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

 

[drron]

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.

There is absolutely no way that the closure of State borders is equivalent to the closing of our national border.
For a start the Federal border is not covered by Section 92 of the Constitution.
Second even though you harp on about the public health emergency just proclaiming one doesn't mean it really exists.The numbers Australia wide do not support such a state now.
In Australia there are 116 active cases at present according to the Commonwealth dept of Health website.

Outside the Australian border there are12,533,499 active cases less 116 for Australia according to Worldometers figures.
I think even Blind Freddy should understand the risk of opening our national border is far greater than opening State borders.

 

[DC3]

... even Blind Freddy should understand the risk of opening our national border is far greater than opening State borders.

The problem is in getting hold of Freddy when you really need him.

 

[MEL_Traveller]

There is absolutely no way that the closure of State borders is equivalent to the closing of our national border.
For a start the Federal border is not covered by Section 92 of the Constitution.
Second even though you harp on about the public health emergency just proclaiming one doesn't mean it really exists.The numbers Australia wide do not support such a state now.
In Australia there are 116 active cases at present according to the Commonwealth dept of Health website.

Outside the Australian border there are12,533,499 active cases less 116 for Australia according to Worldometers figures.
I think even Blind Freddy should understand the risk of opening our national border is far greater than opening State borders.

The mechanism for border closure is really a bit of a moot point. As far as I understand, the state borders aren't being closed under s92, the question is whether the closure contravenes s92.

The reason for the closure is what's important. And that's to mitigate risk. Multiple states/entities/regions have successfully closed borders to achieve this... Singapore, New Zealand, Taiwan, etc. Even Australia from low risk countries.

 

[drron]

Well if they are not being closed under section 92 please tell me under what section of the constitution they are being closed .
certainly in my corner are the CMO's of the Commonwealth.The CMO's of NSW,Vic,Tas and WA have all suggested there isn't a health reason for closures.The only one I am aware of suggesting their is a health reason is the QLD CHO.

 

[DC3]

Exciting and intriguing! The High Court has sent out notification that 'something' will be announced tomorrow (Fri 6 Nov) ...

So, some AFFers may be put out of their (state borders) misery, after only seven months of such erudite debate.

 

[Gremlin]

Well if they are not being closed under section 92 please tell me under what section of the constitution they are being closed .
certainly in my corner are the CMO's of the Commonwealth.The CMO's of NSW,Vic,Tas and WA have all suggested there isn't a health reason for closures.The only one I am aware of suggesting their is a health reason is the QLD CHO.

Actually @MEL_Traveller is correct. As Chief Justice Keifel pointed out on Tuesday, Palmer "had challenged the validity of health directions, not the laws enabling them, but section 92 applies to the validity of the laws themselves not directions". Palmer's QC conceded this point on Tuesday.

Whilst the various CMOs may have strong and justified, albeit sometimes differing, opinions on the health directions, their opinions are no more relevant than yours or mine on the validity of the laws. In contrast, the Attorneys-General in Victoria, Queensland, Tasmania, South Australia, Northern Territory and ACT have all intervened in this case in support of WA's position.

 

[MEL_Traveller]

Well if they are not being closed under section 92 please tell me under what section of the constitution they are being closed .
certainly in my corner are the CMO's of the Commonwealth.The CMO's of NSW,Vic,Tas and WA have all suggested there isn't a health reason for closures.The only one I am aware of suggesting their is a health reason is the QLD CHO.

The constitution doesn't authorise a state to close its borders.

In general terms, states are pretty much free to make whatever laws they want, albeit with some exceptions... one of which is that their laws can't be inconsistent with the constitution.

s92 states:

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. ​

So as a general principle a state can't make a law which contravenes the above. But you'll see it doesn't actually contain any provision which says a state may close its borders, or the circumstances in which it is allowed to do so.

 

[drron]

Of course the States have done this all before.

The ‘Spanish’ Influenza Pandemic in Australia, 1912-19 | Australian Society for the Study of Labour History

labourhistorycanberra.org

The drastic reason why the NSW–Qld border was once closed

It has only been closed to people once throughout its history, but for a number of months at the beginning of 1919 the New South Wales and Queensland border was shut, creating chaos for the people of the border towns.

www.abc.net.au

They even argued about masks.NSW made them mandatory unless you were outdoors with 3 or less people or family groups.

And the mortality rate for the Spanish Flu in Australia was 233/100000.Far higher than with Covid but low by world figures if the time.

 

[jakeseven7]

More pressure put on QLD and WA

____


Border announcement increases pressure on WA, Qld controversial border restrictions


NSW Premier Gladys Berejiklian is doing the breakfast TV rounds this morning, hoping her border announcement yesterday will push the rest of Australia to reopen.

Ms Berejiklian said the harsh lockdown in Victoria had "pretty much eliminated" coronavirus from the state, giving her confidence to reopen the border.

NSW will reopen to all of Victoria on November 23, two weeks after Melbourne reunites with regional Victoria.

"We think that's adequate time. The health experts certainly believe that was the case and I wouldn't have made the decision if they hadn't supported me in that," Ms Berejiklian told ABC News Breakfast.

"I'm very comfortable with the decision we have taken, but any decision like that comes with a risk.

