covid19-law.com.au
Chapter 2: the Constitution
1. Overview
Like many countries, Australia is a federation. Broadly speaking, federalism is a system of government by which: political power is distributed between a central governmental and sub-national units, each with a sphere of authority that is enforced by the courts (Geoffrey Sawer, Modern Federalism (Pitman, 2nd ed., 1976), 2; Nicholas Aroney, The Constitution of a Federal Commonwealth; The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009), 17); the federal distribution of powers cannot be varied by one constituent unit within the federation; and neither level of government has authority to destroy the other (see, e.g., Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 70 (Starke J); South Australia v Commonwealth (1942) 65 CLR 373, 442 (Starke J)).
Australia’s federal system supplies a context that is critical to understanding Australian governments’ responses to the COVID-19 pandemic. This is because the multifarious nature of the threat posed by a global health crisis requires a degree of cooperation between the Commonwealth and the States, in order to overcome gaps in each level of government’s respective spheres of authority.
This section briefly considers the constitutional context in which the Australian response to COVID-19 is occurring.
2. Commonwealth and State legislative power to respond to COVID-19
The Australian Constitution only sets out heads of federal legislative power (which the Commonwealth Parliament can exercise concurrently with State Parliaments) (s 51), confers a limited number of exclusive legislative powers on the Commonwealth Parliament (s 52) and leaves the residue of legislative power for the States. The scope of State legislative power is potentially broad. Indeed, subject to the operation of s 109 of the Constitution (which provides that Commonwealth law prevails in the event of an inconsistency with State law), the States remain competent to legislate in respect of any non-exclusive area of federal competence, for “the peace, order and good government of [the relevant] State” (Australia Act 1986 (Cth), s 2(2); Anne Twomey, The Australia Acts: Australia’s Statutes of Independence (Federation Press, 2010), 210-217). This includes the power to legislate extraterritorially – that is, to enact legislation which operates outside the territorial boundaries of the relevant State (see, e.g., Bonser v La Macchia (1969) 122 CLR 177, 189 (Barwick CJ), 224-5 (Windeyer J); Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1, 12).
In the context of COVID-19, the Commonwealth has a number of relevant heads of concurrent legislative power, which include: taxation (s 51(ii)); quarantine (s 51(ix)); banking (s 51(xiii)); insurance (s 51(xiv)); immigration and emigration (s 51(xxvi)); and the provision of certain benefits (e.g. unemployment, pharmaceutical, sickness and hospital benefits, medical and family allowances) (s 51(xxiiiA)). However, the Commonwealth lacks specific legislative power with respect to health or public hospitals, education or housing. As a result, the States have a significant degree of responsibility for these areas (although State laws and policies in these areas are often implemented with Commonwealth funding).
3. Commonwealth and State executive power to respond to COVID-19
A. Commonwealth executive power
The Commonwealth Executive’s power is derived from s 61 of the Constitution. That power extends to (Williams v The Commonwealth (2012) 248 CLR 156, [22] (French CJ)):
The first source of power encompasses the protection and safeguarding of something authorised by a law of the Commonwealth. It includes power to execute or maintain the Constitution and Commonwealth law (Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, 464 (Gummow J)). For example, it is the Commonwealth Executive – not the executive governments of the States – that has power to execute and maintain the Commonwealth Biosecurity Act 2015 (Cth).
The second source of power, statute, depends on the statute being valid. To be valid, the statute must be made under a constitutional head of power. As noted above, there are several heads of power that are relevant to the COVID-19 crisis.
The third source of power, prerogative power, is sourced in the authority historically exercised by the Crown as recognised by the common law. That power cannot be expanded (British Broadcasting Corporation v Johns [1965] Ch 32 (Diplock LJ), 79). Therefore, reliance on it during the COVID-19 crisis depends on finding an existing category of prerogative power.
