This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY SHREEYA SMITH

This is the second of two posts AUSPUBLAW is featuring considering executive power and COVID-19. Stephanie Brenker’s accompanying post is here.

COVID-19 has raised the stark spectre of catastrophic impacts on health systems, and has seen governments around the world put in place a series of measures to enforce social distancing, and fiscal measures to ameliorate the resulting economic impacts. While the trajectory of the virus in Australia over the last few weeks suggests relative success in containing its spread, important questions still arise about the scope of government power to respond to the threat. In a federal system such as Australia’s, some aspects of responding to a health and economic crisis such as that precipitated by the spread of COVID-19 may be supported by enumerated heads of legislative power under s 51 of the Constitution, such as the quarantine power (s 51(ix)), the external affairs power (s 51(xxix)) or the benefits power (s 51(xxiiiA)) (for a discussion of the scope of Commonwealth power to implement specific measures, see Stephanie Brenker’s post). However, in the absence of a general legislative power over health or the economy, important questions arise about the scope of Commonwealth power to implement a coordinated national response.

In this post, I consider whether the power arising from Australia’s character and status as a nation under s 61 of the Constitution could be relied on to provide support for a coordinated Commonwealth response to COVID-19. Section 61 sets out the executive power of the Commonwealth. It encompasses four broad categories of power: those granted to the Commonwealth executive by Parliament pursuant to statute, the common law prerogative powers of the Crown, the common law capacities the Crown enjoys in common with ordinary persons, and — the focus of this post — a nationhood power (or powers) arising from Australia’s character and status as a nation. Both the prerogative powers of the Crown and nationhood power authorise the Commonwealth executive to act without statutory authority (ie, they are non-statutory executive powers). In addition, the existence of such non-statutory executive powers is a source of additional Commonwealth legislative power. Under s 51(xxxix) of the Constitution, the Commonwealth has the power to make laws ‘with respect to … matters incidental to the execution of any power vested by this Constitution … in the Government of the Commonwealth’. That is, the Commonwealth can rely on the incidental power to enact legislation in aid of the exercise of executive power under s 61.

In what follows, I first outline the existing state of jurisprudence on nationhood power, before examining some of the ambiguities around its capacity to authorise a coordinated Commonwealth response to COVID-19. I propose some ways in which High Court jurisprudence in other areas of constitutional law — namely, the implied freedom of political communication, and the freedom of interstate trade and commerce in s 92 — could be drawn on to help resolve these ambiguities.

Jurisprudence on a nationhood power

To date, the vast majority of jurisprudence on nationhood power under s 61 has focused on the extent to which it can support facultative measures — for instance, Commonwealth spending, or the establishment of bodies for national purposes such as the celebration of the Bicentenary. The question of whether, and to what extent, a nationhood power could support coercive measures — such as measures that compel individuals or entities to do, or refrain from doing, particular things or the creation of criminal offences —with or without statutory authority remains contested.

In the post-war cases of Burns v Ransley (1949) and R v Sharkey (1949), there was a recognition that the very existence of the nation gives rise to a Commonwealth power to protect the nation. It was held that such power authorises the enactment of laws creating criminal offences to address subversive activities. In the Communist Party Case (1951), while legislation disbanding the Communist Party of Australia was ultimately held to be invalid, the existence of a power to make laws to preserve the Commonwealth and protect its institutions from internal attack and subversion was recognised.

In the AAP case (1975), Mason J drew on the recognition of a power arising from the existence of the nation in the Communist Party case to hold that such a power extends beyond ‘internal security and protection’, and includes a non-statutory executive power under s 61 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’ (at 397). The existence of such a power, and Mason J’s articulation of the test, were approved by a majority of the High Court in 1988 in Davis v Commonwealth. The High Court also recognised that the incidental power under s 51(xxxix) of the Constitution could be relied on to enact legislation in aid of the exercise of the executive power there recognised.

