Common Sense for Australia Inc believes that policy makers should lead public opinion; and listen but not be beholden to sectoral interest (Leadership).

Contrary to impressions given by most of our politicians and journalists, ultimate power in The Constitution of Australia to make and break laws for ‘public lockdowns’ (from ‘state borders’ to ‘home quarantines’ to ‘vaccine passports’) rests not with our states and territories, but with Federal Government.

(Discussion on relevant legalities appear under the Comments heading further below).

Background

Almost uniquely among health measures, exercising quarantine powers (closing borders, declaring public lockdowns) in pandemic emergencies, has substantial impacts upon society – for our liberty and prosperity – not all of which connect to our individual health.  In the case of the Covid-19 Crisis one example we have experienced, is a huge expansion in public indebtedness, particularly for our Federal Government.

On 3 March 2020 our Federal Government announced that if needed, it would use its powers legislated in the Biosecurity Act 2015 (Commonwealth) to address the risks of Covid-19.

On 20 March 2020 it accordingly banned large gatherings of people anywhere in Australia. It also introduced restrictions to residential aged care facilities and closed international borders.

On 22 March 2020, the Prime Minister and the Premiers and Chief Ministers announced that they had agreed to a range of social distancing measures that would be reviewed on a monthly basis. This so-called ‘National Cabinet’ announced that these measures (unlike the banning of large gatherings announced by the Federal Health Minister only 2 days before) would be implemented using laws of each State and Territory, rather than each State and Territory simply enforcing a single set of rules, which could have been put into effect by our Federal Health Minister pursuant to the Biosecurity Act 2015 (Commonwealth).

On 22 March 2020 the Federal Government, either by intention or accident, effectively abrogated its exclusive power (and this essay argues its responsibility) under the Constitution of Australia to manage our nation’s Covid-19 pandemic emergency (under a pretext of the States’ responsibilities for health).

When the so-called ‘National Cabinet’ broke down, with various State Premiers making their own determinations as to public lockdowns (including border closures), it was open to the Federal Government to approach the Federal Opposition (or the Opposition to approach the Government) for the purpose of agreeing legislation, declaring invalid, any State or Territory laws trespassing upon ‘laws of quarantine’. The failure of our media, to focus on the apparent failure (a stronger noun might be used) of our Government or Opposition to do just that, is a stunning indictment of our nation’s journalistic profession.

The impact on Australia’s management of the Covid-19 Crisis has been as follows. Individual States and Territories proceeded to make whatever orders they wished for lockdowns and border closures without a corresponding level of accountability, for the public subsidisation of financial costs of such measures.

This essay argues that Australia would have been better served (with less closure of borders, more measured public lockdowns, reduced economic costs and materially reduced increase in our Federal Government debt), if the Federal Government had retained decision-making responsibility over lockdowns (including border closures). Because, as was completely forseeable, it would be the Federal Government that would have primary responsibility for bearing and managing the corresponding public costs of those decisions.

Proposals

That Section 8 of the Biosecurity Act 2015 (Commonwealth) (entitled ‘Concurrent operation of State and Territory Laws’) be amended, so as to invalidate all State and Territory law, to the extent that such laws:

(a) pertain to human biosecurity emergencies; and

(b) encroach on Federal Parliament’s Section 51(ix) Constitutional Power over quarantine legislation.

Transition

This essay proposes that any review of Australia’s response to Covid-19, be grounded in the proposition, that on the next occasion we face a human pandemic, our Federal Government will duly exercise its Section 51(ix) responsibilities for our Commonwealth.

Comments

Section 109 of the Constitution of Australia provides that: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

Section 5 of the ‘Commonwealth Constitution of Australia Act 1900’ provides that: “This Act and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State”.

Section 51 of the Constitution of Australia enumerates the matters over which legislative power has been granted by the Australian States to the Federal Parliament. Section 51(ix) contains one word ‘quarantine’. The (now defunct) ‘Quarantine Act 1908’ defined ‘quarantine’ as including “the examination, exclusion, detention, observation, segregation, isolation, protection and treatment of vessels, installations, human beings, animals, plants, or other goods or things”. No corresponding guide to a legal interpretation of the word ‘quarantine’ appears in the ‘Biosecurity Act 2015’ (which replaced the Quarantine Act).

Barrister Stephanie Baker, in ‘An Executive Grab for Power During Covid-19’ (AUSPUBLAW, 13/05/2020), quotes High Court Chief Justice Latham in the “Pharmaceutical Benefits Case” (1945) 71 CLR 237 at page 257:

“In relation to quarantine the Commonwealth Parliament has full powers of legislation. It can not only provide that money shall be spent upon a quarantine, but it can devise and put into operation a whole compulsory system of quarantine under which duties can be imposed upon persons and penalties inflicted for breach of the law. But in relation to other aspects of public health the Commonwealth (once again leaving out of account the Territories) has no such power of legislation. The Commonwealth can, in my view, authorise the expenditure of public money on inquiries, investigations, research and advocacy in relation to matters affecting public health. But the Parliament could not pass a law requiring citizens of the States to keep premises clean or to submit to vaccination or immunization.”

His Honour Chief Justice Latham’s above ‘obiter dicta’ (ie comments not setting precedent law) in the Pharmaceutical Benefits Case are consistent with our Federal Government having no power in relation to ‘compulsory vaccinations’, but full power in relation to both existence and veto of any ‘vaccine passports’.

Counter arguments

This essay assumes that pandemics require governments to make decisions, which balance:

(a) interests of health and safety of citizens

with

(b) competing interests, of the consequences of measures undertaken, to preserve the health and safety of citizens.

It does not address contrary view, that government must preserve health and safety, without regard to other factors.

For and on behalf of Common Sense for Australia Inc
Authorised for publication, 28 October 2021