Thoughts on economics and liberty

Category: Current Affairs

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My son’s write-up proves that Australia’s internal border closures are unconstitutional

See Sukrit’s piece here: Australia’s unconstitutional border wars

I’m reproducing it below:

Australia’s unconstitutional border wars

There are many reasons to question the interstate border shenanigans that have stopped Australians from returning home, divided families and sparked animosity among state premiers.

It’s possible to debate the policy merits of the closures. But policy is a secondary issue constrained by the overarching rules of the game established by a nation’s constitution.

The Australian Constitution simply doesn’t permit such parochialism, at least when it comes to the states (the territories are in a different position).

To see how this is so, it’s important to first clear out any clutter and examine the Constitution as if reading it for the first time. Only by focusing on the natural meaning of its text without the encumbrance of case law – in the manner commended by the High Court in the Engineers Case– is it possible to get to the true meaning of our federation.

The key elements of section 92 are: (a) its heading: “Trade within the Commonwealth to be free”; and (b) its body: “On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free”.

“Free”. “Absolutely free”. We need to ponder these words for a moment. And not just in relation to trade and commerce, but also intercourse.

Consider also Henry Parkes’s comments at the 1891 convention: “an absolutely necessary condition of anything like perfect federation…is, that Australia…shall be free – free on the borders, free everywhere – in its trade and intercourse between its own people; that there shall be no impediment of any kind – that there shall be no barrier of any kind between one section of the Australian people and another”.

“No barrier of any kind”. Think about these words for a moment too.

Does any of this suggest that Australia was intended to be a nation that can be sliced and diced at the whim of a state premier?

Section 92 attempts to stop any taxation of goods and people moving between the states. However, if duties are prohibited, then arguably so too is the long-term blockage of movement along with other costs imposed since March 2020 – like hotel quarantine, a tax hindering interstate business. All these are captured within that section’s ban.

Australia came together on January 1, 1901 as a free trade zone and an alliance of states but in November 2020 the High Court effectively declared – by upholding WA’s border closure – that the state has partially seceded. Australian citizenship doesn’t quite mean what it used to.

Perhaps the Court thought that “reasonable restrictions” for public health can override the Federation. Yet for the Court to take a policy stance breaches the principles of statutory interpretation. The Constitution’s text must be at the forefront of interpretation, not policy concerns.

The High Court’s decision has opened a Pandora’s Box. If an exception to the plain words of section 92 can be created because of public health reasons, then a state can easily nullify the Federation on any other ground. We are now back to the days before 1901.

The border closures also breach section 117 by discriminating against residents of other states. That provision is obvious enough, as well, if we read it without the confusion evident in the case law: “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State”. But today Victoria aggressively discriminates at its borders between Australian citizens based on their place of residence.

If state premiers are unhappy with strict constitutionalism, they should ask the people through a referendum to make Australia a looser union. The High Court should not, however, abet these divisive premiers without a clause being introduced that allows for partial secession whenever a state government feels like it.

Ideally, if any state wishes to close its borders to others it must fully secede from the union first: that is the only legally valid and logically consistent way. Covering clause six implicitly foresees the possibility of a state withdrawing at any time. And our constitutional history shows that secession is plausible because South Australia seceded from the Federal Council of Australasia (the predecessor to the Commonwealth government).

In short, it’s unconstitutional for a state to obtain the benefits of our federal union while tossing out the Australian Federation and its Constitution.

Either get out or stay in. The premiers can’t have it both ways.


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I thank Craig Kelly for his kind words for me – and his superb work

With my head down in policy work and in Indian political work I had not heard about Craig Kelly (I barely knew the names of more than 15 Australian politicians over the past 20 years).

But after quitting some people shared info about his work. When I came to know that he had shared my ICC complaint I was grateful for that.

But today, after seeing the brutal treatment he has received from Scott Morrison, I thought about looking further e.g. whether he had commented on my work at any stage and found these posts – quite an amazing find. Craig has battled pseudo-science and bad policy. I hope he will take the next step to lead Australia out of this mess.

16 September 2020: Wrote a detailed post “saluting” me


17 September 2020: Nominated me for Australian of the Year



17 September 2020: Called me “Hero to the Nation”


14 November 2020: Shared my complaint to the ICC



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Gigi Foster’s Voices against lockdowns – (5) 26 January 2021

Continuing from here.

