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

 

[mannej]

Movement regarding the WA Border today - changes from 14 November.

 

[Pushka]

SA can move freely throughout Australia except for issue with Victoria. One positive today from a return overseas traveller. Nothing to see here.

 

[dajop]

Not on topic, but just to contrast to the hotch potch of states, Singapore, which has tightly controlled people coming into the country since March also, with 14 day hotel quarantine, is from Nov 6, relaxing restrictions (at their end) on Victorians entering the city state.

This will bring them into line with arrivals from the rest of Australia (+ Vietnam, Brunei, NZ and also from Nov 6 China), where arrivals (including returning residents + visitors) must take a test on arrival, isolate in their hotel until test result comes back and if negative are free to move about in Singapore without further quarantine.

This is what happens when you look at the scientific risk, don't have an election for another 5 years, and you'll win that election anyway because you control the narrative.

 

[JackMiles]

Movement regarding the WA Border today - changes from 14 November.

View attachment 231994

Has anyone seen any guidance on what this means in relation to transiting through SYD or MEL, eg, to get between Tasmania and WA?

 

[nutwood]

When you go from 'nothing' to 'something' apparently it is alot 'easier'.

Look clearly it is baby steps for WA.

I'm more concerned that their critera is far far to high and probably in a few weeks we will see a test case and will be interesting to see how quickly for example SA or TAS goes from free entry to 14 day quarantine overnight.....

This is the question. Until we get a clear consensus on suppression or elimination, the question will remain. I'm a little ambivalent about NSW crowing about their contact tracing. Their recent infections were a secondary event to Victoria's issues and even now, the situation is still on a knife edge in the SW of Sydney.
If they'd faced the same situation as Melbourne did, with extensive community spread prior to the alarm being raised....?
Tassie has opened the borders but I'm wondering what the reaction will be to the occasional cluster popping up?

 

[antycbr]

This is the question. Until we get a clear consensus on suppression or elimination, the question will remain. I'm a little ambivalent about NSW crowing about their contact tracing. Their recent infections were a secondary event to Victoria's issues and even now, the situation is still on a knife edge in the SW of Sydney.
If they'd faced the same situation as Melbourne did, with extensive community spread prior to the alarm being raised....?
Tassie has opened the borders but I'm wondering what the reaction will be to the occasional cluster popping up?

If Tasmania would like to have a tourism industry they’d better adapt real quick.

As a resident of a state that actually contributes to the economic pool of the country, these mendicant states will have to start pulling their own weight if they’re going to keep excluding people... Looking at you Queensland and Tasmania in particular. At least SA is trying to balance the risk and benefits, as are the NT. WA are a whole different league.

 

[james4321]

If Tasmania would like to have a tourism industry they’d better adapt real quick.

As a resident of a state that actually contributes to the economic pool of the country, these mendicant states will have to start pulling their own weight if they’re going to keep excluding people... Looking at you Queensland and Tasmania in particular. At least SA is trying to balance the risk and benefits, as are the NT. WA are a whole different league.

What arrogant nonsense

 

[DC3]

If Tasmania would like to have a tourism industry they’d better adapt real quick.

As a resident of a state that actually contributes to the economic pool of the country, these mendicant states will have to start pulling their own weight if they’re going to keep excluding people... Looking at you Queensland and Tasmania in particular. At least SA is trying to balance the risk and benefits, as are the NT. WA are a whole different league.

Have you considered that you may be making your point to the wrong audience? We are only AFF members here, just so as you are aware of that.

We are not State Premiers, just to confirm.

 

[jakeseven7]

Perhaps another reason for WA being so slow in opening is leaking out (apart from the date in March...).

It has been commented a few times that perhaps WA has not been using the last 7 months very well to prepare and now the AMA is suggesting perhaps that is true... (I’m not sure I really trust what they say especially this guy who seems to be a little loopy, but for balance worth a read! you know!)

