View from The Hill: New Zealand arrivals inject new irritation into federal-Victorian tensions


Michelle Grattan, University of Canberra

Victoria Premier Daniel Andrews’ angst at the weekend about the multiple New Zealanders who arrived in Victoria via the travel bubble from New Zealand to New South Wales is, as much as anything, a pointer to the pressure the premier is under.

Andrews says his state chose not to be part of the bubble at this stage and he didn’t know these people were coming to Victoria. Now, he says, 55 have “turned up” from NZ.

The federal government counters that Victoria was at the meeting of the federal-state health officials committee where issues of New Zealanders travelling on were canvassed.

Andrews claims when Victoria asked the feds for details of the arrivals they were slow to pass it on. The feds deny a delay but say dealing with internal border issues is up to the states anyway.

The point is, this is a dispute of little consequence. New Zealand doesn’t have community transmission – the visitors are at the very bottom end of risk.

Andrews might be annoyed that these New Zealanders, and thus the Morrison government, have found a way to circumvent his refusal to sign up to the COVID “hotspot” definition and become part of the (one way) trans-Tasman bubble.

But Victoria has an open border for people going in (it’s a different matter for those exiting, for whom other states make the rules). So provided they’re told to abide by the current state restrictions, the presence of the New Zealanders is neither here nor there.

Western Australia is also complaining about New Zealand arrivals – it is in a rather different position because it has a hard state border.

The overall takeout is that those travelling from New Zealand in the “bubble” – which also involves the Northern Territory – might need to be given more information about the restrictions in particular states and internal borders before they leave NZ.

The micro takeout is that Andrews is picking an unnecessary fight. The verbal Victorian-federal tennis match over the New Zealanders is another indication of the tensions between the two governments.

Federal ministers tried to twist Andrews’ arm ahead of Sunday’s announcements about the next stages of opening in Victoria.

Andrews announced a range of restrictions would be relaxed from midnight. People can travel 25 kilometres from their home for shopping and exercise (widened from five). Groups of up to ten from two households will be able to gather in an outdoor places for exercise or a picnic.

Hairdressers can open, but people can’t have visitors over to watch next weekend’s AFL final (played in Queensland).

Retail isn’t scheduled to reopen open until November 2, when restaurants will be open to diners (with limits), and people will be able to leave home for any reason.

With new cases in single figures for the last five days, Andrews indicated the timetable could move faster than outlined.

The politically embattled premier is determined to minimise risks in bringing the state out of lockdown. The federal government and business community continue to rail. Andrews may judge that he’s taken the attacks from those quarters and the greater immediate danger to him is the possibility of a fresh tick-up in virus numbers.

The eventual fallout – in lost businesses, in the public’s judgement of Andrews – will be months, possibly years, in the coming.

In the meantime, whether his ultra-caution is excessive or well-judged will be fiercely debated.

He maintains it’s all on the health advice.

When asked how come his advice was at odds with the position of the federal government and epidemiologists who disagree with him, his edginess was obvious.

“I will put it to Minister [Greg] Hunt and anybody else
who has a view about these things, I don’t accept that anybody has a more complete picture of what this virus is doing in Victoria than the Victorian chief health officer, the Victoria deputy chief health officer, the Victorian health minister and the Victorian premier.” And so he went on.

Some Victorians will welcome the timetable as tangible hope in a bottle. More than a few small business owners will see the hairdresser across the road opening and ask, why not us?

The Australian Industry Group described the announcement as “plodding steps in the right direction”, while raising a nightmare scenario, saying businesses “still have no certainty that [they] will not be forced to shut again after they have been allowed to reopen”.

The federal government’s impatience with Victoria was on show again in a Sunday statement from Prmie Minister Scott Morrison, Treasurer Josh Frydenberg and Health Minister Greg Hunt, which highlighted economic and mental health costs.

“Victoria’s three-day rolling average is now below two cases per day. Maintaining this result will make a strong case for the retail and hospitality sectors to reopen before the next review date in November,” they said.

