return to normality.

What does the recalibration of the national cabinet’s dynamic mean for that institution, much praised when it started?

In the context of the pandemic national cabinet remains useful, despite having taken a bruising this week. It is a clearing house for information; it forces leaders to communicate regularly; it encourages them to seek constructive solutions (even though we have seen that has its limits); it helps cut through bureaucracy.

For the longer term, this week’s experience indicates the national cabinet does not promise a new nirvana of co-operative federalism. But that was always hype.

When a constitution divides power between a central government and state governments, there will inevitably be a mix of conflict and co-operation. What has stood out in the border wars is just how “federalist” the Australian federation can on occasion become.

The definition of “COVID-19 hotspot” as provided by Chief Medical Officer Paul Kelly can be found hereThe Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

WA border challenge: why states, not courts, need to make the hard calls during health emergencies



Richard Wainwright/AAP

Lorraine Finlay, Murdoch University

In recent days, both sides involved in Clive Palmer’s legal challenge against the Western Australia border closure have sought to highlight the importance of what is at stake.

WA Premier Mark McGowan has warned if the challenge is successful and the border re-opens “then potentially people will die”. Meanwhile, Palmer has emphasised that immediately re-opening the border

is crucial for the survival of the domestic economy and for the whole of Australia.

With Queensland announcing another border closure to Sydney residents today, the WA case could be pivotal.

It will set an important precedent and ultimately determine whether, and to what extent, state governments can close their borders to protect their residents against future outbreaks.

The legal challenge in WA

The WA government closed its border to everybody other than “exempt travellers” from April 5 to limit the spread of COVID-19. Palmer was refused an exemption to enter WA in May and responded by filing a constitutional challenge to the laws authorising the border closure.

The challenge focuses primarily on section 92 of the Constitution, which provides that

trade, commerce and intercourse among the states … shall be absolutely free.

The High Court has previously suggested this allows for restrictions on movement and travel that are reasonably necessary for legitimate state purposes.

The key constitutional question here is whether the current restrictions are proportionate and appropriately tailored to address the identified risk to public health.




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In particular, the Federal Court is being asked this week to identify precisely what risks the COVID-19 pandemic poses to public health in Australia, and the extent to which border closures might mitigate these risks.

The Federal Court will not make a final decision about the constitutional validity of the border closures. Instead, it will determine the relevant facts in the case based on evidence presented by public health experts.

These facts will be critical to deciding the ultimate constitutional question.

What happens next?

The Federal Court hearing is only step one. Once these factual questions have been decided, the case returns to the High Court, which will determine the constitutional questions.

While the parties and courts have all acknowledged the importance of expediting this matter, the earliest this case could be heard by the High Court would be September. This means a final decision on whether the border closures are valid could still be weeks away.

Another important practical consideration is how the WA government may react if it loses the constitutional challenge. McGowan has already said

if the High Court rules that the borders have to come down that is the law of the land.

But any High Court decision will be based on the reasonableness of the current restrictions, and the court tends to limit its decisions to the particular facts before it. The judges are unlikely to speculate about whether alternative border closure restrictions may be constitutionally valid.

As such, one option for WA if it loses may be to remove the existing restrictions, but immediately replace them with amended restrictions that are adapted to the court’s ruling.

A win for Palmer in the High Court may not therefore necessarily result in the WA borders immediately re-opening.

McGowan has defended WA’s ‘very straightforward system’ of border closures, even as neighbouring states have seen virus cases decline.
Richard Wainwright/AAP

What will the High Court decide?

It is never possible to definitively predict the outcome of a High Court case. This is particularly true in the present case, given the specific constitutional issue at hand has not previously been directly considered by the court.

However, in cases involving questions of reasonableness and the balancing of public policy objectives, courts tend to err on the side of allowing governments a significant degree of discretion.




Read more:
States are shutting their borders to stop coronavirus. Is that actually allowed?


For this reason, the WA government has a strong constitutional case, provided the Federal Court finds the expert evidence supports border closures being justified from a public health perspective.

