Where the bloody hell are you? The famous jingle Scott Morrison commissioned when he was head of Tourism Australia in 2006, useless now with international borders shut, might be redirected instead to the High Court.
The shutting of state borders, for an unprecedented period, costing business billions of dollars, is among the biggest economic, political and constitutional challenges our nation has faced.
“The dangerous idea of secession has been reignited in Perth and across our state, and those on the east coast of Australia greatly underestimate the damage this might do to the federation,” West Australian federal Labor MP Patrick Gorman wrote on this site last week.
Yet the High Court has put off making a decision about the legality of border closures — they might contravene section 92 of the Constitution — until November, which will be almost six months since businessman Clive Palmer filed a case against Western Australia. And the verdict might come weeks after that.
NSW Treasury estimates the state is losing $73m each week in tourism owing to the border closure with Victoria, Queensland about $117m because of its separation from NSW. That’s two borders and one sector.
It’s difficult to estimate the total dollar cost of all the border closures, but it’s clearly hundreds of millions of dollars each week in lost income for many thousands of businesses and workers.
And that ignores the heartache from arrests, missed funerals and people being handcuffed in their kitchens or dragged from cars, which doesn’t show up in economic statistics.
Federation was as much an economic project as a political one: to abolish tariffs and ensure “trade, commerce and intercourse” among the states be “absolutely free”, as section 92 stipulates.
As the Prime Minister recently wrote in a letter to WA Premier Mark McGowan: “It is a provision that at its heart has a federating purpose and is one of the central constitutional provisions that establishes Australia as a single indissoluble and federal nation.”
Alfred Deakin, thrice prime minister in the early 1900s, said the “whole spirit of the Constitution require that save for the purposes of their domestic policies … the states shall be blended and absorbed into one political entity”.
Courts can and do crack the gavel to expedite cases. The citizenship proceedings surrounding Matt Canavan and Barnaby Joyce in 2017 — hardly threats to the cohesion of the Federation — were resolved quickly. Yet for this case the matter was sent to the Federal Court in June to establish the facts, which it did by late last month, finding that the chance of transmission of the virus to Western Australia from South Australia, the ACT and the Northern Territory was low, and from Tasmania “very low … negligible”.
“I would certainly not wish (Federal Court) Justice (Darryl Cameron) Rangiah to think … this court intends to apply or be a party to applying any pressure upon him to produce reasons earlier than he would in the normal course,” High Court Chief Justice Susan Kiefel said last month.
The case was delayed further because WA expert witness Kamalini Lokuge couldn’t read documents because she was spending hours walking to and from work in Melbourne, fearful of catching coronavirus on the bus. That’s at least internally consistent: in March she’d said Australia risked “many thousands, perhaps hundreds of thousands” of coronavirus deaths.
At least the High Court is aware the delay until November is costly.
“In relation to the principal basis for urgency, as I understand it, it is because if the matter is put off the facts which will be the basis for determination will be stale,” Kiefel said on August 12 as she mulled over squeezing it in, in September or October. “It may be possible to leave some gap in October but not for too long,” she mused, ultimately settling on November.
It’s not only the grim prospect of stale facts but also the unnecessary loss of hundreds of millions of dollars of income for businesses and workers if the court ultimately finds strongly in favour of Palmer.
The interstate border closures are highly questionable. An ACT resident can’t fly to South Australia, Queensland or Western Australia because the ACT, which has never had a single case of community coronavirus transmission, is deemed a hotspot. About 20 people are coming and going from Canberra airport, compared with the usual 9000.
Borders of US states and Canadian provinces, which have higher and more varied rates of community transmission than NSW and Victoria, have not been shut.
Respected economist Saul Eslake, who lives in Tasmania, said he’d refrained from second guessing health advice, as some economists had done.
“But if it emerged that state border closures, or indeed any other measures which carried significant economic costs, were based on something other than serious health advice, I would feel that my trust had been betrayed, and I would have something to say about that,” he told The Australian.
States should release the health advice on which they have based their decision to shut borders indefinitely. It’s not as if the coronavirus would change its attack strategy in response to such advice.
University of Sydney constitutional law professor Anne Twomey has defended the High Court’s timing.
“It’s been delayed because the parties couldn’t agree on the facts. It got sent to the Federal Court to determine the facts and was delayed further because witnesses were needed to help with the Victorian outbreak. Also, the High Court has other matters already scheduled,” she told The Australian. The court is largely dealing with relatively minor immigration cases this month.
In 1988 the High Court found, in Cole v Whitfield, that “a constitutional guarantee of freedom of interstate intercourse, if it is to have substantial content, extends to a guarantee of personal freedom to pass to and from among the states without burden, hindrance or restriction”.
In the 1980s, public health wasn’t the religion it has become. The longer the delay, the more a Palmer win would be Pyrrhic for thousands of Australians whose businesses will fail, and who will miss the funerals of loved ones.
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