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]

Cracks appear in WA hard border after CHO claims border closure was ‘not my medical advice’

The chance of interstate visitors spending tourism dollars in WA over the summer might have improved as cracks begin to appear in Premier Mark McGowan's controversial hard border policy.

Health Minister Roger Cook on Thursday set a different tone from his leader, saying it was time for the West Australian government to consider relaxing the state's controversial 'hard border' restrictions.

As it happened: Victoria and NSW records six new COVID-19 cases; Daniel Andrews faces pressure to end Melbourne lockdown; Australian death toll stands at 904

Pressure on Andrews to end lockdown grows; NSW restrictions delayed amid fresh surge; Australian death toll at 904.

www.smh.com.au

 

[oz_mark]

I'm expecting a bit of jostling as the hearings in the High Court loom.

 

[bigbadbyrnes]

I'm expecting a bit of jostling as the hearings in the High Court loom.

I'd be amazed if it was 'just a coincidence' that the stories running across some (not all) media bubbles giving this lots of attention just happen to be falling a couple of weeks before the HC hearings.

Edit: quick roundup:

Premier, health chief at odds



Pressure on McGowan as Harvey attacks Labor's integrity over 'hard border' claims



Andrew Hastie: McGowan 'gaslighting us for political reasons' over WA's hard border



Mark McGowan’s ‘ploy for re-election’ is ‘ludicrous’ | Sky News Australia



NoCookies | The Australian

 

[jakeseven7]

I'd be amazed if it was 'just a coincidence' that the stories running across some (not all) media bubbles giving this lots of attention just happen to be falling a couple of weeks before the HC hearings.

Edit: quick roundup:

Premier, health chief at odds



Pressure on McGowan as Harvey attacks Labor's integrity over 'hard border' claims



Andrew Hastie: McGowan 'gaslighting us for political reasons' over WA's hard border



Mark McGowan’s ‘ploy for re-election’ is ‘ludicrous’ | Sky News Australia



NoCookies | The Australian

Also seems like just a little bit of a coincidence that states have gone from a zero to 100 in opening borders (e.g Tasmania, now cracks in WA showing) in a couple of weeks. Perhaps they do think they are going to lose....

If they are defeated, does that leave WA open to being sued?

 

[jakeseven7]

I'm expecting a bit of jostling as the hearings in the High Court loom.

Yup, agree, jostling for the lifeboats.

Clearly the WA CHO is now quickly putting some serious distance between himself and the WA Premier......

 

[antycbr]

Also seems like just a little bit of a coincidence that states have gone from a zero to 100 in opening borders (e.g Tasmania, now cracks in WA showing) in a couple of weeks. Perhaps they do think they are going to lose....

If they are defeated, does that leave WA open to being sued?

I would hope that if their actions are found to be in breach that every business owner that has directly attributable loss goes after the WA government. The minute McGowan said that the border was closed to keep money in the state was the point where the health “excuse” became invalid.

 

[MEL_Traveller]

I would hope that if their actions are found to be in breach that every business owner that has directly attributable loss goes after the WA government.

I hope not! That's taxpayer money!

 

[antycbr]

I hope not! That's taxpayer money!

WA posted a surplus they can afford it.
Remember that taxpayer funds are extracted from people and companies... and if suffering is unjustly imposed on those people and companies the relevant government should be held to account. It might stop such legislative overreach in the future.

 

[Pushka]

I hope not! That's taxpayer money!

So money lost from business comes from people too. And possibly from those very people who contributed a lot to state taxes via payroll tax and the like. Potentially those businesses may never vote for a Government that doesn't take into account their business model but runs their own separationist agenda but that's just guessing.

 

[jakeseven7]

WA’s chief health officer Andy Robertson says Premier Mark McGowan should review border closure in 2 weeks


The advice, outlined in a letter to Police Commissioner Chris Dawson, comes after Andy Robertson said travel bubbles with other jurisdictions that had also gone at least 28 days without community spread should be set up.

All States and Territories besides NSW and Victoria have met that benchmark, Dr Robertson said in the letter tabled in parliament by Premier Mark McGowan on Thursday.

He therefore recommended the overall border closures be reassessed on October 28 and the NSW controls reviewed a fortnight later.

WA border could be reviewed in WEEKS

The State’s chief health officer has recommended the State consider reopening to some parts of Australia before October is over.

www.perthnow.com.au

 

[drron]

With their CHO breaking ranks so that only the QLD CHO is trying to justify locked borders the High court case has to come down on the side of opening borders as the Constitution can allow it on health grounds but not economic or political grounds.
So the WA Premier will back down.QLD will backflip on November 1 having achieved their political objective.

 

[jakeseven7]

Cormann joins increasing chorus of condemnation over WA Premier's hard border excuses

Federal Finance Minister Mathias Cormann has excoriated WA Premier Mark McGowan for persisting with a total border lockdown despite the state's Chief Health Officer telling a parliamentary committee it could open to most jurisdictions around the country.

The WA government has insisted its 'hard border' policy was backed by health advice, but contradictory messages this week have undermined this claim and prompted accusations Mr McGowan is exploiting the policy as a political ploy to win support in the March state election.

Senator Cormann addressed the media alongside WA Opposition Leader Liza Harvey on Friday morning to demand the Premier explain the public health justification for preventing West Australians travelling to jurisdictions with no cases and zero community transmission of COVID-19.

He said the federal government had always supported "clear and strong measures to protect people's health".

"But as soon as there is no public health justification to infringe on people's freedoms, then those restrictions ought to be lifted," he said.

