State border closures illegal under the highest law in the country?

[bigbadbyrnes]

Everything is arguable in law, doubly so in constitutional law. This is a matter for the high court.

But here's my opening argument;

Section 92 of the highest law in the country sets out "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. "

Per Cole vs Whitfield 1988 "The notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct". Sec92 clearly sets out the law for interstate trade, but also 'intercourse'.

And on the matter of what intercourse means, per Gratwick v Johnson 1945 it's the ability "to pass to and fro among the States without burden, hindrance or restriction".

Border closures, (and arguably although less certainly isolation requirements), are therefore inconsistent with the highest law in the country and should be set aside.

No one is talking about it, any legal eagles here explain? There's no room on the news for this at the moment, but if people start to fed up with the restrictions, it's worth getting them tested in the high court.

edit:

I think this analysis will answer all your questions: States are shutting their borders to stop coronavirus. Is that actually allowed?

Short version: if there are good public health grounds (for example states of emergency), those laws are likely to be held valid.

Could be worth testing if an individual could be proven to be not a thread to public health, but that would be the exception. Thanks MEL_Traveller for sharing the article.

/thread

 

[MEL_Traveller]

I would be very surprised if ADF resources were withdrawn. The PM made a huge deal about how they had been offered to Victoria to help with hotel quarantine.

Withdrawing ADF gives states more reasons to keep borders closed.

 

[TheRealTMA]

The first point is your opinion and you're welcome to it.

On the second point - watch the backgrounding by the cabinet and senior backbenchers ramp up this week to create immense pressure on the premiers.

I also expect the PM to withdraw ADF support from states where border closures are not agreed to by the Federal Government and BOTH sides of the relevant border (as is the case in VIC/NSW and VIC/SA).

Scotty could never get away with withdrawing ADF support in such a manner. The Libs attacks on Queensland over the extremely sad debacle of the pregnant woman from NNSW is disgusting enough, especially since it was NSW health who gave the woman wrong information. To party politic over the ADF is just not on.

Post automatically merged: Aug 30, 2020

I would be very surprised if ADF resources were withdrawn. The PM made a huge deal about how they had been offered to Victoria to help with hotel quarantine.

Withdrawing ADF gives states more reasons to keep borders closed.

The actual details of the “offer” of ADF to Victoria is an excellent study in using vague words, such as “were available” when no actual “offer” was made. Very interesting politics.

 

[antycbr]

Scotty could never get away with withdrawing ADF support in such a manner. The Libs attacks on Queensland over the extremely sad debacle of the pregnant woman from NNSW is disgusting enough, especially since it was NSW health who gave the woman wrong information. To party politic over the ADF is just not on.

Source: The Australian
NSW doctors treating a pregnant woman whose twin babies needed urgent surgery claim senior clinicians at Queensland’s Mater Hospital told them that “given the political situation” of border closures the mother should be transported 750km south to Sydney rather than be operated on in Brisbane.

“We at this point here are totally bamboozled by the answers we’re getting from both the governments and also the hospitals,” Dr Ingall said. “Because we need to get a double tick. We need to get a tick on both the bureaucratic and political masters and also the health administrators that cases are an emergency. So we’ve got no way of telling what is going to happen.”

ADF shouldnt be manning the borders - logistics and contract tracing support and HQ support, sure. It's redirecting ADF assistance to where it is most useful and in line with the agreed strategy back in March, from which the States have deviated without federal agreement.

 

[HappyFlyerFamily]

I also expect the PM to withdraw ADF support from states where border closures are not agreed to by the Federal Government and BOTH sides of the relevant border (as is the case in VIC/NSW and VIC/SA).

I don’t mind the thinking so that the Federal Government gets some leverage, but who does Tasmania have a border with? Also ‘borders’ as just not land borders. It was just Vic basically asking to self-isolate so that would be the sole factor (ie when does a State need to self-isolate?)

i Haven’t followed closely when and how many ADF in each state and what roles they perform.

 

[antycbr]

I don’t mind the thinking so that the Federal Government gets some leverage, but who does Tasmania have a border with? Also ‘borders’ as just not land borders. It was just Vic basically asking to self-isolate so that would be the sole factor (ie when does a State need to self-isolate?)

i Haven’t followed closely when and how many ADF in each state and what roles they perform.

Which is why we need a consistent, NATIONAL definition of a hotspot. Scomo has threatened to impose this on the states just last Friday - and has the power under the Quarantine provision of the constitution. The state premiers got a bit of a shock when the Feds told them the night before that they are legislating using the external affairs power - someone has had a read of S.51 as well as S.92 of the consitution.

