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

 

[33kft]

It's effectively useless to anyone not moving there or staying long term with family but it's nice to know all the same. The first border opening that doesn't involve isolation will be the first border opening - Victorians have been able to travel to and isolate in NT (assuming other local VIC exclusions did not stop them from doing so) for quite some time, so SA isn't offering much new.

 

[dajop]

It's effectively useless to anyone not moving there or staying long term with family but it's nice to know all the same. The first border opening that doesn't involve isolation will be the first border opening - Victorians have been able to travel to and isolate in NT (assuming other local VIC exclusions did not stop them from doing so) for quite some time, so SA isn't offering much new.

Indeed. Does a partial border opening count as the "first border opening". NT border is currently now open to about 22% of Victorians without the need for isolation, although it is not open to Melburnians.

 

[33kft]

although it is not open to Melburnians.

It is, with mandatory isolation. Victorians wanting to escape Melbourne throughout the lockdown have been able to do so by isolating for 14 days in Darwin, such as the famous Karen from Brighton did:

'Brighton Karen' films more singalongs from quarantine after bailing on Melbourne

‘Karen from Brighton’ has documented her time in Darwin’s quarantine facility with more singalong videos about 'freedom'.

7news.com.au

So SA is not the first by a long shot, the NT offered this throughout the entire second wave, and I suggest that anyone who was looking for 14 day isolation to escape Melbourne has probably taken the offer up already, at which point they could then travel onward domestically (to those without hard borders) having not come from a hotspot in the past 14 days.

 

[jakeseven7]

Indeed. Does a partial border opening count as the "first border opening". NT border is currently now open to about 22% of Victorians without the need for isolation, although it is not open to Melburnians.

Nah doesn't count as the first border opening.... I still have my money on Tassie (Dec 1) or NT.

SA though meet twice a week and can make decisions very quickly - so might sneak in and upgrade this baby step opening announcement, unlike in QLD where we are unable to meet more than once a month (for classified reasons).

 

[BNEFlyer]

I can't help but think if it was Qld that offered this up, there'd be a lot of commentary from certain media outlets (and federal treasurers and the like) imploring they open up properly sooner.

A bit like the headline "Qantas CEO Alan Joyce has issued a fresh warning to Queensland Premier Annastacia Palaszczuk over her refusal to reopen her state’s border."

Maybe he isn't aware that the border opened to NSW today (with the exception of Sydney). But then again, QF is sometimes known as Air Sydney.

 

[jb747]

Maybe he isn't aware that the border opened to NSW today (with the exception of Sydney). But then again, QF is sometimes known as Air Sydney.

I’m sure he is, but, without Sydney and Melbourne, I doubt that many services would be viable.

 

[jakeseven7]

Well well, looks like Tassie doesn't want to be beaten by SA!

Hot on the heels of the SA announcement, the Tasmanian Premier has just confirmed NSW will go ahead and open on Friday and that VIC is 'more' than on target for 1 Dec (no quarantine) AND that they may also announce that VIC travel can resume with 14 days self-quarantine in location of your own choice before 1 Dec.... (not sure how many people would do this if the full reopening is 1 Dec)

Qantas better drag a few more Q400's / 717's / 737's out of hibernation and start warming them up!

----

CONFIRMED: TASSIE’S BORDERS WILL REOPEN TO NSW ON FRIDAY, VIC ON TRACK FOR DEC 1

Two unexplained cases in the last 28 days was enough to convince Public Health officials it is safe for New South Wales residents to enter Tasmania without having to quarantine as the Premier confirmed Victoria is 'more than on target' for 1 Dec reopening, flagging that restrictions may even be relaxed earlier for travellers who are able to self quarantine before then.

No Cookies | The Mercury

No Cookies

www.themercury.com.au

 

[BNEFlyer]

I’m sure he is, but, without Sydney and Melbourne, I doubt that many services would be viable.

Totally understand about SYD-QLD O&D, but people who don't live in the hotspot LGA's can fly from SYD, plus there's connections from regional NSW, HBA/LST and even ADL where there isn't capacity on ADL-BNE/OOL/MCY. People can also fly MEL-QLD if they arrived in Melbourne on the Spirit of Tasmania and transited directly to MEL.

 

[dajop]

Totally understand about SYD-QLD O&D, but people who don't live in the hotspot LGA's can fly from SYD, plus there's connections from regional NSW, HBA/LST and even ADL where there isn't capacity on ADL-BNE/OOL/MCY. People can also fly MEL-QLD if they arrived in Melbourne on the Spirit of Tasmania and transited directly to MEL.

Not sure if it's a consequence of the opening of NT to regional Victoria (pop: 1.3m) without quarantine, but Jetstar's MEL-DRW flights both tomorrow and Friday are only selling 1 seat. But there are sizeable populations in regional Vic (similar pop to Adelaide) and regional NSW (similar population to Brisbane).

 

[oz_mark]

Sounds like Palmer's hearing isn't going particularly well for him this morning...

Well, his arguments were being challenged. But then, I'd expect the justices to be challenging both sides of the argument.

 

[Gremlin]

Well, his arguments were being challenged. But then, I'd expect the justices to be challenging both sides of the argument.

