CHALLENGES TO STATE BORDER CLOSURES AND SECTION 92 AND THE 2020 PANDEMIC

Rosalind Dixon is a Professor of Law at the University of NSW. Her work focuses on comparative constitutional law and constitutional design, constitutional democracy, theories of constitutional dialogue and amendment, socio-economic rights and constitutional law and gender, and has been published in leading journals in the US, Canada, the UK and Australia. On Wednesday 22 July 2020, Rosalind Dixon joined Professor Anne Twomey from Sydney University for a YouTube broadcast to discuss the 2020 challenges in the High Court over state border closures and section 92 of the Australian Constitution during a time of pandemic. The speeches were followed by a discussion chaired by The Sydney Institute’s Gerard Henderson.

 CHALLENGES TO STATE BORDER CLOSURES AND SECTION 92 AND THE 2020 PANDEMIC

 ROSALIND DIXON

It’s wonderful to have these sorts of fora where we can connect virtually.

The state border closure issue has attracted a lot of press and a lot of debate and I have enjoyed being one of many participants in that debate as a matter of public policy. But the closures also raise an issue of constitutional law which is of significance and likely to be decided by the High Court in light of recent developments.

Early on in the debate, Alexander Downer raised a question about Section 117 of the Constitution, but the more considered view is that relevant provision that is engaged by these measures is Section 92 of the Constitution. Section 92 provides:

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.

We have relatively little guidance from the High Court on this provision but we do have some useful guidance That was established by Justice Dixon in the Bank Nationalisation Case.[1] It’s been affirmed in a range of subsequent judgements, including in 1992 in the ACTV[2] and Nationwide News cases.[3] So intercourse among the states essentially means movement of persons across state lines.

Then the question becomes, what do we mean by “absolutely free”? Like most legal phrases it’s not exactly what it sounds like. It’s not tenable to have a position that says there can be no regulation of movement across state lines. If that were the position, you would have a right to traffic in narcotics or firearms across state lines. So, it is a term of art which has to be interpreted as allowing at least some forms of restriction. No lawyers dispute that or suggest otherwise.

You might think of the terms in the US Constitution of the First Amendment that say “Congress shall make no law abridging the freedom of speech”. It’s always been understood that those words, even though they sound absolute, do not prevent Congress from imposing some sensible regulations such as a regulation preventing people shouting, “Fire” in a crowded theatre, when no fire exists.[4] That’s the famous example. You can imagine an equivalent here in terms of firearms or narcotics. So absolutely free doesn’t mean no prohibition.

What is the range of positions that are plausible and on the table in terms of the kinds of limitations that are permissible? One historically favoured position was that Section 92 effectively created an individual right to sell goods across state lines, and to move across state lines for commercial purposes. That view was favoured for much of the twentieth century. But, in an important decision of the Mason Court in Cole v Whitfield, the Court moved away from that position and said that the High Court had essentially created confusion and misread Section 92; the better view of Section 92 is that it’s a federalism guarantee.[5] It’s a guarantee of a nationwide market and free movement only in so far as it serves a role of a unified or common national market. That position has now been affirmed multiple times by the High Court and is really seen as settled law.[6] The question is how that affects the freedom of persons to move across state lines, as opposed to trade or commerce involving goods and services. That is the area where there is less guidance from the Court.

It seems to me that there are effectively two broad ways of understanding the guarantee of freedom of movement in terms of a structural guarantee of common markets and federalism. One is to say that it’s a very broad guarantee subject only to reasonable limitations, or measures that are reasonably necessary to advance a legitimate purpose. The other is a slightly more limited guarantee that says that it protects only against discriminatory burdens against movement between states. That issue will be ventilated no doubt for the High Court.

My own view is that it probably isn’t sensible to prefer the broader view, which says that the Section 92 protects movement across state lines subject only to the right of the states to impose reasonably necessary regulations or limitations on that movement. Not because it’s an individual right, but because it’s a structural guarantee of the freedom of movement necessary for a true unified national market and federal system.

Five judges in a case called Cunliffe v Commonwealth in 1994 affirmed that approach.[7] Three judges – Chief Justices Gleeson, McHugh and Gummow – seemed to support that approach in a case called AMS v AIF in 1999.[8] And there is a degree of support for that view in the more modern cases, the betting cases, Betfair I and II,[9] even in relation to trade and commerce.

So, to summarise, my view of Section 92, and Anne probably agrees, is that it is a structural guarantee that is relatively broad but not unlimited, and allows reasonable restrictions on inter-statement movement. The test for what is reasonable will no doubt attract quite a lot of attention from the High Court. As some of you may be aware the High Court has been spending quite a lot of pages and time recently debating whether to embrace a proportionality test which is common in Europe, Canada, South Africa, Hong Kong and a range of other countries, or instead to stick to a more tried and true Australian formulation that requires laws to be “reasonably appropriate and adapted” as the test for validity.

There are lots of interesting debates we could have from a legal point of view about that. But, in essence, the test would be one of reasonable necessity. If laws burden freedom of movement across state lines, are they reasonably necessary to achieve a legitimate state purpose? That’s the really interesting question that the High Court will no doubt have to grapple with.

* * *

In commenting on the challenges to Section 92 in our current COVID-19 situation, I just want to highlight three things that I believe will be tricky for the High Court and, potentially, the Federal Court in making appropriate findings. First is the issue of what the public health objective is. Is it suppression or elimination? The second is to talk about that sort of local government area approach and issues of proof. And the third is around time frame.

