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]

Less miles on the road, fewer tanks of petrol consumed, less fuel excise collected.

Less miles on the road means we don't need the tax to repair the roads as quickly?

 

[MEL_Traveller]

Actually I wouldn't mind if some of these cases went all the way to the high court and everyone gets an answer on this states rights and movement of goods and people question. Would probably bring about more certainty if something like this happens again in the future.

The opposite side to this argument is that it would probably suit the states NOT to have the matter heard. because they know they can impose border closures next time. A bit like an airline not wanting a ticketing case to get to court.

I'm not convinced about who exactly is going to benefit from a ruling? Business people who can't adapt and do a meeting by zoom instead of face to face? I think the bigger opportunity here is not about border closures, but about how we manage our current business arrangements. Do we really need jets flying at 15 minute intervals between Melbourne and Sydney? Is a business person's other commitments *so* important that they can't get out of bed 15 minutes earlier to catch a plane?

Europe is looking to ban short flights. I think those are the considerations we should be looking at, rather than the legality of border closures.

 

[eastwest101]

The opposite side to this argument is that it would probably suit the states NOT to have the matter heard. because they know they can impose border closures next time. A bit like an airline not wanting a ticketing case to get to court.

I'm not convinced about who exactly is going to benefit from a ruling? Business people who can't adapt and do a meeting by zoom instead of face to face? I think the bigger opportunity here is not about border closures, but about how we manage our current business arrangements. Do we really need jets flying at 15 minute intervals between Melbourne and Sydney? Is a business person's other commitments *so* important that they can't get out of bed 15 minutes earlier to catch a plane?

Europe is looking to ban short flights. I think those are the considerations we should be looking at, rather than the legality of border closures.

Your first point is an interesting one - if the states lose and they can't legally close their state borders, then they will have to devise a legal and different way to restrict people in a public health situation like this one if they can produce the evidence that closing state borders restrict the spread of viruses. If the states win then its still a building block to form a base about how to do it next time, better and with more certainty and co-ordination so business and people know what to expect and can plan their business accordingly.

The second part of your comments is actually an environmental theme that is just masquerading under the cover of Covid-19, the "do we really need?" argument is really all about markets and economics and a case of "doing as I say, not as I do.", when I see politicians and public servants travelling by road and rail then I'll know that they are serious about restricting flying, but I fully expect such restrictions would have special allowances for politicians and pubic servants that are not offered to the general public, just like their job security and superannuation schemes. Pre Covid-19 - there was a market for scheduling flights every 15 mins between SYD and MEL and then cancelling every second one in times of low demand to maximise profits while still maintaining a viable airline transportation system that has high barriers to entry, low profit margins and rapacious monopoly airport owners to support. This is a function of airline economics, the focus on frequency over capacity for yield management reasons, Australia's geography and population distribution, and for speed, convenience and cost effectiveness air transport still has a place in a lot of countries. But lets not make it all about Sydney or Melbourne, for many regional and remote parts of Australia the only viable way of bringing in workers/expertise to support business and society is by flying, you can't zoom heart surgery or law and order.

When we have the population of Europe in an area the size of Europe, have a proper and efficient planning process and can construct infrastructure at a sensible price, then fast rail may be an option, possibly between MEL-SYD and maybe BNE, but so far the economics of it never stack up, unlike in some parts of Europe and Japan.

 

[MEL_Traveller]

The second part of your comments is actually an environmental theme that is just masquerading under the cover of Covid-19...

It is, but this is perhaps the ideal time to examine the issue? 3 months ago no one would have ever thought that workplaces would go to almost 100% work from home, virtually overnight. It's an experiment we would likely never have tried. Now that we have done it... we know we can.

 

[jakeseven7]

It is, but this is perhaps the ideal time to examine the issue? 3 months ago no one would have ever thought that workplaces would go to almost 100% work from home, virtually overnight. It's an experiment we would likely never have tried. Now that we have done it... we know we can.

Gosh bit of a sweeping generalisation -certainly not all business have been able to do that....

 

[MEL_Traveller]

Gosh bit of a sweeping generalisation -certainly not all business have been able to do that....

Agree... but perhaps those businesses that formerly used to travel interstate have been able to?

 

[OATEK]

Agree... but perhaps those businesses that formerly used to travel interstate have been able to?

[My bolding]

Some of ... not all of. Such open-ended statements ignore the range of travel for work types/instances.

 

[Steady]

[My bolding]

Some of ... not all of. Such open-ended statements ignore the range of travel for work types/instances.

Such as fifo workers who have either not gone home for 3 months, or essentially resign if they go home as they cannot go back.

But I guess they (the great unwashed hi viz) have never been thought of very highly on AFF, so unsurprising some think they could do their work on zoom or that they are allowed to continue crossing borders.

 

[cambriamarsh]

Such as fifo workers who have either not gone home for 3 months, or essentially resign if they go home as they cannot go back.

Or they are caught between jobs and are unemployed and aren't getting any help because their partner works and / or they are NZers like one of my close rellies.

 

[MEL_Traveller]

[My bolding]

Some of ... not all of. Such open-ended statements ignore the range of travel for work types/instances.

Such as fifo workers who have either not gone home for 3 months, or essentially resign if they go home as they cannot go back.