The test articulated in the AAP case and approved in Davis v Commonwealth is framed in terms of a ‘capacity to engage in enterprises and activities’. This refers essentially to the Commonwealth undertaking facultative measures. It is only in the majority decision of the Full Federal Court in Ruddock v Vadarlis (2001) that a nationhood power under s 61 to support coercive actions in the absence of statutory authority is recognised. Justice French (Beaumont J agreeing) held that a power to exclude and expel aliens is central to sovereignty, and therefore Australia’s character and status as a nation. Thus, the Commonwealth had the power to ‘do such things as necessary to effect such exclusion’ (at [193]). This is a bold claim, and is a matter that remains contested. During the hearing of an appeal to the High Court (that was ultimately dismissed because events overtook it), Gaudron J observed that important constitutional questions about the scope of executive power remained to be considered in an appropriate case. The issue was again raised, but ultimately overtaken by the enactment of retrospective legislation authorising the Commonwealth’s measures, in the High Court decision in Plaintiff M68 (2016). Only Gageler J engaged with the question of the existence of a non-statutory coercive nationhood power under s 61. His Honour appeared, in obiter, to leave open the possibility of the existence of this kind of power. He did not categorically exclude the existence of coercive nationhood powers, analysing the question instead by reference to whether as a matter of history and common law, the executive was rendered incapable of detention in the absence of statutory authority.

Of immediate relevance to the scope of Commonwealth power in response to COVID-19 is the decision in Pape (2009). A majority of Gummow, Crennan and Bell JJ, along with French CJ (writing separately) held that a nationhood power under s 61, in combination with the incidental power under s 51(xxxix), supported the enactment of laws authorising payments ranging from $250 to $900 to taxpayers as an immediate fiscal response to the global financial crisis.

In deciding that the Commonwealth could make these payments, Pape applied the test put forward by Mason J in the AAP case and approved by a majority of the High Court in 1988 in Davis v Commonwealth. An analysis of the majority judgments in Pape suggests that, at a minimum, there must exist a national concern, the response to which is ‘peculiarly within the capacity and resources of the Commonwealth’ —this being French CJ’s more narrowly formed reasoning (at [113]). The plurality characterised the power more broadly, finding that responding to the global financial crisis was a species of emergency or crisis power. This broader characterisation remains open, as French CJ did not rule it out and noted only that the question of the existence of an emergency power did not arise in Pape.

Is there a nationhood power enabling the Commonwealth to respond to COVID-19?

Is COVID-19 a national crisis or concern?

The majority in Pape drew heavily on expert comment and guidance from international bodies such as the International Monetary Fund (IMF), the G20 and the Organisation of Economic Cooperation and Development to establish the existence of a matter of national crisis or concern. Comparable commentary and guidance is available on COVID-19 today.

The United Nations described COVID-19 as a ‘global health crisis unlike any in the 75-year history of the United Nations’. On 11 March 2020, the World Health Organization declared it a pandemic. The Secretary-General of the United Nations highlighted that the crisis is two-fold. It is both a health crisis that threatens people globally, and an economic crisis that ‘will bring a recession that probably has no parallel in the recent past’.

There has been widespread acknowledgment of both the threat to health systems posed by COVID-19, and the need to introduce social distancing measures to respond to it. An Imperial College London report published on 16 March 2020 highlighted, for instance, that an ‘uncontrolled epidemic’ in Great Britain and the United States would result in peak demand for intensive care unit beds at 30 times their capacity. With limited social distancing (involving case isolation, home quarantine and social distancing of the most at-risk populations), peak demand was still predicted to be eight times that of available capacity. The report concluded that suppression strategies—ie, a combination of case isolation, social distancing of the entire population and either household quarantine or school and university closures—were required to ensure health systems were not overwhelmed. In Australia, modelling conducted by researchers at the University of Sydney highlighted that 80% of the population needed to reduce their social contacts to 10% of their ordinary levels for 13 weeks. This was likely to ‘reduce the new cases to less than 100, with prevalence below 1 000’. Compliance by 70% of the population or less ‘did not show any potential to supress the disease’.

Kristalina Georgiva, Managing Director of the IMF, described the economic crisis arising from the implementation of social distancing measures as ‘a crisis like no other’. IMF Chief Economist Gita Gopinath predicted a 3% contraction in global growth in 2020. The forecast recession was described as the worst since the Great Depression.