“The continued health, mental health and financial impacts of these restrictions will be profound on many Victorians. That is why we encourage Victoria to move safely and quickly towards the NSW model of strong contact tracing and a COVID-Safe but predominately open economy.”

As Morrison and the ministers say, “the national picture is a positive one” in terms of case numbers and handling them. Yet politically, the national handling of COVID continues to fray.

The conflicts around the blunders and inadequacies that led to the Victorian second wave, the imminent Queensland election in which Premier Annastacia Palaszczuk is relying substantially on her COVID record, with its tough border policy, and WA’s semi-secessionist mindset are all straining the federation.

The national cabinet initially managed dissent among the various governments. But presently the disunity is swamping the unity.
To the extent possible, it is important Morrison keep together what has become an unwieldy beast.

While COVID in Australia may be substantially under control when we say a thankful goodbye to 2020, 2021 will be a challenging year that would only be made more difficult by excessive fractiousness within the federation.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.

Coalition gains in Newspoll after budget; Trump falls further behind Biden



Mick Tsikas/AAP

Adrian Beaumont, University of Melbourne

This week’s Newspoll, conducted October 8–10 from a sample of 1,527 voters, gave the Coalition a 52–48% lead over Labor in the two-party preferred question, a one-point gain for the Coalition since the previous Newspoll three weeks ago.

Primary votes were 44% Coalition (up one), 34% Labor (steady), 11% Greens (down one) and 3% One Nation (steady).

Prime Minister Scott Morrison remained very popular: 65% were satisfied with his performance and 31% were dissatisfied, for a net approval of +34. These figures are unchanged from the last poll.

Opposition Leader Anthony Albanese’s net approval slid three percentage points to -4. His net approval is down six points since late August. Morrison led as better PM by 57-28% (compared to 59-27% three weeks ago).

Newspoll asks three questions after each budget: whether the budget was good or bad for the economy, whether it was good or bad for you personally, and whether the opposition would have delivered a better budget.

On the economy, 42% said the budget was good and 20% bad. When it came to people’s personal fortunes, 26% said they would be better off after the budget, compared to 23% who said worse off. By 49-33%, respondents said Labor would not have delivered a better budget.

Analyst Kevin Bonham tweeted a graph showing this budget performed well compared to historical budgets. The 16-point deficit for the question of whether Labor would have delivered a better budget is the worst for an opposition since 2009.

The one-point gain for the Coalition on people’s voting intentions is also consistent with a well-received budget.

Australian state polls: Victoria and WA

A Victorian Morgan SMS poll, conducted September 29-30 from a sample of 2,220 voters, gave Labor a 51.5-48.5% lead over the Coalition, unchanged from mid-September.

Primary votes were 39% Labor (up two), 39.5% Coalition (up one) and 10% Greens (down two). Morgan’s SMS polls have been unreliable in the past.

In a forced choice, Premier Daniel Andrews had a 61-39% approval rating, down from 70-30% in early September.

Three weeks ago, Newspoll gave Andrews a 62-35% approval rating (compared to 57-37% in late July).

An Utting Research poll of five Western Australian marginal seats showed an average swing to Labor of 16%. In Liberal leader Liza Harvey’s Scarborough seat, the result was 66-34% to Labor.

Labor had a big victory at the March 2017 state election, and this poll suggests a Liberal wipe-out at the next election, due in March 2021.

Biden’s national lead over Trump exceeds ten points

In the FiveThirtyEight national poll aggregate, Democratic presidential nominee Joe Biden now leads President Donald Trump by 10.4% (52.2–41.9%). It’s somewhat closer in the key swing states, with Biden leading by 8.0% in Michigan, 7.3% in Pennsylvania, 7.2% in Wisconsin, 4.5% in Florida and 3.9% in Arizona.

Since my article about Trump’s coronavirus infection and the first presidential debate, Biden’s national lead has increased by 1.4%.

