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]

And with a vaccine? We'll still have to manage the virus and the vulnerable.

Only a couple of months ago doctors and ethicists were prioritising who should receive treatment in the event hospital resources were stretched during covid. Others were advocating extreme shielding for the elderly and vulnerable. A vaccine means we hopefully shouldn't need to have either of those things on the table anymore.

 

[Seat0B]

There are lives to be saved, and lives to be lived as well. I have had enough.

I've been off the forum for a few days and catching up now. The optimism on Saturday! And then, the now all too familiar slamming shut of borders. Just like you @Must...Fly!, I am thoroughly sick of it.

I have close family in NT, ACT, Vic and QLD, plus a son who lives overseas, and it is totally IMPOSSIBLE to plan any trips to catch up with the A-based family, let alone the overseas one, under current regimes. As I reported previously in this forum, my sister was mid-trip to NT via QLD (with overnight stay in Brisbane due to the p#ss poor schedule of flights from Canberra at the time) when QLD slammed its borders shut to the COVID hotspot of Canberra where we both live, causing much stress.

We are trying to arrange a meet up in northern NSW (thank you Gladys for your common sense approach to keeping NSW open for business as much as possible - the consistency is everything) as the only reasonably stable location for everyone to get to to "celebrate" Christmas - but there is always the fear that if you leave your state, you might not get back without losing 14 days and $3000 in unplanned, unexpected and probably unnecessary hotel quarantine when states make hair trigger decisions on sudden border closures in knee jerk reactions to a few cases, causing total chaos. No one in my family is dying, thank goodness, but this year we added 2 new babies (1 in ACT and 1 in NT - busy year in the territories!) that have not met their family yet, and having lost my Mother-in-law in November 2019, after losing my Dad in late 2018, 2020 was always going to be a year when we wanted to hold close to the remaining senior members, who are aged 90 and 86. Instead, I feel like I am living in a soviet-era Eastern bloc country, not my beloved Australia - and as a person old enough to have lived through the worst of the soviet era, I can say that I honestly NEVER expected to need a border pass to cross state lines, that permission to cross state lines could be refused or that I could be restrained from leaving my country.

To move this back on thread and away from my personal gripes, if there is one thing that has really emerged from this pandemic it is that our federal system is truly broken, and that we are not one country at all. We are, by the behaviour of our state leaders and the support of the populace, clearly still nothing more than a collection of colonies, with the old competitive, paranoid parochialism smouldering just below a veneer of national unity. "Queensland hospitals are for Queenslanders", shameful treatment of border communities for medical, work and compassionate reasons - hell, just for living a normal life, WA locking out its own residents for months on end, and special pandering treatment for elites. I am devasted by these realisations, as a person who has devoted a large chunk of my life to service of our country via the ADF and then the public service. When the health risks inevitably reduce, I call for consitutional reform.

 

[Must...Fly!]

I agree wholeheartedly with your post

When the health risks inevitably reduce, I call for consitutional reform.

And I completely support this comment as well. If I had more experience and didn't have a job which largely precludes me from being vocal about policy, I would start my own advocacy to encourage greater co-operation between the state and federal levels, and legal/constitutional reform where required. This experience has been a disaster for anyone with family in other states, I would hate for anyone to have to go through the kind of mental anguish and angst again that many thousands have in 2020.

 

[MEL_Traveller]

To move this back on thread and away from my personal gripes, if there is one thing that has really emerged from this pandemic it is that our federal system is truly broken, and that we are not one country at all. We are, by the behaviour of our state leaders and the support of the populace, clearly still nothing more than a collection of colonies, with the old competitive, paranoid parochialism smouldering just below a veneer of national unity.

I hear you... but what you have described is the exact definition of a 'federation', which is what we are in Australia.

Federation:

federation​

/fɛdəˈreɪʃ(ə)n/​

​

noun

1. 
   a group of states with a central government but independence in internal affairs.

 

[Seat0B]

I hear you... but what you have described is the exact definition of a 'federation', which is what we are in Australia.

Federation:

federation​

/fɛdəˈreɪʃ(ə)n/​

​

noun​

​

1. 
   a group of states with a central government but independence in internal affairs.