This highlights the significance of the current Federal Court hearing. It would be extremely controversial for the High Court to invalidate border closures imposed by a state government if the expert evidence established a public health justification for the measures.

Why governments need discretion in cases like this

Indeed, this highlights a more fundamental question about who is best placed to make these types of decisions in a democratic society.

There is no objectively right or wrong answer to the question of whether state borders should be shut in these circumstances, or for how long. It is instead a judgement call that has to be made on the best information available at the time, and that requires the decision maker to balance a range of different public policy factors.

An elected government is best placed to make judgement calls of this nature. It can adapt its response as circumstances change and take into account community sentiment (which is important to ensure compliance).

A government will also be subject to a range of different accountability measures, including, ultimately, judgement by the people at an election.




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Judicial decision-making is very different. It is necessarily based on the particular facts of a single case before the courts and is not adaptive to circumstances. The courts also do not need to consider the practical challenges of implementing a specific policy or regulation, and are not subject to direct democratic accountability.

These can be virtues when the courts are engaged in legal decision-making. They also demonstrate why the courts should not be involved in making decisions of a more political nature.

While there is a legitimate role for judicial scrutiny, the judgement calls required in a public health emergency are more appropriately left to the executive and parliamentary branches of government.

This democratic mandate granted to elected officials should be respected by the courts when considering the current challenge to the WA border closures, particularly given the importance of what is at stake.The Conversation

Lorraine Finlay, Lecturer in Law, Murdoch University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

South Australia will re-open its borders to some states, but not others. Is that constitutional?



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Benjamen Franklen Gussen, Swinburne University of Technology

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.




Read more:
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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.




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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.The Conversation

Benjamen Franklen Gussen, Lecturer in Law, Swinburne University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Is it time to reopen our borders? For states still recording new cases, it’s too soon


Adrian Esterman, University of South Australia

This week, we’ve seen state governments in heated debate over the question of reopening borders between Australian states and territories.

New South Wales premier Gladys Berejiklian is arguing for the reopening of interstate travel, which will be important for Australia’s economic recovery from the pandemic.

Others, including Western Australian premier Mark McGowan and Queensland premier Annastacia Palaszczuk, have opposed reopening borders at this stage, on the basis the move risks new cases crossing state lines.

From an epidemiological perspective, I would argue the safest option is to wait until two states have achieved disease elimination before opening the borders between them.




Read more:
Grattan on Friday: Border wars split political leaders and embroil health experts


States make their own rules

During a pandemic, it’s important we have disease control strategies in place at different levels: from individual and family to community, state and national.

Some states and territories have closed their borders to interstate travel in an attempt to reduce disease transmission.

The exceptions are NSW, Victoria and the Australian Capital Territory (though these states have still urged people to defer non-essential travel).

Jurisdictions that have closed their borders enforce their own exemptions and regulations, such as requiring entrants to self-quarantine for 14 days on arrival.

Prime Minister Scott Morrison recently announced a three-step roadmap to recovery for Australia. This set out the possibility of recreational interstate travel as part of step 2, but left it to each state and territory to decide the timing.

All states and territories except Western Australia remain in stage 1, and are unlikely to progress to stage 2 until June.

So, if we follow the three-step plan, states and territories pushing for interstate travel may be getting a bit ahead of themselves.

Elimination should be the green light

For disease elimination, there must be zero new cases of the disease in a defined geographic area.

There is no defined time period this needs to be sustained for – it usually depends on the incubation period of the disease (the time between being exposed to the virus and the onset of symptoms).




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Since the incubation period for COVID-19 ranges from 1-14 days, it could be argued a state or territory has eliminated COVID-19 if there are no new cases over a 14-day period.

However, research has shown there’s a small chance (1%) someone could develop symptoms and become infectious beyond 14 days of quarantine. So to be completely safe, it would be prudent to extend this period.

A sensible approach might be to define the elimination of COVID-19 as a 28-day period of no new cases in any state or territory – double the incubation period. Any state or territory that achieves disease elimination could then reopen its borders with any other state or territory that has also achieved this.

Queensland chief health officer Jeanette Young has advocated for this kind of approach.