——-

WA will have to wake up now to COVID threat, AMA says

The Australian Medical Association (AMA) said opening the WA border would "open the tap" to thousands of arrivals from other states.

"It now shifts the focus from the police force and from the people who have been treated very harshly by the closed border" WA president Andrew Miller said.

"But it now moves that onto the West Australian community, who now have to wake up to the fact COVID is real and it could be among us, and of course, to the health care workers and those who are doing tracking and tracing and testing."

Dr Miller said the WA health system was not ready for outbreaks of COVID-19 and it was very important that the testing, tracking and tracing ability was improved.

"West Australia is now in the game with everybody else, so they have to fix that," he said.

WA Health Minister Roger Cook sought to reassure the public that WA health teams are ready.

Mr Cook said health teams were very well trained and very experienced at dealing with both the prevention and treatment of COVID-19.

"We have contact tracing teams in place and they are at the ready," he said.

"These teams are very experienced after helping Victoria at the height of the recent pandemic there. Our hotels are secure and we continue to test up to 15,000 people a week."

"Yes, transitioning to controlled borders will be a very different experience, yes we will be tested, but we are prepared for the next step."


Mr Cook urged patience with the new requirements for people entering WA warning there would be delays at airports.

"The health screening of some airline passengers may have some inconvenience and that will put pressure on airport staff, health care workers and police. So please everyone be patient as we work through this together," Mr Cook said.

WA softens restrictions on travelling Kiwis, but won't fully enter NZ bubble

Western Australia will allow travellers from New Zealand, who have entered other Australian states via the travel bubble arrangement, to undertake 14 days of quarantine in WA.

www.abc.net.au

 

[jakeseven7]

And also in related news WA confirmed they will NOT be signing up to the NZ travel bubble despite the country having minimal cases.

Makes sense... not

 

[antycbr]

And also in related news WA confirmed they will NOT be signing up to the NZ travel bubble despite the country having minimal cases.

Makes sense... not

No AKL/CHC-PER then.

 

[OZDUCK]

Also another interesting case of an opposition party having trouble being relevant in these times - al la the Federal opposition. The local Liberals have jumped from opposition to the border closures to fervent advocates of the closure to demanding re-opening to complaining about a too extensive re-opening.

 

[NZflygirl]

Great point - because it is ABSOLUTELY going to happen, cases are going to pop up everywhere now and then....

Oh dear can't wait to see how this plays out....

They said < 5 locally acquired cases in 28 days. Same criteria as Tassie. What I didn’t hear specified was whether that was unlinked cases but I didn’t watch the presser in its entirety. Too excited it was another border coming down

 

[jakeseven7]

They said < 5 locally acquired cases in 28 days. Same criteria as Tassie. What I didn’t hear specified was whether that was unlinked cases but I didn’t watch the presser in its entirety. Too excited it was another border coming down

It was exciting at the start until people actually started doing the numbers and realising how quickly other states are going to go from their ‘very low risk - no quarantine’ bucket to ‘low risk -14 days quarantine required’ bucket literally overnight.

Tasmania is opening to NSW with no quarantine required. They do not have the same approach as WA.

The devil was in the detail of that bizarre press conference unfortunately ...

 

[jakeseven7]

Also another interesting case of an opposition party having trouble being relevant in these times - al la the Federal opposition. The local Liberals have jumped from opposition to the border closures to fervent advocates of the closure to demanding re-opening to complaining about a too extensive re-opening.

Thinking more about it, this could actually hurt WA even more in respect of tourism and family reunification tourism.

Because who wants to do 14 days quarantine even if it is at your choice of prison, many don’t even have that much leave. With their criteria - there’s a high risk your state even if it is ‘very low’ could go to a ‘low’ literally overnight.

So people like me, will be pushing for my family to come to me over east, we hang out here, spend all our money over here etc. As WA residents on their return they have their own property to self isolate in if overnight if there is a change in classification..... so WA misses out on all of our money....