Most of the ADF assistance to Tasmania was during the north-west outbreak where Army and AUSMAT medical teams were airlifted in by the RAAF in April - and they set up a field hospital to replace the main hospital in Burnie.

 

[Pushka]

But we are not expected to have these restrictions forever. We need to exhibit patience and if necessary put aside our personal good for the benefit of the community generally.

There's the thing. You have a WA Premier not allowing their state to open up until April next year.

I think comments of personal good dont rub that well when as a company we have contributed hundreds of thousands of company tax back into the Australian economy plus employed multiple people over the time who also paid salary taxes. This isnt personal, this is how the Country finances its social service contributions. So if there are multiple companies like us, and we know there are thousands, that will most certainly not benefit the community generally, quite the opposite.

 

[Pushka]

I would be very surprised if ADF resources were withdrawn. The PM made a huge deal about how they had been offered to Victoria to help with hotel quarantine.

Withdrawing ADF gives states more reasons to keep borders closed.

On this I agree. My nephew is in the ADF (Air Force) and he has just now been called into Pandemic service somewhere - he doesnt know where, from September 17th for 3 months. He will likely be in quarantine for Christmas.

 

[antycbr]

On this I agree. My nephew is in the ADF (Air Force) and he has just now been called into Pandemic service somewhere - he doesnt know where, from September 17th for 3 months. He will likely be in quarantine for Christmas.

Not withdrawn totally - but not enforcing state border closures.

 

[Pushka]

Scotty could never get away with withdrawing ADF support in such a manner. The Libs attacks on Queensland over the extremely sad debacle of the pregnant woman from NNSW is disgusting enough, especially since it was NSW health who gave the woman wrong information. To party politic over the ADF is just not on.

Post automatically merged: Aug 30, 2020

The actual details of the “offer” of ADF to Victoria is an excellent study in using vague words, such as “were available” when no actual “offer” was made. Very interesting politics.

He isnt withdrawing them. Quite the opposite. As per above.

Post automatically merged: Aug 30, 2020

Not withdrawn totally - but not enforcing state border closures.

His mum and dad hope he is going into a tracing function. He is quite strategic.

 

[pangwen]

Source: The Australian
NSW doctors treating a pregnant woman whose twin babies needed urgent surgery claim senior clinicians at Queensland’s Mater Hospital told them that “given the political situation” of border closures the mother should be transported 750km south to Sydney rather than be operated on in Brisbane.

“We at this point here are totally bamboozled by the answers we’re getting from both the governments and also the hospitals,” Dr Ingall said. “Because we need to get a double tick. We need to get a tick on both the bureaucratic and political masters and also the health administrators that cases are an emergency. So we’ve got no way of telling what is going to happen.”

ADF shouldnt be manning the borders - logistics and contract tracing support and HQ support, sure. It's redirecting ADF assistance to where it is most useful and in line with the agreed strategy back in March, from which the States have deviated without federal agreement.

If it was the Mater telling them, then the Qld govt can still legitimately say they weren't involved, and no requests came to QLD Health. Although the Mater has a public-funded hospital in South Brisbane, as far as I know it is not run by QLD Health - the Mater Public Health Services Act allows funding for Mater to provide public health services as a legacy of the previous health work done by the Sisters of Mercy. It's a unique case in Queensland - all other public hospitals are government owned and run. It effectively means that while Mater provides public health services, its staff are employed by Mater and not the government, so the incorrect advice didn't come from QLD Health.

Basically, if the NSW doctors were asking the Mater about what to do, they were asking the wrong people.

 

[TheRealTMA]

Source: The Australian
NSW doctors treating a pregnant woman whose twin babies needed urgent surgery claim senior clinicians at Queensland’s Mater Hospital told them that “given the political situation” of border closures the mother should be transported 750km south to Sydney rather than be operated on in Brisbane.

“We at this point here are totally bamboozled by the answers we’re getting from both the governments and also the hospitals,” Dr Ingall said. “Because we need to get a double tick. We need to get a tick on both the bureaucratic and political masters and also the health administrators that cases are an emergency. So we’ve got no way of telling what is going to happen.”

ADF shouldnt be manning the borders - logistics and contract tracing support and HQ support, sure. It's redirecting ADF assistance to where it is most useful and in line with the agreed strategy back in March, from which the States have deviated without federal agreement.

