Do the states have to obey Australia’s national Covid plan? | Anne Twomey for
In August 2021, the national cabinet agreed to a national plan to transition Australia’s national Covid-19 response. It was based upon epidemiological modelling of the Delta variant by the Doherty Institute. It sets out four phases, with phase B starting when about 70% of those aged 16 and over are fully vaccinated, and phase C starting when over 80% are fully vaccinated.
Is the plan ‘set in stone’?
The national plan is based on modelling that relies on a range of assumptions. In its advice, the Doherty Institute stated:
Ongoing situational assessment of measured transmission potential and circulating SARS-CoV-2 variants in the Australian population over coming months will allow benchmarking of these hypothetical scenarios to guide real time policy decision making about the transition to phase B of the national plan.
In other words, there will have to be ongoing assessment of the facts to help decide when to move to phase B. For example, the breadth of coverage of vaccinations would have to be considered, to ensure there are no under-vaccinated groups, such as Indigenous communities. The emergence of any new variants would have to be assessed to see how they respond to the vaccine.
Whether a state’s health system was coping with existing numbers of infections, and its “test, trace, isolate, quarantine” capacity was running effectively or swamped, would also need to be considered.
The national plan expressly says at the bottom:
The plan is based on the current situation and is subject to change if required.
So, the national plan is not set in stone. It was always intended to be adjusted to take into account changed facts.
What does the national plan say about border closures?
The national plan does not say anything about state border closures. It does refer to lockdowns being less likely to occur in phase B – but lockdowns are different from border closures. States that close their borders primarily do so to keep the disease out so they don’t need to impose lockdowns.
Phase B also refers to the easing of restrictions on vaccinated residents, but it does not make clear what they are.
As for borders, phase B only explicitly refers to international border caps, including increasing caps for inbound travellers, allowing capped entry of students and economic visa holders, and introducing reduced quarantine arrangements for vaccinated residents. This is primarily a federal matter, as the commonwealth has power over entry to Australia, even though the states have been managing hotel quarantine for incoming passengers.
Phase C does not refer to state border closures either. But it does refer to exempting vaccinated residents from all domestic restrictions. This could be interpreted as exempting vaccinated Australians from border restrictions, but does not seem to deal with the unvaccinated.
If national cabinet makes a law, don’t all the states have to comply with it?
The national cabinet does not make laws. It has no legal powers at all. It is simply an intergovernmental body whose members discuss and agree on matters. As with any intergovernmental agreement, the national plan is not legally enforceable.
The members of the national…
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