What might happen if states that have not achieved elimination allow interstate travel? The risk is an infectious person crosses into a state or territory that has achieved disease elimination and reseeds a new epidemic. The risk might be small, but the consequences could be severe.




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We might also take this elimination approach with international borders (yesterday marked New Zealand’s fourth day in a row with no new cases), though this is a way off.

Are we there yet?

While Victoria and NSW continue to record a small number of new cases most days, for other states and territories, the prospect of elimination is in sight.

These data do differ slightly depending on the source, but by my definition, no state or territory has, to date, eliminated COVID-19. And as such, we’re not yet at the point we should be relaxing current border restrictions.

There’s no question Australia is doing well. But we must remain vigilant, particularly with the current easing of restrictions, which might lead to a few clusters of new cases.

We’ll need safeguards in place

Establishing a threshold for when it’s safe for states to open their borders – namely 28 days with no new cases – will minimise the risk of transmission of new infections. It could also serve to stop the quarrelling between leaders over this question.

Even when we do move to open borders, we’ll need to tread carefully. Disease elimination is not the same as disease eradication; there’s still the possibility of the rare community-acquired case being out there. And unless every person in Australia is tested and quarantined if necessary, there’s still a chance of the epidemic restarting.




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A sensible approach might therefore be to test anyone crossing a border and asking them to self-isolate for 24 hours until their test results are ready. This would also help eliminate the unlikely chance of the person carrying the virus on their clothes or possessions.The Conversation

Adrian Esterman, Professor of Biostatistics, University of South Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Grattan on Friday: Border wars split political leaders and embroil health experts


Michelle Grattan, University of Canberra

Who’d be Queensland premier Annastacia Palaszczuk right now?

Facing a tough election in October, Palaszczuk is coming under huge pressure to open the state’s borders, so visitors in search of winter sun can start to get the tourist industry back on its feet.

She’s in the sights not just of the federal government, with Peter Dutton (“a proud Queenslander”) leading the charge, but of NSW premier Gladys Berejiklian as well.

Palaszczuk so far is holding firm, saying she’ll follow the advice of her chief health officer, Jeannette Young. The border closure will be reviewed monthly; it could stay shut until September, and Young says possibly even longer. It depends on the number of active cases in NSW and Victoria, which have far more than Queensland.

It might be Queensland first opens up to South Australia and the Northern Territory before re-opening the border with NSW.

In political terms, Palaszczuk is on risky ground whatever she does.

Depriving the state’s economy of much-needed dollars will give ammunition to her opponents. On the other hand, if an open border led to a serious outbreak in a tourist centre, forcing fresh shut downs, she’d carry the blame.

It’s a dilemma to which there is no “correct” answer.

So far, Palaszczuk has voters’ support in how she’s handled the pandemic (although her government’s rating is lower than those of other state governments.)

In the Essential poll published this week, 66% of Queenslanders answered good or very good when asked “how would you rate your state government’s response to the Covid-19 outbreak?” In WA 86% rated the McGowan government’s performance positively. (The federal government received a tick from 73%.)

But voters are fickle, and opinions can change quickly.

We saw this over kids being in school. At first many parents insisted their children must stay home; after a few weeks they were pressing for schools to take them back.

The schools debate produced fault lines in the national cabinet, and now the row over borders is doing the same. That useful body remains intact, but this creates tensions, even though border policies are the decisions of individual states, not the collective.

The conflict might also be something of a reality check on the idea the national cabinet would enable a harmonious road to future economic reform.

A notable feature of the COVID federalism model is that under the national cabinet umbrella, line ups vary according to the issue.

Victoria (Labor) and NSW (Coalition) were the loudest in urging early heavy restrictions, including in relation to schools.

The Morrison government, with its eye on economics, instinctively preferred a lighter hand; it needed a shove to go further. Where it couldn’t be moved and the states had the power, they went their own ways.

On schools, Canberra was adamant – Scott Morrison always wanted them open. Similarly, Canberra wants borders opened.

The border issue sees another cross-party grouping. The Labor jurisdictions of Queensland, Western Australia and the Northern Territory, and the Liberal states of South Australia and Tasmania all have their borders closed.