In terms of the economic crisis, characterising it as national in character is consistent with the majority in Pape. While it is probable that the health crisis can be characterised similarly, analogous as it is in terms of magnitude, I add one caveat. A glance at the spread of coronavirus across Australia suggests there are significant regional differences. As at 11 May 2020, NSW had over 3 000 confirmed cases, more than double that of Victoria and a hundred times that of the state or territory with the lowest number of confirmed cases: the Northern Territory. There may be an argument that in light of such uneven spread, internal management is not a matter that is peculiarly adapted to the government of a nation.

What is the scope of the Commonwealth’s power to respond to COVID-19 under a nationhood power?

There is little guidance from the High Court about how to determine whether a particular measure comes within the Commonwealth’s nationhood power, nor in relation to the scope of the Commonwealth’s incidental power under s 51(xxxix) to enact coercive laws in aid of any such power.

The formulation of an activity that ‘cannot otherwise be carried on for the benefit of the nation’ (AAP case, at 397) has a flavour of necessity to it, essentially asking: does the Commonwealth have to do it? Similarly, to the extent that a power to undertake coercive measures has been recognised, it relies on necessity, with the power being one to ‘do such things as necessary to effect such exclusion [or expulsion of aliens]’ (Ruddock v Vadarlis, at [193]).

How then does a court determine whether something is ‘necessary’ or ‘cannot otherwise be carried on for the benefit of the nation’? No criteria were set out in Ruddock v Vadarlis to determine the answer to this question. Similarly, in Pape, the majority did not address the question, finding only that neither the national nature of the crisis, nor the Commonwealth’s unique capacity and resources to respond to it were seriously questioned. Justices Hayne and Kiefel highlighted, in dissent, that the end or purpose of responding to a national crisis does not lead to the conclusion that any and every means directed towards that end is within power. However, no criteria were set out to determine whether the means employed were within power.

One possibility is to draw on the High Court’s reliance on proportionality testing in other contexts, and in particular, the necessity stage of the structured proportionality test articulated in McCloy (2015) in the context of the implied freedom of political communication. When that freedom is burdened in the government’s pursuit of a particular end, a court asks whether the means used to achieve that end were the ‘least restrictive’ measure. That is, are there alternative approaches that could have achieved the same policy outcome, that would have been less restrictive on the implied freedom? In the context of the freedom of interstate trade and commerce under s 92 of the Constitution, in Castlemaine Tooheys (1990), Mason CJ, Brennan, Deane, Dawson and Toohey JJ asked the question in terms of whether there existed an ‘acceptable explanation or justification’ for the differential treatment of products originating from different states (at 477). In considering the scope of Commonwealth executive power, the question would not be framed in terms of least restrictive measures, but in terms of whether there are alternative measures that could have been implemented to respond to the crisis.

What alternative measures might a court consider?

In the context of the implied freedom of political communication, statements by Kiefel, Crennan and Bell JJ in Monis v The Queen (2013) and Tajjour v NSW (2014), both of which pre-date McCloy, give some guidance on what alternatives a court may consider. In Monis, the High Court held that only those alternative approaches that are ‘obvious and compelling’ would be considered (at [347]). In Tajjour, the High Court said that the alternatives must be ‘as practicable … as effective … [and] as capable of fulfilling [the] purpose [as the alternative] … quantitatively, qualitatively and probability wise’ (at [114]). In Murphy v Australian Electoral Commissioner (2016), French CJ and Bell J seemed to apply this criterion quite stringently, stating that the existence of a less restrictive alternative measure ‘requires that the alternative measure be otherwise identical in its effects to the legislative measures which have been chosen’. Referring to the different costs involved across measures, their Honours said, ‘[i]t will not be equal in every respect if it requires not insignificant government funding’ (at [65]).

By contrast, in Betfair (2008), in the context of s 92, Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ drew on policy approaches that were not equally effective, in determining whether there was an ‘acceptable explanation or justification’ for the regulatory burden being challenged. Their Honours held that the availability of ‘effective but non-discriminatory regulation’ (at [110]), such as Tasmania’s approach (which did not ban betting exchanges, but imposed penalties for certain conduct that was likely to impinge on the integrity of the racing industry) meant that ‘it cannot be said that [Western Australia’s ban on betting exchanges was] … necessary for the protection of the integrity of the racing industry of that State’ (at [110]).

