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

 

[jakeseven7]

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

Still nothing from DPO

Literally just got a text from Tasmanian family, QFLink have loaded in more flights to LST and DPO recommencing - they were looking around time of border opening (so mid July). Haven't had chance to look myself but will be booking very soon if that is true.

 

[Anna]

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.

Victoria and Tasmania will also intervene.

 

[drron]

Though the Victorian AG may have other things on her plate to worry about.

 

[Anna]

The Guardian's summary this morning

The Queensland border fight will return to the high court today. Queensland’s “roadmap” to recovery has the state reopening to domestic travel on 10 July, so barring some sort of unforeseen outbreak, the borders should be open before the court case is heard. Still, the ruling will have implications over what controls jurisdictions do have in any future events. Western Australia is also the subject of court action, but it doesn’t have a state election in October, so no one cares.

 

[jase05]

SA having a meeting this morning and we may possibly see some borders open earlier than July 20th. The ACT want to resume daily flights on July 3rd between ADL-CBR

 

[jakeseven7]

SA having a meeting this morning and we may possibly see some borders open earlier than July 20th. The ACT want to resume daily flights on July 3rd between ADL-CBR

Good news if SA opens earlier - would be logistically handy for all the airlines if SA and QLD both opened on July 10 instead of staggered. Good if Tasmania could join July 10 date as well.

 

[Anna]

The transcript from last Friday's hearing is here - Palmer & Anor v The State of Western Australia & Anor; Mineralogy Pty Ltd & Anor v State of Queensland; Travel Essence Pty Ltd & Ors v Young & Anor [2020] HCATrans 87 (12 June 2020)

There is a pearl of an exchange -

HER HONOUR: Mr Dunning, we are not epidemiologists.

MR DUNNING: No, but the State ‑ ‑ ‑

HER HONOUR: I mean, seriously, what is the Court to do with all of this data?

It illustrates the significant problem with trying to go straight to the High Court instead of the usual route often described as 'all the way to the High Court', which means via at least 2 and frequently 3 lower courts. That process means the facts have long been settled before the High Court justices have to turn their august minds to the law that applies to those facts. Here you can see the Chief Justice's attitude when confronted with a pile of unagreed assertions. A bit later she says that if facts need to be sorted out, that will probably be done by a Federal Court judge first before the High Court hears the case/s. That is the reason why the hoped-for hearing in the week commencing 29 June might not happen. Stay tuned for the next instalment

For the intervening parties, it would be most unusual for the Attorneys-General to front up in the High Court personally. It would usually be the Solicitors-General or else highly priced senior counsel (QCs) + teams of other counsel and solicitors.

 

[jase05]

Good news if SA opens earlier - would be logistically handy for all the airlines if SA and QLD both opened on July 10 instead of staggered. Good if Tasmania could join July 10 date as well.

My understanding is that Premier Marshall is just going over the legalities of opening up to different states at different times with some talk that it may be unconstitutional to treat states differently. If it’s all clear though we might see travel to WA, ACT, TAS, NT and QLD open up at the start of July whilst VIC and NSW would remain at July 20th

 

[PineappleSkip]

Queensland folded as predicted on Sunday

As was noted, Queensland didn’t fold on interstate travel and just reconfirmed the 10 July tentative date for open interstate travel it announced in May. There was a testing of the waters a while back about delaying this date to September, and the waters were found to be cold. Very cold. Downright icy.

They did cave on the second stage easing, bringing forward stage 2 and removing the 250k limit that was originally to be in place now. However that was probably of limited benefit. QF and VA didn’t, of course, schedule instant additional flights, and it seems many would have made plans based on the roadmap when released. The pineapples report from Hervey Bay, on Brisbane’s 250k limit, that it’s busy, busy, busy here. However, Booking.com discloses plenty of giveaway rooms in Cairns.

All this suggests that if Qld did open the borders tomorrow it wouldn’t make an instant difference to Tourism. We booked the day the plan came out, and know others both sides of the border, who did similar.

As for work travel, there are many who have flown up for that and there have been an awful lot of exemptions since the beginning of May. But not holidays. And only for NSW, SA, and the NT.