NSW and Victoria have never gone down this path.

Berejiklian is pushing hard for a re-opening to promote recovery. She’s suggested WA premier Mark McGowan and Palaszczuk are courting popularity.

In the crossfire, McGowan has accused Berejiklian of bullying tactics, and hit where it hurts. “New South Wales had the Ruby Princess … And they are trying to give us advice on our borders, seriously?” he said this week. Palaszczuk said: “We are not going to be lectured to by a state that has the highest number of cases in Australia”.

As notable as the fracture among governments, is the very public division between the health experts.

We saw this on schools, where Victorian chief health officer Brett Sutton took a much more conservative position than others.

While Young and WA chief health officer Andrew Robertson were adamant this week on keeping their respective borders shut for the time being, federal deputy chief medical officer Paul Kelly said “from a medical point of view, I can’t see why the borders are still closed”. (McGowan had earlier said: “I don’t know who Paul Kelly is – clearly not the singer”.)

Kelly said neither the national cabinet nor the Australian Health Protection Principal Committee (that advises it) had made decisions or given advice on state borders. Decisions on what to do were entirely up to the states.

Both Young and Robertson are on the AHPPC, which is described as a “consensus body”. “We talked through these matters and we decided not to have a position on borders,” Kelly explained.

While it has been welcome in this crisis to see the politicians turning to the experts, we are now being sharply reminded experts can differ. How often have we heard from politicians in recent weeks, “We are relying on the medical advice.” But that doesn’t always lead in one direction, and “consensus” can be a useful concealer.

As the border argument intensifies the question of whether the closures are constitutional, canvassed early on in the crisis, has come back.

One Nation’s Pauline Hanson has accused Palaszczuk of “running roughshod over the constitution”, appealed for anyone affected who might want to mount a challenge to come forward, and said “I have a pro-bono, constitutional lawyer who will represent you in a High Court challenge under Section 92”.

Section 92 provides for “trade, commerce, and intercourse among the states” to be “absolutely free”.

No one could be sure how, if there were a case, the High Court would rule. The Court in the past has recognised public health circumstances can justify measures that otherwise would breach section 92. But would special circumstances still apply when the virus threat had apparently receded?

Attorney-General Christian Porter has dodged on whether the border closure could be unconstitutional.

Porter, a Western Australian, has been measured on the issue itself. “These aren’t easy decisions for state premiers to make but there’s a health imperative, there’s an economic imperative and there are strict constitutional rules around what is permissible and impermissible”, he told a news conference on Thursday.

Porter no doubt has in mind the thread of isolationism traditionally running through his state’s thinking, and of the polling showing enormous support for the McGowan government’s COVID management.

The day before, Porter noted “that the federal government’s position,
on a whole range of issues, is to be forward leaning and develop workarounds to get our economy moving again”.

Indeed. We can expect the Morrison government’s “forward leaning” will only increase in coming weeks, with its desperation to boost economic activity. Meanwhile, premiers might need their chill pills before they meet, virtually, at national cabinet next week.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

States are shutting their borders to stop coronavirus. Is that actually allowed?



AAP/Mick Tsikas

Anne Twomey, University of Sydney

Movement of people and goods across state borders in Australia is guaranteed by the Constitution. Section 92 of the Constitution says

trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

“Intercourse among the States” in this context, means the movement of people, goods and communications across state boundaries.

If movement of people across state borders must be absolutely free, can the states hinder or even prevent such movement during the coronavirus pandemic? The short answer is “yes”.

“Absolutely free” does not mean what it says. The High Court has accepted that there can be limits if they are reasonable and imposed for a legitimate end, such as protecting the public from a dangerous disease.

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What limits does the Constitution impose on the states?

A state cannot exclude people from entering it because it has some objection to them, such as their character or behaviour. For example, shortly after federation, NSW enacted the Influx of Criminals Prevention Act 1903 to prevent convicted criminals from other states entering New South Wales. It tried to use the act to prevent John Benson, a convicted vagrant, of entering the state.




