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]

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

Disappointing? It's just a stupid 'selective' strategy from all the minor states to begin with. And SA announcing before they had consulted the other 'selected' states, what were they thinking - did they think anyone would actually care about SA? Did they think the airlines are going to start back up in volume for some patchwork quilt of random flights around the country? For the sake of 10 days?

I mean come on, what are these premiers on?! Its honestly deeply embarrassing - not disappointing

Sort. It. Out.

 

[CaptJCool]

This patchwork scenario of Elimination some places and Suppression in others was always likely....

And today NZ has fallen in the same trap as SA with UK residents given “compassionate exemptions” to see dying relies when they wouldn’t be allowed to do so at home...

Opening the borders is a challenge (and note remote Aboriginal communities are a SIGNIFICANT consideration for WA & NT SO BEWARE the Premier who does so and causes havoc, wrath and death of the population .

I think the SA strategy has been well founded and the lead taken being a LIB Govt here....

BTW Not sure how one drives between Tasmania and the mainland ....so is it STOP tassie Boats ?
Answer JQ did fly a service Hobart - Adelaide, as VA flew Hobart-Perth.... (roughly 3-4 times a week)

The airlines have said they need a couple of weeks to set up the logistics of the operations and its right to believe people aren’t going to fly on in with no quarantine at one end and 14 days back at home.

Also, surprisingly, wine trips and outback tours are big reasons to head to SA and more people come than many realise (thanks Buzz)

 

[Anna]

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

I can understand why you would feel less confident if you live in Vic and/or are vulnerable yourself. But here in SA, nobody has caught covid19 since at least 22 April, possibly earlier as I'm not sure if that case was a traveller or a local.

The 2 positive cases since 22 April, detected on 8 May and 26 May, were both travellers who brought the virus in with them and were in quarantine already. 13 days since the last positive case recovered - the chance of local infection in SA really seems to me to be minuscule at the moment.

 

[oz_mark]

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.

This could take a while....

 

[MEL_Traveller]

I can understand why you would feel less confident if you live in Vic and/or are vulnerable yourself.

Tick and tick! But why would SA want us to come over there??

 

[CaptJCool]

Tick and tick! But why would SA want us to come over there??

Borders to Melbourne are still shut due to branch-stacking

 

[Pushka]

Tick and tick! But why would SA want us to come over there??

We don't! But we'd like to come visit!

 

[Anna]

Tick and tick! But why would SA want us to come over there??

We don't . I never said we did, and the SA Vic border is still closed. SA is only open to WA, NT and Tas. What I originally said was it's hard to make an argument for a border closure to SA residents on health grounds. And then we started a debate about what is 'reasonable'.

 

[HappyFlyerFamily]

There is a growing misperception on what is a closed border.

I believe WA and Qld have closed borders and SA, NT and Tas have quarantine periods for people arriving from outside their jurisdiction.

 

[bigbadbyrnes]

What I originally said was it's hard to make an argument for a border closure to SA residents on health grounds. And then we started a debate about what is 'reasonable'.

Anne Twomey agrees with you. Summary of her latest conversation with media;

- The border closures were very likely defensible when they were first implemented
- As Australia continues to succeed in containing/controlling the virus spread, the situation will certainly move to a point where the borders are no longer 'reasonably necessary and appropriately suited to the purpose of protecting the health of state citizens'
- She suspects the point at which it no longer becomes 'reasonably necessary' has been reached already, but this would essentially be what the court would have to decide upon

 

[Anna]

I believe WA and Qld have closed borders and SA and NT have quarantine periods for people arriving from outside their jurisdiction.

Except that as of the other day, SA is now open for people from WA, NT, Tas without quarantine. But people from SA still can't freely go there or anywhere else, despite the virus having been next-to eliminated in SA.

 

[Anna]

Anne Twomey agrees with you.

Oh dear I had better re-think . But being serious, wasn't she the one who a few weeks ago said it was all probably contrary to s92 and got people here going on about that ridiculous ancient decision in R v Smithers? The 100+ year old case with the 2 (out of 4) justices who apparently stayed too long out at lunch having brandies and cigars then went back to their desks and wrote some gratuitous comments about s92 that weren't even the basis for the actual decision in that case?

