The politics of the flight caps

The politics of the flight caps – a murky zone


Key points

  • The Australian federal government and Australia’s states have concurrent powers to create laws around quarantine.
  • Commonwealth laws related to quarantine are commonly misrepresented by politicians and media commentators.
  • Quarantine programs are not possible to undertake without cooperation between both levels of government.
  • A real political solution to quarantine would look like the regimes in operation in Taiwan and New Zealand with more than twice the quarantine spaces per capita that Australia has.
  • The stranded Aussies emergency is guaranteed to worsen if Australia does not double its quarantine capacity.

The reasoning behind the flight caps is political. If the caps were devised with humanitarian or public health considerations in mind, stranded Aussies would not be growing in numbers or enduring prolonged hardship. Understandably, no one in government in Australia wants to be held responsible for a coronavirus outbreak, but that’s not an excuse for strong resistance from both levels of government to prioritising the health and wellbeing of Australians trying to return home. A truly humanitarian public health response would have invested in smart quarantine solutions.

No one could disagree that the federal government has done the minimum in managing the pandemic in Australia, and that it could and should do more. For example, it has turned over national border control to foreign airlines. Its imposition of arbitrary caps of 30 to 50 passengers per flight makes flights into Australia commercially unviable. Regardless of citizenship or visa status, foreign airlines determine who enters the country, usually based on passengers’ ability to pay inflated prices for tickets.

Yet, the federal opposition and states have not put any real pressure on the Morrison government to rectify that situation and do more to expand inbound infection control. Absent from opposition criticism is discussion of the numbers or any realistic proposals for solutions. The criticism repeatedly falls on the line ‘quarantine is a federal responsibility’.

Is quarantine a federal responsibility?

The often cited Section 51(ix) of the Constitution states that

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

… (ix) quarantine 

The constitution clearly grants the federal government powers  to create legislation in relation to quarantine. But it’s not an exclusive power, it’s a concurrent power with the states. The constitution therefore does not confer responsibility for quarantine on the federal government or any obligation to supersede state authority.

Accordingly, Sydney University professor and expert on constitutional law, Anne Twomey, told ABC News that the constitution does not force the Commonwealth to use its quarantine power. ‘The Commonwealth can leave such matters to be dealt with under state laws if it chooses.’ 

Another expert, Professor Cheryl Saunders, added that the Commonwealth had chosen not to exercise its quarantining power ‘and so it becomes a state responsibility’.

Importantly, the Commonwealth does not have any power to create laws in relation to the implementation of health services. Health is wholly under the authority of the states, which is why it’s the states that operate hospitals and employ health care workers while the Commonwealth does not. So even though there is a Commonwealth Biosecurity Act 2015 with powers to mandate quarantine, section 562 of that act, for example, confirms that any biosecurity undertaking by the Commonwealth that affects residents of the states, can only be done with active cooperation from the state health authorities. 

Furthermore, the states agreed in National Cabinet in March 2020 to accept responsibility for quarantine and that included funding it. Both legal experts mentioned above, however, expressed concern that the federal government could be providing more assistance to the states, for example, via funding boosts.

In summary, the Morrison government could create quarantine legislation to override state laws but any quarantine regime would still require the cooperation of the states, particularly for the provision of health care workers.

Unfortunately, the confusion around state and federal roles and responsibilities makes it difficult for the Australian public to understand which political leaders are accountable and how. The media doesn’t do a very good job of clarifying it either. That, of course, works in the politicians’ favour.

What would a real political solution look like?

It would look like the rapid, clever and humane responses of Taiwan, New Zealand and even Vietnam.

If both levels of government were serious about getting Australians home they’d be pulling out all stops to expand the quarantine program. First, they’d be honest and transparent about the numbers and plan for enough quarantine spaces to meet the demand. If they’d done so, no politicians would be saying, a year into the pandemic, ‘the federal government needs to build a facility’. It’s more of a distraction than a viable option.

With the current, very inadequate caps at approximately 23,000 per month and needing to be more than doubled, no federal facility that could be knocked together fast is going to provide capacity to house 26,000 arrivals at once. Remember that Howard Springs has a maximum capacity of 850 at a time.

A real political solution would involve a cooperative effort. The federal government would assist with funding to the states to get the safest and only real short to medium term solution, home-based quarantine, rolled out as soon as possible. Failing that, both levels of government should have cooperated to expand hotel quarantine to safe and sustainable levels – as New Zealand has done, with more than double Australia’s hotel quarantine spaces per capita. If there was genuine political will, solutions would have kicked into gear by the middle of 2020.

Political expedience

Instead, in February 2021, we’re still seeing federal Labor repeat their misleading line that ‘quarantine is a federal responsibility’. At the same time, state premiers unanimously supported the federal government’s cuts to the caps. Premier of Victoria, Daniel Andrews, has completely suspended international arrivals following breaches in his state’s quarantine system, and despite those being quickly contained. Victorian taxpayers continue to fund a $377m faulty quarantine system that has been out of action for half of the last year. In New South Wales, Premier Gladys Berejiklian has again revealed plans to allow international students to enter the country ahead of Australians desperately needing to return home.

SAAN are not opposed to those with valid visas entering Australia. We say that the Australian government should have provided enough quarantine capacity to allow them, with commensurate priority given to the repatriation of citizens and PRs.

In addition, arrivals statistics show that the states that provided the least quarantine spaces per capita over the past year were Victoria, South Australia and Queensland, in that order. With 32% of Australia’s population, New South Wales provided more than 50% of quarantine spaces to international arrivals throughout last year – more than all other states and territories combined. As of mid February 2021, that state is taking 3,000 arrivals per week, triple those arriving in Queensland, with zero arrivals allowed into Victoria.

The only chance that stranded Aussies have for getting back soon is if both levels of government exercise their duty of care, cooperate, and at least double Australia’s quarantine capacity. They won’t do that without pressure from the public and the media.

You can help by getting loud.

Table: International arrivals per month – Australia – October to December 2020 – state or territory of clearance with target quarantine capacity based on that of New Zealand and Taiwan per capita.

States with international airports would have to compensate for states without in providing quarantine spaces.

˚This table is best viewed on tablet or desktop

State of clearance (population, % of national population)
October 2020
November 2020
December 2020
Sustainable target 0.22% of pop./month
Short term target 0.26% of pop./month
New South Wales (8.16m, 32%)

13.720

16,440

16,410

18,100

21,215

Victoria (6.69m, 26%)

20

550

5,330

14,700

17,395

Queensland (5.17m, 20%)

4,140

5,780

6,200

11,300

13,440

Western Australia (2.66m)

3,630

4,490

4,580

5,650

6,920

South Australia (1.77m, 7%)

1,810

1,090

1,410

3,600

4,600

Tasmania (0.54m, 2%)

110

40

40

1,130

1,400

Australian Capital Territory (0.43m, 1.7%)

10

150

0

960

1,120

Northern Territory (0.25m, 1%)

1,270

1,240

1,030

565

650

National Total (25.67m) 

24,710

29,780

35,100

56,005

66,745