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

 

[jakeseven7]

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

South Australia rules out border restrictions with NSW

South Australia's Premier has ruled out imposing border restrictions on New South Wales despite concerns that there may be fresh cases of community transmission in the eastern state.

Five new cases of coronavirus were detected in New South Wales today in addition to three cases yesterday.

SA Premier Steven Marshall says state health authorities will keep a close eye on what unfolds in New South Wales.

"We haven't received any information at this stage that would make us change our border restriction arrangements with New South Wales" he said.

Albanese says Federal Budget 'reduces women to a footnote'

Opposition Leader Anthony Albanese says the Coalition Government's budget has "no plan for child care, aged care or social housing", singling out women and over-35s as those who have been "left behind".

www.abc.net.au

 

[antycbr]

South Australia rules out border restrictions with NSW

South Australia's Premier has ruled out imposing border restrictions on New South Wales despite concerns that there may be fresh cases of community transmission in the eastern state.

Five new cases of coronavirus were detected in New South Wales today in addition to three cases yesterday.

SA Premier Steven Marshall says state health authorities will keep a close eye on what unfolds in New South Wales.

"We haven't received any information at this stage that would make us change our border restriction arrangements with New South Wales" he said.

Albanese says Federal Budget 'reduces women to a footnote'

Opposition Leader Anthony Albanese says the Coalition Government's budget has "no plan for child care, aged care or social housing", singling out women and over-35s as those who have been "left behind".

www.abc.net.au

Unless things really get out of hand in NSW he will be very reluctant to do so as there will be a large number of tourist and VFR bookings over October/November that would be jeopardised. Demand for SYD-ADL is way up.

 

[jakeseven7]

Prime Minister ‘disappointed’ with WA hard border for alleged economic protectionism


The Prime Minister says he is disappointed that Western Australia is allegedly using its border closure for economic protectionism, as the state recorded two new cases of COVID-19.

WA Premier Mark McGowan last week claimed a travel bubble with other states would only result in the west losing tourism money.

It has prompted Mr Morrison to express concern that the leader is using his state’s border restrictions for economic protectionism - an allegation Finance Minister Mathias Cormann has also made.

“These arrangements should be in place for health reasons only, and the health reasons have to be clearly stated, and they have to be reasonable, and it’s up to the premiers to justify those things,” Mr Morrison told 2GB radio on Thursday.

“I was disappointed to hear him say the border seems to be there as some form of economic protectionism.

“Locking people in the state so they won’t spend money in other parts of the country, well that’s not the Australian way.”

The Premier has said the new health advice was that the hard border should only be removed when there was no community transmission for 28 days across the country, in all states. No health experts are in support of this measure with most describing it as 'far too conservative'.

Victoria and NSW are unlikely to ever achieve that target, even when a vaccine becomes available leading to WA citizens to demand a rethink of the states border policy.

PM ‘disappointed’ with WA border for alleged economic protectionism

The Prime Minister says he is disappointed that Western Australia is allegedly using its border closure for economic protectionism, as the state recorded two new cases of COVID-19.

www.news.com.au

 

[antycbr]

Prime Minister ‘disappointed’ with WA hard border for alleged economic protectionism


The Prime Minister says he is disappointed that Western Australia is allegedly using its border closure for economic protectionism, as the state recorded two new cases of COVID-19.

WA Premier Mark McGowan last week claimed a travel bubble with other states would only result in the west losing tourism money.

It has prompted Mr Morrison to express concern that the leader is using his state’s border restrictions for economic protectionism - an allegation Finance Minister Mathias Cormann has also made.

“These arrangements should be in place for health reasons only, and the health reasons have to be clearly stated, and they have to be reasonable, and it’s up to the premiers to justify those things,” Mr Morrison told 2GB radio on Thursday.

“I was disappointed to hear him say the border seems to be there as some form of economic protectionism.