 

[bigbadbyrnes]

I have other posts to add to - but I find myself wondering right now more than anything - what would happen if a state like the NT declared 'elimination' like NZ (46 days since last case, and zero community transmission ever) totally derestricted internally (ah lah NZ?) but kept the borders up on health grounds awaiting elimination in every other state. It would be politically brilliant for the premier given that a majority of people will believe they are unaffected by a hard border persisting (and they may be right), but I wonder if it would affect the protectionist case which could be made against border closures (also under Sec 92).

 

[bigbadbyrnes]

Oh dear I had better re-think . But being serious, wasn't she the one who a few weeks ago said it was all probably contrary to s92 and got people here going on about that ridiculous ancient decision in R v Smithers? The 100+ year old case with the 2 (out of 4) justices who apparently stayed too long out at lunch having brandies and cigars then went back to their desks and wrote some gratuitous comments about s92 that weren't even the basis for the actual decision in that case?

March 22; borders probably necessary

States are shutting their borders to stop coronavirus. Is that actually allowed?

The short answer is ‘yes’ - the states can impede people moving across borders if it is for the protection of public health.

theconversation.com

May 21; getting to a point where its at least arguable, difficult because facts change over time. There will come a point where the facts don't stack up in support of borders being reasonably necessary

Constitutional validity of border bans ‘quite hard to assess’

Constitutional expert Anne Twomey says the proposition bans on interstate travel are unconstitutional "is at least arguable". One Nation leader Pauline Hanson has called for affected Queensland businesses to join her to "start proceedings against the state government" labelling the Premier's...

www.skynews.com.au

15 June; still hard to say, "it's a borderline issue" (insert wheeze), but she recons the point has probably come
Prof Anne Twomey say WA's chances of fending off a challenge to its hard border aren't good - Mornings with Gareth Parker - Omny.fm

 

[HappyFlyerFamily]

Except that as of the other day, SA is now open for people from WA, NT, Tas without quarantine. But people from SA still can't freely go there or anywhere else, despite the virus having been next-to eliminated in SA.

Yes, it means that for example NT or Tas resident can go to SA and effectively enjoy a short holiday, but need to do a quarantine on return. (Not sure whether WA resident is an exempt person to re-enter WA).

Edit: to look at it another way, if SA resident goes to NT/Tas for a seven day holiday (plus 14 day quarantine in NT/Tas) they need 21 days off. The NT/Tas resident also needs 21 days off for their 7 day holiday in SA - but they can do their 14 day quarantine at home

 

[drron]

Tasmania does have a closed border.You are not allowed in if you reside interstate unless you get an exemption and being the wife of an essential worker does not get you an exemption.
Those with exemption an exemption as an essential worker have to self isolate at their accommodation but those with other exemptions have to go into hotel quarantine for 14 days but can be granted permission for example to visit a dying relative.
No matter what your exemption you are required to wear a mask for 14 days.

 

[Anna]

For any insomniacs, the transcript from yesterday 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 88 (16 June 2020)

The next directions hearing seems likely to be in the Federal Court. Note that the Federal Court's role will be limited and will not (should not, ought not) involve making any decision about the legal constitutional issues.

 

[Anna]

Unbelievable. For the second time, SA health officials let a positive-testing traveller into SA on day 13 in a row of no active cases

I suspect it's deliberate, to stop people getting complacent about eliminating the virus.

SA records first coronavirus case in 22 days, but authorities say it won't count

SA Health says a man who tested positive for coronavirus has entered SA, but insists the state's 22-day record of no new cases remains intact as he is not considered infectious.

www.abc.net.au

 

[Pushka]

Unbelievable. For the second time, SA health officials let a positive-testing traveller into SA on day 13 in a row of no active cases

I suspect it's deliberate, to stop people getting complacent about eliminating the virus.

SA records first coronavirus case in 22 days, but authorities say it won't count

SA Health says a man who tested positive for coronavirus has entered SA, but insists the state's 22-day record of no new cases remains intact as he is not considered infectious.

www.abc.net.au

I don't think this was an SA issue this time. Vic released him after finding he was no longer infectious. For some goddam reason. No wonder they still have clusters in Victoria and it shouldn't be added to our toll because he first tested positive in Melbourne.

Funny you should comment about the deliberateness. I wondered if Victoria released him deliberately.

 

[CaptJCool]

Comrade Vlad sharing the love around