With Pennsylvania and Wisconsin now polling very closely, both can be seen as “tipping point” states. Previously, Pennsylvania had been better for Trump than Wisconsin.

The gap in Trump’s favour between the national vote and the tipping-point states of Wisconsin and Pennsylvania has increased from 2.4% to 3.2%. If Trump were within five points nationally, this election would be highly competitive. But this difference isn’t going to matter with Biden up ten points nationally.

CNN analyst Harry Enten says Biden is polling better than any challenger against an incumbent president since 1936, when scientific polling started.

US polls include undecided voters, so it is hard for candidates to reach 50%. In 2016, Democratic candidate Hillary Clinton never reached that mark in polls, and Trump was able to win far more of the late deciders.

The FiveThirtyEight forecast gives Trump a 14% chance to win, down from 17% last week. Trump has just a 6% chance to win the popular vote.

The Senate forecast gives Democrats a 72% chance to win the Senate, up from 70% last Wednesday. The most likely Senate outcome is still a narrow 51-49 Democratic majority.The Conversation

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, 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


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.

How Clive Palmer could challenge the act designed to stop him getting $30 billion



Dan Peled/AAP

Murray Wesson, University of Western Australia; Ian Murray, University of Western Australia; John Southalan, University of Dundee; Julie Falck, University of Western Australia; Natalie Brown, University of Western Australia, and Sarah Murray, University of Western Australia

The West Australian government recently took the extraordinary step of passing legislation to try to stop mining magnate Clive Palmer from collecting about $30 billion in damages from the state.

As Premier Mark McGowan argues, such a hefty bill risks bankrupting WA.

While the so-called “Mineralogy Act” passed state parliament in just two days, it is far from straightforward.

It raises a host of questions that are likely to be tested in courts in the months – and possibly years – ahead.

What is this dispute about?

Palmer is no stranger to litigation. Recently, he has also been fighting the WA government over COVID border closures.

But this particular dispute dates back to 2012 and concerns an iron ore project in the Pilbara.




Read more:
Federal Court finds border closures safest way to protect public health in Clive Palmer case


Palmer has argued his development proposals for the Balmoral South iron ore project were unlawfully refused by the previous state government, under former premier Colin Barnett. He is reportedly seeking about $30 billion in damages.

The Mineralogy Act

In mid-August, the state government passed the Mineralogy Act to terminate the damages claims against it.

WA Premier Mark McGowan
The McGowan government says the legislation is needed to protect the ‘interests’ of WA.
Richard Wainwright/AAP

Before this, Palmer and his companies, including Mineralogy, had been pursuing these claims through arbitration – a dispute resolution process that happens outside the courts. This arbitration was about whether the WA government properly dealt with proposals Palmer’s companies made under a 2002 agreement.

Last week, after the act passed, Palmer declared he would sue McGowan and Attorney-General John Quigley for “contempt of the High Court of Australia”.

This is likely to be one of many salvos in a protracted legal battle.

Does Palmer have a claim for contempt of court?

Contempt of court means acts that interfere with or undermine the authority, performance or dignity of the courts.

The Mineralogy Act seeks to terminate the arbitration for the reported $30 billion claims.

It also invalidates existing arbitral awards, which are decisions determining parties’ rights and liabilities. Given that arbitrations are not court proceedings, these aspects of the act do not establish contempt of court.

However, where a party does not comply with an arbitration award, the award can be registered with the courts and then enforced as if it were a court judgment.

Dumper truck in the Pilbara.
This dispute is over an iron ore project in the Pilbara.
Kim Christian/AAP

Before the act was passed, Palmer had registered two arbitration awards in the Queensland Supreme Court. The act seeks to remove the basis for these claims. There is precedent that this may constitute contempt of the Queensland court (although contrary to Palmer’s assertions, not the High Court).

