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The outbreak of the pandemic with the novel coronavirus called COVID-19 has created many barriers and challenges for the economy of many nations. The infection has led to several deaths in the big cities like Wuhan in China and has severely affected the business and treat in almost all the nations of the globe. As per Stoye, there have been 54 research papers published till 30 January which were scrutinizing the epidemiological, demographic and clinical issues of these viruses and its outbreak in different geographical locations. The novel coronavirus has badly affected the flow of trade and economy. The different terminology used for reflecting the economic implication of this pandemic suggests the gravity of the widespread coronavirus. The ‘coronanomics’ and ‘Black Swan’are the names that have been provided for suggesting the impact of coronavirus on the global economy. A de-globalisation process can be traced by the force full lockdown of the borders of the various states of the countries for prevention of the spread of this virus. This lockdown has consequently abrupted the normal flow of the business, capital, humans and thus the production and transportation of the products and business have been temporarily shut down. The action of the government of lockdown and border closure in the states of Australia has led to big losses for the business and interruption with the flow of trade has a major impact on citizens. In this present paper, the constitutionality of the action taken by the government is to be analysed vis a vis different provisions of the Commonwealth constitution.
The border closure has not been in action in the states of Australia from quite a long time but as a precautionary measure, many of the states have ordered border closure resulting in less movement of people and trade interstates. Recently two of the most popular states of Australia, Victoria and New South Wales, decided to shut down their borders preventing the interstate intercourse and movements. This has been provided as a joint decision between the authorities of the states, Victoria's Premier Daniel Andrews and Prime Minister Scott Morrison and NSW Premier Gladys Berejiklian. The decision was a measure to prevent this spread of coronavirus which has not only hit Australia but has severally affected the various parts of the globe. Most of the people across these states are disappointed and considering this to be an unconstitutional move against the provisions of Section 92 of the Commonwealth Constitution.
One of the legislations which has been a talk of the town for the nation amid the outbreak of the novel coronavirus is section 92 of the Commonwealth Constitution. The various states have been on closure which came into effect from 5 April 2020 under section 61, 67, 70 and 72A of the Emergency Management Act (WA). With the enforcement of these provisions of the Emergency Management Act 2005, the person cannot travel interstates for any purpose unless the purpose qualifies for such movement between the states of Australia. Thus, all the trade flow and business-related activities across the boundaries of the states have been obstructed and consequently, the flow of the trade has been on a shutdown mode affecting the economy of the nation.
Even before the COVID-19 pandemic, Section 92 of the Constitution has been subjected to over 140 High Court cases which is fairly a bigger number than any other provisions of the constitution. The terms and the language used in section 92 including absolutely free, intercourse between the states have been questioned and interpreted by the courts fairly over time. In the case of Nationwide News Pty Ltd v Wills, the Mason-led High Court in 1992 pronounced that the provisions of section 92 of the Commonwealth Constitution is not without restrictions or regulations but it does positively provide a guarantee of freedom along with imposing restrictions over the same. The interpretation of the provisions of this section is still not consistently accepted and get moulded with the different cases before the Court.
The Section 92 of the Commonwealth Constitution provides for the absolutely free flow of uniform duties of customs, trade, commerce and intercourse between the states by the means of internal carriage or through the way of the ocean. In the case of Gratwick v Johnson, the Court provided for the free flow of people to and fro the state boundaries without any restriction which is an assurance or guarantee of freedom to the citizens. Although the same rationale gets the provisions of restrictions for the flow of people and trade interstate with the case of Cole v. Whitefield. In this case of 1988, the interpretation of the ‘intercourse among the state’ was clarified within the context and meaning of the phrase in Section 92 of the Commonwealth Constitution. The court said that the purpose of section 92 of the Commonwealth Constitution is to ensure a free trade throughout the commonwealth and the state as well the commonwealth have equal authority for prevention of obstruction of any free movement of people goods and communication across the state boundaries.
One of the landmark cases with respect to section 92 of the Commonwealth Constitution which provided a new aspect to the interpretation and intention of the framers of the Constitution was the case of Cunliffe v The Commonwealth. Mason CJ pronounced in this case that the freedom of intercourse concerning section 92 of the Commonwealth Constitution guarantee a free flow of trade and person interstate state is not absolute. According to the court, a law which applies to the movement across the border and is imposing a burden or any restriction is invalid but if the same burden or restriction is incidental or is in respect of the regulation of a subject matter which may be different from the interested intercourse but is in consonance and application of the public interest is valid and applicable. Stating this particular condition, the court justified that such burden or restriction imposed will be reasonable in order to preserve an ordered society under a system of democracy and representative Government and such burden or restriction will not be disproportionate to the end to not get implemented for prioritising the public interest. The public interest has been given weightage over all other subject matter and the court has made a motion clearly for the restriction of the freedom of intercourse under section 92 if it is reasonable and necessary from the perspective of representative Government and democracy.
The consideration of the above-mentioned case with respect to the present situation of COVID-19 pandemic and closure of the borders of the states affecting the business and economy suggest that the implementation of the closure of the boundaries of a state aligns with the public interest. The provision of Emergency Management Act (WA) is concerned with the impact of the outbreak of novel coronavirus. The death and the downfall of the health of the people have been prioritised over the guarantee of the freedom of movement and trade across the interstates of the nation. The implementation of the provisions of the Emergency Management Act resulting in border closure has undoubtedly questioned the constitutionality of the provisions of section 92 of the commonwealth constitution but is voicing the public interest over any freedom. One of the other reasons for the border closer across the nation is to protect the remote indigenous communities which are particularly at the risk if the people get infected with this novel coronavirus.
