Does the Constitution allow the States to close their borders?

The short answer is no. The Constitution says that movement between the States shall be absolutely free.

However, when the High Court has looked at s92 of the Constitution, they have said there are times when the States can shut their borders and not breach the Constitution so long as the closures are proportionate and for a legitimate purpose.

Under what laws can the States close their borders?

Firstly, the Federal Government has laws which give the Health Minister extra powers to prevent or control the spread of disease in Australia namely The Biosecurity Act 2015 (Cth).

Each State also has their own legislation that gives them additional special powers to deal with emergencies such as controlling the spread of COVID-19.

For example, New South Wales has the Public Health Act 2010 (NSW), that enables the Minister to take actions they consider necessary to deal with the risk and possible consequences of a public health outbreak.

Similarly, under the Western Australian Emergency Management Act 2005 (WA)  the movement of people, animals and vehicles can be prohibited in an “emergency area” which allows a border to be closed to all persons from any place that might pose a risk.

What makes border closures tricky is that each State has different laws and there does not appear to be any consistent, clear or transparent guides to help the States manage the public health risk in a unified manner.

What does the Constitution have to do with State Border Closures?

The Constitution is a document that united the six colonies (states) into one body, Australia. 

It is an agreement made by the people of each State, after holding a referendum, that details how they would be united to form the Commonwealth of Australia. The first line of the Constitution says:

the people of New South Wales, Victoria, South Australia, Queensland, Tasmania … and Western Australia, have agree thereto .. be united in a Federal Commonwealth under the name of the Commonwealth of Australia

The Constitution outlines how this “new” nation would be governed, how power was to be shared between the States and Commonwealth and how there would be checks and balances to limit those in power.  Importantly, writers of the Constitution wanted a unified nation, with people moving freely between the states.  

Section 92 of the Constitution states (emphasis added):

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.

Whilst the Constitution was being debated during the 1890’s, Sir Henry Parkes outlined what the intention of this clause was:

Australia shall be free- free on borders, free everywhere– in its trade and intercourse between its own people; that there shall be no impediment of any kind – that there shall be no barrier of any kind between one section of the Australian people and another; but that the trade and general communication of these people shall flow on from one end of the continent to the other, with no one to stay its progress or to call it to account”

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Although section 92 sounds like there can be no restrictions put on movement between the States, the High Court has ruled there are some limits to this.

 

What the Australian High Court has said about Border Closures

The High Court of Australia settles disputes about the meaning of the Constitution and is a check on Parliament to ensure laws do not go against the Constitution.

Many people have come to the High Court to settle disputes about s92 to resolve whether their trade or movement into a State can be stopped.

 

Clive Palmer Challenged the WA Border Closures

In 2020, Clive Palmer went to the High Court of Australia to see whether the border closures by the Western Australian government in response to COVID-19 were in breach of section 92 of the Constitution and therefore unlawful.

The High Court in their judgment  Palmer v Western Australia [2021] HCA 5 stated that the Western Australian border closures were indeed lawful under s92 of the Constitution.  Based upon this judgement, the States can effectively shut their borders if they can show good reasons that the border closures are proportionate and for a legitimate purpose.

For a more detailed analysis of the Palmer case,  read the article in the Australian by Chris Merritt entitled “High Court ruling on Clive Palmer’s border challenge is a step in the right direction.”

 

 What does the Palmer Case mean for future challenges to border closures?

The WA border closures that were considered during the Palmer case were “hard border” closures. This meant that the WA border was closed to all persons outside of WA unless they fell into the small category of “exempt traveller.”

When considering effective alternatives rather than hard border closures, such as allowing persons to enter WA from States where COVID-19 was largely under control, the High Court stated that:

“because of the uncertainties about the level of risk and the severe, or even catastrophic, outcomes which might result from community transmission, a precautionary approach should be adopted….   These findings leave little room for debate about effective alternatives …. the defendant’s submission that there is no effective alternative to a general restriction on entry must be accepted”.  

In response to this statement, legal academic, Professor Anthony Gray of the University of Southern Queensland in an interview with Chris Merritt stated:

“I respectfully, fundamentally, disagree with that. There were a multitude of other options available to the WA government short of the hard lockdown. They could have applied the border closure to Victoria alone, they could have insisted on a fourteen day quarantine, they could have insisted that people have a COVID test before crossing the border”

Interestingly in April 2020, Professor Stellios from ANU College of Law in an article by ABC entitled “Is it illegal under the Constitution for a State to close its borders to other Australians?” stated that:

“.. it’s likely that preventing the spread of COVID-19 would count as a legitimate reason for regulating the free movement of people and, depending on the science of how it spreads, perhaps interstate trade and commerce … The fact that the states are taking different measures might create some difficulties for the states that take more stringent approaches.  If lesser measures can achieve the same risk prevention as the more stringent measures (or if the impact between them is minimal), then the more stringent measures might be seen to be unreasonably burdensome and, thus in breach of section 92 of the Constitution.”

It will be interesting to see if there are more cases challenging the border lockdowns given the recent success of NSW in keeping their borders open and relying on effective quarantining and contact tracing.

Are there principles that need to be considered when States apply their emergency powers?

Laws must be clear, transparent and predictable.

In times of emergency, the Courts and every Australian citizen has a role in ensuring that emergency declarations are carefully considered and they are clear, transparent and predictable.

They also must be proportionate to balance the protection and public health of our nation with our individual rights and freedoms to move freely around Australia to do business, holiday, and visit friends and family.

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