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

 

[MEL_Traveller]

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.

I hear what you are saying, I don't see how lockdowns are related to border closures?

There have been cases where the exemption process - to cross borders for urgent medical care - appear to have failed. Those need to be addressed.

I can see how your argument applies to international border closures... people needing to come home to see doctors but can't.

 

[blackcat20]

Queensland: We wont keep borders closed a day longer than necessary.
Also Queensland: we're not reviewing our border wit Victoria until the end of November.

Guess we'd better cancel that December Gold Coast accommodation...

 

[jb747]

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.

I very much doubt that the financial health of any tourism business has entered many of the Qld government’s considerations. It won’t bounce back in a hurry, even restarting the airlines will take weeks, probably months, to reach any form of reliable levels. Re-establishing trust in southern visitors will be the work of years.

A friend who lives in Qld, and who travels around a lot, has posted many pictures over the past few months, of what amounts to business as normal for most people. Not businesses, but no distancing. No consideration of the virus at all. Perhaps the real fear of the Qld government is not that there will be virus cases, but that nobody has taken on any of the lessons learnt in other states. Qld was lucky first time around, but has it set itself up, or is it simply relying on luck in the future.

I have a Qld caravan park booking for May 2021. At this point I’m betting I’ll be able to go as far as Yamba/Byron, but I’m reckoning on only about a 30% chance of being able to go further. I’ve been extremely pessimistic throughout this pandemic, but thus far haven’t been too far wrong. Still, I’m hoping to be.

 

[Pushka]

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?

I wish they were but to be honest I think they only care about Covid because that is the only marker or benchmark than can be directly related to their current status.

 

[jakeseven7]

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.

Very timely, on ABC radio up here this morning there was a huge piece on how the QLD border restrictions are now actually harming people more than protecting them for some of the reasons you have stated, delayed access to medical services, mental health of course as anything tourism / hospitality / or related is devastated.

 

[jakeseven7]

A friend who lives in Qld, and who travels around a lot, has posted many pictures over the past few months, of what amounts to business as normal for most people. Not businesses, but no distancing. No consideration of the virus at all. Perhaps the real fear of the Qld government is not that there will be virus cases, but that nobody has taken on any of the lessons learnt in other states. Qld was lucky first time around, but has it set itself up, or is it simply relying on luck in the future.

That has been the hot topic of discussion up here too as I previously posted.

Because the rationale for the medical advice is not released publicly, not even other healthcare professionals and more qualified epidemiologists can vett it. So all we hear about is the ‘border clock’ ‘once a month meeting’ and the ‘28 day /48 hour’ rules.

In the meantime because of the vagueness of the response up here, people are now worried that the real reason for the ongoing sledgehammer approach on borders is that QLD health hasn’t built up their capability and contract tracing well enough to manage small outbreaks

I have a Qld caravan park booking for May 2021. At this point I’m betting I’ll be able to go as far as Yamba/Byron, but I’m reckoning on only about a 30% chance of being able to go further. I’ve been extremely pessimistic throughout this pandemic, but thus far haven’t been too far wrong. Still, I’m hoping to be.

You will only get in if the ‘rules’ are changed I’m afraid.

It’s very clear there is only a very slim chance NSW and VIC will ever meet the ‘impossible’ hurdles and even if they do it would only be a matter of days before they broke the rule again and the borders would ‘slam shut’ again.

 

[drron]

Though on the news last night I heard AP saying that the borders will be reviewed at the end of the month and she expects the border to re open on December 1.

 

[jakeseven7]

Though on the news last night I heard AP saying that the borders will be reviewed at the end of the month and she expects the border to re open on December 1.

Here in QLD it is the CHO’s decision though - legally they as one person hold all the cards and the rationale does not have to be provided.

The weird ‘monthly’ thing - they are only able to meet monthly, for reasons unknown and apparently this is classified too, reporters have asked many times, no answer.

The juicy rumour going around the medical profession up here though is an interesting one - that the QLD CHO has a terrible relationship with the NSW CHO....which might explain a lot of what is going on....!! They certainly approach things completely differently...

 

[tgh]

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

There may (or may not) be merit in the arguments above.. but there needs to be fact to back up such an argument.. not emotional heart string tugging.
Afaik , there is still limited information about the scale and quantum of post covid health levels across a large sample group.

There are no silver bullet decisions available to the decision makers.. just best guess compromise based on available data.
To that end they present as easy targets especially when politics is woven through the agenda

 

[HappyFlyerFamily]

Though on the news last night I heard AP saying that the borders will be reviewed at the end of the month and she expects the border to re open on December 1.