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But the High Court struck down the law because it prevented freedom of interstate movement in breach of section 92 of the Constitution. While some judges recognised that a state may have power to act where it is necessary to protect “public order, safety or morals”, they did not consider that the exclusion of vagrants could be justified as such a necessity.

Since then, the High Court has accepted that a state law may impede the entry into the state of persons, animals or goods that are likely to injure its citizens. These include risks of the transmission of animal and plant diseases and the entry of noxious drugs.

Justice Brennan stated in the case of Nationwide News that where the true character of a law

is to protect the State or its residents from injury, a law which expressly prohibits or impedes movement of the apprehended source of injury across the border into the State may yet be valid.

A court would need to consider the severity of the restriction and the need for the measure.

If the law is enacted for a purpose other than simply impeding movement across state boundaries, such as to protect public health, and the measures imposed are appropriate and adapted to fulfilling that purpose, then the law is likely to be held to be valid. It will depend on the factual circumstances in any particular case.

What about current proposals to restrict movement across state borders?

Current proposals to restrict the movement of people across state borders are clearly for the legitimate purpose of protecting public health. No one could argue that the reason is “protectionist” or simply an objection to residents from other states entering the state.

So far, actions and proposals by various states have not been directed at preventing people from crossing state borders. Instead, they have involved health checks and requirements to self-isolate for 14 days if they do enter the state.

While this may impose a “burden” on interstate movement of people, it does not prevent it, and the self-isolation requirement seems to be appropriate and adapted to the public health need.

The states have also made appropriate exceptions, such as in relation to emergency service workers and people transporting goods in and out of the state. An exception may also need to be made to ensure that federal members of parliament can travel to and from Canberra to fulfil their representative functions.

If more extreme measures were taken, which could be regarded as not being appropriate and adapted to achieving the protection of public health, then they would be more vulnerable to legal challenge.

But in any case, the High Court would take into account the evidence that the state was relying on and its efforts to calibrate the restrictions appropriately in the circumstances. More extreme risks may justify more extreme measures in limiting interstate intercourse.

Are there any other constraints on states ‘going it alone’?

First, any state action must fall within its existing legal powers. These include those under its public health legislation, or it first may need to enact new legislation or make appropriation regulations under existing statutes. If a state is restricting the liberty of its residents, then it needs lawful power to do so.

Secondly, while states have extremely broad legislative powers (subject to section 92 of the Constitution), if the law of a state conflicts with a law of the Commonwealth, then section 109 of the Constitution provides that the Commonwealth law prevails and the state law is inoperative to the extent of the inconsistency.




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So if a Commonwealth law gives a person the right to enter the state, and the state law is inconsistent with it, the Commonwealth law would override state law. So states should be careful to not make any laws that might conflict with Commonwealth laws.

Thirdly, if the federal parliament wished to override particular state laws, and it had a source of constitutional power to legislate (such as its power with respect to quarantine), then it could legislate in such a way as caused an inconsistency, rendering the state law inoperative to the extent of the inconsistency.

The states can close borders to protect their citizens

Overall, despite the constitutional guarantee that intercourse among the states shall be absolutely free, the states retain a degree of latitude to limit border-crossing as long as it is appropriate and to protect public health.




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The Conversation


Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

NZ’s decision to close its borders will hurt tourism but it’s the right thing to do



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Siouxsie Wiles

Prime Minister Jacinda Ardern has done exactly what is needed to limit the spread of COVID-19 in New Zealand and the Pacific. Two new cases were confirmed today, just hours before new border restrictions come into force.

From midnight today, nobody (including residents) will be able to enter New Zealand without first going into 14 days of self-isolation. People arriving from Pacific Islands are the only exception to this new rule.

The new cases bring the total in New Zealand to eight. They have all been people who arrived from overseas – Iran, Italy, Denmark, the United States and Australia – or family members with whom they had extensive close contact. We should expect to see more cases in the days and weeks ahead.

Director-General of Health Ashley Bloomfield said the latest cases reinforce the new border restrictions.

