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Responding to an unprecedented pandemic: unprecedented restraints?

Emma Turner, Rebecca Fraser & Beatrisa Dubinsky

The Commonwealth and State governments are taking unprecedented actions to protect the public from the spread of COVID-19, and the potential side effects of an overwhelmed health service if the virus is allowed to spread unchecked.

These actions include the cascading closure of state borders, as first Tasmania, then SA, WA and Queensland require 14 days of self-isolation for any interstate travel except for exempt persons. Self-isolation rules, exceptions and enforcement measures vary across every state. The one thing they have in common is a prima facie restriction on the free travel and trade between states and territories of Australia, in contravention of section 92 (s 92) of the Constitution. That section guarantees the free movement of people and goods in Australia.

Is there a valid non-protectionist purpose?

It is settled law that limitations on free movement do not contravene s 92 if they are reasonable, proportionate and imposed for a valid, non-protectionist purpose. This is so even if the limitation has a discriminatory or protectionist side effect.

Determining what is reasonable and proportionate in the face of a fast moving pandemic is not easy. The regulatory purpose has to be determined in order to assess what is a reasonable and proportionate means of achieving that intent-whether the purpose is to entirely supress the virus, or to ‘flatten the curve’. While we know how the virus spreads, the data on the mortality rate is in flux. Countries ahead of us in the pandemic’s curve have adopted a range of measures with varying success. Assessing the effectiveness, and therefore the proportionality and reasonableness, of soft regulatory approaches is particularly difficult given the range of cultural norms about physical contact. This is further complicated by the lag in the virus’ curve, as any preliminary actions take time to affect the spread of the virus.

Governments must do what they can with the information available. The virus has caused deaths in Australia, and cases are increasing despite several weeks of increasing limitations on movement and social interactions. This is likely to support measures that in the normal course of events would be considered extreme.

As the pandemic and its economic aftermath continue, it will be increasingly difficult to distinguish between measures to protect public health and economic protectionist objectives. The economic impact of the pandemic is already significant, and intertwined with the nature of person to person contact in many of our industries. Take, for example, complications that are likely to arise when farmers cannot find enough seasonal labourers to pick crops because the national and state borders are closed and no workers can enter the country. Any state government action to address subsequent potential food shortages from such complexities will have to be very carefully thought through so as to avoid straying into economic protectionist objectives.

Would more extreme measures be constitutionally valid?

The National Cabinet is responding to new reports and information as it becomes available. It is likely we will see more restrictions, at least in the states hardest hit by the virus. Governments will need to consider the availability of alternative, practicable and less restrictive measures before implementing any further restrictions. This balancing exercise would involve an examination of whether there is an alternative method that is equally effective in containing the pandemic yet less burdensome on interstate intercourse and free trade. To justify more extreme measures, governments would likely need to point to an increase in health risks or a failure of the existing measures to ‘flatten the curve’.

What next?

State and federal governments will need to consider the constitutional limits, particularly of s 92, as they continue to respond to this pandemic. The laws must be proportionate to the public health crisis at hand, to the extent that the crisis is understood at the time that the decision is made. As data and expert health advice on COVID-19 is rapidly evolving, it is of critical importance that governments ensure that all of their decisions are informed by the most current advice. Governments needs to take care that every action that restricts free trade or movement of people in Australia is sufficiently related to the protection of public health.

We are here to help

If you require further information, please contact Emma Turner (+61439 523 193) or Rebecca Fraser (+61490 298 004) or a member of our Government team.

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