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]

Initially yes. Then pre-polling should be counted tonight. Postals could take a bit longer. Looks like the net position will be largely the same as it is today.

At the end of the day, people are scared. Queensland seems to be particularly scared. Scared populations don’t vote for change.

No one is going to change government up at the moment and up here was not going to be the exception, never going to happen during a crisis.

And you are right people are especially terrified up here we have been whipped into complete state of fear. It’s actually a little surprising there wasn’t more of a swing to the incumbent.

Anyway back on topic, if we are to believe the sticky situation we have up here with the legal structure of how QLD is being run regardless of the political party in power, it doesn’t matter. Our CHO is running the show here as long as the state of emergency is in place.... Let’s see now what happens now on borders that Halloween is over

 

[Spongbob]

No one is going to change government up at the moment and up here was not going to be the exception, never going to happen during a crisis. And you are right people are especially terrified up here we have been whipped into complete state of fear. It’s actually a little surprising there wasn’t more of a swing to the incumbent.

Ummm, is this a concession the QLD health advice was in the interests of the community, and recognised by the majority of Queenslanders as such?

 

[jakeseven7]

I’d agree. It’s not valid fear, but it’s still fear. I was quietly hoping for the best, but as you said this isn’t surprising.

Watching the way Stephen Miles has behaved on ABC tonight does leave me perplexed as how anyone could vote for him... but this isn’t the place for politics.

Sadly, unless there’s a big post-election turnaround, we seem no closer to getting the country back on track.

I think we are going to see some changes before Christmas Watch this space.

Look at the spectacular backflip in WA as the sentiment shifted underneath them and suddenly the medical advice arrived (though secret)...

Same is happening here. Just a matter of time. They just need to work out the CHO situation here.... the returning government will figure something out, of that I’m sure.

 

[Spongbob]

I want to travel from Sydney to Victoria to see my family (one of which is in hospital), but the NSW government ...

 

[N860CR]

I want to travel from Sydney to Victoria to see my family (one of which is in hospital), but the NSW government ...

Nothing stopping you going to Victoria. And I’d hazard a guess that, very shortly, you’ll be fine to come back as well

 

[HappyFlyerFamily]

I want to travel from Sydney to Victoria to see my family (one of which is in hospital), but the NSW government ...

Nothing stopping you going to Victoria. And I’d hazard a guess that, very shortly, you’ll be fine to come back as well

It does depend on where in Victoria and how long you have available to be away from Sydney. So easy to go to Victoria but potentially some hurdles to come back Sydney

 

[jb747]

An incumbent was never going to lose anyway.

But regardless in QLD because of a quirk in the way the SOM is set up here, the government of the day has no control on border decisions - so we are told repeatedly.

They probably do have control over just who the that person is though.

It's a way of distancing themselves from unpopular decisions, and is pretty much the same as the police having final say in SA. But, I'm sure any government that actually wanted to, could change that in an instant. A political instant anyway.

 

[dk4]

It does depend on where in Victoria and how long you have available to be away from Sydney. So easy to go to Victoria but potentially some hurdles to come back Sydney

Personally, I would go if it is anywhere in rural Victoria, I think we are merely days away from the NSW (and SA) border opening up to all in Victoria who have not been in the Bay Area in the prior fortnight.

As for the Bay Area, including greater Melbourne: I think that now restrictions have been eased, the NSW government is waiting for Covid testing to detect a community transmission... Not for the purpose of saying no to opening, quite the opposite, for the purpose of stress testing the Victorian contact tracing, communication and isolation systems.

And then, if the Victorian detection and suppression systems are demonstrated to work (as well as they seem to in Sydney) then NSW will completely open its border to everyone, including those in Melbourne.

Free flow of people between Melbourne and Sydney is the single most important movement corridor in this country, and I imagine both sides want it open as soon as practicable.

 

[jakeseven7]

Now that the election is over I am looking forward to Dr.Young releasing the medical evidence behind her decisions.
But it isn't flying pig season is it.

Don’t hold your breath. The approach up here is hit/run and hide the detail in terms of announcements. Legally the CHO is protected and doesn’t have to release any details to anyone. It’s odd compared to the other states.

They probably do have control over just who the that person is though.

It's a way of distancing themselves from unpopular decisions, and is pretty much the same as the police having final say in SA. But, I'm sure any government that actually wanted to, could change that in an instant. A political instant anyway.

Maybe she could be ‘promoted‘ / or a board of CHO’s with more relevant medical background brought in to help her...Of all her peers she is probably amongst the least qualified.

Anyway 0 local cases in the entire country today.... borders still closed? Proportionate response?

 

[james4321]

Why?
I have criticised her for her wrong approach to the border closures on medical grounds I don't see why the election suddenly makes her right.
There isn't another CMO/CHO in the country that has the same border policy as Dr.Young.

