SECTION 92 OF THE CONSTITUTION AND THE CLOSURE OF STATE BORDERS

Anne Twomey is Professor of Constitutional Law at the University of Sydney and Director of the Constitutional Reform Unit. Among her many publications are The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems (2018) and Pitt Cobbett – A Portrait of Australia’s Constitution at 1919 (2019). On Wednesday 22 July 2020, Anne Twomey joined Rosalind Dixon, Professor of Law at the University of New South Wales, to discuss (for YouTube broadcasting) the High Court challenges to the closure of state borders during the time of the COVID-19 pandemic. This was followed by a discussion chaired by Gerard Henderson

SECTION 92 OF THE CONSTITUTION AND THE CLOSURE OF STATE BORDERS

ANNE TWOMEY

Three cases were brought in the High Court challenging the State border closures on constitutional grounds. The main claim is that the border closures breach s 92 of the Constitution which provides that “trade, commerce, and intercourse among the States… shall be absolutely free”.

What are the court cases about?

The first case was brought by Clive Palmer and his company Mineralogy Pty Ltd against the Western Australian Government challenging the WA border restrictions on the ground that it breaches section 92 of the Constitution.  The case initially also included a claim about inconsistency between State laws and Commonwealth laws, but that was later abandoned, leaving only the section 92 claim.

The second case was brought by his company, Mineralogy Pty Ltd, and a lawyer it employs, against the Queensland border restrictions.  The lawyer was stuck in Perth and couldn’t get back to Queensland to see his de facto partner, as Perth was now his principal place of residence. The complaint was that non-Qld resident employees could not travel to Brisbane from Mineralogy’s offices in Perth for the purposes of business.  They did not fall into the categories of exempt residents or exempt persons.

The third was brought by a group of bodies and persons (initially at the encouragement of Pauline Hanson) with the lead plaintiff being “Travel Essence”, a travel agency.  It was also directed against the Queensland border restrictions.

Both the Mineralogy and the Travel Essence cases have now been settled and discontinued because Queensland removed the relevant border restrictions. Those two cases have included a claimed breach of section 117 of the Constitution, arguing that the Queensland laws discriminated against residents from other States. But because these cases will no longer proceed, that claim will not be determined.

Only the Palmer case, regarding the WA border closure and an alleged breach of section 92 of the Constitution is still running. Due to an inability to reach agreement with respect to the facts, particularly the health evidence that is needed to assess the arguments about reasonable necessity, the matter was referred to the Federal Court for a determination of those matters.

The hearing of that proceeding was delayed by the Victorian COVID-19 outbreak, because the key Western Australian witness was needed in Victoria to help deal with the crisis. It has been re-scheduled for hearing next week, on 27, 28 and 30 July, with hopes of a judgment a fortnight later. It is then likely to be heard by the High Court in October (or possibly late September), assuming that the border closures are still in place.

The Palmer case

In the Palmer case, Clive Palmer claims that he wishes to travel from Queensland to Western Australia and return, by private aircraft, for purposes associated with the management of his business, which is based in WA. He is prohibited from doing so, because he does not fall within the category of an “exempt traveller” and his application to enter was refused on 20 May 2020. He also says that he has staff who work on a fly-in-fly-out basis between the Brisbane and Perth offices for work purposes and are currently unable to do so.

The trade and commerce limb

Palmer is relying on both aspects of s 92.  To establish a breach of the “trade and commerce” limb, he has to satisfy the court that the law imposing the border closures discriminates against inter-state trade and commerce for a protectionist purpose.

Palmer says that he needs to be in Perth to supervise litigation, to which his company is a party and that his exclusion from Perth benefits, in a protectionist manner, his opponents in the litigation, who are Perth-based. He also claims that he is wasting expenditure on rent of Perth offices that he is not fully utilising, which is a disadvantage not imposed upon competing Western Australian businesses, and that this amounts to discrimination against Palmer and his company in a protectionist manner.

The Western Australian government has responded that Palmer can pursue his business interests and supervise his litigation by using technology such as the telephone, email, teleconferencing and other internet based conferencing.  It has also pointed out that the courts are now running litigation through electronic means, including the holding of hearings.  Palmer, however, has replied that due to hacking attacks, many of the critical Mineralogy documents are on a server in WA that can’t be accessed outside the state, for security reasons.  He also claims that his personal presence is required for effective supervision.

