The Division of Powers
-
This fact sheet explains how power is shared across Australia’s three levels of government—Commonwealth, State/Territory and Local—under the federal system created by the Constitution. It outlines the Division of Powers in section 51, the responsibilities retained by the states, the role of local councils, and how High Court interpretation and Commonwealth funding have expanded federal influence. It highlights why dividing power matters for accountability, community responsiveness and protecting people from concentrated authority.
-
This explainer outlines how Australian governments used emergency powers to close state borders during COVID‑19, drawing on both Commonwealth biosecurity laws and state public health legislation. It explains why each state’s approach differed, how section 92 of the Constitution protects free movement, and why proportionality, transparency and clear legal authority are essential when governments restrict interstate travel under the rule of law.
Can the States 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:
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”
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.
Related Resources
-
This fact sheet explains how power is shared across Australia’s three levels of government—Commonwealth, State/Territory and Local—under the federal system created by the Constitution. It outlines the Division of Powers in section 51, the responsibilities retained by the states, the role of local councils, and how High Court interpretation and Commonwealth funding have expanded federal influence. It highlights why dividing power matters for accountability, community responsiveness and protecting people from concentrated authority.
-
This classroom activity uses a flood‑crisis scenario to help students apply the Division of Powers by analysing how local, state and federal governments respond during emergencies. Working in groups, students examine town‑specific crisis cards, identify each level of government’s responsibilities, develop a coordinated emergency plan, and present how cooperation across jurisdictions supports effective disaster management under Australia’s federal system
Explore Related Topics
-
The Separation of Powers
Explore resources on the separation of powers, explaining how separating power maintains checks on government through independent institutions, defined functions and accountability.
-
Federation of Australia
Explore resources on Federation, outlining how Australia became a nation, divided powers, and established the constitutional structures & democratic principles that govern today.
-
Checks and Balances on Power
Explore resources on checks and balances, explaining how oversight limits power and ensures decisions remain lawful and accountable through independent scrutiny, and transparent review processes.