When the Prime Minister Scott Morrison called for a passport system which would close the internal borders this week, the inevitable Greek chorus of howling monkeys and wingnuttery reverted to a familiar hymn from the same old hymn book.
The hymn is familiar. It is most commonly sung to the great god Dollar and usually invokes vague notions of freedom or some other abstract concept.
In this case the abstract concept of freedom found an unlikely ally in the Constitution itself; with a certain newspaper (not saying which one) invoking section 92 as though it was a message from the great god Dollar on high:
http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s92.html
Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.
- Section 92, Constitution of Australia (1900).
There is a problem. Just because the Constitution says a thing somewhere doesn't necessarily make it so. Just because the newspaper has found one clause in the Constitution, does not a rule of law make. Also, even a straightforward reading of this tells you that this is about trade of goods within the Commonwealth. I fear that the person writing the newspaper article was lying to us. Unfortunately, the law doesn't actually hold the press to tell the truth if it is dressed up as opinion.
The thing about law generally is that it is like a many twigged game of kerplunk. There isn't usually one law that defines everything and where there are inconsistencies between various laws, between jurisdictions which have power over the same broad area of law, and even within a single law itself, then the interpretation of the laws together including what is equitable and dare I say sensible, falls to professional law interpreters in wigs who we call judges. While not directly applicable here, the most critical case in US Case Law is Madison v Marbury 1803 in which the US Supreme Court took for itself the right to say what the law is¹. Just like the game of kerplunk, many individual laws hold up bigger concepts and in the case of Madison v Marbury, the judge made case law holds up itself.
In Australia, that role falls to the High Court of Australia, who can on occasion have a judging panel of many people sitting behind an extended bench in wigs, all saying what the law is.
When I heard talkback radio hold court on this same subject, which is held in the uninformed and unthinking Court Of Public Opinion, I couldn't help but question both the source and the truth of the opinion that a passport system which would close the internal borders was unconstitutional. It is almost as if, living in a world where pandemics have happened before and where I assume that in such a world, that the law will have already made a decision with regards to same.
The Constitution of Australia is not some sacred piece of stone handed down by God himself, to some prophet with a weird beard; no matter how much we want to ascribe greatness to Henry Parkes. The Constitution Of Australia was hammered out in the heat of several summers, in sweaty rooms full of lots of weird beardy men. The process for knocking it out took so long that both Fiji and New Zealand opted out of the whole box and dice.
After the better part of a decade, all that the Constitution has to say directly on the subject is found in Section 51 where the Commonwealth Parliament has the powers to...
http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(ix) quarantine;
(xxiiiA) the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
- Section 51 (parts of), Constitution of Australia (1900).
In invoking the help of abstract concepts to fight a war of words and ideas, the Constitution is both by operation and in fact a notoriously feeble weapon. The functions of the Commonwealth and the States in a federated system which looks less like the republican forms of government in the United States and more like a strange coagulated union like Canada or Switzerland, frequently overlap and on many occasions, including health care policy, Federal oversight has to negotiate with State Governments.
In this case, Section 92 which contains clauses about interstate commerce and Section 51 which contains the general provisions that the Commonwealth can pass laws to do with quarantine and health care, are imagined to be in conflict with each other.
The power and responsibility to say what the law is, falls to people sitting behind an extended bench in wigs, that is, the High Court of Australia.
The High Court had this to say:
"a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject-matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end."
- Cunliffe v Commonwealth (1994) HCA
That's pretty well much the end of the story bar the shouting. If the first responsibility of government is the perpetuation of the entity which it governs, then of course it follows that the general welfare of the general public is generally a good thing to be generally protected.
All of this brings me back to the initial problem of the chorus of howling monkeys and wingnuttery, trying to invoke vague notions of freedom. The problem of trying to invoke some abstract concept of freedom is that it is fine for individuals but individuals who are selfish and who apparently do not want to care about concepts which are bigger than they are (like general welfare, the Commonwealth, nationhood etc.) but ultimately terrible for the nation. I might personally think that the current Morrison Government is bad but at very least it has acquiesced to the idea that it has some amount of responsibility to the people living in the Commonwealth that it governs.
Individual freedom is an utterly pointless concept in the face of a pandemic anyway. A fire gives no thought about the individual freedoms of the trees that make up a forest; likewise, the virus doesn't care about the individual freedoms of the people of the Commonwealth. This is not a virus that cares about anything (as if there was one); it doesn't care about Section 92 arguments either.
Aside:
Talkback radio does an effective job at amplifying untrue ideas if it thinks that it can find a profit. As newspapers generally come out before people wake up, something in print gets to set the tone of the morning's radio and television programs; who often regurgitate the same bolus of indigestible pica type substances without anyone having chewed it over.
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