International borders are about to open, but our research shows the plight of stranded Australians is not over

Posted on October 17, 2021 by particularkev

Holly Seale, UNSW; Adam Craig, UNSW, and Meru Sheel, Australian National UniversityAustralia’s international borders are due to reopen next month for people returning to states with 80% vaccination rates.

Australian citizens and permanent residents who are fully vaccinated with an approved vaccine will be allowed to quarantine at home. They will also be able to leave Australia without exemption from early November.

But this does not mean the plight of Australians who have been stranded overseas during the pandemic is over.

We have been tracking the experience of this group during the pandemic. Our research shows not just the inadequacy of government support to this group, but some of the immediate and potentially long-term impacts on their lives. In this piece, we also set out some of the other barriers that continue to make coming home to Australia so difficult.

More people stranded than we think?

In a bid to stop the spread of COVID, in March 2020 Australia closed its borders to all non-citizens and non-residents, giving it some of the world’s strictest border rules. While Australian citizens could still officially travel to Australia, the huge reduction in available flights made it all but impossible for many to get home.

A family arriving in Canberra after a repatriation flight in 2020. — Australia’s international border has been shut for more than 18 months.
Lukas Coch/AAP

According to the Department of Foreign Affairs, there are currently more than 45,000 Australians overseas registered as needing help to come home.

But advocacy group Reconnect Australia says the number could be much higher. This is based on an estimated one million Australians living abroad, 30% of Australians born overseas and two million temporary visa holders in Australia – most of whom would not be eligible for DFAT reparations or do not fit a category of travel exemption.

Survey: psychological and financial impacts

Over the past 18 months, countless distressing stories have been shared across the mainstream media and social media of stranded travellers who have had flights postponed or cancelled. This includes people missing funerals of close family members, being separated from their partners and children, or being unable to visit sick family members.

To better understand this phenomenon, we examined the psychological and financial impacts of being stranded abroad during this pandemic.

In September this year, we surveyed 1,330 stranded travellers from around the world (including Australians) and identified that 64% had moderate to extreme depression. While others reported anxiety (42%) and stress (58%) resulting from their situation.

Some of our participants also reported homelessness, significant financial distress, and little to no support being given from their national governments.

Government support for those stuck overseas

The responsibility to assist these stranded travellers generally falls on “home” governments for support.

In an upcoming study lead by Pippa McDermid, we analysed the availability of government assistance, including financial help, emergency housing and mental health support to citizens of eleven countries stranded overseas by COVID restrictions. This includes Australia, New Zealand, Canada, the United States, United Kingdom, France and Thailand.

No country provided comprehensive assistance in all areas.

Passengers arrive in Brisbane in April 2020. — Australian children under five can only come back to Australia if they travel with an adult.
Dan Peled/AAP

Only Spain and France appeared to have developed a solution to emergency housing needs for citizens in need stuck abroad, with Spanish or French nationals either hosting citizens in need or requesting emergency accommodation on the respective platforms.

Australia was one of six countries to provided some form of mental health support to citizens, with detailed resources and referrals to mental health support services abroad.

It was also one of five that provided financial assistance. However, loan applications were not straightforward and funds were required to be be paid back within six months. Other countries, including France, appeared to be more flexible with the financial support provided.

In terms of the clarity of information provided on government websites, Australia’s was rated as “fairly difficult to difficult” to read, based on standard readability scores. This was worse than scores for the UK, France and Canada.

Enough flights to get everyone back?

While Australia reopening borders is good news, concerns remain about airlines’ capacity to bring stranded travellers home. For example, it took approximately ten minutes for a recently announced DFAT repatriation flight from London to sell out.