As it happened: Victoria records just two COVID-19 cases as state considers lifting 5km lockdown rule; UK to re-enter lockdown as Australian death toll stands at 904

While Victorians are hoping for some easing of restrictions on Sunday, groups of up to 100 people will be allowed to gather in NSW for Remembrance Day. Follow our live coverage here.

www.theage.com.au

 

[Pushka]

SA is now making groaning noises about SA /NSW Border. Sigh. Big person pants needed now.

 

[antycbr]

SA is now making groaning noises about SA /NSW Border. Sigh. Big person pants needed now.

If they close the damage to SA tourism will be immense and people will have long memories if they are burnt by knee jerk closures.

 

[jakeseven7]

SA is now making groaning noises about SA /NSW Border. Sigh. Big person pants needed now.

National decision and alignment needed on hotspots. Yesterday.

 

[jakeseven7]

Row over WA's coronavirus hard border deepens as health advice ignored

Another week of deep confusion over the future of the WA border closure has left members of the business community scratching their heads and has puzzled members of the public waiting to find out if their families can reunite for Christmas.

It all started when WA's top medical officer fronted a parliamentary committee for the first time during the COVID-19 era, firmly opening the door to a staged re-opening of the interstate border.

"We should consider removing quarantine requirements for states that have no community spread," Chief Health Officer Andy Robertson said on Thursday, while confirming that advice had previously been provided to the McGowan Government.

The Health Minister added fuel to the fire the following morning by endorsing Dr Robertson's comments.

"We are now in the position to have to consider what we do with our borders in the short-to-medium term and how best we manage that opening up process," Roger Cook said, while speaking of a dramatic improvement in the coronavirus situation on the east coast.

The frustration of the business community over the inconsistent messaging was hard to miss.

"We are past time at which we need clear and certain advice going forward," Chamber of Commerce and Industry chief economist Aaron Morey said.

"The more uncertainty, the more inconsistency in the advice, the worse that is for the WA business community."

"The truth is finally seeping out," Federal Finance Minister Mathias Cormann said.

"I detect a level of increasing desperation to attempt to justify the unjustifiable."

The debate then turned ugly in State Parliament, with the Premier described as "morally devoid and slimy" by Opposition frontbencher Zak Kirkup for use of border restrictions as a political tool.

Many within the WA Labor Party are concerned the muddle will continue to damage the already declining public support for the border, increasing the pressure for Mr McGowan to ease the rules.

https://www.abc.net.au/article/12775110

 

[jakeseven7]

Really interesting report from NT tourism - on ABC news this morning.

Despite not being the best time to visit, apparently future bookings from NSW are through the roof, leading to their tourism industry now only being 20% down, v more 80% down previously.

Pretty incredible. They interviewed lots of NSW tourists already on the ground and people are just saying they just needed to get out of Sydney for a break.

Locals interviewed said they understood the risk and that cases would eventually pop up, but knew it couldn’t stay closed forever and trying to be as safe as they could be.

Just thought it was interesting to actually see the impact because much has been made about ‘will people even travel if the borders open’ and clearly the answer in the case of the NT is yes.

 

[antycbr]

Really interesting report from NT tourism - on ABC news this morning.

Despite not being the best time to visit, apparently future bookings from NSW are through the roof, leading to their tourism industry now only being 20% down, v more 80% down previously.

Pretty incredible. They interviewed lots of NSW tourists already on the ground and people are just saying they just needed to get out of Sydney for a break.

Locals interviewed said they understood the risk and that cases would eventually pop up, but knew it couldn’t stay closed forever and trying to be as safe as they could be.

Just thought it was interesting to actually see the impact because much has been made about ‘will people even travel if the borders open’ and clearly the answer in the case of the NT is yes.

And South Australia:


Having long been regarded as a second-tier destination for domestic travellers, South Australia is now overrun with surging visitor numbers from NSW as the state’s open border policy drives unprecedented demand for holidays in SA.
The state’s tourism operators are enjoying a double influx of visitors, with SA being the first state to lift its ban on intrastate travel and the first to open its borders to every other state except Victoria.
...
Qantas has gone from zero flights between Sydney and Adelaide each week to 13 flights and Jetstar from five a week to 13 a week, with the number of NSW visitors to the official SA tourism website topping 100,000 last week, an increase of 199 per cent on the previous fortnight.

NoCookies | The Australian

www.theaustralian.com.au

 

[jase05]

And South Australia:


Having long been regarded as a second-tier destination for domestic travellers, South Australia is now overrun with surging visitor numbers from NSW as the state’s open border policy drives unprecedented demand for holidays in SA.
The state’s tourism operators are enjoying a double influx of visitors, with SA being the first state to lift its ban on intrastate travel and the first to open its borders to every other state except Victoria.
...
Qantas has gone from zero flights between Sydney and Adelaide each week to 13 flights and Jetstar from five a week to 13 a week, with the number of NSW visitors to the official SA tourism website topping 100,000 last week, an increase of 199 per cent on the previous fortnight.

NoCookies | The Australian

www.theaustralian.com.au

Yep, near on impossible to get accommodation in many areas of SA. We managed to get one of the only available places in Hahndorf Saturday night and the manager mentioned they were booked out until New Year and many were by NSW residents. The Main Street of Hahndorf resembled Myers on Boxing Day, absolutely packed

 

[antycbr]

Yep, near on impossible to get accommodation in many areas of SA. We managed to get one of the only available places in Hahndorf Saturday night and the manager mentioned they were booked out until New Year and many were by NSW residents. The Main Street of Hahndorf resembled Myers on Boxing Day, absolutely packed

Given the way Myer is going we might need a new metaphor soon...

I'm booked into Adelaide in mid November - staying at the new Crowne Plaza. Due to a large accumulation of leave it's become a 4 night trip which means more money for SA.