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

 

[oznflfan]

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?

QLD shooting itself in the foot, as Sydney and Melbourne tourists will be petrified of booking and paying any more than a couple of days before visiting, for fear there will be a solitary case and QLD CHO locks borders for another 30 days, meaning loss of deposit and full holiday. This fear would surely take out half potential visitor. I know I plan holidays 6-12 months out, not day prior.

 

[JessicaTam]

[mod hat]
A large number of posts have been culled. Infractions have also been issued for political discussion unrelated to the OP.

Note that I have better things to do on a Sunday night, so posts were not edited - just deleted.
[/mod hat]

 

[oz_mark]

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.

It will certainly be interesting to see how the high court goes with this, and how it crafts its ruling.
While I think closures can be justified, I think there needs to be some limits to it

 

[james4321]

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?

Its not a case of being petrified - that is just nonsense. I am happy to go with when the CHO determines that the time is right. thats what her job is.

 

[Pushka]

If CHO’s were left to completely control the regulations then their risk strategy would be extreme. There is no impetus for them to ever open borders again. Which is why their advice is important but represents just one, albeit significant, component in the decision making.

 

[DC3]

Its not a case of being petrified - that is just nonsense. I am happy to go with when the CHO determines that the time is right. thats what her job is.

Exactly. The CHO will put our health considerations as a priority. Some others, not so.

 

[DC3]

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?

Certainly the case in my view.

 

[Pushka]

Exactly. The CHO will put our health considerations as a priority. Some others, not so.

CHO will put health as their only priority. They will not take anything else into account.

 

[jakeseven7]

If CHO’s were left to completely control the regulations then their risk strategy would be extreme. There is no impetus for them to ever open borders again. Which is why their advice is important but represents just one, albeit significant, component in the decision making.

And that’s the problem here in QLD is that the CHO holds the keys to the state while there is a SOM, the government of the day is legally beholden to their orders regardless of their opinion and the rationale for the orders are also not required to be given, evidence provided or consensus/vetting undertaken.

In other states the CHO does not have this unanswerable power from one single person (though I think SA is a few people but unsure)

I think no state has been perfect in this set up I mean look at WA, the government was given advice and it was ignored so honestly I don’t know what the best solution is here.

 

[jakeseven7]

QLD shooting itself in the foot, as Sydney and Melbourne tourists will be petrified of booking and paying any more than a couple of days before visiting, for fear there will be a solitary case and QLD CHO locks borders for another 30 days, meaning loss of deposit and full holiday. This fear would surely take out half potential visitor. I know I plan holidays 6-12 months out, not day prior.

Working with a lot of tourist operators In SE QLD this is indeed a great fear. The only workable solution for visitors even if the borders were open would be to book ‘free cancel’ accom and ditch everything at the last minute if a case appeared that spooked the health department to close the borders yet again. There is fear that we simply aren’t prepared to manage minor outbreaks like NSW and VIC are...

 

[HappyFlyerFamily]

Working with a lot of tourist operators In SE QLD this is indeed a great fear. The only workable solution for visitors even if the borders were open would be to book ‘free cancel’ accom and ditch everything at the last minute if a case appeared that spooked the health department to close the borders yet again. There is fear that we simply aren’t prepared to manage minor outbreaks like NSW and VIC are...

It’s better if things are spoken clearer more often by everyone wherever possible

I think WA proposed arrangements will have issues when local minor outbreaks occur.

I think Qld measures will only have issues when mystery cases pop up. NSW is currently ‘averaging‘ a mystery case every 10-14 days, Vic is almost 14 days without a mystery case. What happens if a mystery case pops up on say day 29 Or the first day after quarantine-free entry resumes???

I’m not sure there is a fear of managing minor outbreaks as Qld and SA have also successfully manage at least 1.

 

[DC3]

CHO will put health as their only priority. They will not take anything else into account.

Yes, well said. And that’s good for us and our loved ones, and I wouldn’t want it any other way.

 

[OATEK]

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

Around 1969/70 the States tried to introduce a "receipt duty" on all retail/commercial transactions. The forerunner of the GST. The High Court held that such a tax was "an excise" and the Commonwealth have the exclusive power to impose duties of customs and excise. So the GST might be raised for the States, but as i understand it only under the authority of the Commonwealth.

On the other hand, the States have always had the authority to raise "income tax", but ceded that to the Commonwealth as a war time measure (WW2). So in fact income tax is "money raised from the states", some of which is handed back.

