Conservatives will be disappointed that the Commonwealth has withdrawn its challenge to the closure of the WA border by the McGowan government. It has been a challenging year for those who prefer an originalist, or black letter, approach to interpretation of the Constitution. The judicial activism underpinning the troubling decisions in the Love and Thom cases preceded the pandemic. However, the incremental erosion of what had been seemingly settled interpretations of our foundational law have continued apace. Recently we have witnessed various states brazenly and unilaterally close their borders, the deployment of our defence forces to execute tasks that arguably lie within the plenary powers of the states and a raft of measures that affect individual and commercial rights. Let me be clear. I do not deny the virulence of Covid-19. Nor did I refuse on principle to download the tracing application to my mobile phone. And if I am going to choose an issue upon which to achieve martyrdom it will not be over my refusal to wear a face mask.
However, the failure of the Morrison government to intervene in the challenge to the closure of the WA border is disappointing. If a Coalition government is not willing to fight for freedom of interstate trade and intercourse, guaranteed under s.92 of the Constitution, then what issues does it regard as worth fighting for? The prime minister is a professed Christian. Will he be willing to protect the next Israel Folau against the Twitter lynch mob? A Constitution not worthy of adherence in a crisis is not worthy of the name. Perhaps the fact that pragmatism rather than revolutionary zeal or secession inspired our Federation movement explains our national complacency about the text and structure of the Constitution and almost universal ignorance as to what it guarantees and prohibits. Perhaps Thomas Jefferson was prescient in his clarion call ‘the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.’ Perhaps we place too little value on Constitutional guarantees.
While the framers of our Constitution did not bear arms to achieve nationhood, they were a talented and conscientious bunch. They drew what they considered to be the best elements of both the Constitution of the United States, the common law as it had unquestionably been received into the Antipodean colonies and the principles of responsible parliamentary democracy from the United Kingdom. Whatever one’s ideological proclivities two things should be uncontroversial. Firstly, the framers were not establishing a mere customs union to facilitate passage of goods across colonial borders. They were creating ‘one indissoluble Commonwealth’. Secondly, the Constitution has served the nation well through two global conflagrations and the Depression. Ultimate authority for its authoritative interpretation is vested under Chapter III in our municipal paramount court, the High Court of Australia. And the people hold the ultimate power to amend it through the mechanism provided in s.128.
Can the Constitution survive the pandemic? It is not alarmism to pose that question given the proliferation of decisions emanating from an improvised body with no Constitutional status, namely the National Cabinet. Healthy Australian pragmatism is one thing. Indifference to the erosion of ancient liberties dating back to the Glorious Revolution of 1688-9 is another matter entirely. It is sad comment on our national discourse that much of our media can still hyperventilate about the exercise of the reserve powers in 1975 but meekly accept closure of state borders despite the guarantee of ‘absolutely free’ intercourse between states, and the utilisation of military forces to perform roles that are appropriately performed by state police forces. The Constitution contains ample provisions for referral of powers to the Commonwealth. Likewise, in times of genuine emergencies the executive power vested in s.61, supported by the incidental power of s.51, has been held to provide enormous scope to the Commonwealth to implement measures considered crucial to the survival of the polity. Times of crisis require legality to prevail over improvisation regardless of how well intentioned.
Our proud boast is that we are governed by laws not human caprice. Yet without deference to the text and structure of our foundational compact, states have closed their borders and a conservative government has acquiesced. Yet, almost no section of the Constitution was as rigorously scrutinized in its drafting as s.92. Despite the incoherent jurisprudence that has arisen in interpreting it, the guarantee of absolutely free movement of people seems unambiguous. In Cole v Whitfield a unanimous High Court bench considered the Convention debates and expressed concern at the lack of clear principle among the 140 cases decided on s.92. A former chief justice of the court, Sir Garfield Barwick was bewildered at the knots the bench tied itself in by espousing a formula that the Constitution may provide the ‘text but not the test’ for application of one of the most unequivocal guarantees in the Constitution. Interviewed in 1989, he lamented ‘Dear me, it’s terrible tosh you know… very sad.’
Yet, in Cole v Whitfield the Court did suggest that ‘intercourse’ could be severable from precedents on the ‘trade and commerce’ provisions of s.92. The plurality cited with approval the case of Gratwick v Johnson, which was argued in the midst of the second world war. The case concerned regulations impeding individual movement between states at a time of national emergency.
Yet, the Latham Court unanimously declared that s.92 was explicit. Its guarantee of absolute freedom could not be infringed. Since Farey v Burvett, another decision handed down by the High Court during a global war, courts have accorded considerable deference to the elected government in evaluating matters of policy in times of dire threats to the nation.
Nevertheless, s.92 prevailed over such deference to the Executive in a crisis of more immediacy and gravity than the present. Clive Palmer’s challenge does not appear as persuasive as the challenge to the Queensland border closure.
The original challenge to the closure of the border was dropped after Premier Palaszcuk restored access to the sunshine state, thereby eliminating a justiciable matter for the consideration of the High Court.The affected plaintiffs lost legal standing to mount their challenge. However, her sudden reimposition of border restrictions seems disproportionate and worthy of challenge. Her actions make the case for the Commonwealth to take a principled stand even more compelling. Many constitutional lawyers believe it is imperative that the High Court decisively define the guarantees in s.92 once and for all.Their professional concern is mild compared to the mounting fury of many Quiet Australians who intuitively grasp that arbitrary decisions are infringing their rights and livelihoods.
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