Based on everything in the public domain, I don’t understand why anyone would expect Qld to allow quarantine-free entry from NSW (edit: Sydney) or Vic(edit/Melbourne). A fairer comment could have been hope, rather than expect. We are more likely to expect a mystery case in November to end all chances of anything new happening on 1 December.

 

[blackcat20]

Based on everything in the public domain, I don’t understand why anyone would expect Qld to allow quarantine-free entry from NSW (edit: Sydney) or Vic(edit/Melbourne). A fairer comment could have been hope, rather than expect. We are more likely to expect a mystery case in November to end all chances of anything new happening on 1 December.

Why not? Vic has only a handful of active cases, a run of 0 case days, and only 1 community case in the last 14 days.

Though on the news last night I heard AP saying that the borders will be reviewed at the end of the month and she expects the border to re open on December 1.

Too late for us mostly likely, we're booked for December 6. Not keen to try for last minute flights.

 

[Pushka]

Afaik , there is still limited information about the scale and quantum of post covid health levels across a large sample group.

I can only give anecdotal evidence. My partner works in the mental health and well-being area. Psychologists are in huge demand here in SA and with a long wait list. Psychs are coming out of retirement to fill a gap.

I deferred a few blood tests. It turns out I probably shouldn’t have done that but luckily not too much damage.

 

[jakeseven7]

Why not? Vic has only a handful of active cases, a run of 0 case days, and only 1 community case in the last 14 days.

Too late for us mostly likely, we're booked for December 6. Not keen to try for last minute flights.

Reviewing all the comments re: VIC by state leaders:

- I think there is a good chance Tassie will actually get in first. Or NT who since their special date have been very practical in their approach to border restrictions

- Suspect SA will be a close second

- NSW are trying to be opportunistic and use their border opening as leverage to get VIC to force MEL open again for quarantine purposes again so they aren't doing all the heavy lifting..... Ballsy move, lets see how that goes down though, they have a lot to lose.

- ACT a little bit of a dark horse, could be fast and finish second or could just get bundled up with NSW

- QLD, depends how our CHO feels on the morning (classified)

- WA, nope - hurdles too high for both VIC and NSW. Which is a pity because the biggest trans con route, connections for business and family reunifiction is the MEL-PER relationship

 

[blackcat20]

Maybe I need to look at NT for a babymoon then

 

[dajop]

Reviewing all the comments re: VIC by state leaders:

- I think there is a good chance Tassie will actually get in first. Or NT who since their special date have been very practical in their approach to border restrictions

I suspect NT will be first. In fact as of today they are open to regional VIC - no other state or territory has done this. I’m guessing it’s only a matter of time before MEL is added.

 

[jakeseven7]

I suspect NT will be first. In fact as of today they are open to regional VIC - no other state or territory has done this. I’m guessing it’s only a matter of time before MEL is added.

I agree, will be neck and neck TAS and NT on opening to VIC.

Tassie has a habit of announcing a date (which they have for VIC already - Dec 1) then two weeks out 'confirming intention' then a couple of days out 'concretely confirming'.

So technically they are ahead already in the date announcement.

 

[jakeseven7]

Northern Territory opens border to regional Victorians today and 'on track' to open to Melbourne before Christmas

Chief Minister Michael Gunner says the Northern Territory is "on track" to open its borders to Melburnians before Christmas.

From today, November 2, travellers from regional Victoria will be allowed to enter the Northern Territory without quarantining for two weeks. The only coronavirus 'hot spot' still excluded from travelling to the NT is Greater Melbourne.

Mr Gunner told ABC Radio Darwin the NT was actively working towards re-opening to people from Melbourne before Christmas.

"At this stage we're on track for the national roadmap which is that Victoria will join us before Christmas" Mr Gunner said.

Victoria's mystery case total may go up, Brett Sutton says

Three cases from the past week might be added to the total of mystery cases recorded in Victoria, Chief Health Officer Brett Sutton says.

www.abc.net.au

 

[MEL_Traveller]

I can only give anecdotal evidence. My partner works in the mental health and well-being area. Psychologists are in huge demand here in SA and with a long wait list. Psychs are coming out of retirement to fill a gap.

I think down the track it will be worth unpacking the stats and data to get a better understanding of the types - and severity - of the demand. Mental health has a huge spectrum, not all of it is going to end up in the worst case scenario.

Would also have to see what part of that was due to border closures rather than covid in general.

 

[p--and--t]

I wish they were but to be honest I think they only care about Covid because that is the only marker or benchmark than can be directly related to their current status.

If thats the case, perhaps they should rename themselves CCO if their prime motive is not balancing the overall health of the populace and stand aside for someone who is.

 

[HappyFlyerFamily]

NSW Premier hinting about Vic/NSW border announcement on Wednesday potentially......regional Vic, Melbourne??? Hope its not a massive disappointment.