These arguments based on the trade and commerce limb are problematic because it has been interpreted as prohibiting discrimination against interstate trade and commerce in a protectionist manner – not discrimination against a particular individual, such as Mr Palmer. To succeed, it must be shown that the border closures are directed at impeding trade and commerce and doing so in order to protect Western Australian jobs and industries from inter-state competition. That will be difficult to establish on these arguments.

Probably for this reason, Palmer has added a broader claim. It is that the border closures deny businesses outside Western Australia which are “engaged in the provision of personal services” the ability to enter the state to provide such services, and that this protects Western Australian competitors from inter-state competition.  This is a more plausible argument.

Western Australia responded that its laws have exemptions, including for specialists required for industry or business continuity and maintenance of competitive operation where the service is time critical. Exemptions also apply to persons engaged in agriculture, food production or primary industry that are required to be physically present in Western Australia, and certain FIFO workers. These exemptions show that efforts have been made to ensure that some degree of inter-state economic activity can continue to occur, where consistent with health protection measures. But the border closure is still likely to have at least some effect of lessening competition from outside Western Australia, even if that was not the purpose of the law.

WA also noted that the economic impact of COVID-19 in the first two quarters of 2020 will reduce Western Australia’s gross state product by 5.1 per cent and significantly increase the unemployment and underemployment rates. This shows that the pandemic response, including the border closures, will have serious economic effects within Western Australia and were not directed at protectionism.

However, the fact that some of the community isolation measures have now eased, reducing the economic impact of the pandemic, only occurred because there had been no community transmission in Western Australia.  Re-introducing those measures, due to an outbreak of COVID-19 in WA, would have an adverse effect on Western Australia’s gross state product.  This shows that the issues of health and the economy are closely intertwined.  The economy is damaged by the imposition of lockdowns and travel restrictions in order to protect health.  But, equally, health needs to be protected from the renewed spread of COVID-19 in order to prevent further damage to the economy. So, while there is a clear health purpose for the imposition of border restrictions, there is also an associated economic purpose. Whether that can be regarded as a protectionist purpose, however, remains to be seen.

If it was able to be established that the border closures discriminated against inter-state trade for a protectionist purpose, that is not the end of the case.  The High Court has previously accepted that if the purpose is a legitimate one, such as protecting health, then the law could still be valid if it is reasonably appropriate and adapted or reasonably necessary to achieve that legitimate purpose.

This is where the case is likely to be determined – on the question of whether or not the law is reasonably necessary.

The intercourse limb

The other limb of section 92 that Palmer is relying on is the “intercourse” limb. Does the law impede intercourse – in this case the movement of people – across State borders?  Here this is clearly the case. But again, the High Court has accepted that in some cases, an impediment will be acceptable, if the law is reasonably necessary to achieve a legitimate end, such as public health, and there are no other equally effective means available to achieve that purpose or object which impose a lesser burden on interstate trade or commerce.  In such a case the law will still be valid.

The State of Western Australia, in its defence, pointed out that:

• persons may be infected with COVID-19 and spreading it prior to any symptoms being present;
• testing in the pre-symptomatic period is unreliable; and
• the primary ways for preventing spread of the pandemic include personal isolation of confirmed cases and their close contacts, and community isolation measures, to stop the geographical spread both within the State and between States.

Western Australia claims that no isolation measures, apart from the border closures, would be “equally effective in reducing the risk of community transmission” of COVID-19 in Western Australia and that those measures cannot be eased without increasing the risk of morbidity or death in Western Australia unless community transmission in other Australian States and Territories is ended.

Here the case will turn on two things – the evidence presented about what is reasonably necessary, including whether there are other less burdensome effective means that could be used, and the timing of when this assessment is made.

Evidence regarding what is reasonably necessary

One of the big questions is whether there is an equally effective way of containing the spread of COVID-19 without closing State borders.

Would it be practicable to do more localised lock-downs? In Victoria, there were attempts to do this based upon buildings and post-codes, but they have so far not proved to be completely successful. There are real issues of practicality where there are ill-defined or porous borders.

Western Australia claims that there are no other measures that would be equally effective in protecting the residents of Western Australia from community transmission of COVID-19.  It contends that easing these restrictions can only occur while there is no community transmission within other States or Territories.

Queensland now has restrictions that are based upon exclusion of persons who have visited declared COVID-19 hotspots within the last 14 days. These hotspots are identified by reference to local government areas. They include in NSW – Campbelltown and Liverpool, and all local government areas within Victoria.