“Locking people in the state so they won’t spend money in other parts of the country, well that’s not the Australian way.”

The Premier has said the new health advice was that the hard border should only be removed when there was no community transmission for 28 days across the country, in all states. No health experts are in support of this measure with most describing it as 'far too conservative'.

Victoria and NSW are unlikely to ever achieve that target, even when a vaccine becomes available leading to WA citizens to demand a rethink of the states border policy.

PM ‘disappointed’ with WA border for alleged economic protectionism

The Prime Minister says he is disappointed that Western Australia is allegedly using its border closure for economic protectionism, as the state recorded two new cases of COVID-19.

www.news.com.au

Put up or shut up Scomo. As the Prime Minister you’re about as effective as Gorbachev after the 1991 Coup in Russia for keeping the country together.

The High Court could have made a decision on this months ago.

One thing for sure after this is we need a states powers referendum or a high court decision as what has happened with the borders cannot be allowed to happen again, with state premiers refusing to talk to each other. In 21st century Australia that is disgusting.

 

[MEL_Traveller]

One thing for sure after this is we need a states powers referendum or a high court decision as what has happened with the borders cannot be allowed to happen again, with state premiers refusing to talk to each other. In 21st century Australia that is disgusting.

I don't think a referendum to limit state powers would pass. Referenda have a very small chance of succeeding, even for a worthy cause. Few people are going to want to give up their state's power to 'someone in Canberra' While many are hoping the HC will place limits on states being able to close borders, it's unlikely they will ban it completely. So the next wave, or next major health emergency, states will be allowed to close their borders again. I suspect we will always have a period of three to six months where borders will be able to be closed.

 

[oz_mark]

Put up or shut up Scomo. As the Prime Minister you’re about as effective as Gorbachev after the 1991 Coup in Russia for keeping the country together.

The High Court could have made a decision on this months ago.

One thing for sure after this is we need a states powers referendum or a high court decision as what has happened with the borders cannot be allowed to happen again, with state premiers refusing to talk to each other. In 21st century Australia that is disgusting.

The federal government only has limited powers over the states in a lot of areas (and in many cases, it's only because the federal government has the cheque book). Remember, we are a federation of states. A referendum to give up more state powers would be a difficult thing to get through,

They have any less control over when the high court makes its decisions (separation of powers and all that)

Post automatically merged: Oct 8, 2020

I don't think a referendum to limit state powers would pass. Referenda have a very small chance of succeeding, even for a worthy cause. Few people are going to want to give up their state's power to 'someone in Canberra' While many are hoping the HC will place limits on states being able to close borders, it's unlikely they will ban it completely. So the next wave, or next major health emergency, states will be allowed to close their borders again. I suspect we will always have a period of three to six months where borders will be able to be closed.

I'm hoping that the HC says it was ok, but it's not meant as a long term plan, and the states should plan to open them as soon as possible.

 

[antycbr]

I don't think a referendum to limit state powers would pass. Referenda have a very small chance of succeeding, even for a worthy cause. Few people are going to want to give up their state's power to 'someone in Canberra' While many are hoping the HC will place limits on states being able to close borders, it's unlikely they will ban it completely. So the next wave, or next major health emergency, states will be allowed to close their borders again. I suspect we will always have a period of three to six months where borders will be able to be closed.

We need to find out what the Quarantine power in S.51 means in the Constitution... and why the Federal Government have basically abrogated their responsibility in this area. We can answer that at the same time as we consider Section 92 regarding freedom of intercourse between the states.

 

[MEL_Traveller]

We need to find out what the Quarantine power in S.51 means in the Constitution... and why the Federal Government have basically abrogated their responsibility in this area.

Here is one opinion on the quarantine power, and the origins of Federal law during covid: An Executive Grab for Power During COVID-19? – AUSPUBLAW

it could be argued that rather than abrogating their responsibility, they have perhaps exceeded it.

