The Constitutional Lessons from Australia’s COVID-19 International Border Closure

(2024) 49(3) Monash University Law Review (forthcoming)

20 Pages Posted: 21 Aug 2023

See all articles by Scott Stephenson

Scott Stephenson

University of Melbourne - Law School

Date Written: 2023

Abstract

Australia closed its international border for almost two years in response to the COVID-19 pandemic, causing immense hardship for many groups of people inside and outside the country. What, if anything, could have been done differently? Constitutional commentary on the issue has tended to focus on rights and federalism. A bill of rights could have given citizens stranded outside the country a right of return. No federal division of responsibility for international arrivals would have avoided conflict between the Commonwealth and States.

This article argues that the episode provides weak evidence for a bill of rights and for the failure of federalism. To help make this argument, it draws a comparison with New Zealand, which imposed similar restrictions even though it had a bill of rights with a right of return and no federal division of responsibilities. The article puts forward two alternative constitutional lessons for consideration. First, legislative specification of what government is and is not obliged to do to assist overseas citizens in an emergency may have helped set expectations. Second, a structural mechanism to represent affected persons may have improved the quality of debate by providing comprehensive, accurate and current information about their situation.

Keywords: constitutional law, COVID-19, Australia, New Zealand, bill of rights, federalism

JEL Classification: K00

Suggested Citation

Stephenson, Scott, The Constitutional Lessons from Australia’s COVID-19 International Border Closure ( 2023). (2024) 49(3) Monash University Law Review (forthcoming), Available at SSRN: https://ssrn.com/abstract=4540039

Scott Stephenson (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
36
Abstract Views
119
PlumX Metrics