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

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