Australia: The legality of the Victoria - NSW border closure

The legality of the Victorian Government's recent border closure has come under some scrutiny at a time when the border has been opened to around 1200 individuals involved with the Australian Open tennis tournament, many from overseas countries where the coronavirus is seemingly out of control, but have remained closed to many Victorian citizens trying to return home from hotspots in NSW and QLD.¹

On the one hand, there is the interest of the Victorian Government and citizens in maintaining control of its borders and lessening the chances of a ‘third wave', which would be devastating for the Victorian economy hard hit by the recent ‘second wave'. On the other hand, denying residents of a State the ability to return home from other parts of Australia is a significant constraint on the freedoms and human rights of individual Victorians, their families, and the desire to return to some form of ‘normalcy' for 2021.

So what are the legal considerations at play?

On 16 March 2020, Premier Daniel Andrews announced a State of Emergency which was extended again most recently on 3 January 2021. The Government must review the Declaration of the State of Emergency every four weeks.

The State of Emergency was declared and implemented pursuant to powers contained in the Public Health and Wellbeing Act 2008 (Vic) (the Act).² The Act provides for broad powers to investigate, eliminate or reduce risk to the public health from COVID-19. Refusing or failing to comply with a direction under the Emergency Powers, without reasonable excuse, can result in penalties.³

To date, seven New South Wales Border Crossing Permit Scheme Directions have been issued by Victoria's Deputy Chief Health Officer, the last on 5 January 2021. These Directions are made pursuant to section 200 of the Act, which provides that an individual or group of individuals can be detained in the emergency area for “the period reasonably necessary to eliminate or reduce a serious risk to public health”.

At present, Victorians in the “red zones” of Sydney and Brisbane are generally still prohibited from returning to their home state, subject to certain exemptions. The Victorian Government has – effective as at 11 January 2021 – introduced a “traffic light” system involving permits for Victorian's wishing to return home. If an individual attempts to enter Victoria without a permit, a fine of up to $4,957 will follow.

In the midst of the COVID-19 pandemic wreaking havoc globally, it is the necessary duty of Governments to undertake swift and decisive action to limit the adverse health impacts on its citizenry, both individually and collectively. The balancing of health risks versus the economic impact and curtailment of rights will inherently be a difficult exercise and one which, as we have seen, provokes passions from all sides. It is, regardless of one's view of the correct policy response, necessary to be aware of the legal architecture underpinning the border closure and associated measures.

Footnotes

¹ https://www.theage.com.au/politics/victoria/victoria-to-stick-with-conservative-approach-to-border-rules-premier-20210119-p56v8l.html

² The Declaration itself was made pursuant to section 198.

³ Section 193 and 2013 of the Act. Also see Public Health and Wellbeing Amendment (Infringement) Regulations 2020 (Vic) and the Public Health and Wellbeing Amendment (Further Infringement Offences) Regulations 2020 (Vic).

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