ANALYSIS: Federalism and COVID-19 restrictions - who has the final say?

An in-depth look at recent changes made by the federal government.

On 3 July, the Australian government announced that it would ease Australia’s COVID-19 restrictions by lifting the requirement for either up-to-date COVID-19 vaccinations or a valid medical exemption for entry into Australia. However, two days later on 5 July, the Victorian government extended its pandemic declaration for another three months, shifting the date for the end of the declaration from 12 July to 12 October. This raises the question of how much control over COVID-19 restrictions each level of government has.

The federal system in Australia means that the Commonwealth government shares its authority with the States and Territories. The Constitution limits what subjects the Australian Parliament can pass laws on; the Commonwealth government must be able to prove that every law is based on a ‘head of power,’ or subject area, contained in the Constitution.

In contrast, the State Governments have ‘plenary powers,’ meaning that they can pass laws on every other subject area. The relationship between the Commonwealth government and the Australian Capital Territory and Northern Territory is more complex, because the Territories have less freedom than the States, but it follows a similar pattern.

This immediately suggests that the States and Territories will have more power than the Commonwealth government, because the Constitution was written at a time when international pandemics were not a major concern, so the necessary powers would not be mentioned.

However, the Commonwealth government still has significant power. For example, the press release put out by Clare O’Neil, the Australian Minister for Home Affairs, mentioned changes to border restrictions.

This is the area where the Australian Parliament has the most influence. The Constitution grants Parliament the authority to pass laws regarding quarantine. Parliament has used this authority to pass the Biosecurity Act 2015 (Cth), which regulates the entry of goods and people into Australia, in order to prevent spreading diseases and bacteria.

This Act grants the Ministers for Health and Home Affairs the power to make executive regulations and declarations around entry into Australia, and includes declaring a biosecurity emergency about COVID-19.

If necessary, the executive branch of the Commonwealth government also has reserve powers that it can use. This ‘nationhood power’ allows the government 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.”

It effectively allows the Commonwealth government to go beyond the scope of the legislative powers conferred to Parliament by the Constitution, and reflects Australia’s status as a sovereign nation. It would only be exercised in the event of a national emergency, and when there is no other alternative. But because the States and Territories already have the ability to respond to COVID-19, this power has not been used yet.

Although the States and Territories have plenary powers, so can pass laws on COVID-19 themselves, they can also pass quarantine-related laws. Section 51 powers in the Constitution are heads of power that both levels of government can pass laws on. However, Section 109 means that if the laws of the States and Territories are inconsistent with the quarantine laws of the Commonwealth, the Commonwealth laws will triumph “to the extent of any inconsistency.”

Despite the Australian government ending the vaccine requirements for entry into Australia, this does not mark the end of the vaccine mandates or the broader COVID-19 restrictions, despite the claims of one Twitter user.

Although the Commonwealth government could pre-emptively use Section 109 to stop the States and Territories from imposing their own quarantine laws on Australia’s national borders, the Commonwealth government cannot stop them from imposing their own quarantine laws on Australia’s internal borders, or any other COVID-19 laws that they choose to adopt.

Therefore, unless the COVID-19 pandemic became so severe that it justifies the use of the nationhood power, the States and Territories have the final say.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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SOURCES:

Commonwealth of Australia Constitution Act 1900 (Imp).

Victoria v Commonwealth (1937) 58 CLR 618.

Victoria v Commonwealth and Hayden (1975) 134 CLR 338.