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

 

[PineappleSkip]

There is community spread in all states - almost guaranteed, some are just not testing enough to pick it up. People just don't seem to get this.

Not pointing any bone before at Vic at all, and never an apologist for Qld. There is a lot of serendipity in where the cases appear, both where the spread lies and where cases get picked up. But assertion and reiteration of a proposition without regard to the evidence - this is the stuff of conspiracy theories.

cheers skip

 

[jakeseven7]

Yes, there's going to be outbreaks going forward and almost certainly in each state. Yes, they'll need to be dealt with. But right now, Vic is the only state with a community transmission problem.

Fact check yourself There is community transmission in other states.

And you also can't assert that anyway as you don't know - you have to rephrase and say 'Vic is the only state with KNOWN community transmission at this point'. And that is partly because the Victorians are testing so many more people per capita.

 

[jase05]

Fact check yourself There is community transmission in other states.

And you also can't assert that anyway as you don't know - you have to rephrase and say 'Vic is the only state with KNOWN community transmission at this point'. And that is partly because the Victorians are testing so many more people per capita.

The Vics were pathetic at the start but they are making up for their initial poor testing now.
We just have to find a way to live with it now because it isn’t going away anytime soon and all states will record new cases

 

[jakeseven7]

We just have to find a way to live with it now because it isn’t going away anytime soon and all states will record new cases

Exactly, ‘Covid free NZ’ now has 3 cases (another one just popped up) and hundreds of people are being contact traced as 2 of those cases merrily trotted around spreading the virus that they didn’t know they had.

This will happen everywhere, the nature of this virus being asymptotic in so many instances and so highly contagious means it’s inevitable.

So unless individual states are incredibly poorly prepared for this certain outcome (which they all claim they are actually very well prepared blah blah blah...) the borders should open uniformly and promptly.

 

[Anna]

Sorry but the logic of that argument eludes me.

The 2 cases in NZ were travellers from overseas (no? I'm pretty sure they were). And you say they 'merrily trotted around spreading the virus' and now there's a third case and other people being contact traced.

So isn't that an argument for taking greater care about travellers, not less care? I just don't get how 2 overseas travellers bringing covid19 back into NZ supports an argument that 'the borders should open uniformly and promptly' .

 

[Gremlin]

Fact check yourself There is community transmission in other states.

And you also can't assert that anyway as you don't know - you have to rephrase and say 'Vic is the only state with KNOWN community transmission at this point'. And that is partly because the Victorians are testing so many more people per capita.

Again, you've made this claim repeatedly too.

Victoria doesn't publish testing data on the same timetable as other states, so direct comparisons to the numbers quoted above are out by a bit. In the 2 weeks to the 7th of June, Victoria did 119,710 tests.

Over that time period, the per capita test rates by state were:

Victoria 2.1%
NSW 2.0%
Qld 1.2%
WA 1.6%
SA 1.6%
Tas 1.6%

So yes, Vic tested more, but it's not "so many more people per capita" that would suggest that other states have a similar issue but they're just not looking for them. Since the 7th of June, NSW testing rates have remained the same. Qld's testing rates are increasing. WA's rates have decreased slightly. SA's remain roughly the same and Tas have decreased slightly.

In aggregate, Victoria have tested more. But that's primarily because of their blitz in testing through early to mid-May. Whether they tested more in early May is irrelevant to the likelihood of finding community transmission in mid to late June.

 

[MEL_Traveller]

For me, I would hope that the outcome of any High Court decision would be that (a) states can close borders where there are compelling grounds to do so, and (b) unless those grounds are against the public interest, the courts will not look behind it.

So for example, if a state has declared a state of emergency, and the declared state of emergency provides the basis for the border to be closed, the court will accept the state of emergency and not enter into competing arguments surrounding the validity of that declared state of emergency.

 

[drron]

There is a very big,indeed an enormous, difference between closing our national border which is the correct thing to do and our State borders which is wrong.
Worldwide there have been 8578283 confirmed cases and 7391 in Australia.
Which means that in Australia there are 6325 cases outside of QLD,6788 for WA,6951 for SA,7163 for TAS,and 7362 for the NT.

So compared to our National border where there have been 8,570,892 cases outside our border the States exposure is miniscule.

Then take the source of Australia's infections.61.9%,4576 cases, in returned OS travellers.
27.7%,2050cases ,in contacts of known cases
9.9%,735 cases, unknown source of local infections.
0.4%,30 cases ,under investigation.