 

[DC3]

Would the High Court see this as a matter of priority? Seem to be taking their time (early November).

 

[Pushka]

Would the High Court see this as a matter of priority? Seem to be taking their time (early November).

That likely is a priority time period for them!

 

[jakeseven7]

Hard to understand by any measure why WA remains closed to SA, TAS, QLD, NT, ACT...

——

McGowan's hard border excuses not washing with WA's ‘forgotten FIFOs’


South Australian employed but Perth-based FIFO workers are still seething over the state’s hard border policy they claim is continuing to keep families apart unnecessarily.

Perth men Lee Greaves and David Edwards work on the same South Australian mine and both said their past six months had been harrowing for their mental health, describing themselves and those in similar situations as the ‘forgotten FIFOs’.

“The impact it has had is, for me, surprisingly deep. I've always been able to handle isolation, I've been doing FIFO for over 15 years now and it has never been an issue. But since I've been told I can't go home at all I have been pretty dark,” he said.


Mr Edwards has been back three times but has completed nearly three months of self-isolation over the pandemic, leaving him angry and depressed at the thought of doing any more.

“I feel like I've lost all control of my life, I am not able to plan anything for this year. Mentally I'm barely coping,” he said.

“Some days I just have to block out that WA is a place I call home.

Both Mr Greaves and Mr Edwards saw red when WA Premier Mark McGowan last week said WA would lose jobs if the border was opened and other states only wanted it open because of the 'higher-income' West Australians that would spend their money there.

McGowan's hard border arguments not washing with WA's ‘forgotten FIFOs’

"The impact it has had is, for me, surprisingly deep. I've always been able to handle isolation, I've been doing FIFO for over 15 years now and it has never been an issue. But since I've been told I can't go home at all I have been pretty dark."

www.smh.com.au

 

[HappyFlyerFamily]

We need to find out what the Quarantine power in S.51 means in the Constitution... and why the Federal Government have basically abrogated their responsibility in this area. We can answer that at the same time as we consider Section 92 regarding freedom of intercourse between the states.

It’s rare for the High Court to bring up anything other than what’s in dispute. I believe s51 has not been mentioned.

 

[antycbr]

It’s rare for the High Court to bring up anything other than what’s in dispute. I believe s51 has not been mentioned.

There should be an extensive Royal Commission into our pandemic response so that we can not make the same mistakes when this inevitably happens again.

 

[jakeseven7]

Clearly not listening to your proposed strategy of ignoring QLD @antycbr!

Interesting slight change though they are starting to target the source of the advice now given whoever governs QLD apparently is beholden to Dr Young.

Also interesting that Gladys doesn’t appear to know that Dr Young doesn’t actually accept genome testing as a contract tracing method anyway!

Deadline for linking the 3 mystery cases today or QLD will reset the border clock.

——
Qld borders: Berejiklian slams Qld’s ‘new excuses’ to shut out NSW after new coronavirus cases

Ms Berejiklian rubbished the fast approaching 48 hour deadline, accusing Queensland of making up rules as it went along.

“I’m not going to waste my time trying to change is what clearly is a predetermined position. Because they keep changing the rules on us,” she told Channel 9’s Today.

“The Queensland government keeps changing the goalposts. I’ve never heard of this rule where you have to have two days to make sure you link your cases to an existing case.

“I mean, that’s just something they plucked out of, I don’t know where. I’ve never heard that advice before, who is this advice?”

Ms Berejiklian said Queensland was being “unrealistic” as it took time for genome testing to establish the source of infections and links to known clusters.

“It might take a couple of days for that to occur, if and when that occurs,” she said.

“I just think the Queensland Government is really just thinking up every excuse it can as it goes along and I don’t think that’s acceptable.”

The premier said it was “highly improbable” a state the size of NSW would meet Queensland’s latest set of.

