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

 

[nutwood]

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.

Interesting read. Thanks for putting the link up. Saved me tracking it down!
It would have been more interesting had Palmer's team accepted there was a pandemic and the State had emergency powers, but then argued that there were more effective ways of achieving the desired health outcomes. As it was, they were simply steam-rollered by the public health argument.

 

[Must...Fly!]

Interesting read. Thanks for putting the link up. Saved me tracking it down!
It would have been more interesting had Palmer's team accepted there was a pandemic and the State had emergency powers, but then argued that there were more effective ways of achieving the desired health outcomes. As it was, they were simply steam-rollered by the public health argument.

Agreed.

The judge seemed to have pre-empted that. As the judgement mentions other approaches such as testing etc but would still be less effective than a border closure.

 

[nutwood]

Agreed.

The judge seemed to have pre-empted that. As the judgement mentions other approaches such as testing etc but would still be less effective than a border closure.

The judge would always take the conservative position. It was up to team Palmer to prove there was a better way and they failed dismally.

 

[MEL_Traveller]

The judge would always take the conservative position. It was up to team Palmer to prove there was a better way and they failed dismally.

Isn't that why it went to the Federal Court to determine the facts? The Fed Court found that the closure was the best way.

 

[nutwood]

Isn't that why it went to the Federal Court to determine the facts? The Fed Court found that the closure was the best way.

Would it not be more accurate to say that the Federal Court found there was no convincing argument that there was a better way?

 

[Spongbob]

[at 83] "GAGELER J. Section 92 of the Constitution emphatically and imperatively declares that "trade, commerce, and intercourse among the States ... shall be absolutely free". The "riddle of s 92" lies in the question begged by the constitutional text: "absolutely free from what?"

So my interstate road, rail and air travel should be free?

 

[MEL_Traveller]

Would it not be more accurate to say that the Federal Court found there was no convincing argument that there was a better way?

My reading was that they considered all the circumstances... the lack of a vaccine or other treatment, the inability of testing to stop the introduction of the virus, the inability to quarantine mass arrivals, and the potentially catastrophic impact if the virus did enter and was uncontained, and found that the entry ban was effective (at preventing the catastrophic event).

 

[QF WP]

[at 83] "GAGELER J. Section 92 of the Constitution emphatically and imperatively declares that "trade, commerce, and intercourse among the States ... shall be absolutely free". The "riddle of s 92" lies in the question begged by the constitutional text: "absolutely free from what?"

So my interstate road, rail and air travel should be free?

I believe the context of free to be “open”, therefore no impediment to trade. We don’t usually have designated border crossings, that would only create the bottlenecks we have seen under COVID