Flat White

We might have a pandemic on our hands, but we still also have the rule of law

4 August 2020

12:00 PM

4 August 2020

12:00 PM

I happened to switch on the telly at the start of the week just in time for Annelise Nielsen’s interview with Madeleine King, the Labor Member for the southern Perth electorate of Brand. Now, I’ve seen a bit in my almost 36 years, but Ms King’s particularly egregious display of stupidity during this interview truly floored me. 

What got my goat? 

A response from Ms King saying that if the Western Australia border restrictions were found to be unconstitutional by the High Court, the blame would rest with the federal Attorney General and Clive Palmer. Why? Because the WA government was trying to protect West Australians and a successful constitutional challenge would force the WA government to change things which were unacceptable in the current circumstances. 

Um, che? 

In practical terms, she is saying that if a state government is in breach of the commonwealth constitution, that is totally fine provided that state government subjectively believes it is protecting its citizens, and that anyone who tries to challenge that state government’s potential breach of power, is at fault. 

Sweet Jesus, hello dystopia. 1984 hath arrived. 


Well, Ms King, you couldn’t be more wrong at law or putridly authoritarian if you tried.  

Actually, the constitution is the overarching legal instrument which spells out the interaction between state and federal governments, prescribes the powers of the Federal government (residual powers reside with the States), and is the source from which federal institutions derive their jurisdiction. Ironically, it’s the instrument which affords Ms King her job. And the constitution is so fundamental to the function of our country that an amendment to it requires a higher threshold than any gardenvariety piece of legislation. That is, an absolute majority of both houses of Commonwealth Parliament, followed by a referendum which must pass by a majority of voters in a majority of states.   

Evidently, it isn’t a mere set of guidelines. And if it was just a set of guidelines, we would have a dam in the Franklin River and we would have mercifully dissolved the Communist Party of Australia. But alas, governments of all stripes are required to abide by the constitution. A constitution that is not adhered to is about as useful as the Bill of Rights in the Congo. 

And it’s totally irrelevant whether one likes Mr Palmer or not, or questions the necessity or motives of his constitutional challenge. Any citizen of this country who has standing to make a constitutional challenge is within their right to do so. A member of parliament blaming a citizen (or the Attorney General) for a government’s alleged failings is the political equivalent of gaslighting a domestic violence victim. It’s intimidatory, unwarranted and smacks of glass jaw syndrome.  

I wager if the Federal government started impeding upon WA government jurisdiction, the WA government and their federal Labor counterparts would be hollering for the same constitutional protections they are presently running roughshod over. And just for kicks, look at it in this context: if, in six months Victoria is the only state with infections and if all other States continue to close their borders to Victoria, you can expect to see some considerable squealing from the Andrews state government demanding Victorians’ constitutional rights be respected. 

So what’s next? 

If the High Court finds in favour of the WA government; the status quo remains. 

If the High Court finds in favour of Palmer; the WA government will need to change the way it does things. They’ll have to think outside the box but inside their remit 

In any event, Premier Mark McGowan should be cautiously eyeing off Part 13 (Compensation and insurance) of the Public Health Act 2016 (WA) which provides that anyone who suffers any loss and damage because of a public health declaration is entitled to claim compensation for the loss caused by the declaration. Watch this space. 

But regardless of which way this constitutional challenge lands, it is always timely to remind our governments what their job is and who they serve.  

Caroline Di Russo is a lawyer, businesswomen and unrepentant nerd.

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