Covid Created Constitutional Crisis

Over the past month or so in IMAP we have been doing a lot of work on the FASEA Code of Ethics and the impracticality of trying to legislate for morals, even though everyone agrees on the benefits of requiring good practice. In particular Standard 3 of the Code of Ethics makes it illegal to be in breach of something which is often, at its heart, a matter of judgement: “You must not advise, refer or act in any other manner where you have a conflict of interest or duty.”

This has made me think about the negative consequences of enacting laws that appear arbitrary and therefore likely to be random in their enforcement. In writing to FASEA CEO Stephen Glenfield in considerable detail about the structural problems of the Code and the problems of enforcement it will give rise to, it led me to read Justice Michael Kirby’s essay “Statutory Interpretation: The Meaning of Meaning”. One of his key points is that judges, and by extension those governed by the law, should have first recourse to the normal meanings of words: “…the correct starting point for analysis is the text of the legislation…”

This bit of judicial analysis was fresh in my mind when I recently read a number of articles relating to whether the States should have the right to restrict people moving between them. George Williams put the matter in the context of the Australian Constitution, referencing s92, which says inter alia “…customs, trade and intercourse among the States…shall be absolutely free.” It’s the “intercourse” bit that caught my eye. The drafters of the constitution in 1897 knew that words had meanings and were careful in their use of language.

The right to interstate intercourse isn’t absolute of course. In Cunliffe v The Commonwealth (1994), Mason CJ said that the freedom of intercourse which s92 guarantees is not absolute: a law which imposes an incidental burden on interstate intercourse would not fail if the burden was reasonably necessary for preserving an ordered society. I guess that justifies States’ rights to impose health related regulations, so long as representatives remain on top.

So, while we, as ordinary citizens, are still subject to lockdown, it’s a comfort to know that over 120 years ago the drafters of our basic law understood what constituted a fundamental right.

Meantime, back at FASEA…

Have a good week.

Toby Potter