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

 

[DC3]

“... The question put to the High Court was whether Western Australia's Emergency Management Act and the directions to close the borders issued under it breached section 92 of the Constitution.

Chief Justice Susan Kiefel said the court had found the Act complied with the constitution ...”

Never really stood a chance.

Clive Palmer has lost his WA border battle. What does it mean for our ever-changing state boundaries?

The High Court has knocked back billionaire miner Clive Palmer's challenge against WA's COVID-19 border closure. So what does it mean for our state as we grapple with the pandemic?

www.abc.net.au

 

[HappyFlyerFamily]

Maybe the title of this thread should be changed to

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

It would be interesting to know what the High Court actually said.

Palmer could have lost for a multitude of reasons. I do wonder whether the High Court left some wiggle room for it to be illegal or not.

 

[DC3]

Time to hitch up those caravans and move on.

 

[MEL_Traveller]

It would be interesting to know what the High Court actually said.

Palmer could have lost for a multitude of reasons. I do wonder whether the High Court left some wiggle room for it to be illegal or not.

Transcripts from each day are here: 2020 High Court of Australia Transcripts

From this morning:

By at least a majority the Court orders that the questions stated for the opinion of the Full Court in the special case filed on 22 September 2020 be answered as follows:​

​

(a) Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?​

​

Answer:​

​

On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.​

​

The exercise of the power given by those provisions to make cll 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.​

​

No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court.​

We will have to wait for the full decision to get a detailed look at the reasoning.

 

[jakeseven7]

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.

You may have hit the nail on the head after today’s press conference!

 

[HappyFlyerFamily]

You may have hit the nail on the head after today’s press conference!

I gave that prediction/spoiler some time ago

 

[Flashback]

As expected, the question has not really been answered.

Clive Palmer just lost his WA border challenge — but the legality of state closures is still uncertain

Mining magnate Clive Palmer has lost his challenge to the closure of the Western Australian border in response to COVID-19. Palmer has also been ordered to pay costs.

www.australiantimes.co.uk

The real question, then, is whether the direction falls within the scope of the legislative power. This is not a constitutional question, but a question of administrative law. The High Court then said in its order that it had not been asked this question, so it did not need to answer it.

On the basis of this technicality, the High Court (or at least a majority of the Justices) concluded it was not necessary to address whether the actual directions that stop people going in or out of Western Australia were valid.

 

[HappyFlyerFamily]

As expected, the question has not really been answered.

Clive Palmer just lost his WA border challenge — but the legality of state closures is still uncertain

Mining magnate Clive Palmer has lost his challenge to the closure of the Western Australian border in response to COVID-19. Palmer has also been ordered to pay costs.

www.australiantimes.co.uk

So are Palmer’s lawyers numpties or the High Court justices just too clever and found a way to avoid answering???

 

[drron]

The person advising the lawyers was and is the numpty.

 

[Spongbob]

As expected, the question has not really been answered.

I respectfully disagree. The question asked by Palmer has been answered.

 

[MEL_Traveller]

I respectfully disagree. The question asked by Palmer has been answered.

Agree.

The opinion piece in the Australian Times linked by flashback only really says we need to wait until the full reasoning is provided. Worth noting the author of that piece had previously said the whole HC case would turn on whether or not there were alternatives to a border closure: 'A little thing called the constitution': The hard truth about WA's 'hard border'. That didn't seem to be the case.

 

[jakeseven7]

Just on morning talk back up here:

Well the tourism industry up here in QLD has put their money where their mouth is to put more pressure on the QLD government to revisit their monthly state border meeting schedule (which was conceded not to be on medical advice last week).

Destination Gold Coast have sunk money into a huge marketing campaign desperately targeting Victorians to book their Xmas travel up here.

Campaign is live even when the border is still closed and the final monthly meeting before Christmas is still a couple of weeks away....

The campaign is to try and stop Victorians booking their holidays in NSW/ACT and TAS who have already got border opening dates.