Different reports. One would not expect The Australian to be accurate in such matters. Health emergencies are not denied entry over NSW QLD border.

Queensland authorities reject claims pregnant woman was denied care

A woman from Northern NSW wanted to give birth to twins in Queensland but was told she would have to undergo 14-day hotel quarantine.

7news.com.au

 

[antycbr]

Different reports. One would not expect The Australian to be accurate in such matters. Health emergencies are not denied entry over NSW QLD border.

Queensland authorities reject claims pregnant woman was denied care

A woman from Northern NSW wanted to give birth to twins in Queensland but was told she would have to undergo 14-day hotel quarantine.

7news.com.au

Both are from the same article, which I linked.

One would not expect 7 News to be accurate in such matters - it is easy to dismiss news you do not like.

The issue comes about through the definition of "emergency" vs "urgent" - none of which should have to be argued by medical staff.

Post automatically merged: Aug 30, 2020

If it was the Mater telling them, then the Qld govt can still legitimately say they weren't involved, and no requests came to QLD Health. Although the Mater has a public-funded hospital in South Brisbane, as far as I know it is not run by QLD Health - the Mater Public Health Services Act allows funding for Mater to provide public health services as a legacy of the previous health work done by the Sisters of Mercy. It's a unique case in Queensland - all other public hospitals are government owned and run. It effectively means that while Mater provides public health services, its staff are employed by Mater and not the government, so the incorrect advice didn't come from QLD Health.

Basically, if the NSW doctors were asking the Mater about what to do, they were asking the wrong people.

Then it's straightforward - the Mater should have referred them to Queensland Health for an answer, and they could have joined the backlog of requests for "urgent" matters on the desk of the Queensland CMO.

 

[pangwen]

Both are from the same article, which I linked.

One would not expect 7 News to be accurate in such matters - it is easy to dismiss news you do not like.

The issue comes about through the definition of "emergency" vs "urgent" - none of which should have to be argued by medical staff.

Post automatically merged: Aug 30, 2020

Then it's straightforward - the Mater should have referred them to Queensland Health for an answer, and they could have joined the backlog of requests for "urgent" matters on the desk of the Queensland CMO.

Well yes, but the Mater doctors didn't - in any case, the Qld govt didn't have anything to do with this case.

 

[straitman]

ADF shouldnt be manning the borders - logistics and contract tracing support and HQ support, sure. It's redirecting ADF assistance to where it is most useful and in line with the agreed strategy back in March, from which the States have deviated without federal agreement.

Why?

They have the manpower and expertise to do both.

 

[antycbr]

Well yes, but the Mater doctors didn't - in any case, the Qld govt didn't have anything to do with this case.

Other than making the situation so complex to navigate that these issues arise in the first place.

I guess we will see what happens next Friday, but AP will be hoping that there is no similar instance between now and the end of October because it's not becoming of her or her Deputy Premier to speak of other Australians in this way and the border closures may become a liability politically.

 

[Pushka]

Why?

They have the manpower and expertise to do both.

Because the borders should start to re-open soon.

 

[antycbr]

Why?

They have the manpower and expertise to do both.

However it's in direct contridiction to the agreed C19 management framework of the Commonwealth Government - state border closures were never part of that framework. Its unusual (but not unprecedented!) to have different parts of the Government delivering policies that contradict each other...

 

[straitman]

However it's in direct contridiction to the agreed C19 management framework of the Commonwealth Government - state border closures were never part of that framework. Its unusual (but not unprecedented!) to have different parts of the Government delivering policies that contradict each other...

Shakes head and wanders off in disgust!

 

[TheRealTMA]

Both are from the same article, which I linked.

One would not expect 7 News to be accurate in such matters - it is easy to dismiss news you do not like.

The issue comes about through the definition of "emergency" vs "urgent" - none of which should have to be argued by medical staff.

Post automatically merged: Aug 30, 2020

Then it's straightforward - the Mater should have referred them to Queensland Health for an answer, and they could have joined the backlog of requests for "urgent" matters on the desk of the Queensland CMO.

The salient point is it was not a QLD government decision to prevent the patient’s entry to Brisbane.

 

[straitman]

The salient point is it was not a QLD government decision to prevent the patient’s entry to Brisbane.

A certain QLD Premier certainly gave that as an impression that someone has incorrectly run with.
The important thing is that it’s all been fixed and can never happen again. (Sorry I am hallucinating again)
People need to learn to say what they mean and to mean what they say.