The consideration of Section 109 of the Commonwealth is notable over the issue of the border closure of the states of the nation. Section 109 of the commonwealth constitution has also been dragged in this whole border closure issues as it has relevant provisions in this regard. This section provides for the inconsistency of laws and specifies that if the state law is inconsistent with the law of the commonwealth, then the latter shall prevail and invalidate the State Laws to the extent it has been inconsistent with the provisions of the commonwealth law. Thus, this law clearly provides for the constitutional validity and application of Section 92 of the Commonwealth Constitution which provides for the absolutely free flow of trade, customs and people interstate the nation over the imposition of border closure amid COVID 19 pandemic.
One of the other provisions which have been challenged the border closure by the government on the ground of being unconstitutional is under section 117 of the Constitution. This section provides that an Australian citizen has the immunity of being the subject of the Queen and they must not be facing any disability or discrimination in any of the state if the act does not apply to any citizen of the Australia. This section has been challenged on the ground of the cases where the border closure of Queensland has resulted in affecting the freedom of movement and trade among the citizens. One such case is Palmer v Western Australia, which took the Western Australian Laws to be unconstitutional under section 117 of the constitution.The Queensland Border Restriction direction number 5 framed under section 362B of the Public Health Act 2005 provided for the free movement for Queensland residential or the persons who travel to the interstate for goods or services or other permitted purpose but apart from these above mentioned all the other persons are banned from entering Queensland unless the person is in the ‘exempt person’ category. In this case, Mr Plamer was restricted from going to Western Australia, where he has his business set up, under the ‘exempt category’. This category includes a person of military, police, other government officers, emergency and health personnel carrying out their duties who are required to discharge their official duties despite the emergency and the border closer ordered by the government.
Section 362 of the Public Health Act 2005 has provided to comply with the public has direction unless the person has a reasonable excuse to fail to comply with the provisions of this section. The penalty is also included for failing to fulfil the provisions. Similarly, in Western Australia, exemptions are provided under Quarantine (Closing the Border) Directions framed under the Emergency Management Act 2005. The minor difference between the exemptions provided by Western Australia and Queensland is lying in the broad exemptions provided by Queensland for its own residents. Another recent case in this regard is travel Essence Pty Ltd. V Jeannette Young, Chief Health Officer for Queensland. In this case, the arguments are again concerned with section 92 and 117 of the Commonwealth Constitution. It has been put forward by the plaintiff that the direction implemented is not supported by section 362B of the public health act as there have been no reasonable grounds to believe the implementation of direction was necessary for the state amid the pandemic.
It is tough to formulate a statement which can suggest whether the application of the border closure in the states are reasonably appropriate or extreme measures against the provisions of Section 92 and 117 of the Commonwealth Constitution. The states have taken all these measures and border closures considering the serious nature of the pandemic. On the other hand, undoubtedly, these measures for prevention of the spread of novel coronavirus has resulted into badly affecting the rights guaranteed for the absolute freedom of movement, trade, customs interstate either through internal carriage or ocean navigation. The constitutionality of the application of the border closures interstates is yet to be clarified with the cases pending in the Court in the present situation of risk of spread of novel coronavirus. In most of the cases, the concern of the plaintiff has been in respect of the constitutional right which guarantees of freedom of movement, trade, customs interstate against the application of the border closure laws of the state concerning the public interest and the outbreak of novel coronavirus.
Commonwealth of Australia Constitution Act
Emergency Management Act 2005 (WA)
Public Health Act 2005
Quarantine (Closing the Border) Directions
Cole v Whitfield (1988) 165 CLR 360 at 383.
Cole v. Whitefield (1988) 165 CLR 360.
Cunliffe v. The Commonwealth (1994) 182 CLR 272, 307–308 (Mason CJ).
Gratwick v. Johnson (1945) HCA 7; 70 CLR 1;  ALR 167
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Palmer v State of Western Australia (2020) FCA962
Travel Essence Pty Ltd. V Jeannette Young, Chief Health Officer for Queensland (2020) HCATrans 72
AUSPUBLAW, Border closures, COVID-19 and s 92 of the Constitution – what role for proportionality (if any)?, (June 2020) <https://auspublaw.org/2020/06/border-closures-covid-19-and-s-92-of-the-constitution/>
BBC, Coronavirus: Australia to close Victoria-New South Wales border, (July 2020) <https://www.bbc.com/news/world-australia-53303317#:~:text=Coronavirus%3A%20Australia%20to%20close%20Victoria%2DNew%20South%20Wales%20border,-6%20July&text=The%20border%20between%20Australia's%20two,Covid%2D19%20cases%20in%20Melbourne.&text=Until%20now%2C%20the%20two%20states,when%20others%20had%20shut%20them.>
Constitution Education Fund, Can Australian States lock-out residents of other States?, (April 2020) <http://www.cefa.org.au/ccf/can-australian-states-lock-out-residents-other-states>
Eichengreen Barry, Coronanomics 101: which policy tools will contain the economic threat of COVID-19?, (2020). World Economic Forum. <https://www.weforum.org/agenda/2020/03/coronavirus-economics/>
Petro Greg, The Coronavirus Tsunami: What’s to Come For U.S. Retail. Forbes, (March 2020) <https://www.forbes.com/sites/gregpetro/2020/03/20/the-coronavirus-tsunami-whats-to-come-for-us-retail/#5474b4d0609d >
Stoye Emme, China coronavirus: how many papers have been published?, (January 2020) <https://www.nature.com/articles/d41586-020-00253-8>
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