As Australia is now three months away from a federal election, the electorate will soon be inundated with information and commentary, some fatuous and some sensible, about the parties’ performance, policies, and candidates. Specifically, the government’s management of the toxic world of the COVID-19 pandemic will unquestionably be evaluated during the election campaign.
At the very start of the pandemic, the federal government, to the surprise of those who are fiscal conservatives, started to spend money that the country could not afford and does not have.
At present, Australia’s debt exceeds more than a trillion dollars. The days are gone that the ruling and opposition parties excitedly bickered over two or three billion dollars deficit or surplus when presenting the proposed budget to parliament! Despite generous handouts, the government’s approach decimated the business sector and destroyed jobs.
The government embraced modelling, which predicted that 150,000 Australians would die, while all the time instilling fear in people.
This fear was nourished by the media that incessantly trotted out the alleged dangers associated with the virus and salaciously reported the deaths that resulted from infections.
The government relied on health bureaucrats with broad powers to recommend adopting emergency measures, which were authoritarian and profoundly illiberal.
It led to repeated lockdowns, border closures, mask mandates, vaccine mandates, social distancing directions, and various restrictions. These emergency measures devastated the Australian economy while the non-productive public sector thrived.
The federal government tasked the states and territories with managing the pandemic in their jurisdictions. These then proceeded to impose an oppressive regime on people, assisted and enforced by politicised police forces, sometimes supported by the Army.
During the pandemic, preventing thousands of Australians from returning to their own country constituted an egregious violation of Article 12 of the International Covenant on Civil and Political Rights, according to which no one shall be “arbitrarily deprived of the right to enter his own country.” For this reason, the U.N. Human Rights Committee, itself known for its illiberal leanings, in May 2021, raised serious concerns about the Australian government’s decision to ban its own citizens from returning home.
The government’s response to the pandemic facilitated the development of a two-tier society, involving the distribution of burdens and benefits simply on the ground of people’s vaccine status. As a result, the legacy of COVID-19 is defacing Australia while potentially, if not actually, transforming it into an illiberal state.
However, from a constitutional point of view, the Commonwealth had the power to adopt a unified, national approach to potentially avoid border closures and lockdowns while avoiding the expensive and painful consequences for the tourism and hospitality industries, among others.
This national approach could easily have been supported by the external affairs power of the Commonwealth Constitution.
Indeed, section 51 of the Constitution enables the federal parliament to make laws with respect to “external affairs,” a notion that has been liberally interpreted by the High Court. It allows the parliament to make laws regarding any matter, the subject of an international convention or treaty that Australia has ratified or is involved in.
The Commonwealth has ratified or signed numerous international conventions and instruments, and these would have supported the constitutionality of national measures to combat the COVID-19 pandemic.
Not only did the federal government fail to adopt a national response to the pandemic, but the prime minister also went out of his way to unreservedly support the violations of human rights by the states and territories.
For example, Prime Minister Scott Morrison supported the Victorian Premier throughout the pandemic, saying that “Daniel Andrews has my full support ... I will give him every support he needs.”
The federal government also worked with the Western Australian (WA) government and refused to support attempts by mining magnate Clive Palmer to denounce the unconstitutionality of border control measures.
This undoubtedly was a factor in the High Court deciding that the continuing border closures did not infringe section 92 of the Constitution, according to which “trade and commerce among the states shall be absolutely free.”
The Court, although admitting that the border closure imposes a burden on interstate intercourse, nevertheless decided that the burden was justified, and the WA measures did not infringe the constitutional limitation because the section only bans discriminatory burdens of a protectionist kind.
The federal government’s management of the COVID-19 pandemic is (and should be) an issue in the upcoming election.
If so, the Australian electorate will be able to consider the federal nature of the Australian polity and the distribution of legislative powers between the state and Commonwealth parliaments.
Specifically, Australians need to know whether the federal government had the power to adopt a unified national response to the pandemic. The election thus provides a platform that enables the electorate to reflect on Australians’ civil rights, some of which were disregarded or even brutally violated during the pandemic.
Of course, being prime minister during a pandemic is undoubtedly a complex, challenging task. But the government’s management of COVID-19 will become a significant issue during the election campaign.
In May 2022, the electorate will have an opportunity to reach a verdict on this issue.
