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

 

[Pushka]

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.

SA to relax border restrictions with WA, NT and Tasmania from midnight

 

[flydoc]

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

Wonder if this will nudge WA into altering its stance on an indiscriminate hard border sooner- particularly for adjoining jurisdictions SA and NT

 

[jase05]

And it has just been announced that the NT and WA won’t be applying reciprocal rights so SA folk still can’t enter either without self isolating but they can come here. Getting messy now

 

[jakeseven7]

And it has just been announced that the NT and WA won’t be applying reciprocal rights so SA folk still can’t enter either without self isolating but they can come here. Getting messy now

Time for a National Cabinet Meeting - lock these morons in a room and don't let them out until there is consistency and clarity in border openings. Idiotic little Kings and Queens of the smaller states and territories!

 

[CityRail]

Time for a National Cabinet Meeting - lock these morons in a room and don't let them out until there is consistency and clarity in border openings. Idiotic little Kings and Queens of the smaller states and territories!

I think the message has been quite clear where the States will consider opening their borders in July. Today is 16th of June 2020, so it will appear to be reasonable that some states do not open their borders at this moment.

 

[flydoc]

Time for a National Cabinet Meeting - lock these morons in a room and don't let them out until there is consistency and clarity in border openings. Idiotic little Kings and Queens of the smaller states and territories!

According to an audio grab from the Federal Attorney General on ABC radio tonight, the PM told them at the National Cabinet meeting last Friday that time was up. And the AG said he will be joining the High Court action as “the border closures are (now) unconstitutional”.

Wonder if this will nudge WA into altering its stance on an indiscriminate hard border sooner- particularly for adjoining jurisdictions SA and NT

Apparently not-WA Premier McGowan digging in, quoting legal advice that says it would be unconstitutional to pick and choose between opening only some borders “and that is confirmed by the Federal Government."

WA Premier pledges hard border will only come down when health advice 'says it's the right time'

Premier Mark McGowan stands firm on Western Australia's hard border closure despite a decision by South Australia to allow WA, NT and Tasmanian residents to cross the border without a mandatory quarantine period.

www.abc.net.au

The legal advice to the SA premier obviously differs.

So yes,

Getting messy now

 

[samas]

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

Good news for VH-TCP

 

[drron]

Though on the local news in Tassie they are trying to convince airlines to fly to ADL.but then still say a Tassie resident coming home will still have to self isolate.That ain't no travel bubble.

 

[Anna]

The last person to have covid19 in SA was declared to have recovered on 4 June. So today we are at 13 days without an active case in SA. And that last case came into SA from U.K. via a few days quarantine in Vic and was allowed in on day 13 since the previous active case in SA (who was also a traveller from U.K.). In my view it's hard to make an argument for a border closure to SA residents on health grounds.

 

[MEL_Traveller]

The last person to have covid19 in SA was declared to have recovered on 4 June. So today we are at 13 days without an active case in SA. And that last case came into SA from U.K. via a few days quarantine in Vic and was allowed in on day 13 since the previous active case in SA (who was also a traveller from U.K.). In my view it's hard to make an argument for a border closure to SA residents on health grounds.

Unless you are allowing for one or two periods of 14 days for incubation? That too is reasonable.

 

[Anna]

The transcript from yesterday's directions hearing is not up yet but I found this on nonews.com.au -

Chief Justice Susan Kiefel on Tuesday made draft orders to send those disputed matters to the Federal Court to be tested at trial.

"It seems clear that the matters cannot be ready for a June 30 hearing by the court and are unlikely to be ready for some time," she said.

 

[Anna]

Unless you are allowing for one or two periods of 14 days for incubation? That too is reasonable.

I guess that depends on whether it is 'reasonable' to wait for zero cases, or whether being reasonable means keeping the virus at a low level where the health facilities can cope with it. Either way 14 days will be up tomorrow (although I thought that last time, and then they went and let an active case into SA).

 

[MEL_Traveller]

I guess that depends on whether it is 'reasonable' to wait for zero cases, or whether being reasonable means keeping the virus at a low level where the health facilities can cope with it. Either way 14 days will be up tomorrow (although I thought that last time, and then they went and let an active case into SA).

I think there are reasonable grounds for one or two 14 day periods. We saw with one of the clusters in Victoria that new cases were being diagnosed 30+ days after the first reported case.

If you have asymptomatic carriers, it could be 30+ days before one of those cases passes it to a vulnerable person who then gets very sick.

 

[Anna]

And the vulnerable person goes to hospital and gets treated because the hospitals are not overloaded because all over Australia community transmission rates are between nil and very low.

Clearly you and I disagree about what is reasonable, we are each entitled to our view and neither of us is going to change each other's mind

 

[jakeseven7]

And the vulnerable person goes to hospital and gets treated because the hospitals are not overloaded because all over Australia community transmission rates are between nil and very low.

Clearly you and I disagree about what is reasonable, we are each entitled to our view and neither of us is going to change each other's mind

Don't worry, it seems that some people (including several quite slow state premiers of the small states) haven't quite understood the memo that we are operating under a suppression strategy and that elimination is actually impossible. It actually doesn't matter what people believe they have to understand the objective.

Even NZ have clearly said they have not eliminated, they will see cases coming through.

People will catch up, eventually, everyone operates at different speeds - clearly if you look at the absolute MESS of the state borders right now - I have actually lost track of what is opening when and to whom. What a disaster.

 

[Spongbob]

It will be interesting to see how the plaintiffs argue the s.117 issue, with challenging the federal nature of the Australian Constitution.

 

[PineappleSkip]

Backtrack alert!

Article here about how Qld has reversed its former position that it wouldn’t open its borders to interstate travel until NSW and Vic have no new cases for four weeks. A deadline already missed. So the odds are firming on the Coolangatta wall coming down on 10 July, but expect it to be official in a couple of weeks.

I presume that SA has excluded Qld from it’s list of friendly states as there are still a couple of active cases here. One of the more obscure decisions, that one of SA

cheers skip

 

[jase05]

I presume that SA has excluded Qld from it’s list of friendly states as there are still a couple of active cases here. One of the more obscure decisions, that one of SA

SA is discussing QLD later this week. Probably will be an announcement Friday.
Disappointing that we have opened up to some states but it’s not being reciprocated

 

[Pushka]

SA is discussing QLD later this week. Probably will be an announcement Friday.
Disappointing that we have opened up to some states but it’s not being reciprocated

WA Premier is marching to the tune of his own drum.

 

[MEL_Traveller]

And the vulnerable person goes to hospital and gets treated ...

The death rate for the elderly means it's not a simple case of 'go to hospital and she'll be right mate'