While there is a long history of Commonwealth governments encroaching on state and local government responsibilities ever since Federation, during the COVID-19 pandemic, the Morrison Government has reversed that trend and pushed many of its legal responsibilities to state governments.
That strategy has been so successful, Commonwealth ministers are pushing even more of their own legal responsibilities to state governments.
The most prominent of these is, of course, Prime Minister Scott Morrison himself playing chicken with the states on the quarantine of overseas arrivals. During the period between the Ruby Princess debacle and the National Cabinet announcement that all international arrivals would be quarantined for 14 days, there was clearly much debate on the merits of strict quarantine of overseas arrivals.
On the public evidence we have available, it was state governments that led the charge on the need for strict quarantine. We know that despite the problems with hotel quarantine in Victoria, it has been the crucial factor in Australia’s extraordinary success in managing the virus.
Morrison and Health Minister Greg Hunt would have been advised very early on that quarantine is explicitly a Commonwealth responsibility under the Constitution. There is no legal uncertainty about this. The former Quarantine Act, now the Biosecurity Act, was one of the first pieces of legislation passed by the new Commonwealth Parliament after Federation.
Prime Minister Billy Hughes used the Commonwealth Quarantine Act to impose strict quarantine of all maritime arrivals during the Spanish flu. This was administered by the Commonwealth Director of Quarantine, JHL Cumpston. The states also played a key role in managing the health crisis in line with their responsibilities, but quarantine of maritime arrivals remained a Commonwealth responsibility.
We may not know for many years how the March 2020 debate on hotel quarantine proceeded in the National Cabinet and to what degree Morrison resisted taking the lead role on this as required by the Constitution. Morrison insists the minutes of National Cabinet are confidential.
Consistent with his approach to the bushfires (“I don’t hold a hose, mate”), did he say to the states that if they wanted to introduce a strict quarantine requirement for international arrivals, they would have to take the lead, make all the arrangements and meet most of the costs?
Was the Commonwealth’s position that it would assist where it could, including via development of the COVIDSafe app, but responsibility for quarantine of overseas arrivals would rest with the states even though, Constitutionally, it has been a long-standing Commonwealth responsibility?
Politically, this arrangement has worked so well for Morrison that his ministers are now taking his lead in dumping more and more responsibility for COVID-19 related issues onto the states.
COVID-19 testing of overseas arrivals
To reduce the number of overseas arrivals testing positive for COVID-19, NSW Health Minister Brad Hazzard has directed NSW officials to negotiate with international airlines on a requirement for international travellers to undergo a COVID-19 test before they board a plane to Sydney from overseas.
This is entirely sensible.
In one week alone, NSW detected 37 positive cases amongst overseas arrivals that were in hotel quarantine in Sydney. How many such cases could have been prevented from entering Australia if they had been tested for COVID-19 before boarding a plane to Australia?
The obvious question is why the Commonwealth Departments of Home Affairs (DHA) and Health aren’t taking the lead in these discussions given their respective legal responsibilities for public health of visa arrivals into Australia (see Public Interest Criterion 4007 in Migration Regulations) and for human quarantine under the Biosecurity Act.
DHA has a very extensive network of thousands of doctors overseas who undertake health checking of visa applicants on its behalf. The Department also undertakes regular and extensive consultations with international airlines in terms of their responsibilities not to board people who do not have travel rights to Australia. It also has long-standing experience in penalising airlines that fail to meet their responsibilities in this regard.
Why then isn’t DHA leading the negotiations with international airlines on behalf of all states rather than these being led by NSW for arrivals just into Sydney?
Why didn’t DHA take the lead in testing all overseas arrivals when hotel quarantine was first introduced in March?
We may never know if the second outbreak of COVID-19 in Victoria could have been avoided if DHA had such testing in place.
Protocols for student arrivals
Education Minister Dan Tehan has made it clear that it is up to individual states to come up with plans for the return of overseas students in 2021. He set a deadline of end November 2020 for these plans to be submitted to the Commonwealth, but no state met this deadline.
In a letter sent to each state government on 6 November, Tehan said plans had to be signed off by premiers and their chief health officers and needed to demonstrate how international students could be brought in safely after Christmas.
But why did this letter go to state governments? After all, it is Tehan himself who is responsible for the overseas students' program through the Education Services for Overseas Students Act. It is Tehan who is responsible for funding universities and for regulating all providers of international education to overseas students.
It is Home Affairs Minister Peter Dutton and Immigration Minister Alan Tudge who are responsible for issuing visas to overseas students, including checking that they meet the health requirement in terms of not being a risk to public health in Australia.
It is Commonwealth Health Minister Hunt who is Constitutionally responsible for the quarantining of overseas arrivals.
Legally, the states are responsible for very little of this, yet it is they who must coordinate plans for the arrival of overseas students.
Why the states aren’t pushing back on this is a mystery.
Protocols for arrival of farm workers
Taking a leaf out of the Morrison, Tehan, Dutton, Tudge and Hunt book of duck-shoving their legal responsibilities to states, Littleproud has hit back arguing the states could solve the issue of labour shortages themselves by letting in pre-vetted visa-ready workers from ten Pacific Island nations.
He said the Federal Government had “rubber-stamped” up to 22,000 workers, but it was the responsibility of the states to now allow them in. When Littleproud says these workers have been “rubber-stamped”, of course, DHA has not tested these visa holders for COVID-19 as legally required under migration law.
“Rubber-stamped” is indeed the right term.
Littleproud makes no mention of the fact these farm labour programs are run by his fellow Commonwealth Ministers Michaelia Cash (Employment) and Marise Payne (Foreign Affairs). These two Ministers have responsibility for the welfare of these overseas workers as well as ensuring farmers and labour-hire companies do not abuse them and ensure they are housed properly.
Given this, these Commonwealth Ministers, plus Minister Hunt, are best placed to manage quarantine of overseas farm workers at appropriate farm locations and for ensuring these workers abide by relevant COVID-19 requirements.
Given the extensive legal responsibility of Commonwealth ministers for overseas farm labour, why isn’t Littleproud coordinating this work rather than duck-shoving responsibility to the states?
Abul Rizvi is an Independent Australia columnist and a former Deputy Secretary of the Department of Immigration, currently undertaking a PhD on Australia’s immigration policies. You can follow Abul on Twitter @RizviAbul.
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