Reducing the flow of people [with COVID-19] coming into New Zealand and ensuring that those who do arrive are required to immediately self-isolate are essential frontline tools in our response and in preventing wider outbreaks in New Zealand.

I expect it is going to take months or even years, rather than weeks, before the pandemic is contained because some other countries aren’t responding quickly enough. New Zealand’s new measures will hit tourism, but they are necessary to keep COVID-19 under control.




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‘Cabin fever’: Australia must prepare for the social and psychological impacts of a coronavirus lockdown


The next line of defence

I use a fire analogy to describe how the COVID-10 pandemic is spreading around the world. Countries with community transmission of the virus – this list is growing by the day – are each a blazing fire. Anyone leaving these countries is a potential ember that can seed a fire somewhere else.

So far, New Zealand has done a good job of catching any burning embers and stamping them out. This is the role of contact tracing and self-isolation. But the median incubation period for the virus is around five to six days, with most people developing symptoms within 11 days, and we should expect more cases.

Ardern has seen the growing number of fires overseas. She has listened to experts telling her there will soon be too many embers to catch and she made the call to deploy the next line of defence: fire breaks.

This is the right move and follows that of Samoa which put travel restrictions in place very soon after the virus emerged. Our Pacific neighbours do not have the same resources New Zealand has to carry out contact tracing or treat the very ill.

It is only a few months since Samoa experienced an extensive and deadly outbreak of measles, which likely started when someone incubating the measles virus travelled to Samoa from New Zealand.




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Compulsory isolation in the fight against coronavirus: a clash of human rights and public health


Minimising spread New Zealand’s best chance

Many people are surprised by the strength of the measures. Apart from the entry restrictions through airports, cruise ships are also banned from coming to New Zealand until at least the end of June. As Ardern herself said the restrictions are among the most stringent in the world.

COVID-19 is a serious illness. From the outbreak in China we know about one in five people will need to be hospitalised. About one in 20 people will end up in intensive care, and one in a hundred will need a ventilator to help them breathe.

The reality is almost everybody in New Zealand is susceptible to catching the virus. While many of us will only experience a mild to moderate version of COVID-19, if the virus were to sweep New Zealand as it is other countries, we would not have enough hospital and intensive care beds or ventilators to care for those who need them.

Depending on a person’s age and whether they have any underlying health issues, we could see as few as four deaths in every thousand infected people under the age of 50, but as many as seven in every 50 people if they are over 80. People with diabetes and and high blood pressure are also more likely to experience a severe infection.

China built new hospitals in a matter of days and weeks to be able to care for the ill. In New Zealand, we are about to head into winter, the busiest season of the year for hospitals.

If COVID-19 took hold here, our medical staff could soon find themselves in the awful position of having to decide who gets a bed or a ventilator, as they are now considering in Italy.

New Zealand’s best chance to get through this unprecedented global crisis is to minimise the chances of the virus establishing here. Given we will remain susceptible to the virus, we may need to wait for the pandemic to burn out or until a vaccine is developed before life returns to normal.The Conversation

Siouxsie Wiles, Associate Professor in Microbiology and Infectious Diseases

This article is republished from The Conversation under a Creative Commons license. Read the original article.

One Dead as Islamist Mobs in Ethiopia Destroy Church Buildings


Total structures razed at 59; at least 4,000 Christians displaced.

NAIROBI, Kenya, March 7 (CDN) — At least one Christian was killed and others injured when thousands of Islamic extremists set fire to 59 churches and at least 28 homes in western Ethiopia in the past five days, Christian leaders said.

More than 4,000 Christians in and around Asendabo, Jimma Zone have been displaced as a result of attacks that began on Wednesday (March 2) after Muslims accused a Christian of desecrating the Quran by tearing up a copy, sources said.

“The atrocity is still going on, and more people are suffering,” said a source in Addis Ababa who is in close contact with area church leaders.

The Christian killed, believed to have been a member of the Ethiopian Orthodox Church, has not yet been identified.

“One Orthodox believer, whose daughter is a member of Mekane Yesus Church, has been killed,” an Ethiopian church leader told Compass. “Ministers were injured, and many more believers have been displaced.”

