Border wars

QUARANTINE ZONES ARE SPLITTING COMMUNITIES NEEDLESSLY.

Quarantine boundaries should be based on communities of interest and economic cohesion rather than State borders.  To enable this to happen, the Commonwealth should accept the responsibility for quarantine that the Australian Constitution says it has. 

Vague authority delegation and ill-defined responsibility leads to events like the Ruby Princess, and incompetent enforcement of hotel quarantine. The New South Wales and Victorian Governments are taking opprobrium for failures which really would be more accurately directed to the Australian Government.

Under current quarantine management there are too many chiefs and mixed health protection messages. This is exactly what the Australia’s founders were seeking to prevent when responsibility for quarantine was ceded to the Commonwealth in paragraph 51 (ix) of the Constitution 120 years ago. The federating colonies recognised the need for singular unambiguous national responsibility for disease management. Overlooking their prescience takes us back to before Federation.

Until the 1990’s, the Commonwealth Government did accept full responsibility and ran Quarantine Stations all around Australia. Their closure and the so called ‘shared responsibility’ are the outcome of the Commonwealth trying to cut costs, aided by States seeking to regain previously ceded power.

Emergency declarations and orders, including quarantine zones, should be based on singular, clear, authoritative Commonwealth legislation and appropriately funded. The ‘National Cabinet’ comprised of the Prime Minister, and State and Territory leaders plus the Chief Medical Officer should be coordinating responses under Commonwealth authority.

If only the Ruby Princess had offloaded at North Head rather than Circular Quay, as she would have 100 years ago, many deaths would have been avoided. Back then Point Nepean Quarantine Station rather than downtown Melbourne would have been the destination for international arrivals to spend 14 days government sponsored scrutiny.

Former Commonwealth Quarantine Station at North Head, Sydney
Point Nepean, Melbourne

Without question quarantine implementation must be a cooperative process, but there should also be no doubt where the ultimate responsibility lies.

The Commonwealth accepts responsibility for aged-care facilities, while the States run the rest of public health, hospitals and other State-owned facilities, albeit with significant investment from the Commonwealth Health Department.

State by State, the resources available for quarantine vary enormously. Monitoring and enforcement are expensive and the Northern Territory, the Australian Capital Territory, and Tasmania just do not have what it takes to be effective. Even wealthy Victoria relies on military support to handle its second wave.

So, setting quarantine boundaries States on basis of lines drawn in Whitehall in 1800s is daft. Tweed Heads and Coolangatta are bound, so splitting them causes additional enforcement costs, economic damage and tension. Dividing Broken Hill from Port Augusta leads to an expensive waste of resources. The Anangu in central Australia are linked to Alice Springs as their commercial, and even cultural administrative centre. They should not be split by State boundaries administered thousands of kilometres away in Adelaide, Perth and Darwin.

Albury and Wodonga have been divided. So have many other communities along the Murray River. Splitting Queanbeyan and Canberra would be impossible; 47000 vehicles cross the ACT NSW border every day.

Some history

Nearly a decade after Federation, the Commonwealth passed the Quarantine Act 1908 (Australian Government 1908) giving the Governor General extraordinary regulation making power to declare quarantine zones and do just about anything to manage an emergency. Quarantine Stations that had been operated by the colonial governments, became Commonwealth responsibility

I was once responsible for animal health and feral animal management in the Australian Department of Agriculture. I pondered where my responsibility lay compared to those of my State colleagues. What was our respective legal basis for implementing national plans to controlling a foot-and-mouth disease incursion in livestock? I discussed the matter with the Solicitor General and there seemed no doubt that the Commonwealth has singular authority.

At that time in the 1980’s, quarantine zones in the States were established under the Commonwealth Act. The State Chief Veterinary officers used letterheads that carried both the State and Commonwealth crests; operations were implemented by state officers issued with Commonwealth warrant cards.

