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State border closures divide legal opinion

Opinion

High Court challenges are being mounted over the Constitutional right of states to close their borders as part of COVID-19 restrictions. Will they succeed? It’s complex, explains Morry Bailes.

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The Australian public has largely been comfortable with border closures, but we are about to find out if they are in fact against the law.

Have the States all along been acting unconstitutionally?

Political mavericks Clive Palmer and Pauline Hanson are both independently taking on the issue of border closure, concerning the State of Queensland and in Mr Palmer’s case, Western Australia.

Mr Palmer purports to be acting in his own interest and that of his private company, Mineralogy. Ms Hanson on the other hand claims her standing before the High Court is in effect on behalf of Queenslanders. A third group of Queensland plaintiffs has also now joined the fray.

Locus standi, or your standing and ability to bring an action before a court, is in itself interesting in these cases. In the Palmer case an early utterance from the Court through its Chief Justice Susan Kiefel questioned whether Mr Palmer had standing against the State of Queensland, given he is a Queenslander and free to move around his own state. It may be that ultimately his denied entry into  Western Australia is what may prove to be more relevant.

That issue aside, there is general legal fascination with these actions amongst the legal fraternity, because the interpretation of section 92 of the Australian Constitution has been much combed over by the High Court since Federation, but never in circumstances where borders, state and territory, have been closed.

Borders have been closed before. In 1919, with an outbreak of Spanish flu, New South Wales closed borders with Victoria, South Australia and Queensland. However there was no legal challenge. In an implicit agreement the States looked after borders and the Commonwealth Government concerned itself with ports and maritime restrictions. Quarantine was utilised to enable people to cross borders in 1919, and there do seem to be striking similarities between then and now. But there was no court case.

Perhaps this issue is interesting to lawyers and few others, but that should not be the case. Governments must act constitutionally, and although borders mark the end of one legal jurisdiction and the beginning of another, we have been from Federation one nation. Typically we have continued to act as a group of independent states, which whilst appealing to ‘states rightists’, does not always create a pathway to uniformity and certainty as a nation.

It is a topical subject in Canberra, Premiers and Chief Ministers are being challenged by the Prime Minister to re-imagine our federalism. ‘All for one, and one for all’ if you like.

So what is the High Court going to find? Some senior constitutional experts have said the challenge ‘has legs’. I’m not so sure, and it may turn very much on the facts and timing of the case or cases. Don’t be surprised if the High Court brings these matters on for hearing fairly urgently.

Section 92 provides the following: ‘On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.’ There are therefore two elements to the provision, ‘trade and commerce’ and ‘intercourse’. The Palmer case seems concentrated on the latter.

The leading legal authority on Section 92 is Nationwide News Pty Ltd v Wills decided in 1992 by the then Mason-led High Court. As with all legal decisions, the judges in that case summarised the law as it had been decided to that point by the High Court and Privy Council. Justice Brennan was particularly helpful and it is clear that notwithstanding the words of S92, the construction of this section by the High Court is that it does not literally apply without restriction or regulation. To put that in the positive, restriction and regulation can apply and there may still be freedom as guaranteed by the section.

To give examples the court said in the 1988 case of Cole and Whitfield, ‘although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict a pedestrian’s use of a highway for the purpose of his crossing or to authorise the arrest of a fugitive offender from one State at the moment of his departure into another State.

Other examples that do not offend the section, include restricting publication or dissemination of pornography and gambling materials across borders, and significantly restricting animals or plants that may cause disease or, in another example, noxious drugs.

When appeals used to go to the Privy Council it said, saliently, ‘That permissible regulation of trade might take the form “of excluding from passage across the frontier of a State creatures or things calculated to injure its citizens”’.

Returning to Justice Brennan, he summarised it like this: ‘If the law is enacted for some other purpose then, provided the law is appropriate and adapted to the fulfilment of that other purpose, an incidental burdening of interstate intercourse may not be held to invalidate the law.

And drawing on other cases and legal commentators his judgment goes on to say ‘Where the true character of a law, ascertained by reference to the “grounds and design of the legislation, and the primary matter dealt with, (and) its object and scope”…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’.

Or to use the words of then Chief Justice Mason in the 1994 case of Cunliffe v The Commonwealth, ‘a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject-matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end. Once again, it would be a matter of weighing the competing public interests’.

A pandemic disease may well fall into such a category.

So it is clear that the current challenges to states’ decisions to close borders is not as straight up as the wording of Section 92 would seem, which has been much interpreted by the High Court, and which is now called upon to interpret yet again the Constitutional guarantee of free movement of ‘trade, commerce and intercourse’.

There are lots of issues that may influence this decision. Each case can only be decided on its own facts so they must be properly understood. The nature, extent and degree of border closures is highly relevant. And as alluded to timing is critical. By the time the court hears the matter, and if borders have re-opened, there may be nothing left to decide.

Freedom of movement has also been recognised in international law within a country as well as the right to leave and be entitled to return to ones country. Both the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights contain articles to that effect. So it is no mere fancy we are talking about here but a pretty basic right. The starting point will always be that the right to freedom of movement exists, save and unless for some exception.

It is customary in these columns to conclude with an opinion. Being neither brave nor foolish enough to call this one, I can however refer to remarks made to me by Acting Provost of the University of Adelaide, Professor John Williams, who is also Executive Dean, Faculty of Professions, and a constitutional law expert.

Professor Williams explains it thus: “The Australian constitution contains very few guarantees or individual rights.  It is left to the High Court to expound on their meaning and substance. However, no right is  absolute and the Court has always acknowledged that there are times when, such as preventing of the spread of disease, a right will have to give way to a competing policy. Judges are not epidemiologists and the challenge for Mr Palmer and others is to demonstrate, as a matter of law, that the actions of the states are not reasonably necessary to protect the welfare of the community. That is not a simple task.”

Ultimately the Court will decide this case on the evidence—on what ‘constitutional facts’ it finds it can rely—as it has done in respect of the defence power in times of war or in preparation for war.

Irrespective of outcome the ramifications of the decision may be very long lasting, and determine how we are permitted to deal with outbreaks of pandemic disease now and in the future.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

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