Your opinion of her approach is noted, and it was good to see the Premier confirming today that the existing policy continues, notwithstanding that the election (which was a stunning endorsement of the policy) is finished.. As to your second point - thats possibly because her policy is that which she determines to be the best for QLD and nothing to do with the prevailing circumstances of other States, each of which have their own medical officers whose job is it is to determine policy for their own State.

 

[MEL_Traveller]

Why?
I have criticised her for her wrong approach to the border closures on medical grounds I don't see why the election suddenly makes her right.
There isn't another CMO/CHO in the country that has the same border policy as Dr.Young.

I think there's been two separate issues in this thread. First is the issue of whether border closures are constitutional. That's primarily a health issue. The second is the economic issue.

I think the election partially closes down the economic issue... at least those who said the residents of Queensland were demanding the border reopen.

Whether or not health grounds need to be balanced against economic grounds when looking at the constitution, that will be considered by the court. States and 'business' seem to have differing views.

 

[N860CR]

As to your second point - thats possibly because her policy is that which she determines to be the best for QLD and nothing to do with the prevailing circumstances of other States, each of which have their own medical officers whose job is it is to determine policy for their own State

Correct. Which has been the wrong approach from day one. We never actually needed state border closures. Each state had provisions in place to prevent people moving a certain distance from their home. The money wasted on pointless border closures could have been spent on actual measures to prepare the country for managing the virus. Instead, Queensland has decided to eliminate the virus. I’ll admit that’s not entirely the wrong thing to do... except only 2 days ago the CMO said that wasn’t the goal but went on to set it as a requirement for other states. If, after 8 months, they still don’t even have a set policy for managing this in place, then they have failed.

 

[drron]

I there's been two separate issues in this thread. First is the issue of whether border closures are constitutional. That's primarily a health issue. The second is the economic issue.

I think the election partially closes down the economic issue... at least those who said the residents of Queensland were demanding the border reopen.

Whether or not health grounds need to be balanced against economic grounds when looking at the constitution, that will be considered by the court. States and 'business' seem to have differing views.

As I have said many times there are now no other CHO/CMOs in Australia that think there is a health reason for border closures.

 

[MEL_Traveller]

As I have said many times there are now no other CHO/CMOs in Australia that think there is a health reason for border closures.

Even if that is the case, is it relevant? The states are separate entities. If a border closure keeps out one case, is that not a health ground? People say that states must balance health and economics... but I'm not sure there is any definitive ruling on that. Certainly not from the high court.

Victoria still has an internal border. The whole of Australia still has a closed border, even though there are 'low/no' risk countries out there. If the Commonwealth can close its borders based on low or no risk, why can't states?

 

[N860CR]

If the Commonwealth can close its borders based on low or no risk, why can't states?

Because GST revenue from the higher contributing states (like NSW) is not shared with foreign countries. If Queensland was happy to stop receiving federal benefits then I have no issue with them leaving the federation.

 

[TheRealTMA]

Because GST revenue from the higher contributing states (like NSW) is not shared with foreign countries. If Queensland was happy to stop receiving federal benefits then I have no issue with them leaving the federation.

But GST is not federal funds. It’s money raised from the states and returned.

 

[MEL_Traveller]

Because GST revenue from the higher contributing states (like NSW) is not shared with foreign countries, but it is otherwise. If Queensland was happy to stop receiving federal benefits then I have no issue with them leaving the federation.

Is GST distribution linked to or conditional on s92 of the constitution?

 

[TheRealTMA]

Is GST distribution linked to or conditional on s92 of the constitution?

This seems to cover it.


”The GST is levied by the Commonwealth, but the revenue from the GST is distributed to the states and territories. This arrangement is set out in the Intergovernmental Agreement (IGA) on Federal Financial Relations.[3] Clause A4(c)(i) provides that the Standing Council on Federal Financial Relations—chaired by the Commonwealth Treasurer—must approve ‘changes to the GST base and rate’, and clause A6 of that agreement requires that any such agreement be unanimous.”

 

[N860CR]

Is GST distribution linked to or conditional on s92 of the constitution?

Time will tell.

For interests sake, for those who are petrified of allowing other Australians to visit your state, when would you propose we allow people from Sydney or Melbourne back into your sterile states?

 

[drron]

Even if that is the case, is it relevant? The states are separate entities. If a border closure keeps out one case, is that not a health ground? People say that states must balance health and economics... but I'm not sure there is any definitive ruling on that. Certainly not from the high court.

Victoria still has an internal border. The whole of Australia still has a closed border, even though there are 'low/no' risk countries out there. If the Commonwealth can close its borders based on low or no risk, why can't states?

But if there really aren't justifiable health reasons then of course it is relevant.It takes away the only reason that State border closures are legal.
Victoria is a different case though the numbers now don't really justify border closure but it hasn't been that long for the good numbers.