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Federalism and COVID-19

Australia’s Federal System: Pressures during COVID-19

There’s no doubt that COVID-19 has, and will continue to have an impact on the everyday life of Australians. In addition to the health crisis, we’re seeing economic consequences which will continue to affect our lives for years to come. The situation has raised questions about how Australia’s federal system of government responds to crises on this scale, and how it will function once the immediate threats to health and livelihoods are over.

A federal system of government is specifically designed to disperse power in order to prevent the national level of government from exercising absolute power. For Australia, and other federal systems like the United States and Canada, this approach derives from a history of small colonies agreeing to form one country, while maintaining aspects of legal and political independence. We can see this in the Australian Constitution, where the powers of the Commonwealth are explicitly listed, and therefore limited, in contrast to the States, which enjoy broad plenary powers. Under normal circumstances, the States and Territories met with the Commonwealth at the Council of Australian Governments (COAG) to manage intergovernmental relations, discuss national policy issues and (in theory) attempt to coordinate key policy areas. COAG met twice a year, and focused on long term policy issues, such as economic management and national security. COAG was fundamentally a discussion forum – while the aim is to reach consensus, States and Territories are not bound by decisions made. Consensus is difficult to achieve, and meetings often descend into heated debates.

In light of the pandemic, the Commonwealth has established the National Cabinet to coordinate a national response to the crisis as quickly as possible. Like COAG, National Cabinet is also an intergovernmental forum whose decisions are non-binding. However, the National Cabinet’s decisions have immediate effect, and Federal and State Parliaments alike are under immense pressure to ratify its announcements. The Federal Government’s announcement on 8 May that restrictions would be lifted in three stages had no legal impact, (as the pace of opening up is entirely a power of the States), however, following this a number of States made their own similar announcements which were largely in line with the Commonwealth’s three step plan. It is clear that the Commonwealth is able to exercise more power over State policy than in a pre-COVID climate, and was more effective at building consensus. As a result, COAG was dissolved on 29 May, as it became clear that the National Cabinet was performing a similar purpose but was more effective at achieving its aims.

However, as restrictions have begun to ease, the collaborative approach of the National Cabinet has begun to disintegrate, particularly over the issue of state border closures. While the Commonwealth has the constitutional power to legislate on interstate trade and commerce under section 92, it has become incredibly clear that States have retained the power to close their borders in times of crisis. Western Australia was quick to impose a hard border on all interstate travellers in April, and other States soon followed suit. Although this was viewed as a necessary measure to combat the spread of the virus in the early days of the pandemic, it became increasingly controversial in May and June as cases began to decrease, and in some sectors (notably business) lobbying for open borders has continued even with the Victorian second wave.

On 24 May, the Prime Minister claimed that long term border closures were not agreed to by the National Cabinet, and requested that States intending to keep their borders closed disclose the projected impact on the local and national economy. While the Commonwealth has scaled back its insistence on opening borders since the July outbreak in Victoria, it briefly supported former MP and businessman Clive Palmer’s application to the High Court to open the Western Australian border. While this support was retracted as the situation in Victoria has deteriorated, it highlight’s the Commonwealth’s ambivalence towards the issue.

University of Sydney Law Professor Anne Twomey has stated that there is a possibility that State and Territory border closures may be found to be by the High Court.[1] Where border closures are “reasonable and imposed for a legitimate end, such as protecting the community from COVID-19,” they are likely to be valid, however considering that the number of active cases in most States and Territories except Victoria and New South Wales, this will become more difficult for States to argue.[2]

Australia is experiencing new and unprecedented challenges in 2020, and the global climate has highlighted the strengths and weaknesses of our political system. In some ways, it is clear that the Commonwealth has a unique role to coordinate and influence State policy, However, the COVID-19 crisis has also demonstrated the legal power of the States, and given many an opportunity to exercise powers which were unthinkable six months ago. Whether the National Cabinet will be more effective at facilitating collaboration and consensus than COAG remains to be seen. As the dust starts to settle, there are likely to be legal challenges in a wide variety of fields, and the legislation and the common law will be forced to adapt to a post-COVID world.

[2] Ibid.

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