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

 

[antycbr]

SA/VIC border bubble has been increased from 40km to 70km but still not far enough.
Hopefully in the next week or so it’s lifted

Depends on what happens with the Kilmore outbreak.

 

[jase05]

From midnight Wednesday night you can transit through Mildura to SA as well which saves a stack of driving time going via Broken Hill. Not sure if it applies going back the other way though

 

[Carrots]

From midnight Wednesday night you can transit through Mildura to SA as well which saves a stack of driving time going via Broken Hill. Not sure if it applies going back the other way though

It more so saves the kidneys from the old Wentworth Road which is becoming a rough old goat track (even more than it was before).

 

[jakeseven7]

Tide has turned in the sea of public sentiment now... and with medical peers also criticising their decisions,, Dr Young (QLD) and the WA CHO are looking increasingly stranded.


----
Public support grows across the country to reopen all borders by Christmas, as virus threat recedes


More than two-thirds of Australians want state borders reopened by Christmas, with growing numbers of Queenslanders and West Australians chafing against the hardline stance of their premiers keeping their states shut.

67% of respondents want border closures removed by Christmas, up from 63 per cent as confidence in the public health response to coronavirus continues to climb. An even greater majority of respondents want a consistent and national health response to take over from state led response, as frustration and uncertainty about state by state rules and restrictions grow.

As the tourist industry seized on the research, the Northern Territory will reopen its borders to regional Victorian residents from November 2, with Chief Minister Michael Gunner citing the success of the state's efforts to "crush" its second wave.

The Northern Territory is the first jurisdiction to allow Victorians to visit after Premier Daniel Andrews reimposed savage lockdown measures in July, other than the bubbles along the NSW and South Australian borders for Victorian border towns. A similar and expanded announcement is expected within days from New South Wales and South Australia.

In other measures, economic recovery has firmed as the number one concern among Australians, with worries about the coronavirus falling to the lowest level since May, before the second wave. A growing majority of people believe the spread of the virus will get better in coming summer months.

Public support grows to reopen borders by Christmas

Two-thirds of Australians want state borders reopened by Christmas, with growing numbers of Queenslanders and West Australians chafing against the hardline stance of their premiers keeping their states shut.

www.afr.com

 

[Pushka]

Certainly the talk in SA today was to have all borders open by Dec 15th.

 

[jakeseven7]

I think it is time there was a serious intervention here now.

This is getting farcical. Only a week ago we were JOKING about more rubbish QLD could pull out of their.... and they are literally doing it! Maybe we should stop giving them ideas....

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QLD considers hardening border criteria for Sydney opening

Queensland Premier Annastacia Palaszczuk has floated additional criteria for NSW to fulfill before QLD considers opening their border to its southern neighbour.

NSW currently needs 28 consecutive days of no cases of community transmission before Queensland’s Premier Annastacia Palaszczuk will consider reopening the border to NSW. However, the Premier has said testing rates and sewage analysis would be taken into consideration.

NSW has a target of 8000 people being tested per day. In the 24 hours to 8pm on Monday, only 5385 people were tested. In the 24 hours prior to that, only 4789 people were tested.

Fragments of the virus were found during routine analysis of the wastewater, and it may suggest there are undetected cases of coronavirus in the community. The COVID-19 fragments were found at wastewater treatment plants at North Richmond and in West Camden.

Dr Richard Broome, acting executive director from Health Protection NSW said said recovered cases can continue to “shed” the virus for up to four weeks.

NSW Premier Gladys Berejiklian has been contacted for comment.

Virus fears at Sydney restaurant

NSW Health have sounded the alarm over an Italian restaurant on Sydney's Lower North Shore.

www.news.com.au

 

[antycbr]

I think it is time there was a serious intervention here now.

This is getting farcical. Only a week ago we were JOKING about more rubbish QLD could pull out of their.... and they are literally doing it! Maybe we should stop giving them ideas....

