State border closures and the Australian Constitution – are they legal?

Over the past few weeks two constitutional challenges have been brought to the High Court of Australia in respect of the well-publicised border closures of several of the States in light of the COVID-19 pandemic. Behind the challenges are two colourful political figures in Pauline Hanson and Clive Palmer.

The applications seek to have the High Court rule that the border closures in place in Queensland and Western Australia are invalid under the Australian Constitution. Initial directions hearings have been held and the parties will now prepare their submissions and proceed toward hearings to be heard by the full bench.

Each matter will likely involve scrutiny of a number of sections of the Constitution but the section that is likely to be of most interest is section 92, which relevantly provides:

_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._

Arguably, no section of the Constitution has caused the High Court as many difficulties as has section 92. In the 120 years since Federation many cases have turned on the interpretation of the section, for a long time not yielding any consistently-accepted interpretation. [1]

Eventually, in 1988 the Court was unanimous in finally determining that what the section means when it speaks of “intercourse among the States.” The Court said:

The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny the Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across state boundaries. [2]

The Court went on to say:

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 fro among the States without burden or restriction. [3]

When that judgment was delivered some may have been relieved to learn that there is nothing more untoward in the section than that.

In reaching that decision the Court took the unusual step of considering debates and conventions held by the writers of the Constitution in order to determine what they intended the section to mean at the time the Constitution was drafted.

Prior to Federation all of the colonies operated separately from one another. They were sovereign, united only by the fact that all were overseen by Britain. Each colony had its own economy, taxes and governments. They competed in all areas of trade and, to protect their own interests, imposed significant taxes and duties on goods imported from other colonies, thus making it cheaper to “buy local”.

To stop that from happening in the newly federated nation the writers of the Constitution included section 92 to forcibly create an open and indivisible nation in terms of trade and movement.

Moving back to the present, section 92 only talks of entering states via boat or “internal carriage”. On the face of the section, flying into a closed State ought to evade the operation of section 92. However, the High Court has repeatedly held that the language of the Constitution is not intended to be exclusive, lest it otherwise fall into a state of obsoleteness very quickly after 1901. In other words, its interpretation “moves with the times” and the text is applied to new technologies and other advancements.

So, are the State laws which prevent people from crossing the border into certain States unconstitutional?

At first blush the laws enacted by several of the States and Territories in light of the COVID-19 pandemic would appear to clearly offend section 92, in that they obstruct the free movement of people across borders (subject to limited exceptions).There is no “freedom” of interstate passage.

However, in a string of decisions since Cole the High Court has held that States and Territories may still prevent entry if the goods or people coming in are likely to injure the citizens of the State.

For example, in 1992 Justice Brennan said in Nationwide News Pty Ltd v Wills that where the true character of a law:

…is to protect the State or its residents from injury, a law which prohibits or impedes movement of the apprehended source of injury across the border into the State may yet be valid . : [4] (emphasis added)

In light of that the Court now would likely consider the severity of the restrictions and assess whether they are needed to ensure the protection intended by the State Governments. If the States can show that the restrictions are:

1. in place to protect the health of the public;

2. appropriate to achieving that purpose without being unduly restrictive; and

3. apply only for so long as the crisis persists, then it is likely that the High Court will uphold the laws.

The medical evidence relied upon by the State Governments when the laws were enacted will likely prove critical if the States are to succeed.

That said, as the ultimate Court in the Australian legal hierarchy, the High Court is not bound to follow its previous decisions or precedents. It can (and does) overturn its own earlier decisions when it considers it necessary to do so. Additionally, the present Justices have not recently been called upon together to consider section 92 so the decision could ultimately go either way.

[1] Cole v Whitfield (1988) 165 CLR 360 at 383.

[2] Cole at 391.

[3] Cole at 394 citing Gratwick v Johnson (1945) 70 CLR 1 at 17.

[4] (1992) 177 CLR 1

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