Labor senator Kristina Keneally holds up photos of Australians stranded. — Labor senator Kristina Keneally holds up photos of Australians stranded overseas, during a Canberra press conference in 2020.
Lukas Coch/AAP

Concerns have also been raised that Qantas doesn’t have enough planes to operate all the international flights it is currently selling for next year. Other international carriers are waiting for clarity from the Australian government before resuming their flights schedules

Falling through cracks

Meanwhile, some Australian citizens stranded abroad are watching their visas edge towards expiry. Through our research, we have heard stories these people cannot find flights home and so end up applying for a temporary visa, often in a third country, adding to the disruption, stress and costs imposed on them by the travel restrictions.

One traveller we spoke to during our research, based in China, simply cannot afford the costs of the flights. They also need to give their employer 30 days’ notice if they intend to leave the country. If their flights get cancelled, they risk being left without a work permit. Australian government funding does not meet the cost of flights.

Realistically, we expect that it will take a couple of months for the reopening to be sorted out in different states. As much as we would love to be home for Christmas, we think sometime in the first quarter of next year will be more likely.

Those stranded want to clarify is they have tried to get home – but the availability and predictability of flights is a huge hurdle.

What about unaccompanied kids and non-citizens?

Another issue of concern is the plight of children who remain stranded abroad without their parents.

As of July this year, there were 438 unaccompanied Australian children still stranded overseas due to COVID restrictions. Complicating this, those under four are not allowed to travel on their own, while children aged between five and 11 can only travel alone only if their flight is less than four hours.

Meanwhile, little has been said about what rights Australian-based non-citizen residents will have once travels starts again. These include people studying or working temporarily in Australia, who have not been able to return short-term to their country of origin.

If they leave Australia, there are still no guarantees they will be able to return in a timely way to complete their studies or work contracts.

What needs to change now

As we begin to emerge from restrictions, there are many things the federal government could do to improve the conditions for those stranded, and speed up their return home. These include:

provide clarity about when and how stranded passengers will be repatriated
work closely with airlines to ensure that flights and services reflect the countries where stranded travellers are located
provide easier access to financial loans
revise government information online to ensure that it is timely, relevant, and easy to access
include temporary visa holders in the group of those able to access home quarantine
develop a fair plan for those who have been unable to access vaccinations overseas or who are vaccinated with an unrecognised vaccine
ensure mental health services are available for those abroad.

While the role of border control as a highly effective strategy in the control of COVID cannot be underrated, it raises serious questions about how to protect public health without long-term disruption to and negative impact on people’s well-being.

When updating guidelines for future pandemics and other emergency events, it is critical we also change how we support citizens, residents and temporary visa holders who are stranded abroad.

The authors would like to thank Pippa McDermid and Siobhán Talty for their contributions to the article.

Holly Seale, Associate professor, UNSW; Adam Craig, Senior Lecturer in Global Health, UNSW, and Meru Sheel, Epidemiologist | Senior Research Fellow, Australian National University

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

Australia’s international borders to reopen from November. It’s one big step towards living with COVID

Posted on October 14, 2021 by particularkev

Catherine Bennett, Deakin University“Australia will be ready for takeoff very soon” said Prime Minister Scott Morrison today as he announced the ban on international travel will be lifted some time next month.

Returning Australian citizens and permanent residents will be able to quarantine at home for seven days if fully vaccinated with a TGA-approved vaccine.

The recognised vaccines include those already approved for use in Australia by Pfizer, AstraZeneca, Moderna and Johnson and Johnson/Janssen, as well as Sinovac and Covishield (Covishield is AstraZeneca’s vaccine made in India).

Unvaccinated returnees will still need to enter managed hotel quarantine for 14 days until Australia moves beyond Phase C of the National Plan.

Those who can’t be vaccinated, including young children and those with a medical exemption, will be counted as vaccinated for travel.

Arrival caps will also be abolished for fully vaccinated returnees.

Today’s announcement is one big step towards allowing vaccinated Australians to return home soon, as we move to a future that somewhat resembles pre-COVID life.

Is seven days enough?

Home quarantine trials in South Australia and New South Wales will answer this question.