The Northern Territory also requires all entrants to complete a Border Entry Form.  Anyone arriving from a COVID-19 hotspot must do 14 days mandatory supervised quarantine at their own cost. The Northern Territory list of COVID-19 hotspots is much more extensive.  For example, in New South Wales it includes the City of Sydney, and effectively all Sydney municipalities along with the Eurobodalla Shire, which was added two days ago.

This approach might undercut the Western Australian approach of simply shutting its borders to all comers.  This is going to be where its vulnerability lies. But Western Australia could contend that such an approach is reliant upon visitors being truthful about where they have been in the past 14 days, and the evidence suggests that not all visitors will be truthful, making this a less effective method of protecting public health within the State.

Timing and the changes in fact

One of the most peculiar things about this case is the constantly changing facts which potentially affect the outcome of the case. At the time the border-closures were originally put in place, COVID-19 was spreading in all states. It might have been questionable as to whether imposing border restrictions would therefore have any effect, but I think experience has shown that they were effective (especially quarantining people coming from outside Australia), allowing some states effectively to become COVID-19 free. Belief in the effectiveness of border closures is evidenced by the recent border-closure between Victoria and NSW and the acceptance by the Commonwealth of the need to close that border.

But at the time when the legal proceedings were brought by Palmer, COVID-19 appeared to be eliminated in most states and effectively contained in the others.  There was therefore a stronger argument at that time that borders should have been re-opened and that it was no longer reasonably necessary to keep them closed.

The subsequent second wave of COVID-19 cases in Victoria, which still seems to be out of control, and the closure of the NSW border – possibly too late, as there are now outbreaks in NSW as a consequence of visits from infected people from Melbourne – bolster the case for border closures continuing in place.

The big question is at what point the High Court will apply the test.  Is it the point of time at which the border closures were made?  Is it the point of time at which the proceedings commenced? Is it the point of time at which the hearing is held?  Is it the point of time immediately before the decision is made?  This could potentially make a significant difference in determining the outcome of the case.

Summary

• We know that unconstrained, the spread of disease across State borders can cause significant outbreaks in otherwise healthy populations. One person from Victoria crossed into NSW before the border was shut, causing an outbreak at the Casula Pub, which has now spread to at least 50 people.  Western Australia stated in its pleadings that between 16 March and 26 March 2020, 30 interstate flights arrived in Western Australia with infectious COVID-19 passengers on board.
• Is testing an adequate means of screening people to cross into the State? Western Australia has noted in its pleadings that screening prior to symptoms arising is often inaccurate.  It gave the example of a traveller who had flown into Melbourne from the UK, been quarantined for a week, tested negative and on compassionate grounds was permitted to travel to Adelaide without undertaking the full quarantine period.  That person then tested positive for COVID-19 after arriving in Adelaide.
• The purpose of border closures is clearly protection of health, but also economic protection. As seen in Victoria, if the spread of coronavirus takes off, this involves additional business shut-downs, which seriously damage the State’s economy, and the economy of the entire country.

  As seen in Victoria, if the spread of coronavirus takes off, this involves additional business shut-downs, which seriously damage the State’s economy, and the economy of the entire country.

• Is the closure of the Western Australian border protectionist? Only in the very broad sense that it protects the existence of jobs (which would otherwise be at risk if there was another shut-down).  But is it discriminating against inter-state competition in a protectionist manner?  It does not appear to be the purpose of the border-closure, although it may have such an incidental effect.
• Is it for a legitimate purpose? Yes – protecting public health.
• Is there any other equally effective means available to achieve that purpose but which imposes a lesser burden on interstate trade or commerce? This may well be the decisive issue.  Evidence of how the different approaches in the Northern Territory and Queensland are operating and the level of their effectiveness might be critical in answering this question.

DISCUSSION – SECTION 92 AND THE CLOSURE OF STATE BORDERS DURING THE PANDEMIC – ANNE TWOMEY AND ROSALIND DIXON WITH GERARD HENDERSON

Gerard Henderson: Thank you both for stimulating papers. Some of our members have sent in questions. But because we have a lot of history tragics at The Sydney Institute, I’m just going to ask you a couple of historical matters because we move onto to the current issues. Firstly, the Spanish Flu which really reached Australia in 1919, so it’s really 1919-1920. State borders as I understand were closed. Were there any legal matters discussed?

