Are Sate COVID boarder closures legal?
Recent decisions of various state governments around Australia to close their borders for protection against the spread of COVID infections has been a source of comfort for some, frustration for others and a degree of confusion for practically everybody.
The power by which each State (and Territory) can individually/unilaterally decide who can and cannot enter its area comes from the way the State/Territory and Federal Governments were all set up under the national constitution for Australia which was passed when Australia first became one unified nation in 1901.
But does anyone have a right of challenge against any State Government boarder closure decision and what powers might the Federal Government have to intervene and sort out disputes between the states should one arise?
Outspoken entrepreneur and sometimes politician, Clive Palmer is currently pressing a legal challenge against the WA border closure claiming the relevant laws are invalid under s.92 of the Commonwealth Constitutional (1901). S.92 says that all trade and commerce between the states must remain “absolutely free”. Previous Court decisions on that section however have held that the relevant law will only be invalid under s.92 if the primary object of the law was to create a commercial advantage to one state over another. Consequently it is hard to see how the Palmer case has any chance of success.
As for the Federal Government, because each of the Sates still retain exclusive power to make laws in relation to public health , on first principles, Canberra has no power to direct a state to either open or close their borders. Theoretically, if matters got out of hand the Federal Government could rely on its national “defence” power under s.51 (vi) of the Constitution to control all people movement anywhere in Australia under a style of martial law but the general view is that civilian unrest and/or an escalation of COVID infections would need to have reached extreme levels before any such power could be legally invoked.
So for the time being we have this peculiar situation where a health issue which is clearly of national importance is left to be managed individually by each state in any way each state sees fit to do.
Consequently, at the risk of stating the obvious, if we want to avoid COVID evolving into a legal/Political nightmare we all need to dedicate ourselves to following the advice of our doctors and scientists.