Authorities will be testing returnees and the proportion of those who are COVID-positive, as well as when they test positive, will inform decision-making. This will also be monitored on an ongoing basis once we open up and can be adjusted if it turns out a higher than acceptable number of travellers test positive between day seven and 14.

Currently, NSW data tell us less than half of 1% of returnees in hotel quarantine are testing positive. The NSW Surveillance report from August 21 shows only 4% of those positive cases were in fully vaccinated.

The low percentage of returnees who are positive will matter less anyway as Australia progressively moves towards “living with COVID” with a background rate of the virus in the community.

We know fully vaccinated people can still get infected, but at much lower rates. There’s also mounting evidence suggesting their infectious period is shorter than unvaccinated people, so they’re less likely to pass the virus on. Importantly, there’s now a better than 70% reduction in risk of having a serious infection requiring hospitalisation in all of the vaccines the TGA has recognised for international arrivals.

How will we ensure people stay home?

South Australia is currently trialling an app that uses geo-tagged facial recognition software to ensure people stay home during quarantine.

If this app proves successful it might be rolled out across Australia.

It might also include supports for other aspects of compliance, like prompts to get tested, a checklist of symptoms and other ways to check in with returnees.

Random checks by police or ADF personnel have proven home quarantine and isolation have high levels of compliance. Something similar could also be brought in at some point if there were compliance concerns.

One thing that’s more difficult to monitor is whether other people come into the house of a person meant to be isolating. The risk of transmission to the visitor is much higher than if the returnee ventured out. But this is the same risk we currently have with isolating close contacts locally.

Ultimately the system will need to rely, in part, on trust. We know Australians are generally very compliant, and many people will be desperate to travel again and reunite with family and friends. The majority will be likely to comply with the requirements to facilitate keeping travel open.

The system will be safe enough — and that’s all we need going forward.

What about other household members?

One question yet to be answered is whether everyone else in the house has to quarantine if housing a returned traveller.

With the risk of a fully vaccinated returnee being positive very low, so too is the risk to the household. If they do return a positive test on one of their test days, their household members may also be required to quarantine. Rapid Antigen Tests might be useful for early detection of infection in these cases.

Another question is whether we will still have offshore screening, requiring a negative test prior to departure for Australia?

The finer details will emerge and probably change over time as we collect data and manage changing risks. We’ll probably start conservatively and then gradually open things up more and more as we learn which components of risk mitigation are proportionate.

window view from plan — Some details of home quarantine on return from overseas still need clarification.
Unsplash/Eva Darron, CC BY

Which states will go first?

International travel will open to states and territories gradually as they reach 80% of over-16s fully vaccinated. So we won’t have to wait until all jurisdictions have individually hit the threshold.

Based on vaccination uptake rates, the ACT and NSW will likely be the first to open, followed by Victoria.

Tasmania is still tracking well but other states are lagging behind. Queensland and Western Australia will probably be the last to open their borders.

This is broadly in line with the national plan, but is coming probably a month or two earlier than looked possible in June. Vaccination rates, particularly in NSW, Victoria and the ACT, have been spurred on by significant COVID outbreaks. States are also assessing the distribution of vaccine coverage to ensure there are no parts of the community left behind by the time of opening.

What about travel bubbles?

The Prime Minister flagged potential bubble arrangements with countries like New Zealand where there’d be no quarantine requirements. The list of such countries will likely change over time, depending on circulating variants and country risk profiles.

We’re probably heading in the direction of eventually not requiring quarantine for returnees at all, only testing. For now, it’s clear we’re moving towards a system that manages risks rather than operating with zero risk tolerance.

Will contact tracers be able to cope?

As fully vaccinated people contribute less to transmission and are at less risk of severe COVID-19 symptoms, all states and territories will progressively shift the risk settings that underpin contact tracing. We have used comprehensive contact tracing, casting the epidemiological net wide to ensure not one contact of a case who might have contracted the virus was missed.