Anne Twomey: Well to the best of my knowledge there wasn’t a Section 92 challenge. Certainly there were little bits and pieces if you look in the newspapers, arguments about whether the judges should have been wearing masks in court and they’d be criticising them for not wearing masks in court. I think at one stage one of the High Court judges was having difficulty getting from Melbourne into New South Wales to come and do a hearing. So, there were some practical difficulties going on as indeed there are at the moment in relation to court cases. But it is quite interesting that nobody, as far as I know, took up Section 92, at least not all the way to the High Court.

Rosalind Dixon: The other thing that’s very interesting is we’ve obviously got regimes in place at the moment which do try very hard to create reasonable exemptions for people who have a very compelling reason or a basis for going across the border. There are pictures from 1919/20, if you go back and look at the archives, of people literally in tent camps…

Anne Twomey: On the border.

Rosalind Dixon: Stuck on one side of the border. So, whatever the measures that were in place then, we’ve come a long way in 100 years. When I and others were advocating for closure we were explicitly saying around Albury, Wodonga and others e on the border, there should be travel and there should be exemptions so no one is stuck in a tent on the wrong side of the border. We actually have learned some of the lessons of not creating appropriate exemptions from that historical experience.

Gerard Henderson: When a lot of us think of Section 92, we think of the Engineers case on a totally unrelated matter that gave Robert Menzies his first entry into the public sphere when, as I understand, the High Court overturned the first two decades of findings. Very briefly, just tell us what Menzies was advocating and what happened there.

Anne Twomey: Menzies was advocating for an approach to the Constitution that was less based on a theory of compact. The people who wrote the Constitution saw it in terms of a political social compact and were interpreting it in terms of the states and their relationship. You had ideas or reserve state powers that aren’t literally in the Constitution. What the court did in the Engineers case was to move back more to looking at the Constitution as a legal document, interpreting it as a statute, looking at the text, looking at the words of it. Looking less at what was in people’s heads when they wrote it in terms of some kind of a political settlement. So, 1920 was a tipping point from an original High Court made up of people who wrote the Constitution, who knew what it meant because it meant what it said in their heads, moving to a new lot of people who were reading the Constitution as a legal document, reading it as lawyers and interpreting it in a much more formalistic way.

Rosalind Dixon: There’s a live debate about what the Engineers case stands for, there’s going to be an interesting symposium in the Australian Law Journal around the 100-year anniversary of that decision, about what it stands for. Anne herself has written a brilliant piece that looks at this history which not only about affirmed Menzies’ argument about the Constitution as an “ordinary” legal document. It also adopted an approach that reflected a changing sense of nationhood from Australia as a compact among states to Australia as a nation forged in WW1 and Gallipoli – ie an emerging sense of the Australian nation requiring a stronger Commonwealth and Commonwealth legislative power expressing that sense of Nationhood. Justice Windeyer explained this beautifully in the Payroll Tax case, looking back on Engineers.

Gerard Henderson: So, in a practical sense, what was the difference if you were trading between the states in 1921, than in 1919? I mean, what actually changed?

Rosalind Dixon: Not much other than the Commonwealth gained greater power to legislate in ways that affected that relationship. It wasn’t so much about section 92 per se, but about the broader scope of the Commonwealth power. It took until the Mason Court for that cross state lines relationship to look radically different.

Gerard Henderson: It took until what?

Rosalind Dixon: The Mason Court.

Gerard Henderson: Sir Anthony Mason’s court?

Rosalind Dixon: Correct. And that decision that both Anne and I refer to in Cole and Whitfield in the late 1980s as the sort of sea change. If you’re the person wanting to trade across state lines, you were no longer able to say, as Clive Palmer wants to, “I’m a trader, I have rights”. Now it’s “No we’re a nation”. The question is, how is the national market affected? But certainly the Commonwealth gained greater power to regulate the relationship by virtue of the Engineers case.

Gerard Henderson: Now talking about the Commonwealth, as you know, in relation to the one continuing matter, which is the Palmer case, the Commonwealth, the Attorney General Christian Porter indicated that the Commonwealth would enter this case and, at that time, my understanding is that the Morrison Government was opposed to a hard lockdown on the borders, or relatively hard lockdown on the borders. So, do we know what’s going to happen with the Commonwealth Government now that the Morrison Government seems to have gone along with the decision if it has? It hasn’t been talking much about this. So where do you think the Commonwealth will come in on this?