Edit: I mention that because in the past the High Court has often come down on the side of black letter law. I wonder if that will be the case on the state border closures.

 

[jakeseven7]

I think Qld measures will only have issues when mystery cases pop up. NSW is currently ‘averaging‘ a mystery case every 10-14 days, Vic is almost 14 days without a mystery case. What happens if a mystery case pops up on say day 29 Or the first day after quarantine-free entry resumes???

My heard hurts even contemplating the potential response from QLD Health..... remember same people who had Canberra as a hotspot for no reason.

Anyway the old border clock for NSW and VIC for a QLD Christmas reunion has now officially started! Here we go! (Again)

 

[DC3]

QLD shooting itself in the foot, as Sydney and Melbourne tourists will be petrified of booking and paying any more than a couple of days before visiting, for fear there will be a solitary case and QLD CHO locks borders for another 30 days, meaning loss of deposit and full holiday. This fear would surely take out half potential visitor. I know I plan holidays 6-12 months out, not day prior.

My heard hurts even contemplating the potential response from QLD Health..... remember same people who had Canberra as a hotspot for no reason ...

Although, best not to worry too much about things that we have no control over.

 

[N860CR]

CHO will put health as their only priority. They will not take anything else into account.

Yep. Just ask your doctor how many glasses of wine you should have a week. And ask them what they’d propose to do about the flu next year. If anyone thinks a medical officer is qualified to comment on what’s best for a state, then they’re extremely naive.

By the way, 0 cases of the virus today on the worlds largest island

 

[DC3]

Maybe rely on your doctor for medical opinions. Isn’t that why we usually see a doctor?

Why should we be seeking political opinions from medical experts? We have enough political masters who we elect to do that.

 

[lovetravellingoz]

CHO will put health as their only priority. They will not take anything else into account.

So are we talking all types of health, or just illness from Covid19?

If it is all health, which I assume it must be, then I assume the CHO also needs to be concerned with issues such as cancer treatments, medical treatments, mental health etc.

If it is the latter then sooner or later as cases have plummeted, and importantly unknown community spread has shrunk dramatically the point will be reached, if it has not already, where the covid19 health controls as existing are causing more health problems than they prevent.

I doubt anyone regards the measures that were rolled out as not being wise. So the question is when will it be wise to roll them back, and when will it be wise to not say shut a whole state if say 1 case pops up in a months time?

 

[MEL_Traveller]

So are we talking all types of health, or just illness from Covid19?

It's closing the border to keep out the threat of covid. Not sure there's anything else that is relevant in the border closure issue in respect of s92. And pretty much the same lines as the commonwealth ban on travel and international arrivals... it's only focused on keeping out covid, not on the economics or mental health.

 

[drron]

It's closing the border to keep out the threat of covid. Not sure there's anything else that is relevant in the border closure issue in respect of s92. And pretty much the same lines as the commonwealth ban on travel and international arrivals... it's only focused on keeping out covid, not on the economics or mental health.

When the numbers dying from the effects of lockdown are greater than the effects of Covid then the decision on borders should be easy.
When the numbers being harmed health wise from the effects of lockdown are greater than the numbers being affected by Covid the decision on borders is easy.

You may think that no one now is being affected by the results of lockdown but you are wrong.In the last 2 weeks i have looked after 3 people who are dying of their cancer because elective proceedures were put on hold so their cancer was not diagnosed in time.
I have looked after 1 very fit 90 year old who has been self isolating for over 6 months now as their partner has an immune deficiency and their specialist recommended that they both self isolate.Only telehealth consults with their GP and the patient didn't feel that the very minor chest pain was worth reporting.consequently admitted with a major heart attack.now an unfit 90 year old.

The effects of lockdowns is going to effect the economy for possibly some years into the future and although you seem to think that is not a major problem it is not what I am hearing from patients.Excess deaths are predicted to occur from suicide for years into the future.

Add to that the very many patients who were waiting for elective surgery for things such as joint replacement who have had their surgery put off for at least 3 months and in Victoria for 6 months who now face an even longer waiting list.I have seen a couple of cases where the surgeon has felt they are no longer a priority - unfortunately usually due to age - so that they now face the prospect of living the rest of their life in pain.

If CHO/CMOs are not taking these health issues into account when making their decisions something is terribly wrong with the system.