As revealed on The BFD, Crown Law advice to the New Zealand police was that enforcing the government’s lockdowns was beyond their legal powers. Naturally, the government rushed to cover its arse and to shout How dare you! at the Opposition for having the temerity to point out that the government had exceeded its powers.
In Australia, the state governments, who are actually in charge of lockdown and border-closure measures, have got away with behaving like tinpot dictators — so far. But, as the Xi Plague dwindles away to less than a bad flu season, premiers who seem drunk on their new-found autocratic power may be called to account — especially by businesses ruined by obstinate state governments refusing to loosen up.
Businesses suffering economic hardship because of the coronavirus pandemic and state border closures could have a case to put to the High Court, with leading constitutional lawyers saying it’s possible the ongoing restrictions on interstate travel are illegal.
Attorney-General Christian Porter said on Tuesday night that the states needed to carefully consider the economic effects and constitutional limitations of their ongoing border restrictions.
Under section 92 of the Constitution, trade, commerce and the movement of people among the states “shall be absolutely free”. However, the High Court accepts there are exceptions to the rule, including to defend the public’s health.
The Morrison government took a hammering for what were in fact the failures of state governments during the bushfire crisis of last summer. So it would hardly be likely that they’re going to carry the can for useless, megalomaniacal state premiers again.
Pressure is mounting on Queensland Premier Annastacia Palaszczuk to reopen borders sooner after she shocked the tourism industry by suggesting it would more likely occur in September because of small levels of community transmission in NSW and Victoria. The Palaszczuk government’s road map released earlier this month set July 10 as the possible date to kickstart interstate travel.
Western Australia, Tasmania, South Australia and the Northern Territory have also embraced border closures, with WA Premier Mark McGowan vowing to maintain his closed border with the east “for months to come”.
Queensland businesses will be devastated if the borders remain closed over winter; a lucrative season for that state’s tourist sector. Especially as Australia effectively conquers the Xi Plague. Every single business sent broke by border closures will have a good class-action cases against these intransigent petty dictators.
University of Sydney constitutional law expert Anne Twomey said it was a lot harder now than it was at the start of the pandemic to argue that the border closures were reasonable and imposed for a legitimate end, such as protecting the community from COVID-19, when the number of active cases in Australia was so low.
Professor Twomey said it was “a possibility” that the border closures were unconstitutional.
“If a court is looking at what is reasonably necessary in the circumstances, there’d be consensus the states shutting borders at the start was reasonably necessary,” she told The Australian.
“But it’s much more difficult now the huge numbers of coronavirus cases have reduced significantly and there’s little community transmission … to argue you still need those borders shut.”
The most disturbing fact of the whole Xi Plague crisis has been the timidity with which supposedly liberal democracies have knuckled under to what has been the most far-reaching and coercive exercise of state power in their history. Surely the first question for state governments to answer, no less than the Ardern government in New Zealand, should have been — is this constitutional?
It’s all very well for those still cowering in fear of the Xi Plague to claim that “It’s for our own good!” and that we should “trust the government!” but, as one of the architects of Australia’s Constitution said, if we could trust the government, we wouldn’t need a written constitution.
The Constitution is the fundamental law of the nation. If the government disregards the law of the nation, then what can it be called but a dictatorship?
If you enjoyed this BFD article please consider sharing it with your friends.