Anne Twomey: It’s quite difficult for the Commonwealth now. Previously, it was saying there was no medical evidence to support closing state borders. It’s now moved a little bit away from that statement, particularly now that it’s apparent that it really was a sensible thing to shut the border between New South Wales and Victoria. It probably should have been shut a bit earlier. There has been some criticism of the Commonwealth for intervening at all. In such a case, it would be inevitable that the Commonwealth would always intervene. It does need to express its views in relation to the interpretation of Section 92. That’s an important matter.

The key question is what view it puts. And it might well still be able to put a view which suggests that the position at the time the proceedings commenced was one where it was not reasonably necessary for Western Australia to maintain that border being shut. But, that when events changed with the Victorian outbreak, that there were sufficiently significant differences in facts that meant that it was appropriate for a border to be shut. I would expect that the Commonwealth will be taking a nuanced position, depending on the basis of the facts at the relevant time.

Rosalind Dixon: It might even simply amend its positions to express a view on the law but not its application in these circumstances. One of the challenges is that the Prime Minister has been reluctant to support very stringent measures in a whole range of contexts. He is listening and he’s often persuaded over time by the premiers or others in the cabinet of the need for those measures. So the Commonwealth’s position is evolving and that’s likely to be reflected in its litigation position as well as in its broader political position.

Gerard Henderson: So you think it will intervene?

Anne Twomey: I would expect.

Gerard Henderson: And when it does what do you think it will, say?

Rosalind Dixon: I do not think it will outright oppose the WA law – for example while there’s a live outbreak like the kind you see in Victoria. Or it will take no position on validity, and simply take a position on what the right approach to the law is, in general terms, because as both Anne and I said, there is this general question about what’s the right position in relation to the intercourse limb of Section 92. And that’s an issue on which the High Court will want to hear from the Commonwealth. But the Commonwealth wouldn’t need to express a firm view as to how it applies in that particular case.

Gerard Henderson: Can I put a controversial view. In a sense, the current responses to COVID-19 have led to a situation where the public sector is essentially putting the private sector under great economic distress. People who are in the public service, in the health department with the public service, politicians, academics, commenting journalists, some journalists, public broadcasters commenting, a lot of them are saying we don’t know what the judiciary is going to say yet. But we know what the health departments are saying. Many of the states are going through a pretty hard lockdown, which is having a very deleterious effect on the private sector economy without affecting the public sector economy. Now, when you were talking earlier about what the High Court is looking at or likely to look at in relation to medical factors and trade factors, no one mentioned economic factors. Is that a consideration that the Federal Court, which is looking at facts, the High Court if it gets there, will be looking at. Is that a consideration in all this? Or does the deleterious economic impact of the closures have a relationship to the medical impact of the closures?

Rosalind Dixon: Anne alluded to that. Ultimately, section 92 is about economics. It’s about the benefits of a national market and that was the realignment we saw in Cole v Whitfield. So whether it’s explicit or implicit, the court is interested in economic considerations. It wants basically, all else being equal, free trade across state lines, including in personal services. So the economics is absolutely there as the ultimate rationale for the proceedings.

On the specifics, I wanted to just respond to your provocation. Firstly, I think it’s unfair to say that the public sector is fully immune. New South Wales, like a lot of state governments, has announced a public sector pay freeze. That’s showing solidarity with the private sector. My own university last week announced 500 jobs will be lost, more are likely to come. So the public sector is actually suffering.

And the second thing is I don’t think it’s the public sector imposing the costs on the private sector. I think it’s the virus. And It’s really important to be clear that the virus has had a devastating economic impact worldwide and will continue to unless and until it’s fully eliminated or there is a vaccine.

We have to distinguish the fact that in places where this is running rampant, no one wants to go to restaurants, no one wants to go to the movies, people don’t feel safe. I spent a lot of time living in the US and I talk very frequently to colleagues there. I have been talking to colleagues in Brazil and Chile, places where the virus is not under control. And the economic devastation there is just as significant. So it’s not only governments that’s causing this. If anything it’s the evidence from recent studies is it’s the virus that for 90 per cent of the time is causing the economic pain. The measures that are designed to eliminate or contain it, may exacerbate life in the short run, but it’s an investment in the long run economic health.