-------
QLD considers hardening border criteria for Sydney opening

Queensland Premier Annastacia Palaszczuk has floated additional criteria for NSW to fulfill before QLD considers opening their border to its southern neighbour.

NSW currently needs 28 consecutive days of no cases of community transmission before Queensland’s Premier Annastacia Palaszczuk will consider reopening the border to NSW. However, the Premier has said testing rates and sewage analysis would be taken into consideration.

NSW has a target of 8000 people being tested per day. In the 24 hours to 8pm on Monday, only 5385 people were tested. In the 24 hours prior to that, only 4789 people were tested.

Fragments of the virus were found during routine analysis of the wastewater, and it may suggest there are undetected cases of coronavirus in the community. The COVID-19 fragments were found at wastewater treatment plants at North Richmond and in West Camden.

Dr Richard Broome, acting executive director from Health Protection NSW said said recovered cases can continue to “shed” the virus for up to four weeks.

NSW Premier Gladys Berejiklian has been contacted for comment.

Virus fears at Sydney restaurant

NSW Health have sounded the alarm over an Italian restaurant on Sydney's Lower North Shore.

www.news.com.au

This is where we need to stop Queenslanders from wandering around the Northern Rivers at will. It’s either open in BOTH directions or closed in BOTH directions. And for Queensland to complain about testing rates is very rich indeed, they have exactly the same problem and also have virus fragments in their sewage.

meanwhile booking of hotels elsewhere in NSW, SA and NT continues. The charms of the GC and Cairns continue to fade with the population of NSW.

 

[N860CR]

This is where we need to stop Queenslanders from wandering around the Northern Rivers at will. It’s either open in BOTH directions or closed in BOTH directions. And for Queensland to complain about testing rates is very rich indeed, they have exactly the same problem and also have virus fragments in their sewage.

I was going to mention that. I think it was found at Airlie beach? So an area with no real evidence of exposure. That’s a much greater concern than evidence being found in known areas of exposure in Sydney

 

[Bundy Bear]

I can't see Qld border opening to NSW before 1 November.
I wonder if Mark McGowan will be watching the Qld state election because if AP loses it will go some way to suggesting that their should be less border restrictions.

Currently following the G2G pass WA Facebook page, and seems like WA aren't saying much on how the government of WA are issuing the pass.

I think Clive Palmers hearing was early November so likely there will be some changes in November for WA.

 

[HappyFlyerFamily]

I can't see Qld border opening to NSW before 1 November.
I wonder if Mark McGowan will be watching the Qld state election because if AP loses it will go some way to suggesting that their should be less border restrictions.

Currently following the G2G pass WA Facebook page, and seems like WA aren't saying much on how the government of WA are issuing the pass.

I think Clive Palmers hearing was early November so likely there will be some changes in November for WA.

I’d be surprised if the High Court case is open-shut.

Unless in the unlikely event the justices have already pre-determined it (or more accurately, have an initial view that has not been swayed by oral arguments) based on prior research.

So perhaps a little while longer.

 

[jakeseven7]

Don’t know if anyone watched and read the budget papers. Relevance to this thread - the Feds are budgeting on WA only opening domestic borders in April (a few weeks after their state election - surprise!!). I wonder if they therefore think the High Court case is a dud...?

All other states and territories budgeted to be bilaterally open to each other by December.

This means there will be immense scrutiny on state CHOs to clearly demonstrate the rationale behind their border decisions rather than giving a press conference and running and hiding from questions. There will also be a huge push towards working nationally to tackle outbreaks (forgetting WA) moving forward.

And public sentiment is now strongly with them so I expect over the next few months we will see some big moves in our approach to working as one again.

 

[oz_mark]

Don’t know if anyone watched and read the budget papers. Relevance to this thread - the Feds are budgeting on WA only opening domestic borders in April (a few weeks after their state election - surprise!!). I wonder if they therefore think the High Court case is a dud...?

All other states and territories budgeted to be bilaterally open to each other by December.