"When you're dealing with a pandemic and weigh up the economic factors and the health risk, you have to ride that steady balance and I think that's what New South Wales has done.
"I hope my announcement yesterday put a bit of pressure on Queensland and WA to do the right thing. "

Premier blasted for ‘smart-arse’ text

The Queensland premier has been accused of acting "like a brat" over the border issues with NSW, after sending a "rude" text message to Gladys Berejiklian.

www.news.com.au

 

[jase05]

Clive lost
Close the thread

 

[jakeseven7]

Good news Friday, with ACT now following NSW and fully re-opening to VIC on Nov 23.

So we now have for Victoria:
NSW, ACT: Nov 23
TAS: Dec 1
NT: Announcement expected soon for Greater Melbourne (already open to Regional VIC)
SA: There was a rumour about Dec 1 but no confirmation as yet
QLD: Still fighting with NSW can only do one thing a month
WA: Still asleep

So we were wrong on all counts about the fastest states @dajop! (Though still time for NT/SA to sneak in)

-----

ACT follows NSW and opens border to VIC on November 23


Canberrans will be able to travel to and from Victoria from November 23, Health Minister Rachel Stephen-Smith has confirmed.

NSW Premier Gladys Berejiklian announced the border between her state and Victoria would open on that date, and the ACT will follow, although ACT Chief Health Officer Kerryn Coleman has released a more cautious statement about watching case numbers in the southern state.

"In line with NSW, the ACT will move to ease restrictions for people travelling from Victoria to the ACT from the 23rd of November," Ms Stephen-Smith said, acknowledging the news would be welcome for Canberrans with family and friends in Victoria.

Canberrans will be able to travel to Victoria soon

Free movement is three weeks away.

www.canberratimes.com.au

 

[Spongbob]

But if this thread is closed, what else can we do during the day?

 

[glasszon]

But is this thread is closed, what else can we do during the day?

Don't worry, the international border restriction will continue for a lot longer, that thread will always be open.

 

[DC3]

Don't worry, the international border restriction will continue for a lot longer, that thread will always be open.

Yes, switch the eloquent dialogue to international.

 

[DC3]

But is this thread is closed, what else can we do during the day?

Well, the matter was only due to Clive getting huffy. Nothing of substance really.

Edit: Just a little diversion that lasted for seven months.

 

[OATEK]

Clive lost:

High Court smacks down Clive Palmer’s border claim

Billionaire Clive Palmer has lost his legal fight against Western Australia’s border closure, with the High Court ruling it did not breach the constitution.

www.news.com.au

 

[jakeseven7]

Interesting development this morning here on border restrictions in QLD.

QLD Government was finally pinned down by journalisits on the rationale for only reviewing border restrictions monthly and was forced to admit it was not due to medical advice... this is a major admission which will increase pressure to review more frequently (e.g. SA reviews twice a week).
So there is no rationale.....

Also, reaffirming VIC will be open for Xmas, but will it be too late to grab tourists from NSW, ACT, TAS who are opening Nov 23 and Dec 1.....??

Interesting also no comment on NSW border openings... (plenty of other stuff v NSW but that's political rubbish and totally off topic!)

----

Premier says QLD on track to open border to Victoria before Christmas as tourism industry pleads for more frequent border reviews


Victorians have been given renewed hope of being let into Queensland in time for Christmas, with Queensland Premier Annastacia Palaszczuk describing progress in the southern state as "very encouraging". Victoria has just recorded a full week of no new coronavirus cases.

Ms Palaszczuk has confirmed there was no medical reason for the state’s border regime to be reviewed at the end of each month, rather than on a rolling basis.

Tourism and businesses leaders have pleaded with the Premier to review the decision more frequently.

Asked why border reviews were delayed to the end of each month, Ms Palaszczuk was unable to elaborate, simply saying: “Because that is what we have decided to do.”

On Friday, Ms Palaszczuk was optimistic about the possibility of opening up the border in December.

"Can I say from the early signs, it is very encouraging," she said.

Premier says Queensland could open border to Victoria before Christmas

Victorians have been given renewed hope of being let into Queensland in time for Christmas, with Premier Annastacia Palaszczuk describing progress in the southern state as "encouraging".

www.brisbanetimes.com.au

 

[jakeseven7]

Good news Friday, with ACT now following NSW and fully re-opening to VIC on Nov 23.

So we now have for Victoria:
NSW, ACT: Nov 23
TAS: Dec 1
NT: Announcement expected soon for Greater Melbourne (already open to Regional VIC)
SA: There was a rumour about Dec 1 but no confirmation as yet
QLD: Still fighting with NSW can only do one thing a month
WA: Still asleep

Update:

Clearly trying to bank the tourist dollars ahead of the other states, the Tasmanian Premier has just announced they are looking to pull forward their Dec 1 opening date to Victoria.

This state border game is like a game of snakes and ladders

Tasmania greenlights 'vertical drinking' outside, border may open early to Victorians

Tasmania's Premier says "vertical drinking" will be allowed in outdoor areas of venues from next Friday, as he flags a possible early opening of the state's borders to Victorian travellers.

www.abc.net.au

 

[Spongbob]

I think this is appropriate (from several perspectives):

 

[pangwen]

Maybe the title of this thread should be changed to

State border closures NOT illegal under the highest law in the country