26 January 2021

Australia’s international borders are still closed, with standard air-mail services to most countries suspended; many of our domestic borders are still closed to a selection of would-be interstate travellers, and a suite of state- and territory-level regulations still mandate that people from certain regions of origin quarantine for significant periods on arrival; and in several states, the free movement, congregation, and otherwise legal behaviours of people and businesses are still restricted. Our governments have still not articulated an end-game strategy with a timeline for the removal of these restrictions. All of this continues to cause unprecedented disruption to Australia’s activities and the welfare and progress of its people – not to mention the disruption that our choices are causing for our trade and aid partners abroad. Meanwhile, abroad in Europe, the Americas, and many other countries, lockdowns of various forms continue at even tighter levels, bringing their own human tragedies.

I am heartened at some signs that people are starting to see the folly of the lockdown approach to managing Covid. The traditional satirical Australia Day advertisement put out by our lamb producers is a great example, poking fun at the very idea of domestic border closures, and featuring an elderly male (more vulnerable to Covid than most of us!) as the unwitting protagonist:

Below I have pasted links to more resources that I hope aid and hearten you in the fight for a removal of these unprecedented restrictions on our economic and social activities, and the pursuit of more sensible policies. I am continuing to write on this topic and will also continue to speak out in the media when the opportunity presents itself. I have also taken to wearing a Guy Fawkes costume mask while doing my weekly grocery shop, as a statement of passive resistance against the NSW blanket mask mandate in shops (for those who don’t know the reference: In the past month, about 75% of the people in my eastern Sydney suburb who have noticed the mask and made a comment about it have been supportive.

An extensively researched article by Ramesh Thakur and Deepak Nayyar on the recent political, economic and health trajectories in India and the rest of the world, including the consequences of lockdowns:

A few recent pieces from the academic literature: (finding experimental subjects to weigh the human costs of alternative action plans asymmetrically depending on whether or not the costs are directly related to Covid-19) (reviewing the media headlines in Australia, Sweden, Thailand, and the UK in 2020 and suggesting that insights from behavioural economics can help us understand the responses to Covid-19 by people and governments) (finding that more restrictive interventions do not cause reductions in Covid-19 cases)

Two pieces articulating with extensive references the position that lockdowns do not achieve their stated anti-Covid aims, published by the American Institute for Economic Research:

A video of European medical professionals arguing (amongst other things) against lockdowns:

A piece in the Toronto Sun featuring Canadian medical professional Ari Joffe, arguing against lockdowns:

A presentation by New Zealand medical professional Sam Bailey in relation to claims about excess mortality, arguing (amongst other things) that a significant fraction of reported excess deaths have been due to lockdowns themselves:

An interview with a German lawyer Reiner Fuellmich who plans to seek legal redress for the harms that the German government has created via the restrictions it has mandated during this period:

A speech by Canadian MP Pierre Poilievre arguing against lockdowns:

A blog by economist Paul Frijters about the comparative severity of lockdowns in different countries around the world:

An entertaining, data-heavy narrative thread arguing that non-pharmaceutical interventions (“NPIs” – of which restrictions on economic activity are one type) do not work to control Covid, crafted by someone adopting the pen name “the bad cat” (el gato malo), on a site called Buzz Chronicles:

A review of the incorrect, naïve, and/or misleading claims of people and groups supporting lockdowns, published by the Ron Paul Institute:

I have also attached to this email the transcript of my testimony to the UK Treasury late last year, together with that of David Miles and Tony Yates, with whom I shared the evidence session.

Finally, some groups overseas whose mission statements are consistent with our position: (see also accompanying PDF, attached)

If you would be interested in starting a group here in Australia that is affiliated with or modelled on one of these organisations, I would be happy to lend support as I am able. Another person on the Voices Against Lockdowns list, Arief Farid, has organised the following virtual space that may be useful for coordination:

Let me close by thanking all of you who have continued to pass me links and resources since my last missive. Much of what appears above has come from you. I plan to keep periodically disseminating to this group selected information that I find and receive about the folly of lockdowns and ways to fight against them for as long as the extreme restrictions on economic and social activities in Australia remain in place, as part of the public service and community outreach component of my occupation as an academic economist funded by the Australian taxpayer.

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