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Federalism, state rights and the law


The pandemic has reopened debate on the role of the Commonwealth and the right of states to go their own way in tackling the crisis. Victoria’s response is a warning on ceding power to executive government, argues Morry Bailes.

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The Covid-19 pandemic has challenged Australian federalism like never before.

Australia has been served a cogent reminder of the fact that we have a system of governance with all the strengths, weaknesses and hallmarks of federation. Indeed, ever since 1901 the High Court has wrestled to interpret state and commonwealth powers and the provisions of the Australian Constitution. Federalism is now squarely back in focus, as is the power of the states.

Of course every state has its own constitution, which existed well before the Australian constitution, as each and every state was a colony in its own right with a direct line of responsibility through its governor to the Crown.

We have become fairly used to the Commonwealth Government leading on most matters, however there is frequent confusion about which government is responsible for what. Uninformed commentators have been known to blame the Commonwealth government for what is exclusively in the states’ domain, and vice versa.

At moments such as what we are facing with COVID-19 it makes sense to convene a National Cabinet, even though that concept is based entirely on mutual cooperation rather than anything more steadfast in law. However, it is clearly not the panacea for everything and additionally reminds us of the fact that the various state constitutions as well as state law can be very different compared to one another.

The most obvious case in point is the state of Victoria. It has been unfortunate to have had the worst of the pandemic thus far, either through bad luck, incompetence or both. Whatever the cause it finds itself completely out of step with the rest of Australia. Philosophically there seems to be a strong argument that the DNA of the government of Victoria has resulted in it behaving very differently to for instance New South Wales and South Australia.

How is it that Victoria can lawfully lock down every person it wishes, arrest a pregnant woman for allegedly inciting civil disobedience, and break businesses without any accountability, not even to the Parliament itself? It all feels less like Australia than The People’s Republic of China.

The answer lies in it’s legislation relating to the declaration of its state of emergency or state of disaster, as it pertains to health. A state of emergency was declared in Victoria when COVID-19 first posed a serious threat. That later became a state of disaster applying to the entire state, which was a first.

The powers that flow from the declaration are considerable and essentially suspend ordinary governance in Victoria. The police minister can control the movement of people and declare curfews. The minister may even over-ride ordinary legislation, which directly flies in the face of centuries of Westminster tradition requiring executive government to be subordinate to Parliament.

Those powers are limited but they are real. The only avenue of challenge lies to the courts, emphatically underscoring how important it is that our courts enjoy independence under the doctrine of the separation of powers, and are able to hold executive government accountable if it acts unconstitutionally.

All said, the people of Victoria both allowed their Parliament to enact these emergency and disaster laws, and voted for their current government. It brings meaning to Joseph de Maistre’s famous truism, ‘every nation gets the government it deserves’, or in this case, state. It also demonstrates why it is right and our job to challenge every power that is ceded to executive government and question every loss of a freedom or liberty said to be in our interests.

Of course we need the facility of legislation to enable police and emergency services to control a disaster, but we equally need to balance that with necessary limitations. One wonders whether Victoria has achieved a satisfactory balance in its law, as the business lobby counts the horrendous cost to the economy and to small, medium and large enterprise.

So how does South Australia shape up? Firstly, I have often argued that law is less important than culture. We often over legislate, bloating executive government with power it frankly doesn’t need, even though it may think it does. Culture therefore is very important and the culture of South Australia is distinctly different to Victoria both in our people and in our government. We have a Premier, Health Minister and Chief Medical Officer who have worked by encouragement, not chastisement; by positive rather than negative messaging. One cannot help but feel it has been a uniquely South Australian response, as opposed to being ‘shouted’ at and shamed, which seems to be the Victorian Government modus operandi.

However the differences are enshrined in law as well. Our State Emergency Act anoints the Commissioner of Police as the State Coordinator, not a politician. I can’t help but feel this is significant. It may seem counter-intuitive, but police like the military know they are sworn to serve the people and are suspicious of politics and power. What’s more they are able to make decisions with one test in mind: what is best for the people, rather than a politician who inevitably will have divided loyalty between what is best for the people and what is best for the ballot box.

The political posturing of the Premiers of Queensland and Western Australia serve to make the point. It is as transparent as it is reprehensible. And astonishing, that more than a century after federation, we can retreat to our state borders and act as if the Commonwealth is an afterthought. Whilst it may have been reasonable to stop movement initially along state borders, this crisis has been going on long enough for us all to understand it must be controlled case by case, outbreak by outbreak, and that the citizenship we hold is Australian.

It is downright unimaginative and lazy for the states to retreat inward without a proper effort to accept that if we are to enjoy the fruits of nationhood we need to bear the responsibilities as well. In short, what we are seeing is politics in play, not a good combination when mixed with public health outcomes.

Further to that, the South Australian system is more accountable, because although the Commissioner of Police is the State Coordinator, the Commissioner is answerable to the police minister, the Premier and the executive. The whole arrangement is altogether more democratic, or feels that way.

As for Victoria and South Australia I think we all know where we would prefer to be right now, but that is changeable, and our economic fortune is so tied to the outcome in Victoria that we need to be very concerned not only about the personal tragedy of those who have the illness and those who we have lost to it, but what it means to us as a nation.

Just when we were wondering in our federation how much the states really mattered, we have been categorically reminded that they matter a great deal. Once this is over we will inevitably reflect on the nature of our federalism. One would hope too, we will reflect on the role of executive government and what power we are prepared to surrender trusting it to ‘do the right thing’.

Im South Australia we should feel proud of both of our culture and accomplishment and that of our leaders, recognising that whilst we have had our dose of good fortune, we have also respected our freedoms and shared the responsibility of our wellbeing with our government and our authorities.

Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia. Disclaimer: Morry Bailes is a member and office-holder of the Liberal Party.

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