However, even if Palmer establishes contempt of the Queensland court, that would not invalidate the Mineralogy Act. Any penalty imposed by the court would also be modest in comparison to the $30 billion damages claim.

Can the WA parliament pass a law that takes away rights without compensation?

Apart from the contempt issue, Palmer may argue the WA parliament cannot pass a law that takes away individual rights without compensation.

In this regard, state laws that take away rights are unusual, but not new.




Read more:
The WA government legislated itself a win in its dispute with Clive Palmer — and put itself above the law


The High Court and Queensland and WA supreme courts have previously treated state laws that remove rights of particular persons without just compensation as valid.

While the WA parliament has not previously amended a state agreement with a mining company without consent, this was found to be valid in Queensland. This approach is consistent with the principle that the present parliament can generally amend existing laws.

As a political, rather than legal matter, politicians have found that laws targeting mining rights can be hazardous.

Whether public opinion will ultimately support the Mineralogy Act remains to be seen. But the current popularity of the WA government over its handling of COVID-19 and the potential popularity of “saving” the state’s finances will undoubtedly influence perspectives.

Are parts of the Mineralogy Act unconstitutional?

Palmer may also argue parts of the Mineralogy Act are unconstitutional.

Parliaments can pass laws about matters involved in ongoing legal disputes. They can even target particular cases or parties. But based on Chapter III of the Constitution, they can’t compromise the court’s integrity by telling a court how to decide. This constitutional line is often tricky to draw.

Clive Palmer at a press conference on the Gold Coast.
Clive Palmer says he will sue the WA government over the Mineralogy Act.
Dan Paled/AAP

The act does not entirely remove the court’s power to examine the legality of government actions. But it does try to stop courts from giving remedies that are unfavourable to WA.

So, it doesn’t quite tell courts how to decide, but it does restrict what they can do, which is getting into uncertain constitutional territory.

The WA government has described the Mineralogy Act as “unprecedented,” containing a number of measures that are “not usual”.

but Mineralogy and Mr Palmer are not normal and these measures are needed to best protect the interests of the state and the community.

However, even necessary laws must be constitutional.

Does Palmer really stand to gain $30 billion in damages anyway?

Palmer has said the widely reported $30 billion price tag is “bullshit”. But Quigley tabled details in parliament last month showing the total damages sought by Palmer and his companies in relation to the iron ore project was at least $27.75 billion.

Palmer’s damages claims focus on the loss of opportunities to develop and sell the project to Chinese state-owned enterprises.

But core principles for assessing damages for breach of contract – which in this case is a 2002 agreement between Mineralogy and the state government – may stand in the way.




Read more:
These young Queenslanders are taking on Clive Palmer’s coal company and making history for human rights


The state’s improper delay in approving the project must have caused the loss – but it is not clear this is the case. There may have been other reasons for the losses, including the post-GFC mining slump.

Also, the value of what Palmer has lost needs to reflect the likelihood the project would have occurred without the delay, and so is likely to be much lower than $30 billion.

Palmer must also have taken reasonable steps to minimise his loss. This might mean following the standard industry practice of amending the development proposals to meet state government conditions, noting the Mineralogy Act still leaves this possibility open.

What happens now?

Palmer has a potential claim that the passage of the Mineralogy Act constitutes contempt of the Queensland Supreme Court. It is also possible parts of the act, such as those that restrict the remedies available to courts, are unconstitutional.




Read more:
Mineral wealth, Clive Palmer, and the corruption of Australian politics


However, even if Palmer succeeds in these claims, it is not clear how much he will actually gain financially, or if his claim is really worth $30 billion.

The Mineralogy Act is so unusual, it would be foolish to predict outcomes to these complex legal questions. Over the coming months, we will start seeing answers to these questions as Palmer brings lawsuits and proceedings work their way through the courts.

