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 addition, like the rest of the advice community, I’ve watched Stephen Glenfield CEO of FASEA trying to downplay the significance of this issue if left unamended. In writing to him in considerable detail (for IMAP's letter click here) about the structural problems of this particular Code and the problems of enforcement that it will give rise to, it lead me to read Justice Michael Kirby’s excellent 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.
“Amongst the most important of these principles have been:
that where the applicable law is expressed in legislation the correct starting point for analysis is the text of the legislation …” [1]
Anyway, this bit of judicial analysis was fresh in my mind when I recently read, as I’m sure you have, a number of articles relating to whether the States should have the right to restrict people moving between them. George Williams put the matter[2] 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. “Customs” and “trade” we all completely understand but the drafters of the constitution in 1897 knew that words had meanings and they were careful in their use of language. They knew they’d be away from home a lot – travel being a good deal less rapid in those days than now. Wherever in Australia you started, it was a long trip to Melbourne – where Parliament sat until 1927 – and people had “rights”. And clearly, as parliamentarians, they expected to be travelling around the country because it wasn’t just “intercourse between the States” - the home constituency and parliament. They wanted it to be clear they, and by extension, we the citizens, had rights in every State. “Among” as you’ll remember from English at school applies to three or more.
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 s 92 guarantees is not absolute:
“.. a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject-matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a… representative...”[3].
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 and the idea of intercourse interstate remains some distance in the future, 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