Australia's unconstitutional border wars

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.