COVID-19 border closures and civil rights infringements expose the defects of the Constitution

17 MAY 2021

COVID-19 border closures and civil rights infringements expose the defects of the Constitution

A constitutional law expert at Charles Sturt University says the advent of the COVID-19 pandemic has made even more clear than before the need for constitutional reform in Australia.

Dr Bede Harris (pictured, inset) is a Senior Lecturer in Law in the Charles Sturt Faculty of Business, Justice and Behavioural Studies whose most recent book is Constitutional Reform as a Remedy for Political Disenchantment in Australia (Springer, 2020). He argues there is much that needs to be done in order to make the Australian Constitution one that embodies freedom, democracy, efficiency and accountability.

The early months of the COVID-19 outbreak were marked by border closures which were in many instances arbitrary and objectively unnecessary from a public health perspective.

Since there was no correlation between areas in which the virus was spreading and state borders, it followed that the closing of state borders, with all the economic dislocation, waste of resources and cost to human relationships that they caused, was not justified.

There should instead have been a finely-tuned quarantine system run by the Commonwealth and applied to specific areas identified as having infections above a certain level, often referred to as the ‘hot spot’ approach.

This was used in Victoria when Melbourne was quarantined, whereas those areas of the state with few cases were left unrestricted.

The Commonwealth would have been able to establish such a system, as quarantine is one of the legislative powers conferred on the federal parliament, and Commonwealth legislation would have over-ridden state quarantine measures, including border closures.

But the Commonwealth chose not to do that, leaving it to the states to make decisions on border closures based on political rather than epidemiological considerations.

The response to COVID-19 therefore illustrated two (among many other) reasons why we are ill-served by federalism - the artificiality of state boundaries, and the fact that federalism leads to shifting of responsibilities from one level of government to another.

Another defect in the Constitution exposed by COVID-19 is the absence of a bill of rights.

Australians found themselves at the whim of state and Commonwealth ministers exercising broad powers conferred on them by legislation.

Here, too, arbitrariness was evident as Australia became the only country in the world that prohibited its own citizens from both entering and leaving the country, making it less free even than former Eastern bloc countries, where citizens could at least return home.

There was no public health justification for barring people (including even dual citizens wanting to return to the country of their other citizenship) from leaving the country.

So far as returnees were concerned, the Commonwealth government’s failure to take charge of hotel quarantine, and the inadequacy of the states’ measures, meant that governmental inefficiency became a justification for the denial of rights to citizens.

Herein lies the problem. In countries with a Bill of Rights, the courts can intervene to invalidate legislation, or the exercise of ministerial discretion under legislation, which cause restrictions of liberties to an extent that is disproportionate to the interests that the infringements serve.

Such a remedy also removes from governments excuses such as the unavailability of quarantine facilities. The courts could mandate a time frame within which the quarantine system would have to be remedied, after which restrictions on liberty would no longer be valid.

This is not possible in Australia, simply because the Constitution provides no avenue for people to challenge legislation or executive decisions which restrict the right to leave or enter the country.

The incursions into individual liberties also exposes the flaw in the argument advanced by opponents of a Bill of Rights that parliamentary democracy provides sufficient protection for rights.

Clearly it does not, because the measures taken by the government have been authorised by legislation enacted by parliament – in other words, when it comes to rights, parliament is the problem, not the solution, and only a restraint on what parliament can do provides effective protection for liberty.

COVID, federalism and human rights aside, there are many other aspects of the Constitution which require reform.

Because the electoral system for the House of Representatives is based on single-member electorates, election results cannot properly reflect the true level of support that parties have among voters, and condemns the country to a two party system that is in reality a duopoly. We are forever condemned to have Coalition or Labor governments and nothing else.

The two-party system also fosters polarisation between and extremism with the two political blocs.

The way politics operates in Australia compares poorly with democracies such as New Zealand, whose highly representative electoral system produces a vibrant multiparty system which encourages consensus-building between parties, because today’s political rival may be tomorrow’s partner in a coalition government.

Finally, although the Constitution supposedly embodies responsible government, under which ministers should be answerable to parliament, the reality is that accountability of ministers to the legislature is a ‘dead letter’.

This is chiefly because ministers, their staffers and public servants acting on ministerial instruction routinely refuse to answer questions put to them by parliamentary committees trying to elicit the information they need to hold the government to account.

One recent example of this was the refusal of the Morrison government to release the report by Mr Phil Gaetjens, Secretary of the Department of Prime Minister and Cabinet, into the sports grants scandal. In this, millions of dollars of public funds were allocated on the basis of what would best serve the government’s chances of re-election, rather than in accordance with objectively determined merit, which reflects a system of government based on opacity rather than transparency.

Only radical reform, such as giving MPs and Senators a right to approach the courts for orders compelling disclosure of governmental business to parliamentary committees (subject to a condition that hearings be in closed session when required in the public interest), will ensure open government.

There is much that needs to be done in order to make the Australian Constitution one that embodies freedom, democracy, efficiency and accountability.


Media Note:

To arrange interviews with Dr Bede Harris contact Bruce Andrews at Charles Sturt Media on mobile 0418 669 362 or news@csu.edu.au

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