By Brett Manning, Trustee of the New Aussie Constitution Trust

Drafting of the proposed New Aussie Constitution occurred on and off over about 9 years. While the drafting was occurring I also looked at how the proposed New Aussie Constitution might have changed Australian issues that were playing out at the time.

In this article we’ll look at how the management of a national emergency like the COVID pandemic may have played out if the New Aussie Constitution was in place. I do not intend to try and determine if it would have been better or worse under the specific State, Territory and Commonwealth government that are currently in office but just to highlight the differences so that Australians can better understand how the proposed draft might impact Australia.

Management of the COVID-19 Pandemic

The relevant sections of the New Aussie Constitution were drafted before I had ever heard of COVID-19 and so it is a good test. So let’s look at some clauses that have become relevant:

“Every Citizen has the right to enter, remain in and leave Australian Lands, subject only to Commonwealth, State or Territory laws made for a Proper Purpose to: … c. prevent the spread of disease…” [5.2.2F c.]

There are other limitations, but sub-clause ‘c.’ is the relevant one in this situation. ‘Proper Purpose’ is also critical here as it is a defined term that is used widely in the New Aussie Constitution and aims to place limits on what a government may do, with adjudication by the courts if necessary.

So on the face of it, we have a right to come and go as we please except that the Government can limit that right to prevent the spread of disease. The words ‘Proper Purpose’ are critical here because it means that for legislation intended to curtail our freedom of movement to be valid, it must be genuinely intended to prevent the spread of disease and it also must be demonstrably necessary to prevent the spread of disease. We’ll come back to this clause again in a minute.

Another clause says:

“Citizens have the right to move freely within the Commonwealth and to choose their place of residence, subject only to compliance with the laws of … the management of public health…” [5.2.2J]

Again, there are other limitations but public health is the relevant one here. These two clauses would, on the face of it, allow the closing of borders, internal and external and even lock-downs. So Clive Palmer would have been stuck in Queensland either way! However, in circumstances where say 90% of the population reaches double vaccinated status, is it still a Proper Purpose to keep the international borders closed? Is it still ‘appropriate and necessary’, which are key parts of the Proper Purpose definition (you can check that out yourself in the draft available on the website)? What if a government is ‘overreaching’ on its powers or even is treating unvaccinated people differently to vaccinated people? Is that different treatment for a valid ‘Proper Purpose’ to prevent the spread of disease?

So I would argue that the New Aussie Constitution does give the Government the rights it needs to prevent the spread of disease, as we would want, but that it also limits governments from locking powers in for the longer term that are not specific to the objective of the legislation in the first place.

Another, and possibly a more significant and relevant difference in the New Aussie Constitution,  is the move further from the ‘Federation of States’ model, toward a single national system of government. The New Aussie Constitution states:

“The Parliament may make such laws as it considers appropriate and proper for the good governance of the Commonwealth of Australia…” [11.1A]

This is a major departure from the current Constitution that only allows the Commonwealth to make laws on specific matters. We saw how the current system played out when the Commonwealth had to come, ‘cap in hand’ to the State Premiers at the hastily established ‘national cabinet’. Then again when the national cabinet needed to come up with some ‘majority rules’ decision making process on the fly, which had no enforceability in law, and which could be simply ditched later by any Premier who didn’t want to comply. In my view, in a national emergency it should be the Commonwealth Government that sets the agenda and sets the rules for the States to implement. In this way there is a uniform national response, appropriate application of resources where they are needed and no individual Premiers ducking the hard choices for political reasons.

The New Aussie Constitution provides the right for the Commonwealth to provide national leadership. Now I’m not saying whether this would have worked out better or worse overall. The reality is probably that some States could have done better under a unified national approach and others arguably did OK on their own. However, in the same way that a Board of Directors sets the strategic objectives, priorities and allocates the resources in the running of a company, the New Aussie Constitution has a similar approach. State governments, like Divisional Managers in a company, would have the role of implementing the strategic plans and managing day-to-day operations. Had the New Aussie Constitution been in place during the COVID-19 pandemic, we could have seen the Commonwealth take the national leadership role that the emergency demanded, could have forced action at times when there was dithering and ensured all Australians faced a uniform set of rules in dealing with the crisis.

Without considering the relative performance of the Commonwealth and each of the State and Territory governments, because let’s face it, there were some big differences at different times, I think a national response led by the Commonwealth would have seen a superior outcome that would have been easier for the Australian population to follow.

The limitation of the ‘Proper Purpose’ would also mean that legislation which curtails the granted freedom, in this case freedom of movement, is constrained to the specific issue of preventing the spread of disease and also ensuring that the measures proposed are actually going to achieve that objective. A government, Commonwealth, State or Territory, that is overreaching and trying to develop extensive and far reaching powers would find itself constrained, with a difficult position to defend.

So I would argue that the proposed draft New Aussie Constitution would have led to a more unified and coordinated response to the COVID-19 pandemic. It would also have ensured that the government actions remained focused on preventing the spread of disease and pursuing only necessary additional government powers needed to achieve that objective.

If you want to learn more about the proposed draft New Aussie Constitution, take some time to look around the website or you can throw your support behind the not-for-profit New Aussie Constitution Trust by liking and sharing this Blog. Please feel free to comment or email us directly because this draft is very much a consultative process, where we want to hear from as many Australians as possible.