A pastor based in the Ethiopian capital of Addis Ababa noted that evangelical church leaders have reported the attacks to authorities and asked officials for help, but no action had been taken at press time.

“The church requested more police protection,” he said. “The authorities sent security forces, but they were overwhelmed by the attackers.”

After the destruction began at Asendabo, it spread to Chiltie, Gilgel Gibe, Gibe, Nada, Dimtu, Uragay, Busa and Koticha, as Muslim mobs in the thousands rampaged throughout the area, sources said.

“Police at the site are not taking any action – they just watch what is happening,” said another source. “It is difficult to estimate the attack in terms of deaths, since we have no access to any location.”

Those displaced are in shelters in Ako, Jimma, Dimtu and Derbo, he said.

“We are very concerned that the attack that began on March 2 in Asendabo, which is the rural part of Jimma, is now heading to Jimma town,” he said.

The extremists also destroyed an Ethiopian Kale Hiwot Church (EKHC) Bible school building and two church office buildings, the source said. Of the churches burned, he said, 38 belonged to the EKHC; 12 were Mekane Yesus buildings; six were Seventh-day Adventist structures; two were Muluwongel church buildings, and another belonged to a “Jesus Only” congregation.

“Women and children are the most affected in this sudden attack,” he said. “It is needless to mention the believers’ houses and properties burned down. The overall estimated cost, may be worth over 60 million birr [US$3.55 million].”

Anti-Christian attacks in western Ethiopia in 2006 killed at least 24 people.

“Attacks on the church have been a common occurrence in predominantly Muslim areas of Ethiopia like Jimma and Jijiga,” the source said, adding that Christians are often subject to harassment and intimidation.

Asendabo, in Oromia Region, is about 300 kilometers (186 miles) from Addis Ababa.

The attacks erupted as heavy fighting was taking place at the borders of Kenya, Ethiopia and Somalia. Ethiopian troops were trying to repel Islamic extremist al-Shabaab troops from Bulahawo, Somalia, near Mandera, Kenya, with several casualties and hundreds displaced.

Ethiopia’s constitution, laws and policies generally respect freedom of religion, but occasionally some local authorities infringe on this right, according to the U.S. Department of State’s 2010 International Religious Freedom Report.

According to the 2007 census, 44 percent of Ethiopia’s population affiliate with the Ethiopian Orthodox Church, 19 percent are evangelical and Pentecostal and 34 percent are Sunni Muslim.

Report from Compass Direct News

Burmese Army Oppresses Chin Christians, Study Says


Report shows widespread abuses, including murder, rape and forced labor.

DUBLIN, January 19 (CDN) — Burmese soldiers are systematically using forced labor, torture and rape to persecute majority-Christian residents of Chin state in western Burma, according to a report released today.

Entitled, “Life Under the Junta: Evidence of Crimes Against Humanity in Burma’s Chin State,” the report by Physicians for Human Rights (PHR) documented “extraordinary levels of state violence” against the Chin ethnic population in Burma, also called Myanmar.

Due to the influence of U.S. missionaries last century, the Chin are estimated to be 90 percent Christian, and the study indicates that it is therefore difficult to separate religious attacks from ethnic and other human rights abuses. Persecution of Christians is reportedly part of a wider campaign by the Burmese junta to create a uniform society in which the only accepted religion is Buddhism, according a 2007 government memo circulated in Karen state giving instructions on how to drive Christians out of the state.

Respondents who were specifically targeted for their Christian faith and ethnicity said soldiers had threatened them with the destruction of their homes or villages and threatened to harm or kill family members. A total of 71 households from 13 of 90 villages and towns surveyed also said government authorities had destroyed their local church buildings.

The most brutal attacks included the forced conscription, abduction or murder of children under the age of 15, and the rape of men, women and children. Burmese soldiers, locally known as the Tatmadaw, also confiscated food, livestock and other property and forced families to grow the cash crop jatropha, used to produce biofuel, instead of food crops required for basic survival. The study states that this caused many Chin to flee across land borders to India or Bangladesh.

