Let’s face it. These heavy-handed, despotic lockdowns hit the young much more than the old; they hit the poor without assets much more than the rich who are watching the asset inflation on steroids with glee; they hit small businesses much more than big businesses; they massively hit entrepreneurs but do not hit those in the public service or the universities or the political and judicial classes at all (not even to the extent of leading to a token pay cut by the politicos); they elevate one, and only one, matrix of concern to supreme importance – only Covid deaths matter, not deaths from any other cause; not other health matters flowing from missed cancer checks and the like; not mental health; not the dangers of heavy-handed policing, nor of illiberal laws, nor of what might happen when the politicians and their handmaidens in the public health class get a taste for this sort of unchecked power; not Australia’s image abroad; not our blown-out budget; and certainly not anything at all to do with freedom and civil liberties concerns.
Now interestingly there is a group of people who agree with me on these criticisms of lockdowns and of how disastrously Australia has handled this pandemic. Yet this group does not blame Prime Minister Morrison. No, it blames the state premiers. On the view of this group of PM defenders it is the premiers who are imposing these lockdowns and petty tyrannies and so the federal Coalition government bears little, if any, of the blame.
I disagree. I think this attempted defence rests on a poor understanding of the state of today’s Australian federalism. Hence, let me tell you why I think that this attempted defence of Team ScoMo and of the federal Liberal party is way off the mark. I make these points in no particular order.
- If you go and look at s.51 of our Constitution, which lists the heads of powers that have been explicitly given to the centre, to Canberra, you will see that the ninth listed power is ‘quarantine’. Everything to do with quarantines is a federal or Commonwealth power. And since the High Court in WorkChoices let the Feds take over labour relations under the ‘corporations’ power, it’s a good bet ScoMo could take over lockdown matters under the ‘quarantine’ power. Then the states would be out of the picture. It is Team Morrison that has failed to do that.
- The so-called National Cabinet does not exist in our Constitution. We have the world’s most American Constitution in that we copied the US’s versions of über-strong bicameralism (almost unknown anywhere else in the democratic world) and of federalism (but shunning the Canadian version). But we kept the Westminster parliamentary model, opting to graft these copies of things American on to that British set-up. So that means we have real Cabinet government, with members of the real Cabinet being MPs in the federal Parliament. Who came up with this previously unheard of ‘National Cabinet’ that gives all these premiers a seat at the top table, while sidelining the Duttons, Taylors, Paynes and other members of the real Cabinet? Why that would be Mr Morrison. ScoMo made it up out of thin air it seems. One can only speculate why but my guess is that early on in the pandemic the PM wanted to share responsibility for the hard decisions that would need to be made. (He is not, on all the evidence at hand, what might be styled a ‘brave man’.) But let’s be clear, all you defenders of the PM, that was his call. And the dangers of empowering this ragbag collection of pusillanimous premiers was obvious to anyone right from the start. Indeed, some of us criticised the creation of this Frankenstein’s mess at its birth. My point here, though, is just that the premiers would not have had the powers they have had this Morrison brain-fart of a National Cabinet idea not been implemented.
- Next think of the closed state borders and s.92 of our Constitution. It was (and I would say still is) a very open question whether the premiers had/have the power to do what they have done in the way of closing the state borders. The key constitutional provision in play was/is s. 92. Did Mr Morrison and the Commonwealth government take the states to the High Court challenging their border closures under s.92? No, Mr Morrison did not. Let that sink in. It is a fact Team Morrison flat out acquiesced in these state border closures. Yes, yes, yes, I know that in the absence of any federal action Mr Clive Palmer stepped in and brought a s.92 challenge in the High Court. And Palmer lost, with the High Court sort of equivocating and leaving open a possible different result with different future facts on the ground. And so many people simply suppose there would have been a similar result had the Commonwealth intervened and joined this challenge. Well, I don’t suppose that. Think about being one of our seven top judges. The national government either cannot be bothered, or does not wish, to challenge the state border closures. Are you going to side with Mr Palmer over the states, when Mr Morrison has implicitly sided with the states? Not a chance. No one could expect the judges to do that. But realise this. When the Commonwealth does take federalism High Court challenges against the states – and I am not making this up – we in Australia have the most one-sided, pro-centre, almost-all-the-big-cases decided for the Commonwealth history of cases in the federalist world. One of the safest bets you could ever make (given what I have termed the most ridiculous interpretive approach to federalist disputes by our High Court) is to put money on Canberra winning. I don’t like that fact. I think our High Court over the past hundred years has ruined any working version of federalism in this country by its ridiculously pro-centre decision-making record. But that’s where we are, like it or lump it. So had Morrison and the Feds taken this s.92 case would the states have won? Well, no one can know for sure with these sort of counter-factuals. What I can say is that based on a century of High Court of Australia federalism jurisprudence, betting against the centre had Team Morrison taken this s.92 case would have been like betting against Winx.
- Money. Our federalist set-up is so broken that even before the pandemic we had the world’s worst vertical fiscal imbalance. The Feds have all the money (in large part because the High Court effectively took away the states’ income tax power, making them unique in practical terms in the federalist world). The states are mendicants. Do I like this? No. Have I railed against it in the past? Yes. Could our PM bring the states to their knees in under a week any time he wishes? Yes.
I could go on, as there are other constitutional weapons in the PM’s armoury. Here’s the truth of the matter. Mr Morrison, who hasn’t even summoned up the gumption to criticise Dan Andrews in vigorous terms, is as responsible as anyone for all these despotic, heavy-handed lockdowns.
Those who think otherwise are confusing cowardice and lack of principle with constitutional impotence.
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