The annoying bit is the politicking and fuzzy information being put out there, and the confusion that creates. We set straight a friend from Northern NSW who thought she couldn’t go to the doctor in the Gold Coast because ‘the borders were closed’. Then there is the bit in the border declaration about ‘People living and working close to the border of New South Wales, South Australia or the Northern Territory‘ which refers to anyone living anywhere in those States/territories.

And I think that’s where the real action would be on this Constitutional case, assuming it proceeds. Section 92 is a political slogan of the times, about things being “absolutely free”, but failing to state just what they are free from, thus a bendy toy in the hands of the High Court. Section 117 basically says states can’t discriminate against people based on their State of residency. I suspect section 117 puts Queensland on a hiding to nothing because its border direction provides extensive exemptions to people coming from NSW and SA, the latter apparently because they can drive up the Birdsville Track to get in, but not people coming from Vic, Tas, or WA.

There is an interesting discussion on s92 and s117 here.

Do we really need jets flying at 15 minute intervals between Melbourne and Sydney?

Of course we do! We are Australian Frequent Flyer!


cheers skip

 

[jakeseven7]

My understanding is that Premier Marshall is just going over the legalities of opening up to different states at different times with some talk that it may be unconstitutional to treat states differently. If it’s all clear though we might see travel to WA, ACT, TAS, NT and QLD open up at the start of July whilst VIC and NSW would remain at July 20th

Very messy for 10 days, seriously....

 

[bigbadbyrnes]

It is hard for members of the public to assess whether or not the laws are reasonably appropriate and adapted or whether they are too extreme and lesser measures could achieve the same outcome in a manner less burdensome on the interstate movement of people. That is because the States have the modelling and medical advice, which changes on a day-by-day basis, which is not accessible to the public.

Not just hard for the public but the chief justices.

They court may not need to consider the data to adjudicate on the ‘adaptedness’ of the restrictions. They slapped down the subpoena request for the info by the plaintiffs (going by the transcript). I may be mistaken about that and perhaps the data will come out during proceedings.

I can understand that the court would not see it’s job as trying to determine public policy, nor limiting state powers over health care, but rather adjudicate on the legality of the policy.

There are certainly cases where Sec 92 was upheld as having meaning and protecting the right of people to move among the states freely – so it does ‘something’. In assessing the ‘adaptedness’ of the border restrictions (and therefore consistency with Sec 92), I would have assumed the data would be relevant. Perhaps they can assess the restrictions as valid as there is no other way to meeting the purpose of the restrictions. Or assess them as unnecessary as other measures may have been used without restricting movement.

 

[bigbadbyrnes]

But BBB, where is the evidence that opening the borders is going to be the magic pill that is going to provide us with hospitals, roads, schools and tax revenue and everything else? We’re talking 10 weeks of lockdown, not 10 years!

The restrictions have certainly further reduced economic activity that would have been reduced anyway. Hard to see how, aviation to take an example close to all of us, is not even harder hit by the border restrictions specifically stopping people flying among states.

For many businesses (not all), the border restrictions push them from 'on the brink' to 'over the brink'. VA is probably not a bad case of this. Add to that many other operators affected, in tourism, hospitality, and then all the businesses which are affected in turn, then those affected in turn, etc.

Fewer restrictions will lead to more economic recovery. It'll take an awful lot to recover from just a 10 week shutdown. Even that has been horribly managed - if businesses knew at the start that 'this is a shutdown from march to july - see you then', even that would reduce the uncertainty to a manageable point for some. It seems that WA are content to stay locked down forever atm.

 

[MEL_Traveller]

The restrictions have certainly further reduced economic activity that would have been reduced anyway. Hard to see how, aviation to take an example close to all of us, is not even harder hit by the border restrictions specifically stopping people flying among states.

For many businesses (not all), the border restrictions push them from 'on the brink' to 'over the brink'. VA is probably not a bad case of this. Add to that many other operators affected, in tourism, hospitality, and then all the businesses which are affected in turn, then those affected in turn, etc.

