Flat White

Are the states pushing the constitutional limits of their ‘police powers’?

27 July 2021

5:01 PM

27 July 2021

5:01 PM

Let’s be clear. The essence of our federal system as it applies to the ordinary citizen is that we are absolutely free to travel interstate. ThesStates, however, have what are called in the United States, “police powers”. The police powers have been described by the American Supreme Court as the “right of self-defence” in respect of such matters as internal order, or the safety, health and morals of the people of the state and they empower the states to act in respect of the self-defence of the citizens of their states where safety, health and morals of those citizens are threatened. 

Those powers and the authority of the US Supreme Court have been recognised by our own High Court as powers that the Australian states can exercise for the benefit of its citizens. Our first Chief Justice, Chief Justice Griffith said of the police powers: 

The so-called “police power” of the Colonies before the establishment of the Commonwealth extended to the exclusion of any person whom the Colonial Parliament might think an undesirable immigrant. It is clear that the continuance of such a power in its full extent after the federation is inconsistent with the elementary notion of a Commonwealth.

In other words, Griffith was saying that the police powers after federation, were subject to limits; they are not absolute and must serve the particular purpose of the police power and not arbitrarily because a state premier decides to be king. Since the Australian media seem happy to do the work of the propaganda arms of the Commonwealth and the states and not to question the states’ actions, it seems prudent for us at least to begin that discussion.

So I suggest that we look independently at the three main policies that the different states are implementing in the name of public health, in order to judge if they are exceeding the limits of their powers. And we must bear in mind that a Court might decide the issues differently even to the extent of placing a finger on one side of the federal balance. 

The facts are easily and shortly stated: Australia is currently experiencing an epidemic of virus infections from the Covid-19 virus. In order to protect the citizens, the states take a number of steps:


1. They lock down their borders to prevent those with the virus from crossing state lines. The point about the police powers is that they are only effective in preventing those with the virus from crossing, otherwise, a rabid socialist state could lock down its borders permanently in order to prevent interstate trade, commerce and intercourse which is guaranteed under the Constitution;

2. The states impose quarantine restrictions in the form of compulsory isolation and elsewhere social distancing again for the purpose of preventing contamination by those who have the virus.

3. The states require people in public to wear masks and to notify the government of the places to which they have travelled. 

In order to enforce these rules, the states have imposed severe penalties for transgressions. I am sure you will recall how the police in 2020 were arresting individuals who were sitting alone in parks when they were supposed to be at home. 

In the meantime, the Commonwealth is recommending with another of its portfolio of inane advertisements that as we are all in this together, we should all get vaccinated; although it is worth noting that it probably doesn’t have enough vaccine at the moment to go around. 

The anomaly in all this is whether the immunity that immunisation gives us a practically full immunity for if the full vaccination makes us immune from the Covid-19 virus for all practical purposes, then it could be argued that the rules and regulations that the states apply arbitrarily to everyone are an abuse of the police powers and hence are invalid. 

The states might argue that you might be vaccinated but also a carrier, a super spreader, in which case you have to be locked down with everyone else. Evidence of that, however, is equivocal and, anyway, that has argument has been contradicted any number of times. 

You will recall for example how Dan Andrews allowed the BLM protests to continue in Melbourne last year without any interference from the police. Perhaps he knew at the time that none of those people carried the virus. It might seem a long shot, but other than calling him dishonest, that has to be the only explanation.

The importance of his (and other premiers’) decision to view BLM and the other left-wing ideological demonstrators so favourably, or to allow football matches to proceed while the rest of us were locked up down, is that they impugn any arguments that the states might raise about the good faith implementation of the police powers — that they are not always implemented for the benefit of the pubic health reasons they espouse. 

Dr David Long is a retired solicitor and economist.

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