The chance of someone being positive drops away the more casual the exposure. Once you no longer have to be fearful of missing even just one case, we can make the net smaller and just trace the people at highest risk.

We might reach a stage where even close contacts just have to get a test, without having to quarantine.

This shift brings with it some risk of cases to the community, but we’re likely to have an ongoing, even if low, level of cases in the community. A low rate of introduction across international borders will not materially add to that. It’s about managing risk and being much more selective about identifying who’s at risk in a highly vaccinated population.

What about new variants from overseas?

Watching what variants are circulating will be a priority and some border rules changes might be needed if new risks are identified. For example, stricter arrangements for people arriving from “high-risk” areas where a particularly worrisome variant has emerged.

The system can be adapted for changing risks. There might be more transmissible variants which emerge, but we also might start using next-generation COVID vaccines which are a better fit for variants and precautions can be dialled down.

Being highly vaccinated allows Australia to move away from the ultra-conservative ways we’ve had to manage the pandemic previously, and allows us to start reopening to the world.

Catherine Bennett, Chair in Epidemiology, Deakin University

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

80% vaccination won’t get us herd immunity, but it could mean safely opening international borders

Posted on July 10, 2021 by particularkev

Tony Blakely, The University of Melbourne and Vijaya Sundararajan, La Trobe UniversityThe first phase of Prime Minister Scott Morrison’s four-stage “pathway out of the COVID-19 pandemic”, announced on Friday, focuses on vaccinating as many Australians as possible, while halving the cap on international arrivals.

Morrison expects phase one, which we’re currently in, to be in place until 2022. But he said it’s hard to give a definitive answer on when we’ll get to phase two because vaccination targets have not yet been set. He’s waiting for the modelling.

Phase two of Morrison’s plan is a move back to the current levels of international arrivals, and a separate cap for vaccinated travellers. Phase three sees Australians able to travel abroad and no cap on returnees.

We are undertaking our own detailed modelling of border openings and while we’re yet to release our models, we can still arrive at fairly solid conclusions now. We’re basing these on the theory that Australia could substantially open its borders in the second quarter of 2022 with quarantine-free travel from many (but not all) countries.

The key trick, though, is to not think of vaccination as the only intervention. It is vaccination — together with three other measures: ongoing aggressive contact tracing, mask-wearing in high-risk settings and some physical distancing — that will make it safe to open.

Put another way, even when we immunise all Australians who want to be protected against COVID-19, we’re unlikely to achieve herd immunity through vaccination alone.

Vaccination targets

Modelling performed by the University of Sydney, the Burnett Institute and previously by us all point to the reality that opening the borders before about two-thirds of the population is vaccinated (in the absence of strong additional methods) could cause considerable illness and death.

So it seems unethical to substantially open the borders until everyone has had a fair opportunity to get vaccinated. All going well, this should occur sometime in the second quarter of 2022.

This would, however, be dependent on children also having the opportunity to be vaccinated. While other countries have started vaccinating children, Australia has yet to approve this use.

Vaccination alone won’t get us herd immunity

Some vaccination programs alone can achieve herd immunity, or resilience, meaning the virus won’t spread easily and exponentially, in the absence of masks, contact tracing and the other measures we have used during the pandemic.

But given the Delta variant means an average infected person infects five others without any other measures in place, and given vaccines are not perfect, Australia would need 90% of adults and children vaccinated to achieve herd immunity (through vaccination alone). This is unlikely.

There will be some waning in vaccine immunity over time, and new variants for which Pfizer and AstraZeneca are less effective. However, even with 100% of the population vaccinated, herd immunity may not be achieved by vaccination alone until booster vaccines become available.

Woman in mask with a bandaid on her arm, after being vaccinated. — We need as many Australians to get vaccinated as possible, but we’ll still need other measures to keep a lid on outbreaks.
CDC/Unsplash

How did we get to 90%?