The answers will provide profound insights into the decision-making powers of states.The Conversation

Murray Wesson, Senior Lecturer in Law, University of Western Australia; Ian Murray, Associate Professor, University of Western Australia; John Southalan, Global Faculty (Centre of Energy, Petroleum and Mineral Law & Policy), University of Dundee; Julie Falck, Lecturer, University of Western Australia; Natalie Brown, Lecturer in Administrative and Property Law; PhD in WA iron ore State agreements, University of Western Australia, and Sarah Murray, Professor specialising in public law and less-adversarial justice, University of Western Australia

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

View from The Hill: COVID response helped NT Labor, encouraging Palaszczuk and McGowan to stick to their scripts


Michelle Grattan, University of Canberra

Both those pressing for states to re-open borders, and defenders of their resistance to doing so, will look for arguments to support their cases in Saturday’s Northern Territory election results.

Chief Minister Michael Gunner has taken a tough line on the NT border. With the NT COVID-free, people can’t go to the territory from COVID “hotspots” without quarantining at their own expense.

Labor’s loss of seats – while retaining government whether in majority or minority – is seen by the “open borders” urgers as carrying lessons about putting all (or most) eggs in a keep-safe basket.

It’s accepted that if he hadn’t had COVID to run on, Gunner would have been much worse off, given the NT’s pre-COVID economic problems.

But if he had taken a softer approach to the border, and there’d been a major COVID outbreak, he would have worn serious blame. With indigenous people – who, like the elderly, form a high risk group for COVID – forming about 30% of the NT community, a big outbreak could have been catastrophic.

And while the NT economy remains in poor shape, especially the tourist sector, the state is open internally (they were all hugging at those party functions on Saturday night).

Queensland premier Annastacia Palaszczuk and Western Australian Premier Mark McGowan are unlikely to see the NT result as sending a signal their border policies will be a political handicap.

That doesn’t mean Palaszczuk and McGowan can afford to rely on their performances on COVID alone when they go to the polls in October and early next year respectively. Their voters will expect more. But as things stand, restrictive border policies are popular and the NT hasn’t said otherwise.

Scott Morrison’s relative powerlessness on the border issue was illustrated at Friday’s national cabinet.

Progress is being made on specific problems, such as the needs of agriculture in border areas, and health matters.

But on the basic question of opening or closing, the premiers remained firm. Only NSW is Morrison’s ally in this battle.

While commentators see the war over borders as a sign of the federation’s dysfunction, voters in particular states read it differently.

Morrison announced at his Friday news conference national cabinet had asked the Australian Health Protection Principal Committee (AHPPC), including state and federal health advisers, to define a “hotspot” and consider movement restrictions relating to these spots.

He hopes such a definition would put pressure on premiers and chief ministers to limit border closures.

It is apparently trodden and tricky territory. Acting Chief Medical Officer Paul Kelly told the news conference: “It is a piece of work we have had an attempt at before. And we’ll continue to try to get consensus there in AHPPC about a definition of a hotspot.”

It remains to be seen whether this committee can agree. And if it does, whether that would make any difference to what leaders do.

But when parliament resumes on Monday, it won’t be borders that will be the front of mind issue – it will be aged care.

With a majority of COVID deaths being people who lived in aged care facilities, and an absolute shocker of a performance from Aged Care Minister Richard Colbeck on Friday, the opposition has a lot of ammunition.

Colbeck, appearing before the Senate COVID committee, was asked two simple questions. How many deaths had there been of residents of facilities, and how many COVID cases were there among residents at present. He could neither remember, nor find the numbers immediately. This was appalling preparation.

Forced to defend Colbeck, Morrison said, “on occasion, I can’t call every figure to mind”.

But the PM knew such a lapse has an impact beyond its strictly objective importance.

An example from long ago makes the point. Late in the Hawke government, then treasurer John Kerin at a news conference was unable to explain an economic term. It was hardly a hanging offence. But it damaged Kerin, and the government.

With the Colbeck clip shown over and over, it quickly becomes a symbol of both the minister’s failure, and the failure of the government to do enough to protect aged care residents.