I understand, and this is why we need reform - our approach to federation has been shown to be dysfunctional in anything other than good times. For example, the bushfires last summer (how quickly we have forgotten) as well as this cursed pandemic.

 

[Must...Fly!]

I hear you... but what you have described is the exact definition of a 'federation', which is what we are in Australia.

Federation:

federation​

/fɛdəˈreɪʃ(ə)n/​

​

noun​

​

1. 
   a group of states with a central government but independence in internal affairs.

That indeed is the definition of Federation. One must ask though, in 2020 are the responsibilities of the states accurately reflected in their legal powers, or do we as a populace have a higher expectation of cohesiveness and co-operation between the states themselves, and between the states and the federal government?

For example the recent bushfire royal commission - which proposes the federal government be granted powers to declare a national emergency across state lines to better facilitate a co-ordinated effort.

 

[trevella]

it is totally IMPOSSIBLE to plan any trips to catch up with the A-based family

Yep. Just cancelled my trip to Tassie for next month. People being dragged off bushwalks into hotel quarantine was the last straw.

 

[Seat0B]

That indeed is the definition of Federation. One must ask though, in 2020 are the responsibilities of the states accurately reflected in their legal powers, or do we as a populace have a higher expectation of cohesiveness and co-operation between the states themselves, and between the states and the federal government?

For example the recent bushfire royal commission - which proposes the federal government be granted powers to declare a national emergency across state lines to better facilitate a co-ordinated effort.

My thoughts exactly

 

[jakeseven7]

Yep. Just cancelled my trip to Tassie for next month. People being dragged off bushwalks into hotel quarantine was the last straw.

Out of control....

This state v state disaster in managing these issues is getting very very long in the tooth.

 

[MEL_Traveller]

To both seat0B and Must...Fly... I guess this is where people have different expectations. Bushfire coordination is a good example of where we might work more closely, or benefit from centralised coordination. But when it comes to things like health I absolutely want the states protecting me! The national government has different priorities (economic), and as we saw in Victoria, their management of aged care was not good

 

[Seat0B]

To both seat0B and Must...Fly... I guess this is where people have different expectations. Bushfire coordination is a good example of where we might work more closely, or benefit from centralised coordination. But when it comes to things like health I absolutely want the states protecting me! The national government has different priorities (economic), and as we saw in Victoria, their management of aged care was not good

But, @MEL_Traveller, I think part of the issue with aged care is the ability of both levels of government to point at each other, and say"but I thought that was your responsibility". On the issues raised by @Must...Fly! about the balance of state v federal powers for the 21st century, I know for a fact that the only way the Commonwealth has any power over aged care is through the corporations power in the Constitution. That is not a very direct power at all.

 

[Must...Fly!]

To both seat0B and Must...Fly... I guess this is where people have different expectations. Bushfire coordination is a good example of where we might work more closely, or benefit from centralised coordination. But when it comes to things like health I absolutely want the states protecting me! The national government has different priorities (economic), and as we saw in Victoria, their management of aged care was not good

A bit of a misnomer I'm afraid. You need to examine the aged care responsibilities more closely, it is not solely up to the federal government. The states retain control for health in the facilities for example, because they set the laws within their jurisdictions.

The fact we have competing priorities and a lot of misinformation flying around as to who is responsible for what should be an alarm bell for many to consider that the system is in some way broken, and in need of significant reform. I think we might find that if states did not have the federal government to back stop economic fallout from long-term lockdowns (i.e. job keeper in Victoria), then choices would have been made very differently here (Melbourne), and for that matter in the rest of the country too (i.e. Perth, where my family and friends are based).

 

[Seat0B]

A bit of a misnomer I'm afraid. You need to examine the aged care responsibilities more closely, it is not solely up to the federal government. The states retain control for health in the facilities for example, because they set the laws within their jurisdictions.

The fact we have competing priorities and a lot of misinformation flying around as to who is responsible for what should be an alarm bell for many to consider that the system is in some way broken, and in need of significant reform. I think we might find that if states did not have the federal government to back stop economic fallout from long-term lockdowns (i.e. job keeper in Victoria), then choices would have been made very differently here, and for that matter in the rest of the country too.

wow we are in sync today @Must...Fly!