The Delta variant has an R0 (the number of people one infected person on average infects) of about 5.0 under pre-COVID-19 ways of living. This is twice that of the original Wuhan virus which had an R0 about 2.5.

For an R0 of 5.0, theoretically, 80% of the population have to be immune — not just vaccinated — for virus transmission not to take off.

But the actual vaccine coverage required is higher, as the vaccines aren’t 100% effective at stopping any infection. And even though a person has been vaccinated, it doesn’t mean they’re always immune from the virus, as the person may not develop a strong immune response.

Vaccination with two doses of Pfizer among adults aged 16-60 years old is likely about 80% successful at stopping any Delta infection. For those 60 or older, the effectiveness of AstraZeneca at reducing the risk of any infection is less: about 60% against the Delta virus.

Over half, 58%, of the population are aged 16-59, and 23% of the population are aged 60-plus. So for 80% vaccination coverage of adults, the estimated percentage of the population who are immune is 48% — well short of the 80% herd immunity threshold.

For those still at risk of getting infected after either Pfizer or AstraZeneca vaccination, they are 50% less likely to transmit it. So the 16% of the population who were vaccinated but can still get infected are half as likely to pass it on.

The remaining 36% of the population are fully susceptible (20% of adults, and all children).

Extending this maths, we need about 90% of everyone (children and adults) to be vaccinated to achieve herd immunity. This is unlikely to happen.

What’s our alternative?

Using both the above theory, and what we have seen so far in our modelling, we can outline scenarios going forward:

Author modelling/The Conversation, CC BY-ND

From now until about April 2022, we propose we vaccinate as many people as possible and retain the goal of zero community transmission. Eliminating the virus after each outbreak will get easier with increasing vaccine coverage. And the probability each month of a lockdown somewhere in Australia will diminish.

This phase in our modelling is similar to the government’s first phase.

Back to our scenario: in early-to-mid 2022, we propose some modest opening of borders, through travel bubbles to other countries with virtually no community transmission, such as China and Singapore.

This is a divergence from the government’s second phase.

By mid-2022, we could allow many more countries to have quarantine-free travel to Australia, and arrivals might jump to something like half the volume pre-COVID-19.

However, people from high-risk countries — with a peak in infection, or a new variant of concern — would still have to go through 14-day (or modified) quarantine, in Howard Springs or purpose-built facilities, rather than hotel quarantine.

Then we have two choices.

If we open up to pre-COVID settings — with no contact tracing, no masks, no physical distancing — there will be repeated and serious outbreaks requiring lockdowns.

We might see enough natural infection to top-off the vaccination-induced immunity to get us to something like herd immunity. But the numbers are frightening: we may need about a fifth of us to acquire natural infection. That is five million Australians infected with substantial illness and death.

Thankfully, we have another choice: accept that some restrictions and public health measures need to continue beyond mid-2022 to complement vaccination.

As noted in the graph above, there is still a lot of uncertainty about how we open up the borders. We, and other groups, are actively modelling these options to more fully articulate and quantify pathways out.

The good news is even though herd immunity through vaccination alone is no longer a realistic option, there is an alternative path out through high vaccine coverage augmented by ongoing contact tracing, mask-wearing and physical distancing.

Put another way, 80% vaccination of adults pulls the effective reproductive rate down from 5.0 to 2.2, which is not enough to stop exponential spread. But a mix of mask-wearing, contact tracing and physical distancing will be enough to pull the effective reproductive rate to less than 1.0 — low enough to halt the spread of COVID-19.

Tony Blakely, Professor of Epidemiology, Population Interventions Unit, Centre for Epidemiology and Biostatistics, Melbourne School of Population and Global Health, The University of Melbourne and Vijaya Sundararajan, Associate Professor of Epidemiology and Biostatistics, Department of Medicine, University of Melbourne; Professor, Public Health, La Trobe University

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

What’s the risk if Australia opens its international borders? An epidemiologist explains

Posted on April 20, 2021 by particularkev

Tony Blakely, The University of MelbourneCoinciding with the Trans-Tasman travel bubble starting today, over the past week there have been murmurings Australia could soon relax its borders further, through mechanisms such as home quarantine or letting in vaccinated people.