“For a jurisdiction the size of NSW, with the open economy we have, with the ability we’ve given to our citizens to do, in the main, what they would normally do in a COVID-safe way — I think it’s a benchmark no state our size would ever be able to meet,”

‘Not going to waste my time’: Gladys’ fury

NSW Premier Gladys Berejiklian has accused Queensland of “thinking up every excuse” to keep its borders shut as three new cases threaten to derail a proposed reopening.

www.news.com.au

 

[DC3]

There should be an extensive Royal Commission into our pandemic response so that we can not make the same mistakes when this inevitably happens again.

Have the Feds said anything about that?

 

[HappyFlyerFamily]

Have the Feds said anything about that?

Not that I’m aware.

The closest was the Opposition mentioning quarantine is a Federal responsibility under the Constitution.

I think perhaps for one day. Media hasn’t really picked upon it.

...and one journalist prior to that.

 

[MEL_Traveller]

Not that I’m aware.

The closest was the Opposition mentioning quarantine is a Federal responsibility under the Constitution.

I think perhaps for one day. Media hasn’t really picked upon it.

...and one journalist prior to that.

We had an enquiry into the Ruby Princess...no one seemed to accept responsibility. What else would a royal commission uncover?

The main issue seems to be the managing of exemptions on health grounds. Some shocking examples of hardship. But that probably doesn’t need a royal commission either, just someone to take responsibility, provide open and transparent guidelines, and apply them consistently.

Same with departure exemptions... people don’t understand why a former prime minister can go fo a job interview, but ordinary folk can’t.

 

[jakeseven7]

NSW Health Minister demands an end to Queensland border closure 'pettiness', calls QLD Premier 'cruel and political'


The NSW Health Minister has stepped up his attacks on the Queensland Premier over the strict border closure, calling her "cruel" for keeping Australians apart.

NSW is racing against the clock to trace three new locally acquired COVID-19 cases before the 'border clock' is reset by Queensland today.

"It us up to them [NSW] to look at where those cases came from," Premier Palaszczuk said. "[I'm] looking forward to what the Premier of NSW has got to say to me"

But NSW Health Minister Brad Hazzard said he was fed up with the constant border battle and made a plea for compassion from Queensland.

"I'm over it … I've got to say I think Premier Palaszczuk is being political — she is being cruel," he said. "I think it's time that this pettiness was put aside and we move forward together. We're all Australians."

Mr Hazzard said he was constantly receiving requests from residents of NSW facing "some very sad situations" and desperate to reunite with family over the border.

"The range of circumstances that families need to gather together … to give each other caring support is just enormous."

NSW Health Minister criticises 'cruel' Palaszczuk as clock ticks on contact tracing

Queensland extends the deadline for NSW to trace new locally acquired COVID-19 cases but Brad Hazzard says the "pettiness" shown by Queensland Premier Annastacia Palaszczuk needs to stop.

www.abc.net.au

 

[OATEK]

We had an enquiry into the Ruby Princess...no one seemed to accept responsibility. What else would a royal commission uncover?

The main issue seems to be the managing of exemptions on health grounds. Some shocking examples of hardship. But that probably doesn’t need a royal commission either, just someone to take responsibility, provide open and transparent guidelines, and apply them consistently.

Same with departure exemptions... people don’t understand why a former prime minister can go fo a job interview, but ordinary folk can’t.

Unlike in Vic, it was quite clear who made the decisions on the Ruby Princess, and the tearful witness appearances were in marked contrast to Vic. The NSW decision may not have suffered loss of their positions, although apparently they were moved out of similar decision making roles.

The comment on departure exemptions belongs in the other thread, it has no bearing on this discussion.

 

[jakeseven7]

Not that I’m aware.

The closest was the Opposition mentioning quarantine is a Federal responsibility under the Constitution.

I think perhaps for one day. Media hasn’t really picked upon it.

...and one journalist prior to that.

I think the priority will be getting state borders open in the first place, then sorting out how this mess never occurs again...