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

 

[VPS]

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.

The trouble with RC is that everyone says yep next time we'll do this and inevitably it is lost until there is another RC and then they say oh yep we should have done abc instead of xyz

 

[antycbr]

The trouble with RC is that everyone says yep next time we'll do this and inevitably it is lost until there is another RC and then they say oh yep we should have done abc instead of xyz

I agree but I am yet to see a better alternative (short of a benevolent dictatorship).

 

[nutwood]

I agree but I am yet to see a better alternative (short of a benevolent dictatorship).

I would suggest the current position is that the States are being run as individual benevolent dictatorships. The health emergency has given almost absolute power to the premiers and it's seriously impressive how rapidly the old proverb was proven.

 

[DC3]

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

But this is AFF.

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

I believe that many would know how that is possible.

 

[MEL_Traveller]

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.

All i seem to recall from the Ruby Princess was that no one took responsibility? Border force said ‘no’, states are responsible for health. Yet the feds are responsible for determining international quarantine. So mixed messages and no one really took responsibility. Well... that was my take. Appreciate others may have a different view.

Needing clear and transparent guidelines applies across the board. We need them for medical exemptions, just as we need them for international departures/travel. It is relevant to link both in the context of needing clear, transparent and equitable policy.

 

[MEL_Traveller]

I would suggest the current position is that the States are being run as individual benevolent dictatorships. The health emergency has given almost absolute power to the premiers and it's seriously impressive how rapidly the old proverb was proven.

I somewhat disagree with this... states have almost nothing to gain from any of this, and everything to lose. As we have seen, it’s a thankless task. Some folk would complain if we ended up like Italy, Spain and the USA, and then they complain we don’t. States can’t win

 

[jakeseven7]

Dr Young and QLD forced to backflip, again after being held out as making another poor decision.

Sanity and compassion has prevailed thankfully, again. I can't believe this is STILL happening!

---

QLD borders: Brain cancer patient allowed home to Queensland after public push

A man who underwent a brain cancer operation in NSW will now be permitted to quarantine at his home in Brisbane, instead of a medical hotel, after the Queensland chief health officer Jeannette Young was forced into organising another assessment with a senior doctor overnight.

Gary Ralph and his wife Wendy Child travelled to Sydney for the operation, but when they returned, Queensland Health denied him an exemption to isolate at home and instead required the couple to stay in a medi-hotel.

Their plight drew heavy criticism from politicians, as have other cases in Queensland's controversial border requirements.

POLL CALL: No new taxes promise as border stoush rubbished

Labor and the LNP are both in Townsville to start day four of the campaign, while it is D-Day for NSW contact tracers to find the source of recent cases to enable a border reopening.

www.brisbanetimes.com.au

 

[Brissy1]

whoever governs QLD apparently is beholden to Dr Young.

In my opinion, also in relation to many other matters involving her response to Qld Health over the years,
IT IS THE OTHER WAY AROUND!
my yelling is a result of years of frustration and embarrassment.

 

[nutwood]

I somewhat disagree with this... states have almost nothing to gain from any of this, and everything to lose. As we have seen, it’s a thankless task. Some folk would complain if we ended up like Italy, Spain and the USA, and then they complain we don’t. States can’t win

Tough border measures are very popular with the voters. The States may have almost nothing to gain but the individual Premiers most certainly have.

 

[jakeseven7]

Tough border measures are very popular with the voters. The States may have almost nothing to gain but the individual Premiers most certainly have.

Becoming less popular every day thankfully according to the polls published a couple of days ago and posted somewhere on here too.

WA and QLD now the only states with majority, but that is eroding in both states - as we all expected.

Unfortunately both these states have impending elections which means they have been politically weaponised per your point - agreed.

 

[MEL_Traveller]

Tough border measures are very popular with the voters. The States may have almost nothing to gain but the individual Premiers most certainly have.

What do they have to gain? It’s a fast track to electoral defeat if it goes wrong. There is no manual for this, no playbook. No one knows whether any particular action is going to lead to electoral victory... so on that basis, it would seem anything they do is a pretty big risk. That leads me to think their motives are genuine, driven by trying to get the best outcomes, at least health wise, that they can.

 

[jakeseven7]

In my opinion, also in relation to many other matters involving her response to Qld Health over the years,
IT IS THE OTHER WAY AROUND!
my yelling is a result of years of frustration and embarrassment.

Yes, in the QLD medical community up here Dr Young is very well known and not often for great reasons.... They've been trying to move her on for quite a long time, but that is a little OT

 

[nutwood]

Being tough on foreigners is nearly as good as going to war. Popularity is only starting to wane because local impacts are beginning to be felt.

 

[antycbr]

Being tough on foreigners is nearly as good as going to war. Popularity is only starting to wane because local impacts are beginning to be felt.

Yep, if the borders are shut for Christmas just you wait to see how unpopular the Premiers can really be.

 

[MEL_Traveller]

Yep, if the borders are shut for Christmas just you wait to see how unpopular the Premiers can really be.

Probably not a lot we can do about it. If there is a health risk, the borders will possibly remain closed.

The airlines will need to come to the party here... if anyone has any concerns about having covid they should be able to change or refund their tickets without penalty. Otherwise we’re going to have people flying all over the place because they don’t want to lose their money.