WA Govt and Federal Court were up this afternoon. Not so much challenging going on in the afternoon session. Tomorrow the justices will hear from those who have intervened.

 

[oz_mark]

WA Govt and Federal Court were up this afternoon. Not so much challenging going on in the afternoon session. Tomorrow the justices will hear from those who have intervened.

.. I think most of the states are on the side of WA

 

[nutwood]

I've been a bit out of the news loop for a few days but I was flying ADL- SYD last night and the CSM was very sad about QA cancelling 1000 flights due to a Qld backflip.
The situation is getting seriously crazy. Illness and death are part of the human condition. Until this is factored into the Covid considerations, irrational decisions will continue. I'm thinking it's quite likely that the biggest benefit of the various closures will be a reduction of deaths from other causes, especially vehicle related. Last time I looked, the greatest risk any of us face is when we step into a vehicle. I'm not sure Covid has changed that.

 

[drron]

Looks like a few Tasmanians are escaping.Tonight's JQ flight LST-BNE was full.not one empty seat according to the crew.
Mind you also getting back to JQ normal - 45 minutes late out of LST,15 minutes on stand waiting for the stairs then baggage carousel breaks down.

 

[jakeseven7]

I've been a bit out of the news loop for a few days but I was flying ADL- SYD last night and the CSM was very sad about QA cancelling 1000 flights due to a Qld backflip.
The situation is getting seriously crazy.

At least you don’t live here...(I’m assuming)... it’s crazy and depressing we can’t get a straight answer out of these people, we the taxpayers pay for.

Now there are basically no health experts that endorse any of QLD and WA’s ongoing border closures with the current rates of active cases in NSW anymore and shortly VIC we all hope.

In QLD, we also can’t see any of the rationale for the border decisions here (classified) or even an answer to why they can only look at it in the now infamous monthly meetings (reason for monthly only is also classified).... though lots of people are asking for that silly monthly rule to be squashed:

——
Tourism industry pushes for earlier Queensland border review

Queensland's tourism industry has implored Premier Annastacia Palaszczuk to bring forward the border opening with Sydney to give operators a chance to stay afloat through the Christmas holidays.

Mr Gschwind said the low number of community transmission cases in Sydney and Melbourne with strong contact tracing there and in Brisbane, should ease the concerns of Ms Palaszczuk and Queensland's Chief Health Officer, Jeannette Young.

Ms Palaszczuk should bring forward her review of the state's borders due this month, he said, asking why such an important decision can only be looked every 30 days.

Health experts have also said the ongoing border closure makes no sense with such low cases of community transmission across Australia.

"Clearly we are hoping decisions are made on a more timely basis," Mr Gschwind told The Australian Financial Review.

"We hope the overwhelming medical evidence will give confidence to the Chief Health Officer we are in safe hands and can proceed with further border openings."

Mr Gschwind said many tourism operators were struggling with delays to border reopenings and were relying on the federal government's JobKeeper scheme to stay afloat.

They feared the ongoing uncertainty about the border reopening will deter southerners from booking a Christmas holiday.


Australian Tourism Industry Council executive director Simon Westaway said Queensland's ongoing restrictions were "economically damaging and foolhardy".

ATIC analysis showed that each day Queensland's border remains closed is costing the state $21 million in lost domestic product and more than 170 jobs.

"Queensland’s decision to maintain its border closed to greater Sydney and Victoria, despite both having demonstrative low levels of recorded COVID community transmission cases, is economically damaging and foolhardy as the days tick by," he said.

Tourism bosses push for earlier Queensland border opening

Queensland Premier Annastacia Palaszczuk should listen to medical experts and open the borders, tourism bosses say.

www.afr.com

 

[oz_mark]

Now there are basically no health experts that endorse any of QLD and WA’s ongoing border closures with the current rates of active cases in NSW anymore and shortly VIC we all hope.

There seems to be some sort of stage management going on with the WA borders, however, the WA CHO did commit to reviewing the NSW border situation mid-month.

 

[Spongbob]

[...] Last time I looked, the greatest risk any of us face is when we step into a vehicle. I'm not sure Covid has changed that.

These can be minimised with regulation (vehicle standards, driver & passenger behaviour etc). Likewise with COVID-19.

 

[Anna]

WA Govt and Federal Court were up this afternoon

I don't know what you mean by 'Federal Court'. There is no federal intervener in the matter. The Commonwealth withdrew several months ago. Perhaps you mean 'analysis of the Federal Court's findings'.

 

[Gremlin]

Perhaps you mean 'analysis of the Federal Court's findings'.

Yes

 

[jakeseven7]

There seems to be some sort of stage management going on with the WA borders, however, the WA CHO did commit to reviewing the NSW border situation mid-month.

You think I wonder who on earth would be doing such a thing

But with EVERYTHING else aside at least WA is able to meet and discuss and make decisions more often than monthly unlike QLD who fend off every question with ‘we cannot discuss or change anything at all until at the end of the month’

Maybe in the classified border meetings they have discovered the virus follows a calendar as well and makes its move on the last day of the month or something!?!? (We don’t know its classified)