The last source of power is often termed the “nationhood” power. The nationhood power is implied from ss 51(xxxix) and 61 of the Constitution and the existence and character of the Commonwealth as a national government (Victoria v The Commonwealth (“AAP Case”) (1975) 134 CLR 338, 397 (Mason J)). It is a power “to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation” (AAP Case, 397 (Mason J)). As held in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, [233] (Gummow, Crennan and Bell JJ), the “Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis”. There are some limits to the nationhood power. It cannot be invoked to set aside the distribution of powers between the Commonwealth and the States and between the three branches of government (Pape, [127] (French CJ)). Further, and significantly for the response to the COVID-19 pandemic, it cannot be used merely because programmes can be conveniently formulated and administered by the federal government (AAP Case,398 (Mason J)).
In short, for the Commonwealth Executive to lawfully act during the COVID-19 crisis, its actions must be authorised by one of the sources discussed above. This is particularly relevant for the Biosecurity Act 2015 (Cth), which replaced the Quarantine Act 1908 (Cth). The Quarantine Act was never the subject of a constitutional challenge. The scope of the quarantine power has never been directly examined by the High Court. As the Commonwealth relies upon the quarantine power to support the Biosecurity Act (s 24), it remains to be seen whether the conferral of power on the Commonwealth executive to execute matters of quarantine is valid. The legislation relevant to quarantine is found in the Quarantine section.
B. State executive power
The position for State Executives is different. State Parliaments have plenary legislative power and so they can confer executive powers without significant boundaries. There are two relevant limits: first, the conferral of power must be in accordance with that State’s own constitutional authority (which may include limits imposed by State constitutional legislation and limits derived from the Commonwealth Constitution); and second, conferral of emergency powers on the Executive must be temporary or risk breaching the requirement that Parliaments not permanently abdicate their legislative powers.
For this reason, each State has declared a State of Emergency, or similar, and has extended that declaration from time to time: see the section of this text on Emergencies.
4. Crown immunity
The Commonwealth of Australia has no general Crown immunity from civil liability (Judiciary Act 1903 (Cth) ss 56, 64). However, statutes may expressly provide that the executive government is immune from liability arising out of certain functions or operations of government.
During the COVID-19 crisis, two examples of this are the new s 32A inserted into the Emergency Management Act 2004 (SA) and s 103A inserted into the South Australian Public Health Act 2011 (SA) on “COVID-19 – Crown Immunity”, by Sched 3 of the COVID-19 Emergency Response Act 2020 (SA). Section 32A provides the Crown in right of South Australia with a very broad immunity — no liability attaches to it in respect of acts, omissions or failures in respect of the exercise of powers or functions “in relation to the outbreak of the human disease named COVID-19 within South Australia”. As to liability of the Crown, see also the Government Obligations section of this text.
5. Freedom of interstate travel
One final constitutional feature of relevance in the context of Australia’s response to COVID-19 is s 92 of the Constitution. Section 92 imposes limits on both Commonwealth and State legislative power and relevantly provides that “intercourse” throughout the Commonwealth “shall be absolutely free". In essence, s 92 provides a limited “right” to travel throughout the Australia, including across State and Territory boundaries (see, e.g., Cole v Whitfield (1988) 165 CLR 360, 393). However, despite the use of the words “absolutely free” in s 92, the entitlement conferred by s 92 is not absolute. Rather, a law that limits interstate movement for the purpose of achieving some other legitimate end (e.g. protection of public health), may not contravene s 92, at least where the limit imposed on interstate movement is reasonably required to achieve the law’s objects (see, e.g., AMS v AIF (1999) 199 CLR 160, [43]-[45] (Gleeson CJ, McHugh and Gummow JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, [38] (Gleeson CJ and Heydon J), [177] (Gummow J), [420] (Hayne J)).
In the context of COVID-19, several Australia governments have sought to impose limits on interstate movement in order to impede the spread of the virus across State borders. The extent of such restrictions is considered further in other sections: see, for example, Quarantine.