 

[antycbr]

Probably not a lot we can do about it. If there is a health risk, the borders will possibly remain closed.

The airlines will need to come to the party here... if anyone has any concerns about having covid they should be able to change or refund their tickets without penalty. Otherwise we’re going to have people flying all over the place because they don’t want to lose their money.

Why do the long suffering airlines have to come to the party yet again?

Last time I checked they will lose Jobkeeper supplements being stepped down on 1 January again, making their operations even less viable than they are now. They are not charities and it's about time that our airlines make that very clear to all governments, both state and federal.

Can we also define health risk in a consistent, national manner that is accepted by all parties and allow people to make decisions about bookings with some form of confidence?

 

[HappyFlyerFamily]

Probably not a lot we can do about it. If there is a health risk, the borders will possibly remain closed.

The airlines will need to come to the party here... if anyone has any concerns about having covid they should be able to change or refund their tickets without penalty. Otherwise we’re going to have people flying all over the place because they don’t want to lose their money.

You really want your cake and eat it too:

- State border are legally allowed up
- but in the event the State borders happen to go down and up again (or did you mean where the traveller changed their mind), airline will have to refund without penalty (Not that airlines have consistently done this based on the amount of flight credits going back to 31/1/2020)
- allow Australian resident to leave on international flights

 

[MEL_Traveller]

Why do the long suffering airlines have to come to the party yet again?

Last time I checked they will lose Jobkeeper supplements being stepped down on 1 January again, making their operations even less viable than they are now. They are not charities and it's about time that our airlines make that very clear to all governments, both state and federal.

Can we also define health risk in a consistent, national manner that is accepted by all parties and allow people to make decisions about bookings with some form of confidence?

The airlines are pushing for state borders to be opened. But I can understand the risks of borders being opened and infected persons travelling (which is what the states want to stop). If the airlines don't offer something like a free change in the event a person needs testing or isolation, the passenger may feel they have no choice but to travel. That could have devastating impacts. And could well close the borders again anyway.

Airlines aren't charities. But should they take all the gain and none of the risk, for something they are demanding?

You really want your cake and eat it too:

- State border are legally allowed up
- but in the event the State borders happen to go down and up again (or did you mean where the traveller changed their mind), airline will have to refund without penalty (Not that airlines have consistently done this based on the amount of flight credits going back to 31/1/2020)
- allow Australian resident to leave on international flights

Again - the airlines are the ones pushing for the borders to be open. If they want states to take that risk, perhaps they should also accept the risk that some passengers will need isolation or testing and shouldn't be flying. If airlines don't offer that, people will fly who shouldn't.

State border closures are different from banning citizens leaving a country. There is no valid health ground in banning people leaving if they want to!

 

[antycbr]

The airlines are pushing for state borders to be opened. But I can understand the risks of borders being opened and infected persons travelling (which is what the states want to stop). If the airlines don't offer something like a free change in the event a person needs testing or isolation, the passenger may feel they have no choice but to travel. That could have devastating impacts. And could well close the borders again anyway.

Airlines aren't charities. But should they take all the gain and none of the risk, for something they are demanding?



Again - the airlines are the ones pushing for the borders to be open. If they want states to take that risk, perhaps they should also accept the risk that some passengers will need isolation or testing and shouldn't be flying. If airlines don't offer that, people will fly who shouldn't.

State border closures are different from banning citizens leaving a country. There is no valid health ground in banning people leaving if they want to!

The airlines have been incredibly patient with our state premiers. The airlines have implemented every control possible in ensuring that they are not impacted by or create any form of transmission. After all, intrastate travel in NSW has been running with low community transmission with no sign that it's stopping or slowing down and no transmission occurring on aircraft. If the name of the game is to stop mobility then all flights should be grounded nationwide and a curfew imposed.

On international, once again your position is incoherent. Our obligations to citizens does not stop when they depart Australia.

 

[HappyFlyerFamily]

The airlines are pushing for state borders to be opened. But I can understand the risks of borders being opened and infected persons travelling (which is what the states want to stop). If the airlines don't offer something like a free change in the event a person needs testing or isolation, the passenger may feel they have no choice but to travel. That could have devastating impacts. And could well close the borders again anyway.

Airlines aren't charities. But should they take all the gain and none of the risk, for something they are demanding?



Again - the airlines are the ones pushing for the borders to be open. If they want states to take that risk, perhaps they should also accept the risk that some passengers will need isolation or testing and shouldn't be flying. If airlines don't offer that, people will fly who shouldn't.

State border closures are different from banning citizens leaving a country. There is no valid health ground in banning people leaving if they want to!

The airlines have been incredibly patient with our state premiers. The airlines have implemented every control possible in ensuring that they are not impacted by any form of transmission. After all, intrastate travel in NSW has been running with low community transmission with no sign that it's stopping or slowing down.

On international, once again your position is incoherent. Our obligations to citizens does not stop when they depart Australia.

...eg the need to queue (or remain stranded) and buy business class to get back perhaps...or Australia let them leave and not allow them back home.

....and some State border restrictions have the effect of stopping people leaving the State (including FIFOs who normally reside outside the particular State).

So can the AFF opinion/judiciary now conclude no reason for State border restrictions that have the effect of stopping people leaving because there is no valid health ground???