Fewer restrictions will lead to more economic recovery. It'll take an awful lot to recover from just a 10 week shutdown. Even that has been horribly managed - if businesses knew at the start that 'this is a shutdown from march to july - see you then', even that would reduce the uncertainty to a manageable point for some. It seems that WA are content to stay locked down forever atm.

Your arguments are, of course, right.... but what sort of an absurd position have we got ourselves into if we HAVE to travel in order to support a business like an airline? It’s a slightly ridiculous concept, suggesting people have *got* to keep flying in order to prop up an airline... or in fact *any* business model. It’s akin to saying airlines should take passengers for granted, and expect a lifelong steady supply, guaranteed by government.

 

[Gremlin]

Fewer restrictions will lead to more economic recovery.

It might seem inherently true, but some restrictions are beneficial and without them economic recovery is far from guaranteed. Take the closure of international borders and the requirements to quarantine upon entry. On the one hand, if those restrictions were removed there are definitely elements of trade and tourism that would open up and recover much faster. So theoretically that leads to a faster economic recovery. But there's a very serious risk of importing a second wave of the pandemic into Australia. Even if that didn't translate to the same degree of lockdown as first time round, it would almost certainly reintroduce many of the restrictions that are now easing. The economic cost of that would be catastrophic - in fact, the RBA's modelling suggests that the cost would be higher than shutting down the first time. Many businesses will go to the wall, but many, many more would go to the wall under that scenario.

WA has tied the speed of easing their state-level restrictions on social distancing to keeping borders closed to community transmission. They have a 1 person per 2sqm rule, instead of 1 per 4sqm that the rest of us abide by - if I was running a restaurant in WA it'd be much more economically viable than in Melbourne right now. NZ have published analysis showing that, for them, eliminating social distancing restrictions were economically far more beneficial than re-opening borders. They have no social distancing measures in place but borders remained closed. I'm sure the boffins in WA have some similar analysis themselves (but nothing in the public domain).

It's easy to point and say "but tourism loses" with restrictions in play. But if the trade-off is more social distancing measures for longer then the net cost across a larger number of businesses might be much higher.

 

[drron]

Your arguments are, of course, right.... but what sort of an absurd position have we got ourselves into if we HAVE to travel in order to support a business like an airline? It’s a slightly ridiculous concept, suggesting people have *got* to keep flying in order to prop up an airline... or in fact *any* business model. It’s akin to saying airlines should take passengers for granted, and expect a lifelong steady supply, guaranteed by government.

I don't think the majority have to travel but instead WANT to travel.If keeping a business supported happens then great but it is not why they WANT to travel.

 

[flydoc]

Breaking news from ABC -SA borders to open for unrestricted travel from WA, NT and Tas from midnight tonight. (Citation to follow)

 

[jase05]

Breaking news from ABC -SA borders to open for unrestricted travel from WA, NT and Tas from midnight tonight. (Citation to follow)

Yes, visitors from WA, NT and Tasmania can arrive from midnight tonight and are no longer required to self isolate for 14 days. It’s expected that reciprocal rights to those states will be announced this afternoon.
A decision on a QLD arrangement with SA is expected on Friday meanwhile VIC and NSW will remain closed

 

[CityRail]

The official source of news is here:

SA accelerates border reopening to allow travel from WA, NT and Tasmania

South Australia will reopen its borders to travellers from Western Australia, Tasmania and the Northern Territory from midnight, after the State Government announced the timetable had been accelerated.

www.abc.net.au

 

[drron]

The Tasmanian premier is considering bringing forward the Stage 3 of his plan to the 26/6.He may then announce the time of the border opening.

 

[jakeseven7]

Yes, visitors from WA, NT and Tasmania can arrive from midnight tonight and are no longer required to self isolate for 14 days. It’s expected that reciprocal rights to those states will be announced this afternoon.
A decision on a QLD arrangement with SA is expected on Friday meanwhile VIC and NSW will remain closed

Lucky Tasmanians, they can jump on a plane to Adelaide! Oh wait, no one flies that route, nor will they *Crickets*