BACKGROUND
The Premier of Queensland, Annastacia Palaszczuk, has officially stated that she will continue with her border closure from any interstate travel. This plan has shocked New South Wales Premier Gladys Berejiklian as she given the green light for opening our borders to boost our economy. This move by Queensland has struck a cord with Senator Pauline Hanson who has accused the Annastacia of “scaremongering” the COVID-19 pandemic and her decision to keep the border closed. She has claimed that:
“It is unconstitutional for Premier Palaszczuk to close Queensland’s border and her actions are causing me a great deal of concern for the economic viability of our state” and goes on to say “I will not let the self-interest of this lawless Premier override the constitution of our nation”.
Pauline Hanson states that she has a pro-bono lawyer whom is willing to represent the families and business of anyone directly affected by this decision. She argues that it breaches Section 92 of the Constitution and may in fact challenge this in the High Court. She has even proposed that she will be in fact seeking a person from Queensland, with standing to take on the Government.
THE LAW
Section 92 of the Constitution states that:
“Trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free….”
This section outlines that the movement of people and goods across state borders within
Australia is to be guaranteed by the Constitution. This section, like any legislation, can be interpreted on the meaning of their words. If the Section argues that it ‘shall be absolutely free’ is Queensland’s action illegal? Answer: this depends..
The High Court and Limitations
The attempt by States to prevent travel for certain people is as old as our federation of Australia. One of the first cases heard by the High Court was New South Wales enacting the legislation of Influx of Criminals Prevention Act 1903 to prevent convicts from other states entering their State. This was solely based on preventing the entry of John Benson, a convicted vagrant. The High Court judges at the time, considered that the necessity of protecting “public order, safety or morals” but did not consider the exclusion of a class of people to satisfy the exception.
Over the years, the Court had heard many cases relating to the attempted restrictions placed by States. One fairly recent case was the matter of Cole where in a unanimous decision identified the full extent of Section 92;
“Accordingly, s. 92 prohibits the Commonwealth and the States from imposing burdens on interstate trade and commerce which:
1. discriminate against it by conferring an advantage on intrastate trade or commerce of the same kind, and
2. are protectionist in character.”
The High Court has, in recent times, placed limitation of this principal of being absolutely free. They have accepted limitation on such right if it deems reasonable and imposed for a legitimate end.
There is also the case of Nationwide News where the Court has accepted that a state may impose legislation upon entry if any person, animal or goods that are likely to injure its citizen. These risks are to include the transmission of animal and plant. Justice Brennan argued that where the true characteristics of any law
“is to protect the State or its residents from injury, a law which expressly probities or impedes movement of the apprehended source of injury across the border into the State may yet be valid”
The Court would need to consider the severity of the restriction and the need for the measures placed. These considerations will depend on the factual circumstances on a case by case basis.
THE CURRENT RESTRICTIONS
The current measures placed by Queensland could be considered as a legitimate means of protecting the public health. There could be little argument as to otherwise.
The circumstances of the COVID-19 and the isolation is proposed by all current states. Although some states may have relaxed these measures, Queensland has placed a mandatory safety check and requirements for self-isolation for 14 days if they choose to enter their State.
This may be considered a “burden” on any interstate travel, it does not restrict total ban on entering the state. The measures, on an balancing exercise, would most likely be considered valid on the point of Section 92 of the Constitution. In addition, they have made certain exceptions in relation to emergency service works and the transport of goods in and out of the state.
Overall, given the current epidemic, the argument used by the Government is for the means of protecting their people as well as reviewing their decision by September this year. If this was taken to Court, the argument for this ‘Constitutional freedom’ by Pauline Hanson would most likely be considered invalid by the High Court.