Which of these approaches could be drawn on in determining whether the Commonwealth is authorised under the nationhood power to undertake a particular response to COVID-19? One factor that may inform the answer to this question may be the severity of the crisis facing the nation. For instance, the more existential the threat to the nation, the closer to the challenged measure any alternative must be. Another relevant factor may be the scope for state and territory action to address the crisis. In Davis v Commonwealth, Mason CJ, Deane and Gaudron JJ held that ‘the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence’ (at 93–4). In Tasmanian Dam (1983), Deane J noted, at the other end of the spectrum, that the Commonwealth could not rely on nationhood power and s 51(xxxix) to enact legislation that ‘override[s] and displace[s] legislative and executive powers of the State … and authorise[s] or regulate[s] conduct thereon’. The interaction between Commonwealth and state powers can run the gamut between these two poles. Therefore, there may be scope for the intensity of scrutiny to be informed by the effect or burden on the ‘legislative and executive powers of the State’. The greater the burden, the broader the range of alternatives a court can consider in determining whether a measure fulfils the criteria.

As discussed above, whether the Commonwealth could rely on a nationhood power to undertake coercive measures without statutory authority remains contested. As to whether the existence of a national crisis or concern could be relied on to make coercive laws pursuant to the incidental power under s 51(xxxix), French CJ noted, in obiter, that reliance on a combination of s 61 and the incidental power under s 51(xxxix) to enact coercive laws was likely to be approached conservatively.

Justice Deane said in Tasmanian Dam

[t]he inherent powers of the Commonwealth could not, on any proper approach, be seen as including a power to enact laws [that] impos[e] drastic restrictions … [or that] to no small extent, override and displace the ordinary legislative and executive powers of the State … [and] authorize or regulate conduct thereon (at 253).

However, French CJ’s comments were made in the context of a case dealing with the Commonwealth’s power to respond to an economic crisis. Similarly, Deane J’s comments were made in the context of determining the scope of the Commonwealth’s power to protect the natural and cultural heritage of the nation. Neither of these cases speaks to a protective power that affects the form of government itself, or other threats to the nation. We see from Latham CJ, Kitto, Fullagar and McTiernan JJ’s comments in the Communist Party Case — which characterised a nationhood power to protect the nation as a legislative power — that they conceived of the coercive power as one limited to a power to protect the nation. However, only McTiernan J among them specifically limited such power to ‘protect[ing] against acts of violence or acts that would lead directly to violence’ (at 212). This suggests that French CJ and Deane J’s comments notwithstanding, there may be some scope for a Commonwealth power to implement coercive laws in response to COVID-19, a health crisis, which globally has presented a clear danger of mass deaths. Chief Justice Mason, Deane and Gaudron JJ’s comments in Davis v Commonwealth that a coercive law must be proportionate to the power for which the executive power is exercised lends support to this view.

Conclusion

Crises such as COVID-19 demonstrate that modern governments may be called on to act quickly and decisively. Decision makers and their advisors need to be able to predict the scope of their powers with some certainty. As Hayne and Kiefel JJ highlighted in Pape, it is the judiciary’s role to ‘identify the criteria that are to be applied to determine whether those particular means are constitutionally valid’. To that end, French CJ’s call for ‘for further academic discussion and suggestions for a principled approach to appropriate limits upon executive power’ at the inaugural Winterton lecture seems all the more pressing. A brief consideration of the jurisprudence on nationhood power, and in particular, the decision in Pape and its application to COVID-19, raises fertile questions for further inquiry in that direction.

Shreeya Smith is a PhD candidate at the University of New South Wales, and  Deputy Director of the Gilbert + Tobin Centre of Public Law’s ‘Responding to COVID-19 Project on Public Law and Public Health’.

Suggested citation: Shreeya Smith, ‘The Scope of a Nationhood Power to Respond to COVID-19: Unanswered Questions’ on AUSPUBLAW (13 May 2020) <https://auspublaw.org/2020/05/the-scope-of-a-nationhood-power-to-respond-to-covid-19>