People have been asking recently whether it is constitutionally valid for the States to close their borders to residents of other States. Doesn’t the Constitution guarantee freedom of movement or prevent States from discriminating against people from other States?
Yes, the Constitution gives a degree of protection, but there are exceptions, and the protection of public health is one of those exceptions.
Freedom of movement
There is no general guarantee of freedom of movement in Australia, but section 92 of the Constitution says that ‘intercourse among the States… shall be absolutely free’. ‘Intercourse among the States’ means the movement of people, goods and communications across State borders. While the Constitution says that this shall be ‘absolutely free’, it has long been accepted by the courts that there can be valid exceptions.
The exceptions mostly focus on protecting the people of the State from the risk of injury from goods, animals or people coming into the State. A common example is bans on certain fruits from entering a State to prevent the spread of fruit flies. While it is more extreme to prevent people from entering a State, that may be acceptable where it is for the legitimate purpose of protecting the people of the State from the spread of a deadly communicable disease.
Justice Brennan said in the case of Nationwide News in 1992 that where the true character of a law ‘is to protect the State or its residents from injury, a law which expressly prohibits or impedes movement of the apprehended source of injury across the border into the State may yet be valid’. It will depend on whether the law is enacted for the legitimate purpose of protecting public health and the measures imposed are reasonably appropriate and adapted to fulfilling that purpose.
Discrimination against residents of other States
The other potentially relevant constitutional provision is section 117. It says:
Any 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.
This provision has an interesting history. In earlier drafts, it was intended to give effect to part of the 14th amendment of the United States Constitution. At the 1891 and 1897 Constitutional Conventions, this clause contained a guarantee of ‘equal protection’ of the law. There was also a proposal to add a guarantee that a State shall not ‘deprive any person of life, liberty, or property without due process of law’.
But the framers of the Constitution got cold feet about it in 1898, worrying about how these imprecise terms might be interpreted by courts in the future. So they cut them out. All that was left was the shell of the provision, which dealt with one State discriminating against the residents of another State. Professor La Nauze described it as ‘an anaemic result’ that was enacted ‘in place of the resounding phrases of the Fourteenth Amendment which had for much of the time occupied the attention of the members’ of the Convention.
One other curious aspect of section 117 is that it does not result in a law being held invalid. Instead, it gives a ‘subject of the Queen’ immunity from the application of the ‘disability or discrimination’ involved. The law itself remains valid and can continue to apply to others, such as persons who are not ‘subjects of the Queen’.
The term ‘subject of the Queen’ is rather archaic. It would now be interpreted as a reference to the ‘Queen of Australia’ and would encompass Australian citizens. It is unclear whether it would extend any further, such as to permanent residents of Australia.
Like section 92, section 117 is not absolute in its application. There are certain acts, such as voting in State elections, which are appropriately confined to State residents. Equally, where State residents, through their taxes, fund State Government programs that provide welfare or grants to State residents, no one from outside the State can use section 117 to claim that they too should be given a grant or welfare under the State scheme.
Most importantly, section 117 does not affect State laws that are reasonably necessary for the safety of the State or its people. States can, for example, make laws that would prevent unqualified or incompetent interstate medical practitioners from practising in the State. They could, accordingly, also discriminate against residents of other States if it were for the purpose of protecting the people of the State from a deadly communicable disease, as long as the law was reasonably appropriate and adapted to protecting public health and was not simply for the purposes of discrimination.
So are the current laws valid?
It is hard for members of the public to assess whether or not the laws are reasonably appropriate and adapted or whether they are too extreme and lesser measures could achieve the same outcome in a manner less burdensome on the interstate movement of people. That is because the States have the modelling and medical advice, which changes on a day-by-day basis, which is not accessible to the public.
If someone especially affected by a State law, such as a person who had a good reason to enter the State but was refused permission to do so, challenged the law in the courts as being in breach of section 92 or sought a declaration that he or she had an immunity from its application due to section 117, then the State would have to present sufficient evidence to the court to show that the law was reasonably appropriate and adapted to protecting the public health of the State. Given the very serious nature of the pandemic, the courts would be likely to give the States more leeway and deference than they might do in ordinary times.
Image Source: Michael Zimmer