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

 

[Carrots]

And Tas to open to SA from Thursday - although some conditions to apply depending on where they dub hotspots.

 

[jakeseven7]

Let's hope it holds!

I think it is unfair that VIC has been held back to NSW's opening date....

 

[drron]

I think it is unfair that VIC has been held back to NSW's opening date....

Why?If all states had agreed to the definition of a hotspot that was brought to the National cabinet then the border to NSW would have opened well before Victoria.
We just have to thank our lucky statrs that WA was still not using the criteria suggested by their CHO back in October. as then the WA border would still be closed to everyone.

"The McGowan Government's position is there has to be 28 consecutive days of no community spread of the virus anywhere in the nation before the border can be opened, saying opening to some states and not others would be unconstitutional.

Mr McGowan said the advice from Dr Robertson was clear.

"The written advice and the verbal advice by the Chief Health Officer indicates, at this point in time, the border needs to remain in place to all states and territories," Mr McGowan said.

"That is the confirmed position by the Chief Health Officer and if you want to question that, that means you are impugning his integrity."

Confusion reigns over WA border policy as Health Minister mulls opening to non-transmission states

WA's Chief Health Officer winds back claims the state could open to much of the country, saying its hard border closure needs to remain in place for now.

www.abc.net.au

 

[jakeseven7]

Why?

Because by their own rules (WA), VIC should already be travelling as of last Friday.

 

[Must...Fly!]

"That is the confirmed position by the Chief Health Officer and if you want to question that, that means you are impugning his integrity."

No Mr McGowan, it more likely means that I am questioning your approach in balancing the advice of your Chief Health Officer against the needs of your citizens.

 

[drron]

Because by their own rules (WA), VIC should already be travelling as of last Friday.

Now,now.Leaving out the bit of my reply about National suggestions for definition of a hotspot makes a big difference.If, as it should have been,accepted by all States NSW would have opened well before Victoria.And very much before last friday.

 

[jakeseven7]

Now,now.Leaving out the bit of my reply about National suggestions for definition of a hotspot makes a big difference.If, as it should have been,accepted by all States NSW would have opened well before Victoria.And very much before last friday.

No one is following the national definitions (even the ones who signed up to them) so who really cares about them!

 

[nutwood]

The question that needs to be asked of these Premiers is: "what are you going to do in the event that one of the States you've opened your border to has an outbreak?". The response to that question needs to be clear and on the table for all to consider.
As a Tasmanian, I'm embarassed by the recent treatment of SA visitors. If a border is open, it should be open and people should be able to enter, comfortable in the knowledge that, extreme circumstances excepted, they are not going to be molested simply because of where they came from. Even in extreme circumstances, disruption should be minimised and possibly compensation offered.

 

[HappyFlyerFamily]

The question that needs to be asked of these Premiers is: "what are you going to do in the event that one of the States you've opened your border to has an outbreak?". The response to that question needs to be clear and on the table for all to consider.
As a Tasmanian, I'm embarassed by the recent treatment of SA visitors. If a border is open, it should be open and people should be able to enter, comfortable in the knowledge that, extreme circumstances excepted, they are not going to be molested simply because of where they came from. Even in extreme circumstances, disruption should be minimised and possibly compensation offered.

I think on the basis of the latest outbreak, the answer is pretty clear.

For 3 jurisdictions WA, Qld, Tas, the bar for extreme circumstances is pretty low (Eg 1 local case in the community) and slow to remove quarantine requirements.

For 1 jurisdiction NT, the bar is low but at least will remove quarantine requirements quicker.

For the next 2 SA, Vic, the bar is higher in they will move in concert with the ‘home’ jurisdiction.

For the last 2 ACT, NSW, the bar is very high.

 

[Lynda2475]

No one is following the national definitions (even the ones who signed up to them) so who really cares about them!

Disagree - NSW has been following them, which is why they were the last to close to Vic and the first to reopen back up to them. And why they didnt panic and slma border shut to SA because of a handful of cases.

 

[jakeseven7]

I think on the basis of the latest outbreak, the answer is pretty clear.

For 3 jurisdictions WA, Qld, Tas, the bar for extreme circumstances is pretty low (Eg 1 local case in the community) and slow to remove quarantine requirements.

For 1 jurisdiction NT, the bar is low but at least will remove quarantine requirements quicker.

For the next 2 SA, Vic, the bar is higher in they will move in concert with the ‘home’ jurisdiction.

For the last 2 ACT, NSW, the bar is very high.

TAS is a little bit grey because they didn't shut NSW out when NSW had some cases.... plus they are reopening to SA on Thursday which is a damn sight faster than QLD and WA dithering around....

SO maybe Tassie deserves its own special tier - better than WA and QLD but not as good as NT....

 

[nutwood]

TAS is a little bit grey because they didn't shut NSW out when NSW had some cases.... plus they are reopening to SA on Thursday which is a damn sight faster than QLD and WA dithering around....

SO maybe Tassie deserves its own special tier - better than WA and QLD but not as good as NT....

Just figuring where that leaves us. Somewhere in the Simpson Desert? Is the Betoota pub still operating? Some years since I've been there but still remember the double decker bus!

 

[Anna]

The reasons behind the High Court's decision in Palmer v WA will be handed down on Wednesday morning 24 February at "10am AEST".

 

[OZDUCK]

I would say an absolutely complete acceptance of the W.A. and some other states, arguments.

Clive Palmer's attempt to open WA border may have been 'catastrophic', High Court reveals

Billionaire business man Clive Palmer's unsuccessful attempt to tear down WA's hard border with other states could have had catastrophic health consequences, the High Court reveals in its reasons for rejecting his bid.

www.abc.net.au

 

[Must...Fly!]

I would say an absolutely complete acceptance of the W.A. and some other states, arguments.

Clive Palmer's attempt to open WA border may have been 'catastrophic', High Court reveals

Billionaire business man Clive Palmer's unsuccessful attempt to tear down WA's hard border with other states could have had catastrophic health consequences, the High Court reveals in its reasons for rejecting his bid.

www.abc.net.au

Agreed. The full judgement is here, if anyone wishes to peruse

Palmer v Western Australia

High Court Digital Collection

eresources.hcourt.gov.au

I am glad the High Court has had a say in this. For that reason I am appreciative of Palmer's challenge.

 

[drron]

The problem is there is not a simple process to ascertain when there is no longer a case for border closures.

 

[Pushka]

For the first time in almost a year, SA fully open to Australia from this Friday. Now please let that continue...

 

[kpc]

For the first time in almost a year, SA fully open to Australia from this Friday. Now please let that continue...

Going to Adl (from Syd) on Sat to see my parents whom I have not seen > 1 year

 

[Lynda2475]

For the first time in almost a year, SA fully open to Australia from this Friday. Now please let that continue...

So a weird cooncidental observation I've noted is that everytime things look good and SMH pulls its free covid live blog, within a day there seems to be a community case somewhere.

So I hope SMH keep up the blog up less the overconfidence jinxes things again.

 

[Pushka]

Going to Adl (from Syd) on Sat to see my parents whom I have not seen > 1 year

Enjoy. Great weather here this weekend.