Burmese soldiers were responsible for 94.2 percent of all specifically ethnic and religious incidents in the survey, supporting claims by advocacy organizations such as Christian Solidarity Worldwide that the military government is systematically working to “cleanse” Burma of ethnic and religious minorities.

Government agents also placed votes for Chin residents during national elections last November, warning them that soldiers in a nearby camp were ready to arrest them if they complained, and ordered a church to close after the pastor refused to wear a campaign T-shirt. (See “Burmese Officials Order Closure of Chin Church,” Nov. 18, 2010.)

When asked why the Burmese army acted as it did, 15 percent of respondents answered, “Because we are Christians.” Another 23 percent replied, “To persecute us,” and a further 23 percent said, “Because we are Chin.”

The report confirms evidence submitted to the United Nations for Burma’s Universal Periodic Review, to take place in Geneva from Jan. 24 through Feb. 4, that holds the ruling military junta responsible for widespread abuse of its citizens.

 

‘Crimes Against Humanity’

PHR and five partner organizations, including the Chin Human Rights Organization (CHRO), used scientific methods to carry out the survey in the early months of 2010, training 23 local surveyors to question a random sample of 621 households across all nine townships in Chin state. PHR identified the households only by survey number to protect their identity.

Those interviewed reported a total of 2,951 incidents in the previous 12 months, of which 95 percent were carried out by the Tatmadaw, local government officials, Burmese police or border security forces.

The report made a clear distinction between internationally recognized “crimes against humanity” and general human rights violations. Of the crimes against humanity, the most prevalent was forced labor for 91.9 percent of those surveyed, followed by ethnic-religious persecution at 14 percent. After these crimes came arbitrary arrest, detention or imprisonment at 5.9 percent, abduction at 4.8 percent, torture at 3.8 percent, rape or other sexual violations at 2.8 percent, murder at 1 percent and miscellaneous abuses at 0.2 percent.

As for lesser human rights violations, 52.5 percent of households surveyed reported livestock killed, 50.6 percent were forced to give food, 42.8 percent forced to give money, 12.8 percent had property attacked or destroyed, 11.2 percent had family members beaten and 9.1 percent had family members wounded from gunshots, explosions or deadly weapons.

In many cases, people suffered from the full range of human rights violations.

Six households, or 1 percent of those surveyed, reported family members killed by the Tatmadaw in 2009, with two households reporting multiple family members killed, and two of the victims being under the age of 15. Three of the six households believed they were specifically targeted because of their ethnicity and Christian faith.

An elderly grandfather who spoke to PHR in March 2010 said he felt depressed and helpless after a year when the Tatmadaw killed an 18-year-old family member and forced others in the family to build roads, porter supplies and carry weapons, threatening to kill them if they refused. The military also stole livestock, demanded food supplies, and forced the family to grow a single crop rather than food crops needed for basic survival.

“We dare not refuse the Tatmadaw, as even mothers with little children are beaten,” one respondent said.

Burmese soldiers tortured more than one person in the family of a 46-year-old man, while local government authorities forced them to relinquish livestock, food and money. Seventeen percent of torture victims and 29 percent of rape victims were under the age of 15.

A 36-year-old father of five in Paletwa township said Burmese soldiers had raped more than one member of his family at knifepoint within the past year, arbitrarily detained another member of the household at gunpoint, conscripted a family member into the army and burned down the church that once stood in his village.

In a foreward to PHR’s report, Richard Goldstone, a PHR board member and former U.N. chief prosecutor, and the Rev. Desmond Tutu of Chairman of The Elders, an independent group of prominent global leaders, urged that a U.N. commission of inquiry be established to investigate reports of human rights violations in Burma.

“It is unconscionable that suffering as dire as that of the Chin people under Burma’s dictatorship should be allowed to persist in silence,” they wrote.

They also urged Burma’s immediate neighbors and trade partners to use the occasion of Burma’s Universal Periodic Review to discuss the violations committed in Chin state and elsewhere in Burma, and work towards an alternative ‘roadmap’ to democracy for the Burmese people.

Report from Compass Direct News