6. Further resources
Like many countries, Australia is a federation. Broadly speaking, federalism is a system of government by which: political power is distributed between a central governmental and sub-national units, each with a sphere of authority that is enforced by the courts (Geoffrey Sawer, Modern Federalism (Pitman, 2nd ed., 1976), 2; Nicholas Aroney, The Constitution of a Federal Commonwealth; The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009), 17); the federal distribution of powers cannot be varied by one constituent unit within the federation; and neither level of government has authority to destroy the other (see, e.g., Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 70 (Starke J); South Australia v Commonwealth (1942) 65 CLR 373, 442 (Starke J)).
Australia’s federal system supplies a context that is critical to understanding Australian governments’ responses to the COVID-19 pandemic. This is because the multifarious nature of the threat posed by a global health crisis requires a degree of cooperation between the Commonwealth and the States, in order to overcome gaps in each level of government’s respective spheres of authority.
This section briefly considers the constitutional context in which the Australian response to COVID-19 is occurring.
2. Commonwealth and State legislative power to respond to COVID-19
The Australian Constitution only sets out heads of federal legislative power (which the Commonwealth Parliament can exercise concurrently with State Parliaments) (s 51), confers a limited number of exclusive legislative powers on the Commonwealth Parliament (s 52) and leaves the residue of legislative power for the States. The scope of State legislative power is potentially broad. Indeed, subject to the operation of s 109 of the Constitution (which provides that Commonwealth law prevails in the event of an inconsistency with State law), the States remain competent to legislate in respect of any non-exclusive area of federal competence, for “the peace, order and good government of [the relevant] State” (Australia Act 1986 (Cth), s 2(2); Anne Twomey, The Australia Acts: Australia’s Statutes of Independence (Federation Press, 2010), 210-217). This includes the power to legislate extraterritorially – that is, to enact legislation which operates outside the territorial boundaries of the relevant State (see, e.g., Bonser v La Macchia (1969) 122 CLR 177, 189 (Barwick CJ), 224-5 (Windeyer J); Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1, 12).
In the context of COVID-19, the Commonwealth has a number of relevant heads of concurrent legislative power, which include: taxation (s 51(ii)); quarantine (s 51(ix)); banking (s 51(xiii)); insurance (s 51(xiv)); immigration and emigration (s 51(xxvi)); and the provision of certain benefits (e.g. unemployment, pharmaceutical, sickness and hospital benefits, medical and family allowances) (s 51(xxiiiA)). However, the Commonwealth lacks specific legislative power with respect to health or public hospitals, education or housing. As a result, the States have a significant degree of responsibility for these areas (although State laws and policies in these areas are often implemented with Commonwealth funding).
3. Commonwealth and State executive power to respond to COVID-19
A. Commonwealth executive power
The Commonwealth Executive’s power is derived from s 61 of the Constitution. That power extends to (Williams v The Commonwealth (2012) 248 CLR 156, [22] (French CJ)):
- powers necessary or incidental to the execution and maintenance of a law of the Commonwealth;
- powers conferred by statute;
- powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth; and
- inherent authority derived from the character and status of the Commonwealth as the national government.
The first source of power encompasses the protection and safeguarding of something authorised by a law of the Commonwealth. It includes power to execute or maintain the Constitution and Commonwealth law (Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, 464 (Gummow J)). For example, it is the Commonwealth Executive – not the executive governments of the States – that has power to execute and maintain the Commonwealth Biosecurity Act 2015 (Cth).
The second source of power, statute, depends on the statute being valid. To be valid, the statute must be made under a constitutional head of power. As noted above, there are several heads of power that are relevant to the COVID-19 crisis.
The third source of power, prerogative power, is sourced in the authority historically exercised by the Crown as recognised by the common law. That power cannot be expanded (British Broadcasting Corporation v Johns [1965] Ch 32 (Diplock LJ), 79). Therefore, reliance on it during the COVID-19 crisis depends on finding an existing category of prerogative power.