I think this is going to backfire....!

 

[HappyFlyerFamily]

So now we have as announcements (ie planned softening of borders

WA
No quarantine - travellers from areas (States/Territories, not LGAs) with no local case in past 28 days
Quarantine (at own location) *meaning isolation?? - travellers from areas (States/Territories, not LGAs) with <5 average local case over past 14 days

Qld
No quarantine - travellers from areas (States/Territories, LGAs* but only if Qld actually say yes) with no local mystery (unlinked) case in past 28 days
Quarantine (at Qld mandatory hotel) - travellers from areas (States/Territories, LGAs* but only if Qld actually confirm) with >0 local mystery (unlinked) case in past 28 days

Crystal clear lol??? each state will do what they want and choose whatever measure

 

[oz_mark]

Thinking more about it, this could actually hurt WA even more in respect of tourism and family reunification tourism.

Because who wants to do 14 days quarantine even if it is at your choice of prison, many don’t even have that much leave. With their criteria - there’s a high risk your state even if it is ‘very low’ could go to a ‘low’ literally overnight.

So people like me, will be pushing for my family to come to me over east, we hang out here, spend all our money over here etc. As WA residents on their return they have their own property to self isolate in if overnight if there is a change in classification..... so WA misses out on all of our money....

I think this is going to backfire....!

Keep in mind that for many families the issue has not been about quarantine, it has been about getting approval to enter the state. Given they are relaxing those rules, I suspect there will be many people that will take the risk of sudden reintroduction.

While the rules may not be to your liking, they do represent a substantial change in position.


[and I guess, if you are going to argue in High Court that you are following health advice, it helps if you move to a position more in line with the health advice]

 

[jakeseven7]

So now we have as announcements (ie planned softening of borders

WA
No quarantine - travellers from areas (States/Territories, not LGAs) with no local case in past 28 days
Quarantine (at own location) *meaning isolation?? - travellers from areas (States/Territories, not LGAs) with <5 average local case over past 14 days

Qld
No quarantine - travellers from areas (States/Territories, LGAs* but only if Qld actually say yes) with no local mystery (unlinked) case in past 28 days
Quarantine (at Qld mandatory hotel) - travellers from areas (States/Territories, LGAs* but only if Qld actually confirm) with >0 local mystery (unlinked) case in past 28 days

Crystal clear lol??? each state will do what they want and choose whatever measure

We should really have a National Cabinet or something to sort this mess out

Oh well it’s a start for WA, baby steps!

 

[Flashback]

So now we have as announcements (ie planned softening of borders

WA
No quarantine - travellers from areas (States/Territories, not LGAs) with no local case in past 28 days
Quarantine (at own location) *meaning isolation?? - travellers from areas (States/Territories, not LGAs) with <5 average local case over past 14 days

Qld
No quarantine - travellers from areas (States/Territories, LGAs* but only if Qld actually say yes) with no local mystery (unlinked) case in past 28 days
Quarantine (at Qld mandatory hotel) - travellers from areas (States/Territories, LGAs* but only if Qld actually confirm) with >0 local mystery (unlinked) case in past 28 days

Crystal clear lol??? each state will do what they want and choose whatever measure

Yes, it will end up like the UK where everyone is just confused as all heck so ends up doing whatever they want instead.

 

[HappyFlyerFamily]

At this point in time the Qld CHO is doing what she think is best to keep Qld safe. The fact that the Qld CHO’s demonstrated risk appetite is very low (or ultra low) is not really relevant. The Qld CHO has the sole power to determine the measure/markers.

I think I heard the Qld CHO is a statutory position (does it mean appointed by QLD parliament?)

So unless the Qld CHO finds a different way to measure this required ultra low risk, the options for change are limited:
- Qld CHO resigns or retires, etc to create a vacancy
- Qld CHO backflips
- Qld Parliament changes the laws so that Public Health powers under this emergency are exercised differently.

So the wait for something to change continues...