If we can get the virus under significant control or eliminated within the community, the economy can rebound. And if we don’t, people will continue to self isolate, save rather than spend and businesses won’t feel confident to hire and expand because they know another lockdown or contraction may be coming. So I totally understand the argument. But I do think it’s incorrect to suggest that a) the public sector is fully insulated because it’s not. And b) it is the virus not the government that’s really inflicting the economic harm.

Gerard Henderson: But then the virus is also having a medical impact with people not going to their doctors, people not getting their checks, people not getting elective surgery. So the virus is having a medical impact as well as an economic impact.

Anne Twomey: And a social impact. People’s mental health is suffering. And indeed, there are so many impacts. One of the more remarkable impacts has been road deaths, for example. There’ll be a lot of people wandering around alive today who would otherwise have been dead because they weren’t traveling in a car that would have killed them. There’s ups and downs and there are horrible questions about how that plays out in the long term. There will be people who are alive today who otherwise wouldn’t be there and vice versa.

Gerard Henderson: Now you two are both lawyers but you have also a good sense of history. So take us back to 1919/1920 where as I understand it the official figure for Australia was 12,000 dead, although the likely figure is 15,000 dead, in a population of 5 million. Today that would be the equivalent of 75,000 dead. At the moment, we’re about at 130. The borders were closed in 1919, but a lot of other activity continued. There were full rounds of Rugby League and Australian Rules football played and the economic impact doesn’t seem to have been as great in 1920 as we moved into 1920-21, recovering from the war, as it is at the moment. So have you looked at the reactions? You were making the point earlier that no one contemplated going to the High Court about border closures. Is there a different concept around a century ago? For the Spanish Flu, worldwide, the estimated death toll was somewhere between 40 and 50 million. At the moment, we’re dealing with about 600,000.

Rosalind Dixon: One of the things back then was our notions of life expectancy. People had a sense then that there were many very severe infectious outbreaks that could kill them. We’ve come a long way in how we can treat and cure various diseases. Our expectations around protection of health are higher, in a good way.

The other thing that is important to acknowledge is, as Anne said, we live in an era in which the economy can adapt and continue in many sectors through technology. No one had the option in 1920 to do business via zoom or Skype or via electronic platforms.

For cafes and licensed pubs the impact is very wrenching. But for huge sectors of the economy, the choice is not between no business and business as usual. It’s a choice between adaptation and the old ways. And some of that adaptation will be for the long haul. Implicit in your question is that we’re overreacting. For me, a) we’ve changed our views about treatment and public health because of the possibilities of modern medicine. And b) we have more opportunity to protect the economy and adapt than we did then. It’s also really important to note that the levels that we’re talking about at the moment are in part a product of governments taking decisive action.

For many of the people who survived severe cases of COVID it looks like they’re going to have lifelong or at least medium to long term health effects that are quite severe and should be counted in that toll along with deaths. The fact that we’re not seeing those huge fatality numbers is in part the product of the fact that many governments have taken decisive action. We can’t simply look at the outputs of those measures and say, “See, it’s not that bad”. We need to factor in that that’s the product of policy.

Gerard Henderson: Extending beyond state borders. Again, you were talking about interstate matters. What is the legal status of state governments who (it would be different from state to state I guess) who want to lock down certain suburbs, certain local government areas, certain towns. Are there any inhibitions on that at the state jurisdiction level?

Anne Twomey: No. It’s much easier for a state to do that because states have plenary legislative powers and they have all the power to do whatever they like unless the Commonwealth constitution has taken it away from them. So unless it was inconsistent with a Commonwealth law, probably the state can do that. Of course, the other thing is you need to make sure you’ve got the legislation in place allowing you to do that. If your parliament’s not sitting, it can be quite difficult to do that. But subject to that, yes, they can impose lockdowns.

There are also, of course, constitutional issues about detaining people against their will and the need for that to be done in a judicial way by a court rather than by government. But there has always been a recognised exception in relation to quarantine of communicable diseases in relation to that. That’s not going to be an impediment either. So, yes, states can do it. The question then is, how practicable is it to do. As I said, it is easier to do this sort of thing among borders where you know where the border is, and there’s defined difference. It’s much harder to put borders around postcodes and suburbs and local government areas.

Gerard Henderson: We’ve got about seven minutes left and I have a couple of extra questions from our members. So I’ll just run through them. Question, can the federal government pass a law, if it wanted, to overturn state border closures? Could it do that?

