At midnight on June 17th, South Australia lifted border restrictions for domestic travel to Northern Territory, Western Australia and Tasmania. Which seems logical considering that all states have not had a confirmed case of COVID-19 in weeks (for some in months). While some of those states still won’t allow travel from other states (which means South Australians won’t be able to travel to those states), it does mean that residents of the above states will be able to travel to South Australia.

Those issues aside an even bigger problem is emerging for South Australia’s restricted border opening. The Australian Federal Government has claimed that the limited opening of South Australia’s border is unconstitutional. Yes, you read correctly, unconstitutional.

It’s not a word we hear often in Australia and that is because our constitution doesn’t act as a legal rulebook for what is and isn’t permitted in Australia. The constitution was legislated during federation as a set of rules to govern the coming together of all states in Australia as the federation of Australia (this allowed things like free trade and travel between states).

But within our constitution is a line under Section 92 which has raised eyebrows over how legal it is for South Australia to restrict travel to some states but not others. This line is as follows:

“[…] trade, commerce, and intercourse among the states […] shall be absolutely free.”

To top that cake it turns out that this one section of the constitution is also the most litigated section under the entire Australian constitution.

To prove the illegality of South Australia’s new border restrictions there are multiple legal challenges underway already in the High Court of Australia. The main point to be debated within those cases is whether a public health order and a state of emergency is a higher order of power to the Australian constitution.

Other state leaders seem to believe this might not be the case with West Australian Premier, Mark McGowan, suggesting that the order may indeed be illegal. The past interpretation of Section 92 tends to suggest the same, with precedence being set over the intention of the phrasing in that section (it’s been argued in court, successfully, in the past that the phrasing relates to protections over discrimination).

Northern Territory, Victoria and New South Wales’ Premiers have all at some point since the opening scorned the South Australian premier over the decision. Daniel Andrews urged Victorians to holiday within Victoria (in an effort to stave off a tourism recession caused by a combination of COVID-19 and Australia’s horror 2019 bushfire season).

“I don’t want to be offensive to South Australians but why would you want to go there?” Andrews claimed during a press conference on Wednesday.

“Holiday here … the best experiences in our nation are right here in Victoria.”

South Australia’s original COVID-19 exit plan notes that state borders will open on the 20th of July anyway and the pre-emptive border opening might be a sign for what is to come over the coming four weeks. Whether or not a High Court challenge will change that in the meantime? Only time will tell.