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

 

[blackcat20]

Imagine if Vic doesnt meet their mystery benchmark at the end of November...people wont be happy to have Christmas plans thrown into disarray.

 

[jb747]

I guess Qld will be open for 30 minutes on the 24th of December.

Just book elsewhere. They don’t want you, only the contents of your wallet.

 

[tgh]

They don’t want you, only the contents of your wallet.

..and not even that really.. or so it seems...

 

[drron]

Maybe at the end of the month AP might give Gladys an up yours.Open to Victoria but not Sydney as they have more cases.

 

[DC3]

My experience of Queenslanders is that of making travellers very welcome, including those from interstate. Those in the country towns will tell you how much they appreciate you supporting their town/area. Genuine down to earth good folks.

 

[Anna]

Not that anyone seems that interested in the actual topic of this thread any more but here is a sensible analysis of the main arguments from the case - States and territories back WA's border ban in Clive Palmer court challenge

I will be surprised if the decision is delivered in 2 weeks though as the article suggests. But who knows. The High Court has surprised me before.

 

[MEL_Traveller]

Not that anyone seems that interested in the actual topic of this thread any more but here is a sensible analysis of the main arguments from the case - States and territories back WA's border ban in Clive Palmer court challenge

I will be surprised if the decision is delivered in 2 weeks though as the article suggests. But who knows. The High Court has surprised me before.

I wonder what weight will be given to the discussion about international borders also being closed.

 

[Gremlin]

I wonder what weight will be given to the discussion about international borders also being closed.

From what I've followed, it has played no part as international borders are irrelevant to S92

 

[Gremlin]

High Court ruling will be handed down at 9:45am tomorrow.

 

[oz_mark]

High Court ruling will be handed down at 9:45am tomorrow.

That's pretty quick. Seems they didn't need to think about it too much!

 

[MEL_Traveller]

From what I've followed, it has played no part as international borders are irrelevant to S92

Well, if you’re looking at effective ways to control the import of the virus, and it’s being argued there are other - less strict - methods than a border closure... bit hard to make that claim if the federal government is saying the only way to control it is a total travel ban!

If it is being argued there are other, less strict methods, that implies states must do an environmental scan. That scan would include looking at the federal response to the same pandemic.

 

[jakeseven7]

QLD Police union have asked for the army to come back to help man the state border line between QLD and NSW because of resourcing issues and being too thinly spread....

I think we know what the answer will be anyway to this request!

---

QLD Police calls to bring Army back to border


THE army should return to border checkpoints immediatly to help combat an expected flood of visitors as restrictions continue to ease around the country, according to the Queensland Police Union.

The New South Wales government on Wednesday confirmed it would reopen its border with Victoria, Australia’s busiest, on November 23 while states such as Tasmania, Western Australia and South Australia move to progressively relax all controls this month.

No Cookies | The Courier Mail

No Cookies

www.couriermail.com.au

 

[Anna]

Exciting and intriguing! The High Court has sent out notification that 'something' will be announced tomorrow (Fri 6 Nov) at 9.45am - 'pronouncement of orders'. Absolutely no idea what that might mean. Hopefully it means more than a formal announcement that 'judgment is reserved'.

Meanwhile anyone who wants to read the constitutional arguments will find their heart's desire here - Case B26/2020 - High Court of Australia

 

[Anna]

The plot thickens - a second notification from the High Court with added words - Palmer & Anor v. The State of Western Australia & Anor (B26/2020)
The pronouncement will be transcribed and the transcript will be published as soon as possible. It will be accessible on the Court’s website: https://www.hcourt.gov.au/cases/case_b26-2020

Sounds like we might get some oral orders made tomorrow which presumably will tell us whether Palmer wins or loses. I doubt that we will get the full reasons tomorrow though, unless the justices have been reading this thread and busily cutting and pasting everyone's learned comments

 

[oz_mark]

If nothing else, it may mean that they all are generally in agreement with each other.

 

[HappyFlyerFamily]

The plot thickens - a second notification from the High Court with added words - Palmer & Anor v. The State of Western Australia & Anor (B26/2020)
The pronouncement will be transcribed and the transcript will be published as soon as possible. It will be accessible on the Court’s website: https://www.hcourt.gov.au/cases/case_b26-2020

Sounds like we might get some oral orders made tomorrow which presumably will tell us whether Palmer wins or loses. I doubt that we will get the full reasons tomorrow though, unless the justices have been reading this thread and busily cutting and pasting everyone's learned comments

If nothing else, it may mean that they all are generally in agreement with each other.

More likely that they’ve done their research beforehand and nothing happened these past few days to change their minds.

 

[Anna]

More likely that they’ve done their research beforehand and nothing happened these past few days to change their minds.

That would be a complete travesty of our adversarial judicial system, so I disagree that that is 'more likely'.

 

[HappyFlyerFamily]

That would be a complete travesty of our adversarial judicial system, so I disagree that that is 'more likely'.

Well we can disagree and that’s ok.

The most eminent justices in our land have been looking at this for a few months now. Most of the arguments have been laid in writing for some time as well.

To me it seems this case is more an intellectual case - involving legal theories.

Its not like a criminal case where witness credibility comes into the equation.

Being an adversarial system doesn’t mean it can’t have been researched thoroughly beforehand. Being adversarial doesn’t necessarily mean that oral arguments are heavily weighted to the outcome.

 

[oz_mark]

I just wonder what the answer will be

 

[Flashback]

I just wonder what the answer will be

The thread will then have an answer at least and can be closed, unfortunately all the OT posts won't be able to continue