Anne Twomey: Possibly. First of all, the Commonwealth would need a head of power. You could argue that’s quarantine power, which might be enough. So it could, for example, say that this column of law concerning quarantine, is comprehensive, it is intended to cover all issues about quarantine in Australia and exclude all other state laws. Okay, you could do that.

But then the question arises as to whether that breach is what is known as the Melbourne Corporation principle. That is a principle that says that the Commonwealth cannot restrict state constitutional powers in such a manner as to curtail the capacity of the state to function as a government. Then there’d be a real question as to whether a state, losing control over both its borders and the ability to protect its people from public health, would be sufficient to trigger that Melbourne Corporation principle. If I were the Commonwealth, I’d probably stay out of trying to do that because you’d just end up in a whacking great fight in the High Court and it is probably best to deal with these things cooperatively rather than trying to come in with a big stick. So the Commonwealth could try it but there would be doubt as to whether or not it would be successful.

Gerard Henderson: And, as you know, it’d be unlikely to get through the Senate I expect.

Rosalind Dixon: Yes and I think Anne’s exactly right in that they could also try relying on the trade and commerce power. Their ability to do it would depend on how sensible they were being about, if they had a comprehensive national quarantine framework, you could probably say that it wasn’t taking state’s capacity away, it was working based on what they’ve done. But if it was an attempt to simply clear the field, given the issues you talk about, I agree that it would be more difficult.

Gerard Henderson: A couple of issues raised about fruit and plants, bans that have existed between states for a long time. The question coming from one of our members, is why is that any different from what’s proposed at the moment in relation to people?

Anne Twomey: Sorry this is about taking your fruit across cross the state border?

Gerard Henderson: Yes.

Rosalind Dixon: It is similar except that an apple is not capable of movement by itself and so it comes under the trade and commerce limb, which is a little bit less protective than the personal movement limb potentially. And then you’d have to say, well, it’s a discriminatory measure. It engages section 92 and the question is, is it a reasonably necessary measure for a legitimate purpose? Clearly preventing the transmission of fruit flies or other diseases is a legitimate purpose. Is it a reasonably necessary measure? And given that there are exemptions for commercial traffic, it’s only a personal taking across that is prohibited, probably it’s proportionate and legitimate. So I think that it’s a good question. It’s not that different, except that it’s engaging a somewhat different limb, of the guarantee.

Anne Twomey: And those laws have been in existence for an awfully long time and are effective. As a child we lived near the border between Victoria and New South Wales and, whenever we got towards the border, it was quick eat all the apples before we get to the border. So I have lots of experience in this.

Gerard Henderson: Finally, a Sydney barrister no less has put in a question which really takes us back to where we started. Section 92, as you’ve both pointed out, talks about trade or commerce, whatever, being absolutely free. So the question is, what’s the point of the word absolutely in Section 92 if it has to be read down to something much more qualified? I guess it takes us back to 1920, does it?

Anne Twomey: Oh, it takes us back to before that.

Rosalind Dixon: The Lucinda

Anne Twomey: This has been the hardest to interpret provision in the constitution we’ve ever had. It has had more difficult interpretations than any other. More court cases because of that. And the reason is that there’s inconsistency in the Constitution itself because section 51 1 of the Constitution gives to the Commonwealth Parliament power to make laws that regulate trade and commerce between the states. Then you’ve got another provision, section 92, that says trade and commerce between states shall be absolutely free. Well, you’ve got to rationalise those two. They have to be able to sit together. So if you’ve got a power to regulate trade and commerce between the states, then clearly it can’t be absolutely free. So absolutely free must mean something else, rather than absolutely free. It was a stupid term to put in the Constitution to begin with. We often praise the Constitution for doing a darn good job. But I don’t think that bit fell within that category.

Rosalind Dixon: We now see it as a rhetorical flourish, basically. And it was a mistaken rhetorical flourish. Barristers would understand the attractions of rhetorical flourishes. In this case, it was a mistaken one. But it’s why I drew the analogy to the First Amendment. It’s very powerful language to say that Congress shall make no law abridging the freedom of speech. Yet that’s a rhetorical flourish. It can’t logically or structurally be understood as no law. It has to be “no law” of a certain kind and it’s the same in section 92. “Absolutely free” just means reasonably free. One sounds better than the other, but one’s more logical and understandable. Clearly, we’ve grappled with that. But since the late 1980s, we’ve all understood that the word “absolute” actually means reasonable.

Gerard Henderson: That’s a great place to end. Thanks for great papers and a very stimulating discussion.