Australia's unconstitutional border wars

There are many reasons to question the interstate border shenanigans that have stopped Australians from returning home, divided families and sparked animosity among state premiers.

It's possible to debate the policy merits of the closures. But policy is a secondary issue constrained by the overarching rules of the game established by a nation's constitution.

The Australian Constitution simply doesn't permit such parochialism, at least when it comes to the states (the territories are in a different position).

To see how this is so, it's important to first clear out any clutter and examine the Constitution as if reading it for the first time. Only by focusing on the natural meaning of its text without the encumbrance of case law – in the manner commended by the High Court in the Engineers Case– is it possible to get to the true meaning of our federation.

The key elements of section 92 are: (a) its heading: "Trade within the Commonwealth to be free"; and (b) its body: "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".

"Free". "Absolutely free". We need to ponder these words for a moment. And not just in relation to trade and commerce, but also intercourse.

Consider also Henry Parkes's comments at the 1891 convention: "an absolutely necessary condition of anything like perfect federation…is, that Australia…shall be free - free on the borders, free everywhere - in its trade and intercourse between its own people; that there shall be no impediment of any kind - that there shall be no barrier of any kind between one section of the Australian people and another".

"No barrier of any kind". Think about these words for a moment too.

Does any of this suggest that Australia was intended to be a nation that can be sliced and diced at the whim of a state premier?

Section 92 attempts to stop any taxation of goods and people moving between the states. However, if duties are prohibited, then arguably so too is the long-term blockage of movement along with other costs imposed since March 2020 – like hotel quarantine, a tax hindering interstate business. All these are captured within that section's ban.

Australia came together on January 1, 1901 as a free trade zone and an alliance of states but in November 2020 the High Court effectively declared – by upholding WA's border closure – that the state has partially seceded. Australian citizenship doesn't quite mean what it used to.

Perhaps the Court thought that "reasonable restrictions" for public health can override the Federation. Yet for the Court to take a policy stance breaches the principles of statutory interpretation. The Constitution's text must be at the forefront of interpretation, not policy concerns.

The High Court's decision has opened a Pandora's Box. If an exception to the plain words of section 92 can be created because of public health reasons, then a state can easily nullify the Federation on any other ground. We are now back to the days before 1901.

The border closures also breach section 117 by discriminating against residents of other states. That provision is obvious enough, as well, if we read it without the confusion evident in the case law: "A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State".But today Victoria aggressively discriminates at its borders between Australian citizens based on their place of residence.

If state premiers are unhappy with strict constitutionalism, they should ask the people through a referendum to make Australia a looser union. The High Court should not, however, abet these divisive premiers without a clause being introduced that allows for partial secession whenever a state government feels like it.

Ideally, if any state wishes to close its borders to others it must fully secede from the union first: that is the only legally valid and logically consistent way. Covering clause six implicitly foresees the possibility of a state withdrawing at any time. And our constitutional history shows that secession is plausible because South Australia seceded from the Federal Council of Australasia (the predecessor to the Commonwealth government).

In short, it's unconstitutional for a state to obtain the benefits of our federal union while tossing out the Australian Federation and its Constitution.

Either get out or stay in. The premiers can't have it both ways.