The last source of power is often termed the “nationhood” power. The nationhood power is implied from ss 51(xxxix) and 61 of the Constitution and the existence and character of the Commonwealth as a national government (Victoria v The Commonwealth (“AAP Case”) (1975) 134 CLR 338, 397 (Mason J)). It is a power “to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation” (AAP Case, 397 (Mason J)). As held in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, [233] (Gummow, Crennan and Bell JJ), the “Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis”. There are some limits to the nationhood power. It cannot be invoked to set aside the distribution of powers between the Commonwealth and the States and between the three branches of government (Pape, [127] (French CJ)). Further, and significantly for the response to the COVID-19 pandemic, it cannot be used merely because programmes can be conveniently formulated and administered by the federal government (AAP Case,398 (Mason J)).
In short, for the Commonwealth Executive to lawfully act during the COVID-19 crisis, its actions must be authorised by one of the sources discussed above. This is particularly relevant for the Biosecurity Act 2015 (Cth), which replaced the Quarantine Act 1908 (Cth). The Quarantine Act was never the subject of a constitutional challenge. The scope of the quarantine power has never been directly examined by the High Court. As the Commonwealth relies upon the quarantine power to support the Biosecurity Act (s 24), it remains to be seen whether the conferral of power on the Commonwealth executive to execute matters of quarantine is valid. The legislation relevant to quarantine is found in the Quarantine section.
B. State executive power
The position for State Executives is different. State Parliaments have plenary legislative power and so they can confer executive powers without significant boundaries. There are two relevant limits: first, the conferral of power must be in accordance with that State’s own constitutional authority (which may include limits imposed by State constitutional legislation and limits derived from the Commonwealth Constitution); and second, conferral of emergency powers on the Executive must be temporary or risk breaching the requirement that Parliaments not permanently abdicate their legislative powers.
For this reason, each State has declared a State of Emergency, or similar, and has extended that declaration from time to time: see the section of this text on Emergencies.
4. Crown immunity
The Commonwealth of Australia has no general Crown immunity from civil liability (Judiciary Act 1903 (Cth) ss 56, 64). However, statutes may expressly provide that the executive government is immune from liability arising out of certain functions or operations of government.
During the COVID-19 crisis, two examples of this are the new s 32A inserted into the Emergency Management Act 2004 (SA) and s 103A inserted into the South Australian Public Health Act 2011 (SA) on “COVID-19 – Crown Immunity”, by Sched 3 of the COVID-19 Emergency Response Act 2020 (SA). Section 32A provides the Crown in right of South Australia with a very broad immunity — no liability attaches to it in respect of acts, omissions or failures in respect of the exercise of powers or functions “in relation to the outbreak of the human disease named COVID-19 within South Australia”. As to liability of the Crown, see also the Government Obligations section of this text.
5. Freedom of interstate travel
One final constitutional feature of relevance in the context of Australia’s response to COVID-19 is s 92 of the Constitution. Section 92 imposes limits on both Commonwealth and State legislative power and relevantly provides that “intercourse” throughout the Commonwealth “shall be absolutely free". In essence, s 92 provides a limited “right” to travel throughout the Australia, including across State and Territory boundaries (see, e.g., Cole v Whitfield (1988) 165 CLR 360, 393). However, despite the use of the words “absolutely free” in s 92, the entitlement conferred by s 92 is not absolute. Rather, a law that limits interstate movement for the purpose of achieving some other legitimate end (e.g. protection of public health), may not contravene s 92, at least where the limit imposed on interstate movement is reasonably required to achieve the law’s objects (see, e.g., AMS v AIF (1999) 199 CLR 160, [43]-[45] (Gleeson CJ, McHugh and Gummow JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, [38] (Gleeson CJ and Heydon J), [177] (Gummow J), [420] (Hayne J)).
In the context of COVID-19, several Australia governments have sought to impose limits on interstate movement in order to impede the spread of the virus across State borders. The extent of such restrictions is considered further in other sections: see, for example, Quarantine.
6. Further resources
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Image credit: Fusion Medical Animation
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