But what are the risks?

Here I propose three things we must consider:

the prevalence of the virus in the country from where travellers are coming, including the strain of virus
measures taken for the people travelling, including home quarantine and whether travellers are vaccinated
the percentage of our population who are immune.

Importantly, all these factors matter. It’s not simply a case of needing to ensure all travellers are vaccinated.

The level of infection in the country of origin matters enormously

At around Christmas time, roughly 2% of the UK population was infected. That percentage is now considerably less, but it’s still likely around 1,000 times higher or more than the risk in China and other East Asian countries. The risk is near zero for New Zealand, Taiwan and many Pacific countries.

However, things will change. At the moment the United States seems to be maintaining high infection rates while also rapidly vaccinating the population. This is probably because of more transmissible variants, and society loosening up, offsetting gains from more people being immune. But at some point, perhaps around mid-year, the infection rate in the US should plummet as the percentage of people immune increases to somewhere around 60-80%. All this is to say we can expect infection rates in countries to vary a lot in the next six to 12 months.

Let’s work through an example of the United Kingdom. Assume the UK has another surge of infections such that 0.5% of British people are infected and unaware of it, and could jump on a plane to Australia. Let’s assume we decide to let 10,000 Brits come to Australia each month. So 0.5% of 10,000 would mean roughly 50 infected people arriving per month.

Mitigating the risk of travellers

Of course, we would do more to reduce the risk. We could test people before they get on the plane and when they arrive. Let’s assume that weeds out another 50%, as the other half may be still incubating and not yet testing positive. That’s 25 COVID-positive British people arriving per month.

Next, let’s assume we require all travellers to be vaccinated. That will reduce their risk of unwittingly carrying the virus (through either symptomatic or asymptomatic infection) by between 66% for the UK variant and 81% for “normal” virus for the AstraZeneca vaccine. Data are still sketchy on any infection for Pfizer, but it’s likely 90% or more, given 95% protection against symptomatic disease in Pfizer’s clinical trial. If we assume 80%, we are now down to five infected Brits arriving here per month.

Importantly, the vaccine also reduces both the duration of the disease and its infectiousness, for vaccinated people unlucky enough to get infected. We don’t know by how much as the real-world evidence is still accruing, although animal data on peak viral load and duration of likely infective viral load supports this contention.

If we assume (conservatively in my view) that there is a 50% reduction in duration and 50% reduction in peak infectivity for hapless vaccinated people who still get infected, that is 25% of the risk of passing it on (that is, 50% of 50%).

Therefore, if an unvaccinated person, infected with the UK variant, was going to infect an average of 3.5 people in the absence of any social measures such as mask-wearing, the infected-after-vaccination person would only infect 0.875 other people – a 75% reduction in the reproductive rate. So our remaining five infected Brits are less infectious.

Intensity of quarantine measures for arrivals

Let’s consider the option of home quarantine. We don’t know how effective this will be, because of potential compliance issues.

But the risk of home quarantine breaches can be reduced by technology like ankle bracelets, GPS tracking on travellers’ phones to ensure they stay home, and only allowing home quarantine if any other members of the household are also vaccinated, to give an extra layer of protection.

Let’s assume home quarantine with these extra measures stops 80% of infected people getting out and about in Australia while infectious.

So we are now down to one infected British person who has slipped through per month. But given they are also vaccinated, they’re less likely to pass on the infection. And this risk can be reduced further still by ensuring they’re wearing a mask – although if they “breached” home quarantine rules they may not be likely to wear a mask.

It’s important to remember even “proper” quarantine isn’t foolproof. About one in 250 infected people last year in hotel quarantine caused a leakage.

