Federal parliament has the power to rule on borders

Attorney-General Michaelia Cash. Picture: Martin Ollman

As political disagreement threatens to unravel Australia’s national plan to combat Covid-19, some are looking to the High Court for a solution. Attorney-General Michaelia Cash has warned state governments their time is running out and the court may strike down border closures once Australia hits the 80 per cent vaccination target. She has a point, but the High Court is not the right forum to solve this problem. Instead, a national plan should be enacted in law by the federal parliament.

The High Court held late last year that Western Australia had not breached the Constitution in closing its border. The court rejected Clive Palmer’s challenge by finding the closure was justified to prevent the spread of Covid-19. This was despite the imperative in section 92 of the Constitution that “trade, commerce, and intercourse among the states … shall be absolutely free”.

The High Court applied the Constitution to the facts as it found them last year. Times have since changed, and a reasonable public health measure at one point may be unreasonable and indeed unconstitutional at another. As Cash recognised, another High Court challenge is probable, and success is more likely the second time around.

It will be harder to convince the court that border closures are justified as a public health measure once 80 per cent of Australian adults are vaccinated. However, this is only one factor. The court also will consider the impact of the new, more infectious Delta variant of Covid-19. This may enable premiers to continue to close off their communities despite a high vaccination rate. The evolving threat makes it difficult to predict when the court will reassert our constitutionally mandated freedom of movement.

A second or even third legal challenge may answer this question. However, the High Court is not the right institution to determine when borders should reopen. One problem is that court processes are slow. Palmer filed the first challenge in May last year. Months passed when the matter was remitted to the Federal Court for fact-finding. The High Court finally heard oral argument and pronounced a result in November, before releasing its reasons in February this year.

The court also considers only a narrow range of factors. It examines public health evidence on how border closures reduce the rate of infection and whether alternative means are available for achieving this, in light of decades of legal precedent on section 92. Its decisions do not incorporate broader social and economic considerations, such as the impact of border closures on jobs and mental health.

The High Court should be the last resort to resolving this issue. Attention should instead focus on the federal parliament. Reopening our borders requires weighing up the public health, economic, social and political considerations. This is best undertaken by our elected representatives from across the nation. They can go much further than determining whether border closures breach the Constitution. They can set down specific rules for hot spots and to cater for vulnerable people and children, and ensure that borders are not opened prematurely.

The parliament has ample power to take the lead. It already has passed the Biosecurity Act to provide the federal Health Minister with extraordinary powers to impose national standards and directions during the pandemic. Further legislation can be passed under parliament’s quarantine or other powers in the Constitution to mandate the national plan as a legally enforceable standard.

These national rules can override state laws. Our Constitution gives precedence to the federal parliament, and so to the national interest over state concerns. This is set out in section 109, which states that “when a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail”. It provides the federal government with the unassailable authority to override state measures, including border closures.

Past federal governments have not been shy in asserting the national interest to bring states into line. The reluctance to do so on this occasion is understandable. It is better to reach agreement and to maintain goodwill to ensure the effectiveness of our pandemic response. Conflict is likely to divert resources and attention, and undermine our efforts. It is also unsurprising in the lead-up to a federal election that Scott Morrison is reluctant to take on premiers whose state parochialism has proven so popular.

At some point, this dynamic needs to change. The High Court may be called on to break the political deadlock. This, though, is a slow course that may not produce the best outcome for the community. It would be better for our elected representatives to debate the issues in the federal parliament and enact an agreed national plan. After all, that is what we have elected them to do.

George Williams is a deputy vice-chancellor and professor of law at the University of NSW.