The odds are short that Morrison will move Colbeck from aged care when he reshuffles his ministry following the departure of Mathias Cormann late this year.

But Colbeck is only one player in the aged care crisis, and not the most important. He’s the junior minister in the health portfolio. The Health Minister Greg Hunt, the prime minister, the government regulator of the industry (the Aged Care Quality and Safety Commission), and advisers to government share responsibility. And it is important we don’t forget the private providers: did some of them not heed warnings?

Ultimate political responsibility belongs to the federal government.

Faced with questions about the Victorian aged care disaster, Morrison has tried to unload some of the blame onto the state government by saying the states have responsibility for public health.

That’s true and the Victorian government must be accountable, both for unleashing community transmission with the quarantine breach and for inadequacies in its health reaction. But the fact the federal government is responsible for the sector means Morrison, Colbeck and Hunt need to both admit the Commonwealth’s mistakes and also lay out a convincing roadmap for the future.

Some actions are being undertaken, and there is the complication that the report of the royal commission into aged care is still months away. But the issue is urgent.

The Morrison government is always reluctant to be seen to be pushed, and Friday’s national cabinet provided an interesting insight into this.

When the royal commission less than a fortnight ago suggested, based on evidence from Monash University geriatrician Joseph Ibrahim, that the government should set up an advisory unit including people with expertise in aged care, infection control and emergency responses, Morrison was publicity dismissive.

But the statement from Friday’s national cabinet said: “A time-limited AHPPC Aged Care Advisory Group will be established to support the national public health emergency response to COVID-19 in aged care. The Advisory Group will bring together expertise about the aged care sector, infection control, emergency preparedness and public health response.”

Take a bow, Professor Ibrahim and the royal commission.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.

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.




Read more:
View from The Hill: Morrison government accepts Victorian closure but won’t budge on High Court border challenges


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.

Can I visit my boyfriend or my parents? Go fishing or bushwalking? Coronavirus rules in Western Australia



Shutterstock/Inc.

Michael Lund, The Conversation and Wes Mountain, The Conversation

Editor’s note: The following is current as at April 3, 2020. Things are changing quickly so best to keep an eye on the latest information from WA Health, as well as the federal government.

This article adds to the information we’ve published for New South Wales, Queensland and Victoria and on South Australia and the ACT. We will bring you more information on other states as we collect it.

According to Google Trends, some of the top coronavirus searches nationally in the past few days include “can I visit my parents coronavirus Australia?”, “can I go fishing during coronavirus?” and “can I go for a drive during coronavirus Australia?”

“Can I visit my boyfriend during coronavirus Australia?” was also a common one.




Read more:
Can I visit my boyfriend? My parents? Can I go fishing or bushwalking? Coronavirus rules in NSW, Queensland and Victoria explained


We asked legal experts in Western Australia – Natalie Skead and Michael Douglas from the University of Western Australia – to help shed some light on what the new rules might mean for residents of their state.

Can I visit my parents?


Wes Mountain/The Conversation, CC BY-ND

It depends.

If you’re a child with parents who live apart, and you move between each of your parent’s homes, then you can keep doing that.

Aside from that, you can’t organise a prohibited gathering, which includes more than two people in “a single undivided indoor space” like a room or even a patio, unless you maintain 4m² distancing.

So, yes, you can visit your parents if you each stay sufficiently far from one another, but you can’t hug mum! Sunday family dinner is off the cards for now.

There is an exception “for the purposes of providing care or assistance … to a vulnerable person or providing emergency assistance”. The terms “care” and “vulnerable person” are not defined. If one of your parents has a disability or a health condition, and you want to look after them, then visiting them is okay.

It also depends on where your parents live. The parents of one of the authors (Michael) live down south, while he lives in Perth. It was his dad’s birthday on Wednesday. The intra-state travel restrictions meant he could not visit the elder Douglas. They all had a FaceTime birthday dinner instead.

