These last few weeks have seen some unprecedented measures taken out by State and Federal Governments for the COVID-19 Virus. Travelling overseas was the first restriction while interstate flights have now followed suit in a bid to slow down the curve of this spread. As we have seen, States have swiftly brought in their own measures and lockdown as the pandemic and fear continues to rise in all States and Territories. To make matters more complicating, these rules and penalties for failure to comply with the measures are different in each Jurisdiction.

Tasmania had put themselves in lockdown, turning away any “non-essential visitors” while South Australia, Western Australia and the Northern Territory had followed the same pattern. Queensland has begun this closure and even introduced a system of pass for individuals that are wanting to enter or leave the state. NSW, ACT and Victoria are still allowing travelling interstate without any regulation. Although Police Officers in NSW will have the power to issue fines of $1,000 to individuals and $5,000 to business that breach this public health order.

Today Prime Minister Scott Morrison has announced that all passengers who arrive in Australia that after Midnight on Saturday will have to go into mandatory quarantine into Hotels for a fortnight. Further to this, Premier Gladys Berejiklian stated that NSW could also go into Lockdown in the coming days ahead of the Commonwealth Government if needed.

The question that should be asked is any of this legal?

Legality of These Border Closures?

Our Movement of people and goods across State Borders in Australia is fundamentally guaranteed by our Constitution. Section 92 of our Constitution states:

“Trade, Commerce, and Intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free”

In other words, this section requires states to allow the movement of people, goods and communication across the state boundaries. So how are they doing this?

Are States permissible to restrict such movement during crisis like the COVID-19 pandemic?

The short answer is ‘yes’. Professor George Williams, Dean of Law at the University of New South Wales has outlined that

“There has to be free movement between states and you can’t arbitrarily stop it without very compelling reasons”

The High Court has accepted that there is limits to this definition of “Absolutely free” if it deems it reasonable and has a legitimate end, such as that of protecting the public from a dangerous disease.

What kind of limits does the Constitution impose on States

States are essentially excluded from barring individuals from entering due to some character factor. This was seen with NSW enacting the Influx of Criminals Prevention Act 1903 which basically prevented any convicted criminals from all states entering NSW.

The High Court had quickly declared the legislation illegal as it prevented the freedom of movement. They had brought about the principle as earlier described, where it may be needed for “public order, safety or morals” but had clearly stated this current matter was not the case.

Our Current Measures Under This Government

Despite these Constitutional limitations on state borders and public health matters, the Commonwealth is a major part to play. This is due to its funding that it provides through health agreements and constitutional requirements under s51(ix) including quarantine matters. They have openly supported the measures taken by States.

These current plans to restrict movement and install isolation for members entering are clearly reasonable and legitimate purposes for public health and safety. They have not prevented people entering but rather, on a general scale, involve health checks and requirements for self-isolation for 14 days if they do enter the state.

This may be interpreted as a “burden” for any interstate travel but does not in fact prevent the travel. The Court would have viewed the interest of public health over the idea of this being unconstitutional.

What legal defences does State and Federal have?

A few possibilities for these measures to be challenged??

First would be, if more stringent rules were to take place, for which it can be considered as not being reasonable and appropriate to achieving the protection for public interest, then it could be argued for further legal challenges.

Second, under the framework of our Constitution, states do have considerable broad legislative powers under s 92 of the Constitution. If states enacted legislation that was surpass this power or in conflict with the law of the Commonwealth, then section 109 of the Constitution would make the latter prevail. So if a State were to attempt to legislation around the prevention of interstate members entering their borders, any number of Commonwealth enactments would bypass these laws.

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