States v Commonwealth: how coronavirus pandemic created legal confusion

Charles Sturt University Centre for Law and Justice director Mark Nolan. Picture: ANU College of Law
Charles Sturt University Centre for Law and Justice director Mark Nolan. Picture: ANU College of Law

The "messy" confusion of different laws in the states' coronavirus response could be remembered as the most controversial aspect of how Australia has handled the crisis.

Charles Sturt University Centre for Law and Justice director Mark Nolan said the pandemic had exposed the need for Australia's federation to work on a national and state level.

Speaking at the end of Law Week, he reflected on how the past six months put legal concerns front and centre in the nation's response to disasters.

"Among Australian residents there has been a large degree of confusion caused by the eight different sets of state and territory restrictions, which have been enforced by different police forces operating under different orders made under different public health legislation," he said.

"New Zealand is a legal system blessed by the absence of a federation; having just one source of emergency response law, criminal law, public health law, and policing power making things much simpler in a crisis than is the case in Australia.

"Ours is messier, constitutionally-speaking, and resembles in some ways that of the United States and Canada."

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Professor Nolan said the country's constitutional order had been stretched by the summer bushfires then coronavirus.

He said it is "a compromise document" that allows for both a Commonwealth-based legislative and state sovereignty.

The professor's points have been evident during some announcements made by Prime Minister Scott Morrison.

Just last week he announced a three-step plan to easing restrictions, but had no power to implement them.

Instead, states are territories are going at their own pace and taking elements from the different steps as they see fit.

The result is Victorian children going back to school full time staggered by year level, while all NSW children return on a part-time basis to start with; most other states closing their borders based on the advice of their own chief medical officers, not Australia's; and pubs opening in some towns, but not others.

"It falls often to the states and territories to provide the detail of matters such as school closures, social distancing, the policing of public health orders, and whether it is a serious offence to sit in company on one's favourite beach, or to pause and eat a kebab on a park bench," Professor Nolan said.

"The unfolding pandemic, in particular, allowed states and territories to exercise utmost sovereignty, and to shut borders for the first time in living memory.

"This is the stuff of constitutional law, and the federal-state divide makes legislating, understanding, teaching, and practicing criminal law, and much other law, complex."

He said the law allowed states to hand over responsibility for health, criminal law and education to the federal government in a crisis, but questioned if people were really ready for that or if it was just a solution some longed for in a crisis.

CSU's Centre for Law and Justice will research some of the legal impacts of what has occurred during the pandemic response.

"I believe legal academics and practitioners must collaborate to best research important questions in respect to how citizens perceive the use of law, prosecutorial discretion, and the roles of police, private security guards, military and public health powers during crises like the pandemic," Professor Nolan said.

"How can Australia's various governments best cooperate within our constitutional order? Can cooperative federalism be achieved shy of complete referral of legislative power to the Commonwealth?

"Perhaps most crucially, how can these complex constitutional issues be effectively explained to an expectant and, at times, frightened Australian public?"

This story States v Commonwealth: how COVID-19 created legal confusion first appeared on The Canberra Times.