Budgets are based on a whole set of assumptions. You have to make the assumptions about border reopenings as best you can. The court case could go either way.

 

[jakeseven7]

I can't see Qld border opening to NSW before 1 November.
I wonder if Mark McGowan will be watching the Qld state election because if AP loses it will go some way to suggesting that their should be less border restrictions.

Because of slap dash way the QLD government set up their emergency response Dr Young is pulling all the strings right now.

There is a good chance AP now is going to lose seats and possibly end up in minority government. But to avoid political arguments due to forum rules, regardless of whoever ends up in power (AP has actually declined to confirm she will stay on as leader in a minority situation), they still have to deal with Dr Young.

Dr Young is becoming a massive outlier in the national response, more so it seems every day. She was recently joined on the fringes by the WA CHO after his convenient backflip on his thoughts on state borders... but I’m sure he will be back flipping back at a time that is convenient though for the WA government... Dr Young - no one can predict her next move.

 

[antycbr]

Don’t know if anyone watched and read the budget papers. Relevance to this thread - the Feds are budgeting on WA only opening domestic borders in April (a few weeks after their state election - surprise!!). I wonder if they therefore think the High Court case is a dud...?

All other states and territories budgeted to be bilaterally open to each other by December.

This means there will be immense scrutiny on state CHOs to clearly demonstrate the rationale behind their border decisions rather than giving a press conference and running and hiding from questions. There will also be a huge push towards working nationally to tackle outbreaks (forgetting WA) moving forward.

And public sentiment is now strongly with them so I expect over the next few months we will see some big moves in our approach to working as one again.

The assumption about WA opening on 1 April will annoy a huge number of Western Australians who have family over east, or simply wish to leave their prison as it will be close to a year by then.

It’s a clever tactic to heap pressure back on the WA government - sentiment online is changing, particularly as we move closer to Christmas. While not representative the comments on Facebook articles posted by “the west” were probably 75% saying too long and when is enough enough.

 

[oz_mark]

The assumption about WA opening on 1 April will annoy a huge number of Western Australians who have family over east, or simply wish to leave their prison as it will be close to a year by then.

It’s a clever tactic to heap pressure back on the WA government - sentiment online is changing, particularly as we move closer to Christmas. While not representative the comments on Facebook articles posted by “the west” were probably 75% saying too long and when is enough enough.

The sentiment is definitely changing. I think by Christmas it will be very different to now.

 

[jakeseven7]

And the media have now picked up on the budget predictions for WA.... (All other states to be open by Dec).

Interesting the Premier is starting to read the mood and has backed away from the date...

(Here is the article @Lynda2475)

——

Budget reveals controversial WA border will remain closed until April, prompting furious reactions from locals


Western Australia's controversial hard border closure will remain in place for six more months, The West Australian has claimed.

According to the publication, figures within Treasurer Josh Frydenberg’s newly-announced federal budget show an assumption that WA’s borders will be closed until April 1 – a week after the result of the state’s March 13 election.

‘This assumes Premier Mark McGowan would keep the hard border up until after the State election to capitalise on its popularity with voters,’ reporter Lanai Scarr writes, which prompted immediate and furious reaction from Western Australians that they were being ‘left out’, ‘held hostage’ and that the harder border is simply a ‘political ploy to get the state government re-elected’.

Earlier this week, WA’s tourism minister Paul Papalia raised eyebrows when he claimed the state was ‘already full of local tourists’ and that it ‘could not fit any more from other states’. This was immediately refuted by both the WA Tourism Council and the WA Chamber of Commerce who said the comments were ‘grossly inaccurate and untrue’.

However, Premier Mark McGowan has moved to try and calm the state, claiming a reopening date ‘has not yet been decided’ instead claiming the WA government ‘will continue to monitor the situation.’

Virus fears at Sydney restaurant

NSW Health have sounded the alarm over an Italian restaurant on Sydney's Lower North Shore.

www.news.com.au

 

[jakeseven7]

Next national cabinet will be interesting...