The current ‘shared responsibility’ ended those arrangement and grew after the Nairn review.(Nairn et al. 1996) Commonwealth quarantine stations were closed.  A decade later, in 2008, the Beale Review into Biosecurity continued the shared responsibility line but also concluded that: “The Commonwealth unquestionably has Constitutional powers that allows for a much broader biosecurity reach than it currently assumes. It could, if it wished, manage almost the entire biosecurity continuum itself”. (Beale et al. 2008)

The question remains were the changes in responsibility an exercise in cost sharing to save the Commonwealth money. Are we now paying an extra price because of a lack of clarity on responsibilities? I believe it’s a mess. Moloney and Moloney (2020) are less critical stating that while Commonwealth and state/territory contestation remains, significant subnational action is occurring in cooperation with the Commonwealth.

Both epidemiologists and ecologists, and I have been both in my career, would agree that State borders are especially meaningless in a quarantine / biosecurity context. This bioecological truth has been revalidated in attempts over the years to manage not only diseases but also introduced pests and weeds.

The border between Tweed Heads and Coolangatta runs along suburban streets and right through the middle of the terminal of Gold Coast airport and. In theory New South Wales controls the southern end of the runway and Queensland the northern end. (Fortunately, aviation is a Commonwealth responsibility by virtue of the Navigation Power, so State-based hegemony does not apply.)

Kununurra is five times closer to Darwin than Perth. Nevertheless, under state-based quarantine, Kununurra is subject to Western Australian legislation rather than northern Australian cultural and commercial connections.

If the Commonwealth were responsible in these and earlier examples, a more effective, less expensive and economically damaging quarantine boundary or bubble could be set.

Responsibility, authority, and coordination

Ironically, the authority for quarantine boundaries that are based on epidemiologically sound, communities of risk still exists under the Commonwealth Biosecurity Act 2015 (Australian Government 2015). ‘Division 3 – Human health response zones, Section 113  Determining human health response zones, (1) states that the Director of Human Biosecurity may determine that a specified area within a State or Territory is a human health response zone if the Director is satisfied that it is necessary to do so for the purposes of preventing, or reducing the risk of, a listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory’.

I acknowledge that in a time of crisis it is usually better to stick to what we have rather than to create a new system or set of rules from scratch.

I also note that the extent and definition of ‘quarantine’ has never been interpreted by the High Court, notwithstanding the eminent legal opinion above, and that this is not the time for esoteric constitutional referrals.

Nevertheless, the consequences of continuing the application of State-based quarantine is worrying. Things are not going well. Without a vaccine, this pandemic is going to continue, and the current outbreaks are going to recur.

Clarity about ultimate responsibility is needed to reduce the impact, avoid delays, address resourcing differences between States and deliver effective coordination at scale. Local knowledge and priorities need to be considered and not ignored because of jurisdictional difficulties.

Conclusion

Shared responsibility is a dangerous myth being pursued by both the States and the Commonwealth. The lines of responsibility should be clearer in order to reduce the number of chiefs, jurisdictional blame, and cost shifting. Contagion is like a very fast fire and, just like fire, early response and containment is essential. It should be based on scientific information, best local information, and minimal politics. The Commonwealth should accept the responsibility for Quarantine as written in the Constitution.

George Wilson, August 2020

References

Australian Government. Quarantine Act Available at https://www.legislation.gov.au/Details/C2004C06273. Accessed:

Australian Government. Biosecurity Act 2015. Available at https://www.legislation.gov.au/Details/C2019C00097. Accessed:

Beale, R., Fairbrother, J., Inglis, A. and Trebeck, D. 2008. One Biosecurity: A Working Partnership. The Independent review of Australia’s Quarantine and Biodiversity Arrangements Report to the Australian Government. Commonwealth of Australia, Canberra.

Moloney, K. and Moloney, S. 2020. Australian Quarantine Policy: From Centralization to Coordination with Mid-Pandemic COVID-19 Shifts. Public Administration Review 80: 671-682. 10.1111/puar.13224.

Nairn, M.E., Allen, P.G., Inglis, A.R. and Tanner, C. 1996. Australian Quarantine: a shared responsibility. Department of Primary Industries and Energy, Canberra.

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