The first matter of interest is that there is a very live debate in the broader community, and certainly in the public health community, about whether the objective should be what Deputy Chief Medical Officer, Nick Coatsworth, and others are calling “aggressive suppression” or containment or rather elimination. My own view is that elimination should be the aim, and that requires more stringent measures and greater restrictions. That debate will affect the degree to which measures are reasonably necessary in order to achieve the public health objective. Because if the public health objective is containment, one can allow for broader movement and fewer restrictions than if the objective is elimination in terms of community transmission.

The High Court will no doubt have views on that but the tradition of the Court is to defer to expertise, the executive government and medical experts on issues of this kind. So, what is important to note is that clarity in relation to a legislative objective is critical, and that there has been a somewhat lack of clarity certainly in some of the statements from government as to whether their purpose is elimination or containment. Clarity is necessary for the Court to defer and then measure the relevant questions of validity against the government’s stated objective. If the objective is elimination, the Court will be more deferential to measures under Section 92. If the objective is containment, more could be permitted without undermining that objective.

The second issue again goes to a question of expertise. The Queensland measures and the Northern Territory measures are facially more likely to succeed against a challenge under Section 92 than the WA measures. But I do think one thing that will need to be ventilated and considered are issues of compliance and proof. There is a great deal of reliance at present on self-reporting about travel and exposure to COVID-19 hotspots. For example, we are often asked: “Have you been in a hotspot in the last 14 days?” And we know from the early cases coming into NSW from Victoria that there was a degree of non-compliance by people in terms of self-reporting of their movements.

The Northern Territory and Queensland measures do rely on honest self-reporting because even if your driver’s licence reports your address as say the city of Sydney, you may well have gone to Liverpool or some other hotspot within Sydney for an errand, a sporting event or to meet friends, and that would not be in any way traceable by a government in the enforcement of its measures.

I do think that compliance is a legitimate reason for thinking that the WA measures are indeed reasonably necessary. That is, if there is credible evidence to suggest that self-reporting of is not sufficient to prevent cases coming across the border, that is an argument for the validity of WA’s laws. Questions of evidence will be very significant in that regard. But the period in early July where there was an effort to limit containment efforts, to focusing on travel from hotspots in Victoria into New South Wales, manifestly did not succeed in preventing COVID-19 positive cases from coming into New South Wales, in a way that if appropriate evidence is led in the Federal Court, I would suggest favours upholding the WA law against Mr Palmer’s challenge.

The last thing I want say is about time-frame. The question of timing is critical to how a challenge of this kind is decided. It’s very likely that the WA measures in my view started valid, and potentially became overly strict at a particular time when containment had been very successful. But the events in Victoria have meant that it has now become more necessary to close the border. That issue of shifting validity is one that the High Court has had very little occasion to consider in the past and raises fascinating issues that will be of great interest to constitutional lawyers and scholars should the Court actually have occasion to address it in October.It’s very likely that the WA measures in my view started valid, and potentially became overly strict at a particular time when containment had been very successful. But the events in Victoria have meant that it has now become more necessary to close the border.

The other issue around timing that is tricky, when it comes to questions of reasonable necessity or proportionality, is that when it comes to dealing with an epidemic or pandemic of this kind there are basically two broad policy choices. One is a limited set of restrictions that are likely to last for a very long time, at least until a vaccine is available and widely deployed. Let’s call that the medium restriction but for a long period of time option.

Then there’s the option of “overwhelming force” for a relatively short period of time. So massive lockdown, category 4 restrictions, and complete bans on travel across state lines.

Courts have had very little opportunity to determine questions of proportionality when they’re forced to choose between medium restrictions for long periods of time and very, very stringent restrictions for a shorter period of time. There is actually a very real debate about which is more proportionate. Is it worse to have restrictions ongoing but of a more limited kind, or greater restrictions for a more limited period of time?

The idea of “overwhelming force” is a familiar one in a military context. It was first advocated by Colin Powell as Secretary of State. And I personally think it has a lot of appeal if you are aiming at elimination. But again, if you are looking at containment more limited restrictions for longer periods of time make sense. It’s a question of time-frame in assessing reasonable necessity and it’s a very interesting and important issue to grapple with and one that I think the Court will find difficult.  Complexities of this kind will also often lead the Court to defer to experts on such questions, but only providing the experts articulate their rationale clearly and coherently and in a way that is consistent with the appropriate legislative record and the conduct of the executive in enforcing the relevant restrictions.

There are really interesting issues ahead. It’s very likely that the relevant measures, while the pandemic in Victoria is so concerning, will be de facto or formally upheld. The time-frame may mean that by October we hope that it’s not as live an issue. But while we see the levels of community transmission in Victoria, whether it’s a trade or commerce argument or an intercourse argument, it is likely that we will see those measures upheld. But no doubt there will be a need to revisit that conclusion as we hope the pandemic comes under greater control in Victoria.

[1] Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 381-2.

[2] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, [38].

[3] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, [28]-[30].

[4] Schneck v US, 249 US 47, 52 (1919) (Holmes J).

[5] (1988) 165 CLR 360.

[6] See, eg, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182; Betfair Pty Ltd v Western Australia (2008) 234 CLR 418.

[7] (1994) 182 CLR 272.

[8] (1999) 199 CLR 160.

[9] Betfair Pty Ltd v Western Australia (2008) 234 CLR 418; Betfair Pty Ltd v Racing New South Wales [2012] HCA 12.

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.