Is Australia a tinderbox?

Yes. Perhaps only 5% of us are immune. Even if, via the above measures, we get just one infected person a month in Australia – the situation could blow up. Keep in mind the above example assumes we’re only allowing travellers from one country too. More countries means more travellers means more risk – although as above, the risk varies based on the infection rate in the origin country.

You can play with various scenarios in our COVID-19 Pandemic Trade-offs tool, launched two weeks ago. What you’ll find is that until most adults in Australia are vaccinated, any loosening up of how we respond to the virus incursion is unwise. If contact tracing cannot mop up the inevitable incursions, we’ll still need to use social restrictions, including lockdowns, until the vaccination rollout is complete.

But we can probably think about inching forward to some increased risk once all over-50s are vaccinated (phase 2A), with some modest relaxation of the border. Yet we can never totally escape the risk of outbreaks.

So what can we do now with borders?

First, continue with the Trans-Tasman bubble.

Second, remove or greatly reduce quarantine for vaccinated travellers from many East Asian countries, which present a low risk to Australia. As an example, the average number of known active infectious people in China at any point in time recently is about 250. Let’s assume this equates to about 100 unknown infections at any point in time (that is, people who are not yet symptomatic or detected). For a population of 1.4 billion, that’s a 0.000007% risk of any person in China being infected.

This suggests that for 10,000 vaccinated arrivals from China per month with modified quarantine, the expected number of infected people unwittingly getting out into the Australian population per month is 0.000014. Or, put another way, our above UK example presents 70,000 times the risk of an arrival from China. Given such low risk, it’s hard to justify why university students from China cannot start in time for semester two this year if they’re vaccinated and going into some form of modified quarantine.

Third, we need a national framework to assess the risk. Focusing on one measure alone isn’t wise — you have to look at the whole system. Such a framework can be developed now, at the same time as setting our risk thresholds so policy-makers, airlines and other industries can start planning.

Tony Blakely, Professor of Epidemiology, Population Interventions Unit, Centre for Epidemiology and Biostatistics, Melbourne School of Population and Global Health, The University of Melbourne

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

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

Posted on September 5, 2020 by particularkev

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 here

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

Posted on July 30, 2020 by particularkev

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.

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.

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.

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.

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?

Posted on June 19, 2020 by particularkev

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.

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.

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

Posted on May 23, 2020 by particularkev

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.

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).

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.

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.

South Australia has had no new cases since May 7 (15 days)
Western Australia has been case-free since May 18 (four days)
Tasmania had its last case on May 15 (seven days)
the last cases in the Northern Territory and the ACT were on May 2 (20 days).

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.

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.

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

Posted on May 23, 2020 by particularkev

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.

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?

Posted on March 24, 2020 by particularkev

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.

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.

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.

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.

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.

Sharing my thoughts with the world from a Particular Baptist perspective

More people stranded than we think?

Survey: psychological and financial impacts

Government support for those stuck overseas

Enough flights to get everyone back?

Falling through cracks

What about unaccompanied kids and non-citizens?

What needs to change now

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Is seven days enough?

How will we ensure people stay home?

What about other household members?

Which states will go first?

What about travel bubbles?

Will contact tracers be able to cope?

What about new variants from overseas?

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Vaccination targets

Vaccination alone won’t get us herd immunity

How did we get to 90%?

What’s our alternative?

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The level of infection in the country of origin matters enormously

Mitigating the risk of travellers

Intensity of quarantine measures for arrivals

Is Australia a tinderbox?

So what can we do now with borders?

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The legal challenge in WA

What happens next?

What will the High Court decide?

Why governments need discretion in cases like this

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States make their own rules

Elimination should be the green light

Are we there yet?

We’ll need safeguards in place

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What limits does the Constitution impose on the states?

What about current proposals to restrict movement across state borders?

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

The states can close borders to protect their citizens

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