Border wars tipped to rage on for at least six months

Australia faces at least another six months of state border closures to contain COVID-19 outbreaks before the national distribution of vaccines provides enough herd immunity to taper the public health response.

University of Melbourne epidemiologist Tony Blakely said the "border dance" would continue for "quite some time", with variants of the virus beyond the highly transmissible UK strain and emerging problems with the AstraZeneca vaccine likely to further delay the resumption of normal travel and business conditions across Australia.

No end in sight: a queue of frustrated motorists stretches back into NSW from the border town of Albury on New Year’s Day.Credit:Jason Robins

"It will take until the middle of the year before we have enough people vaccinated that we are starting to get some partial herd immunity that quietens things down," Professor Blakely told The Age and The Sydney Morning Herald. "It may even be longer than that."

Despite the ongoing frustration and uncertainty it has created for business and travellers, the federal government has all but abandoned reaching consensus with the states on how best to manage Australia's internal borders.

University of Sydney constitutional law expert Anne Twomey said while the Commonwealth could legislate to assume control of all quarantine measures, including state borders, the COVID-19 crises had exposed the practical limitations of federal power.

"It has shown up a reality that, mostly, people have missed," Professor Twomey said. "That is, in practical terms, it is the states that do most of the grunt work in terms of making the country run.

Professor Anne Twomey says the pandemic has exposed the practical limits of federal power.Credit:Louise Kennerley

"The Commonwealth is not lacking in power, it is lacking in capacity."

Prime Minister Scott Morrison has signalled a retreat from last year's unsuccessful campaign to persuade the states to adopt the Commonwealth's definition of COVID-19 hotspots in order to provide greater policy consistency in response to outbreaks in other jurisdictions.

While Mr Morrison maintains greater consistency would be welcomed, he has repeatedly acknowledged the authority of states to make their own public health decisions, a point federal Health Minister Greg Hunt echoed on Tuesday when asked about the definition of a national hotspot.

"We would invite all to feel free to use that, but we respect it if others chose to go a different way," Mr Hunt said.

Labor MP Joel Fitzgibbon says the Prime Minister has made a political decision to retreat from the border wars.Credit:Alex Ellinghausen

Joel Fitzgibbon, a federal Labor MP who has previously argued for the abolition of the states, said the Prime Minister's retreat from the border wars was largely a political calculation.

"There is no doubt in my mind that in terms of constitutional powers there is more he could do but he is not interested," Mr Fitzgibbon said. "It has become, not a political opportunity, but a political landmine.

"He should be taking every opportunity to force a co-ordinated position so a premier or a territory leader isn't making decisions [based] on when the next election is. He has got no interest in showing that leadership because to do so would be to take more ownership of these very tough decisions, something the state premiers to their credit have been prepared to take on."

The federal government argued before the Federal Court during Clive Palmer's challenge to Western Australia's border closures that limiting the movement of people across internal borders – even during a pandemic – was unconstitutional. The government withdrew from the case before it reached a full hearing of the High Court.

The High Court rejected Mr Palmer's challenge, but has not yet published its reasons.

University of Melbourne professor Cheryl Saunders, an expert in constitutional and public law, said it was unclear whether any government – state or federal – controlled Australia's internal borders. She said that instead of exposing the weakness of the federal system, the pandemic had shown our multiple levels of government working "astonishingly well".

"What we have seen with the pandemic is different approaches being crafted, in many cases to deal with the exigencies of the states themselves, which is the way you'd hope a federal system would work," Professor Saunders said.

These differences continue to aggravate business. At the start of Sydney's northern beaches lockdown, the Business Council of Australia, the National Farmers' Federation and leading airlines, retailers, transport businesses, tourism operators and restaurant and caterers issued a joint statement calling for the establishment of "nationally consistent and predictable rules" for managing outbreaks.

The governments of Gladys Berejiklian and Daniel Andrews have different approaches to the question of border closures. Credit:Christopher Pearce/Darrian Traynor

Instead, every state and territory has tailored their own response to outbreaks in other jurisdictions.

Victoria this week revealed its three-tiered “traffic light” travel permit system that, for now, keeps closed the border to people who have been in Brisbane and Sydney. Western Australia has a hard border against the entire eastern seaboard and its own criteria about what constitutes very-low, low and medium-risk areas.

Tasmania has employed the national hotspot definition to restrict travel from five Brisbane local government areas. Queensland has its land border closed to anyone who has been in a NSW hotspot.

NSW currently has no border restrictions in place.

While the Commonwealth definition of a hotspot includes a three-day average of 10 locally acquired daily cases in metropolitan areas and an average of three locally acquired cases in regional areas, Western Australia closes its borders to any area with a 14-day average of five or more community cases.

Brisbane was declared a national hotspot because of uncertainty surrounding a single case of the UK strain.

Deakin University epidemiologist Catherine Bennett said outbreaks were best managed from the inside out and all governments should have confidence in our capacity to trace and contain clusters without resorting to border closures.

"That has been my point all along – we should have confidence in our systems," she said. "Even with border closures you can't prevent this completely, as we found in Victoria. You have got to assume you will have some virus in the community and know you can manage it."

Professor Blakely disagreed. Having just run the summer holiday gauntlet from Queensland's Sunshine Coast to his home in Melbourne, he believes border controls are the simplest way of segmenting the population to limit the spread of the virus.

He said the different approaches of the states, although seemingly chaotic, had encouraged innovation and built flexibility into Australia's pandemic response.

He argues we have now reached a stage where the chief health officers, through the workings of the Australian Health Protection Principal Committee, should largely agree on what works and what doesn't. He hopes – but doesn't have confidence – that other states may adopt Victoria's traffic light system.

"It is not a disaster that you have got eight jurisdictions doing their own thing, but I think as we evolve and mature and the pandemic goes on, we should be converging on what is best practice."

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