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Queensland, WA criticised for making their states 'sitting ducks' and should lift borders rather than easing restrictions: Berejiklian


NSW Premier Gladys Berejiklian has criticised states with hard border closures for easing their coronavirus restrictions while keeping their border shut.

"I've noticed that Queensland and WA continue to ease restrictions in their communities, although they keep the border up," she told reporters.

"Now that is a huge false sense of security: you're better off getting those borders down, creating jobs through tourism and business and generating economic activity and keeping jobs."

The Premier said she was still hoping all states and territories would have open borders by the end of the year.

"I would hope that the federal government's intention to have all those borders coming down by Christmas is actually acted upon," she said.

As it happened: Victoria records six COVID-19 cases as Trump compares virus to seasonal flu; 2020 Australian federal budget revealed as Australian death toll rises to 897

In good news for Victorians, the state has recorded just six new cases of coronavirus. But three new Sydney cases under 'urgent investigation' have put plans to reopen the NSW border at Queensland at risk. Follow our live coverage here.

www.smh.com.au

 

[HappyFlyerFamily]

Next national cabinet will be interesting... along the lines of @Lynda2475's posts

----
Queensland, WA criticised for making their states 'sitting ducks' and should lift borders rather than easing restrictions: Berejiklian


NSW Premier Gladys Berejiklian has criticised states with hard border closures for easing their coronavirus restrictions while keeping their border shut.

"I've noticed that Queensland and WA continue to ease restrictions in their communities, although they keep the border up," she told reporters.

"Now that is a huge false sense of security: you're better off getting those borders down, creating jobs through tourism and business and generating economic activity and keeping jobs."

The Premier said she was still hoping all states and territories would have open borders by the end of the year.

"I would hope that the federal government's intention to have all those borders coming down by Christmas is actually acted upon," she said.

As it happened: Victoria records six COVID-19 cases as Trump compares virus to seasonal flu; 2020 Australian federal budget revealed as Australian death toll rises to 897

In good news for Victorians, the state has recorded just six new cases of coronavirus. But three new Sydney cases under 'urgent investigation' have put plans to reopen the NSW border at Queensland at risk. Follow our live coverage here.

www.smh.com.au

Honestly, just hope if NSW have say 1 to 3 mystery cases today/tomorrow/next 48 hours that SA won’t put up the hard border again.

 

[jakeseven7]

Some good lines

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Queensland is "beautiful one day, subsidised by NSW the next" as criticism over border closure criteria heats up


Mr Perrottet said, while the $6.2 bilion cut to NSW’s GST revenue was more or less expected, it was frustrating to watch states like Queensland and Western Australia continue to enforce economy-stifling border restrictions on others.

"The greater frustration from our end is in respect of states like WA having their border closed in circumstances where they’ve had a bailout from the federal government when it comes to GST revenues as late as a year or so ago," Mr Perrottet said.

"Now they’ve got their border closed, which actually impacts economic activity for all of us"

Mr Perrottet said Queensland was "beautiful one day, subsidised by NSW the next".

On a day when NSW revealed three new cases of community transmitted coronavirus, Mr Perrottet said Queensand’s four-week rule was unattainable.

"It’s ridiculous for the Queensland Premier to be putting out statements that we need 28 clear days without community transmission. That is clearly going to be a very rare feat if that is ever going to occur," he said.

Premier Gladys Berejiklian also questioned the strategy of Queensland and WA to ease restrictions within their states while maintaining hard borders, which she said created a false sense of security.

NSW Treasurer: It's your duty to spend your tax cuts now

NSW Treasurer Dominic Perrottet has called on consumers to splash their fresh tax savings to boost the economy and foreshadowed further stimulus measures in next month’s state budget.

www.smh.com.au

 

[Pushka]

Honestly, just hope if NSW have say 1 to 3 mystery cases today/tomorrow/next 48 hours that SA won’t put up the hard border again.

If they did that then they must be consistent and reduce numbers at sporting venues but we know that won't happen.