 

[oz_mark]

I agree wholeheartedly with your post

And I completely support this comment as well. If I had more experience and didn't have a job which largely precludes me from being vocal about policy, I would start my own advocacy to encourage greater co-operation between the state and federal levels, and legal/constitutional reform where required. This experience has been a disaster for anyone with family in other states, I would hate for anyone to have to go through the kind of mental anguish and angst again that many thousands have in 2020.

I brought up the idea of needing constitutional reform earlier, and has been pointed out to me that it would be hard work. Many, many people seem to think the premiers are doing a good job....

 

[MEL_Traveller]

But, @MEL_Traveller, I think part of the issue with aged care is the ability of both levels of government to point at each other, and say"but I thought that was your responsibility". On the issues raised by @Must...Fly! about the balance of state v federal powers for the 21st century, I know for a fact that the only way the Commonwealth has any power over aged care is through the corporations power in the Constitution. That is not a very direct power at all.

Not disagreeing. But management of health care aside, the underlying objective of the federal government was to open borders, pretty much no matter what the cost it seemed. They wanted to support business and no doubt reduce the increased cost of support services. I personally think we needed a circuit-breaker between big business and us people. State governments provided that.

I brought up the idea of needing constitutional reform earlier, and has been pointed out to me that it would be hard work. Many, many people seem to think the premiers are doing a good job....

It would require a referendum. Almost certain to fail given the majority of support that seems to be out there for the border closures.

 

[MEL_Traveller]

A bit of a misnomer I'm afraid. You need to examine the aged care responsibilities more closely, it is not solely up to the federal government. The states retain control for health in the facilities for example, because they set the laws within their jurisdictions.

The fact we have competing priorities and a lot of misinformation flying around as to who is responsible for what should be an alarm bell for many to consider that the system is in some way broken, and in need of significant reform. I think we might find that if states did not have the federal government to back stop economic fallout from long-term lockdowns (i.e. job keeper in Victoria), then choices would have been made very differently here (Melbourne), and for that matter in the rest of the country too (i.e. Perth, where my family and friends are based).

It is confusing... this ABC 'fact check' seems to suggest the Federal govt has quite a big role including the supply of PPE and managing staff numbers: We fact checked Bill Shorten on who is responsible for aged care. Here's what we found

 

[drron]

It is confusing... this ABC 'fact check' seems to suggest the Federal govt has quite a big role including the supply of PPE and managing staff numbers: We fact checked Bill Shorten on who is responsible for aged care. Here's what we found

So why did NSW Health take control of the Newmarch house outbreak?
Why did Tas Health supply the PPE to Tassie aged care.
Why did QLD Health take control when Aged care workers were close contacts of the young women's escapades to Melbourne?

I think the ABC needs fact checking.
And I have posted the link before when The Deputy Vic CHO Annaliese Van Dieman said they had learn't from the Newmarch House outbreak and they were ready to protect Victorian Aged Care Residences.

 

[MEL_Traveller]

So why did NSW Health take control of the Newmarch house outbreak?
Why did Tas Health supply the PPE to Tassie aged care.
Why did QLD Health take control when Aged care workers were close contacts of the young women's escapades to Melbourne?

Indeed! Those are really good questions when the Feds are supposed to be managing it and supplying PPE!

 

[Must...Fly!]

Indeed! Those are really good questions when the Feds are supposed to be managing it and supplying PPE!

No, the health care providers are supposed to be obtaining their own supplies.

In an absolute emergency the federal government has a stockpile for supply, once commercial options have been exhausted. They were distributed when required, but as a provider throwing your hands up and begging for handouts from the government is not really how it works - at least that's my understanding.

 

[N860CR]

As insane as the SA restrictions are, they’ve proven that state border restrictions are not required. If you can’t walk your dog in Adelaide, I suspect rocking up to the airport and catching a plane to Brisbane will throw up quite the flag. This is how it could have been managed from day 1.