Andrews must seek best advice

Hard cases make bad law, goes the legal aphorism. Global crises can make or break formal constitutions. Australia’s Constitution, not the product of revolution, has steered us through two World Wars and the Depression. So far, the coronavirus pandemic has been managed with common sense and pragmatism. The most obvious symbol of our ability to improvise in a crisis has been the relatively smooth operation of the national cabinet, which harnesses bipartisan goodwill and co-operation to defeat a common peril. It has no formal source of authority in the text of our founding instrument. That need not be a source of concern unless it makes decisions that flagrantly depart from the liberal democratic values on which Australia is founded.

As we have argued from the start, the arbitrary closure of borders by state governments is troubling. The founding fathers formed a nation, not a mere Customs union. The guarantee of “absolutely free” intercourse among the states is one of the most explicit in our founding document. Yet, especially in times of war and emergency, courts have extended considerable deference to the executive to make decisions that protect lives and property. COVID-19 is threatening lives, livelihoods and the social fabric. Regardless of the merits of the legal challenges to restrictions on interstate movement, we support the temporary extension of considerable latitude to federal and state leaders as the health, economic and psychological tolls of this pandemic mount.

In a spirit of generosity and pragmatism, Scott Morrison withdrew federal support to the legal challenge to Western Australia’s border closure. Likewise, the Prime Minister expressed solidarity with besieged Victorian Premier Daniel Andrews last month, declaring: “We’re all Melburnians now.” The nation depends on Victoria to succeed in containing outbreaks; suppressing the rate of community transmission of COVID-19 will lead to the removal of stage four measures, a return to work for many, resumption of commerce and repair of supply chains. To that end, Mr Andrews needs to adopt the same spirit of innovation and improvisation that has characterised the national response to the pandemic.

Victoria has entered its third period of lockdown. The relentless pressure of making life-and-death decisions must be taking a toll on Mr Andrews, who is front and centre of the response in the public’s mind and clearly the decider at the pointy end of things. Just as the Prime Minister expanded the sources of expert advice, so too must Mr Andrews. The Premier has carried too much of the burden. Whether that is a character trait or tacit concession his cabinet contains too many factional operatives, more adept at politics than policy, is moot. The highly factional nature of the Victorian ALP bestows considerable influence on trade unions. Yet business leaders clearly have been marginalised, as well as left confused as regulations proliferate. This does not lead to good policymaking and risks entrenching hostility and suspicion.

Victoria should immediately establish its own version of a bipartisan, co-operative cabinet by bringing in talented leaders from the private sector. There are no constitutional constraints on a state government implementing an extra-parliamentary advisory body comprising experts beyond the public service and medical advisers. This newspaper has been highly critical of Mr Andrews, calling for quick action, openness, accountability and clearer messaging. We do not doubt his work ethic or genuine concern for the health and wellbeing of his citizens. The record of the Andrews government, however, does not inspire confidence. Limiting mobility and commercial activity in Victoria is a big step towards containing the virus. Success will come at a cost, while failure will cause further pain. But enhancing the sources of advice to the Premier is just as important as social restrictions. We are all Melburnians. Mr Andrews must avail himself of the brightest and best minds regardless of their political affiliation or occupation.