And obviously to put pressure on the QLD government.

They will be doing a press conference today apparently but you can see the tv advertising on their FB page... read some of the comments though

 

[33kft]

The campaign is to try and stop Victorians booking their holidays in NSW/ACT and TAS who have already got border opening dates.

Too little too late, I suspect

 

[jakeseven7]

Too little too late, I suspect

Probably - apart from the family element and those people will be holding out. Really feel for them.

Other tourists.... well the other states have had weeks of a head start on us now


Now an administration nightmare with the borders has surfaced for those who actually can get in - apparently millions are now being spent on trying to manage this and it take 3 days and several departments to approve new border passes...

Queensland's newest border pass process explained

As of Tuesday, all those entering Queensland will be able to upload documentary evidence when applying for their border passes.

www.abc.net.au

 

[HappyFlyerFamily]

Probably - apart from the family element and those people will be holding out. Really feel for them.

Other tourists.... well the other states have had weeks of a head start on us now


Now an administration nightmare with the borders has surfaced for those who actually can get in - apparently millions are now being spent on trying to manage this and it take 3 days and several departments to approve new border passes...

Queensland's newest border pass process explained

As of Tuesday, all those entering Queensland will be able to upload documentary evidence when applying for their border passes.

www.abc.net.au

The answer for Qld and Sydney (and less likely needed for Victoria) meetups is to go to a third neutral venue to do a Christmas family meet up. Yes, it won’t work as well if the Qld family is vulnerable or frail, but at that point no harm in trying for an exemption by the ‘hotspot’ visitors to meet frail family in Qld

 

[Seat0B]

The answer for Qld and Sydney (and less likely needed for Victoria) meetups is to go to a third neutral venue to do a Christmas family meet up. Yes, it won’t work as well if the Qld family is vulnerable or frail, but at that point no harm in trying for an exemption by the ‘hotspot’ visitors to meet frail family in Qld

That's what we are doing - we will all have an old fashioned Christmas holiday in Evans Head - family members coming from Melbourne, COVID hotspot of ACT, and Gold Coast. Just wish there was a way to get my overseas based son and his lovely British girlfriend there too.

 

[N860CR]

The answer for Qld and Sydney (and less likely needed for Victoria) meetups is to go to a third neutral venue to do a Christmas family meet up. Yes, it won’t work as well if the Qld family is vulnerable or frail, but at that point no harm in trying for an exemption by the ‘hotspot’ visitors to meet frail family in Qld

Here’s a good one... I’ve got friends from
Melbourne and Brisbane coming to Sydney in a few weeks. I’ll pick them up at the airport in my “corona-unsafe” Sydney car, drive through Sydney to the central coast and all stay together in a rented house (with other friends from all across Sydney). I’ll then drive back through Sydney and take them both to Sydney airport for their respective flights home. In better days, the above would be the same except they’d stay at my house in Sydney.

I’d really love to know what we are achieving by the above (other than complicating our weekend). Now that borders are semi-open, there is zero medical benefit in individual states maintaining their own closures. That is just one example that makes a mockery of the current arrangements.

 

[jase05]

Other tourists.... well the other states have had weeks of a head start on us now

When are you going to fix that abomination that you blokes call a road up here!
The Bruce has been a embarrassment for 40 years.
Towns are filling up fast with tourists from what I’ve seen in the last week but the roads can’t cope.
Has been great to see the restaurants and towns get some life back in them, they are loving it

 

[jase05]

Some chatter that at tomorrow’s transition meeting the SA border could open to Victoria before the end of the month

 

[N860CR]

Some chatter that at tomorrow’s transition meeting the SA border could open to Victoria before the end of the month

No reason it shouldn’t open the same day NSW does. Now that Victoria is under control, and NSW has committed to opening, the other states will probably be forced to fall into line. Their borders are basically irrelevant (unless totally closed) when the two major states reopen to each other.