Birthdays during pandemic.
Douglii

The Prohibition on Regional Travel Directions say you cannot enter another “region” in WA unless certain exceptions apply. “Regions” are defined in the Planning Act.

But there’s an exemption for “compassionate grounds” — like one of your parents is seriously ill, or an immediate family member has died. Visiting a parent on their birthday is not enough.

If your parents live in certain parts of the Kimberley, or a remote Aboriginal community, visiting may require quarantine under restrictions made by both the state and federal governments, if it is permissible at all under the Prohibited Regional Travel Directions. The situation there is not good and by the time you read this, visiting may be prohibited.

If your parents are interstate and you are in WA, then the answer is more complicated. Seek legal advice.




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Can I go fishing or bushwalking?


Wes Mountain/The Conversation, CC BY-ND

The Preventative Restriction of Activities Directions do not specifically address fishing or bushwalking. But doing either with more than two people would be a prohibited gathering. That means you can only walk in the bush with the people who you are currently living with or one other person you don’t live with, but even then stay appropriately socially distanced.

Fishing is a bit murkier. Western Australia appears to have taken some guidance from a since deleted Facebook post, by the Queensland Minister for Transport and Main Roads, Mark Bailey, who attempted to clarify the boating and fishing rules as permitting boaters to fish for food to travel locally in their community.

The latest advice from the WA government is the social distancing rules for gatherings of no more than two in public places apply on the land and the sea, meaning they apply to both boat- and land-based fishing.

So, you can fish for food with one friend, or those you live with. If you’re going out on a boat, though, it will need to be a biggish one to accommodate the 1.5m/4m² distancing rule.

It also depends on where you propose to fish or bushwalk. You can’t do either outside your “region”.




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Can mosquitoes spread coronavirus?


Can I go for a drive?


Wes Mountain/The Conversation, CC BY-ND

The Australian government’s Department of Health says “all Australians are required to stay home unless it is absolutely necessary to go outside”.

This means you can only go for a drive to buy essential food, to attend to health needs (visiting a doctor or a pharmacy), or on compassionate grounds (for example, to care for a vulnerable person). So you should not go for a leisurely drive just to get out the house.

You can’t drive outside your region.




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Can I visit my boyfriend/girlfriend?


Wes Mountain/The Conversation, CC BY-ND

Under the directions, a gathering of two people indoors is not permitted “where there is not at least 4m² of space for each person at the gathering”.

This means you can visit your girlfriend or boyfriend provided the room you’re in is big enough, but you cannot touch them!

One might argue spending time with the girlfriend or boyfriend falls under the “care for vulnerable person” exception. That’s a weak argument.

An important exception applies where the “gathering” is with a member of the same household, meaning two or more persons who usually reside at the same place, irrespective of whether those persons are related to each other.

So if you immediately move in to your partner’s place, and then stay there, you may be okay to touch them, legally speaking. But you may be putting each other at unnecessary risk.

If your partner lives in another “region”, then you cannot visit them (even to move in).




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The coronavirus lockdown could test your relationship. Here’s how to keep it intact (and even improve it)


Can I go for a walk around my neighbourhood or sit on a park bench?


Wes Mountain/The Conversation, CC BY-ND

A walk around your neighbourhood — or on the beach — to get some fresh air or catch up with a friend, is not currently covered by state restrictions provided you limit it to a walk with only one friend or those with whom you live.

That said, given your walk would flout the federal Department of Health requirement we all “stay home unless it is absolutely necessary to go outside”, we suggest you think twice before heading out.

Sitting outdoors on a park bench or other public space with members of your household or one other person observing the social distancing rules, is not prohibited by WA’s restrictions against public gatherings. But, again, the federal government cautions strongly against hanging out in public, so you probably shouldn’t.




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Coronavirus: tiny moments of pleasure really can help us through this stressful time


The Conversation


Michael Lund, Commissioning Editor, The Conversation and Wes Mountain, Multimedia Editor, The Conversation

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