And that's a good example, an individual needing to travel to their place of work, for a function that cannot be performed remotely. Which is a bit different from the business person flying to Sydney for half a day to attend a meeting.

 

[oz_mark]

Your first point is an interesting one - if the states lose and they can't legally close their state borders, then they will have to devise a legal and different way to restrict people in a public health situation like this one if they can produce the evidence that closing state borders restrict the spread of viruses. If the states win then its still a building block to form a base about how to do it next time, better and with more certainty and co-ordination so business and people know what to expect and can plan their business accordingly.

The difficulty is that, being a health-related closure, it is somewhat time-based. A couple of months ago, it may well have been upheld by the high courts on health grounds. Now, and in the future, when the decision is made, I am not so sure.

Basically, the states need the powers, but should not be bloody-minded about it. It will be interesting to see how the case evloves.

 

[HappyFlyerFamily]

The difficulty is that, being a health-related closure, it is somewhat time-based. A couple of months ago, it may well have been upheld by the high courts on health grounds. Now, and in the future, when the decision is made, I am not so sure.

Basically, the states need the powers, but should not be bloody-minded about it. It will be interesting to see how the case evloves.

There is a difference between quaratine on arrival from interstate and closed border. Eg I think WA is a border closure (unless you are exempt eg FIFO, senior Government) utilising emergency power because of COVID. I think Qld is using public health powers for a border closure (unless you are exempt). I think NT only has a quarantine requirement. I think SA is a self-quarantine requirement as well.

if Qld’s use doesn’t get to the High Court then we won’t find out whether use of public health powers is appropriate.

if WA’s situation does then we will find out if their use of emergency powers is appropriate.

so even in this small mix, then the ‘way around’ Might be to use the other state’s version (In future).

 

[oz_mark]

Christian Porter (Federal Attorney General) says he has given notice to the High Court to intervene in three cases challenging the border closures in WA and Queensland.

Purpose is to argue for reopening borders.

 

[Seat0B]

So perhaps most States open from July and WA from August? Then we have Trans-Tasman from late August and Asia from September/October?

I love your permanent optimism @CityRail!

 

[drron]

There is a difference between quaratine on arrival from interstate and closed border. Eg I think WA is a border closure (unless you are exempt eg FIFO, senior Government) utilising emergency power because of COVID. I think Qld is using public health powers for a border closure (unless you are exempt). I think NT only has a quarantine requirement. I think SA is a self-quarantine requirement as well.

if Qld’s use doesn’t get to the High Court then we won’t find out whether use of public health powers is appropriate.

if WA’s situation does then we will find out if their use of emergency powers is appropriate.

so even in this small mix, then the ‘way around’ Might be to use the other state’s version (In future).

There is a difference with exempt workers.In WA,SA and NT an exempt worker has to self isolate or mandatory quarantine before starting work.For doctors NT will pay you for the quarantine period.
Qld has doctors as non exempt but can work without quarantine unless from a hotspot-still 3 in Victoria.
Tasmania-have to get an exemption.Have to self isolate for 2 weeks at your accom but still can work but must wear a mask for those 2 weeks.

 

[jakeseven7]

Has QF or JQ updated their Tassie schedule post July 20 yet? Because LST was on life support.... And DPO was MIA.... HBA was consigned to JQ only....

(Don't care about VA don't want to risk my own money and - they have ditched Tasmania all together anyway!)

 

[eastwest101]

Has QF or JQ updated their Tassie schedule post July 20 yet? Because LST was on life support.... And DPO was MIA.... HBA was consigned to JQ only....

(Don't care about VA don't want to risk my own money and - they have ditched Tasmania all together anyway!)

I would think that if VA2 or another viable competitor fails to relaunch, then TAS would be completely "Jetstarized" along with quite a few other places in Australia as well. As someone who does not live in SYD that's why I started flying DJ/VA - I don't fancy paying Qantas prices for Jetstar service.

 

[jakeseven7]

I would think that if VA2 or another viable competitor fails to relaunch, then TAS would be completely "Jetstarized" along with quite a few other places in Australia as well. As someone who does not live in SYD that's why I started flying DJ/VA - I don't fancy paying Qantas prices for Jetstar service.

Doubt it, QFLink make a killing in LST and DPO. And QFd scoop up all the corporate / gov traffic / premium leisure that goes into Hobart. HBA has had capacity thrown at it by QFd of late. If VA2 ditched Tassie all together, QF would just hoover up the premium crumbs and leave JQ the rest.

 

[p--and--t]

Doubt it, QFLink make a killing in LST and DPO. And QFd scoop up all the corporate / gov traffic / premium leisure that goes into Hobart. HBA has had capacity thrown at it by QFd of late. If VA2 ditched Tassie all together, QF would just hoover up the premium crumbs and leave JQ the rest.

Or take a longer way round on AirNZ in the travel bubble

 

[drron]

Has QF or JQ updated their Tassie schedule post July 20 yet? Because LST was on life support.... And DPO was MIA.... HBA was consigned to JQ only....

(Don't care about VA don't want to risk my own money and - they have ditched Tasmania all together anyway!)

From 22/6 QF has 1 MEL-LST-MEL flight monday-friday..
Leaves MEL 1505.Leaves LST 1645.

Still nothing from DPO