Are Australia’s State Border Closures Justified?

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Australian borders

A Victorian man intends to sue the State Government after being detained in quarantine.

John-Lee Berridge says Victorian health authorities made a mistake about quarantine and he should not have been detained when Victoria suddenly shut the border to New South Wales on 1 January 2020, forcing thousands of travelling Victorians to head home or face mandatory quarantine.

62,000 people were stuck in queues at checkpoints scrambling to make the deadline on New Year’s Day, and more than 2,000 Victorians remain stranded in New South Wales still, with Victoria showing no signs of reopening it’s border any time soon.

Mr Berridge contends that he flew into Avalon Airport at 7pm, well before the border closure was in place, and was wrongly forced into quarantine. Fed up that his pleas to be let out weren’t being heard, he tried to escape the hotel on Boxing Day, but was caught and again detained. Now, he says he intends to seek further legal advice with the intention of suing the Victorian Government for wrongful detention. Breaching quarantine in Victoria comes with a $19,000 fine.

Courts are yet to see the full impact of the pandemic

It’s just one of a string of examples of people who feel that they have been unfairly treated under decisions made by governments during the pandemic, and who intend to take their cases to court, despite the fact that to date, courts have ruled that Covid restrictions are legal.

When hotelier Julian Gerner took the Victorian Government to court, challenging the pandemic public health rule that prohibited Melburnians travelling more than 25km from their home on the basis of implied freedoms contained within the Constitution, the High Court ruled that  no such freedom exists, or could be implied, and  therefore concluded there is no legal basis upon which it could overturn Victoria’s restrictions.

Similarly, the Supreme Court also found in favour of the Victorian Government in a case brought by cafe owner Michelle Loielo who argued that Melbourne’s strict 9pm to 5am curfew breached Victoria’s Charter of Human Rights and Responsibilities Act 2006.  While Justice Tim Ginnane recognised the curfew was “a major restriction of human rights and liberties of the free people of Victoria”, he found that the curfew was consistent with the charter; recognising that governments can restrict individual rights in favour of community protection at a time of emergency.

The impact of border closures

With different rules across each state and territory, and those rules changing in line with updated case numbers, people are confused and uncertain and sometimes angry. Psychologists have been saying for months that one of the very serious side effects of the pandemic is its effect on mental health, not just as a side effect of isolation and lockdowns, but also as a result of overall fear and confusion too.

Confusion and inconsistency perpetuates fear

There is palpable frustration that the ‘reactionary decision-making’ of leaders continues to be the current solution to Covid-19.

While there is no doubt that the NSW and Victorian Governments are managing hotspots and outbreaks much better than they did last year, and can only make decisions based on information as it comes to hand, hard border closures are taking their toll.

Thousands of Australians have been unable to take summer holidays they had already paid for, or remain unable to see friends, family and loved ones. Businesses are suffering.

The impact of Victoria’s extended lockdowns on its local economy have been well documented. Recently it was estimated that Queensland Premier Anna Palaszczuk has cost the State’s local  tourism industry $250 million this year with her on/off border closures. Many of those tourism operators are looking at legal avenues for seeking compensation.

The Prime Minister too, has made his own opinions known. He recently told media that the Federal Government had spent much of last year arguing for a national approach to border closures.

The issue is that the Constitution does not allow the Federal Government to impose a uniform approach on each state and territory.

Calls for collaboration between the states and territories

Many agree that restricting movement and making masks mandatory temporarily in identified hotspot areas, is a good tactic to contain clusters, but that closing state borders is not, particularly when it does not seem warranted proportionate to the current case numbers.

While the Federal Government may be powerless under the constitution to intervene there are calls for the states and territories to co-operate and take a more collaborative and consistent approach, to better manage the outbreaks, which are likely to continue for some time and allow otherwise well Australians to get on with their lives.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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