Now at least half of those with known contacts would be contacts of retuned travellers-over 600 cases just from the Ruby Princess alone.So with all OS travellers now quarantined that is not going to be a major problem causing new cases.

So in fact less than 2000 cases of possible local transmission.So what are we so scared of now? So just 1 in 13000 of the countries population.

It really seems some state Authorities aren't very good with maths.

 

[nutwood]

It really seems some state Authorities aren't very good with maths.

I have to disagree. I think they are very good at maths. They know that closing borders is very appealing to tribal instincts, especially in States that consider themselves almost separate from Australia.

The vast majority of voters are not inconvenienced by border closures and are very much in favour. That's the important sum!

 

[TomVexille]

I have to disagree. I think they are very good at maths. They know that closing borders is very appealing to tribal instincts, especially in States that consider themselves almost separate from Australia.

The vast majority of voters are not inconvenienced by border closures and are very much in favour. That's the important sum!

The next question is when will North Queensland look to secede from South Queensland

 

[jakeseven7]

The vast majority of voters are not inconvenienced by border closures and are very much in favour. That's the important sum!

The vast majority of voters may not be directly inconvenienced right now, but insidiously in the background, 1 million workers are directly affected and the economy is projected to be losing 600 million of economic activity EVERY week the borders are shut.

Unfortunately this stupidity will come back to bite the people sitting high and dry right now, at some point in the future. Unfortunately most of those people can't quite string all of the impact together and probably don't understand the domino effect either.

 

[drron]

I have to disagree. I think they are very good at maths. They know that closing borders is very appealing to tribal instincts, especially in States that consider themselves almost separate from Australia.

The vast majority of voters are not inconvenienced by border closures and are very much in favour. That's the important sum!

Actually the vast majority of voters thinking they are not inconvenienced by border closures are those that have been scared by the enormous amount of publicity given flawed modelling suggesting millions of Australians would be infected.
So when polled they say borders shouldn't be opened and the Premiers are reacting to this.So a political decision to keep State borders closed and not Heath reasons as stated by the Deputy Commonwealth Chief Medical officer who is an expert in viral pandemics.

 

[jase05]

So Dan isn’t the man
Victoria holding back the country with 25 cases today and looks like the easing of restrictions won’t happen and they will actually be tightening them. Time to build that wall

 

[MEL_Traveller]

Actually the vast majority of voters thinking they are not inconvenienced by border closures are those that have been scared by the enormous amount of publicity given flawed modelling suggesting millions of Australians would be infected.
So when polled they say borders shouldn't be opened and the Premiers are reacting to this.So a political decision to keep State borders closed and not Heath reasons as stated by the Deputy Commonwealth Chief Medical officer who is an expert in viral pandemics.

re bold text - have you got any evidence to support your claim?

The Deputy Chief Medical officer an an expert. They are not the only expert.

 

[drron]

re bold text - have you got any evidence to support your claim?

The Deputy Chief Medical officer an an expert. They are not the only expert.

To the first point just look at the opinion polls and the numbers that are not going to do anything until there is a vaccine.i did hear an opininion poll on local Launceston radio that 40% will not even go into a local store until there is a vaccine.

As to your second point tell me which experts disagree.Most of the local virologists don't support the State border closures.And as I said Prof.Kelly the DCCMO is an expert with his primary research project influenza epidemics.None of the State CMO/CHOs have such expertise.
And why haven't the States released their expoert medical advice in support of border closures.if indeed they have it that would stop argument straight away.As well QLD lawyers argued against supplying that advice in court.Hopefully they will be forced to release it in the Federal court action.

 

[PineappleSkip]

This poll, a couple of weeks ago, showed strong support for border closures nationally; interesting that the support was also fairly strong in NSW and Vic
Australia Institute Polling border closures

New research from The Australia Institute has found that more than three in four Australians (77%) support states closing their borders to interstate travel.

This one a couple of weeks earlier by the ABC in Regional Queensland
Thousands of regional Queenslanders say state borders should stay closed

Not as robust as it was social media self selection, showed support in most regions varying from 57% in FNQ to 75% in CQ, however supporters were in the minority in Sunshine Coast, and 54% favoured reopening In the Gold Coast, not quite the overwhelming disapproval I saw claimed elsewhere. But obviously the inconvenience factor is greatest there. I’d also suspect that the same poll taken now would show much less support.

cheers skip

 

[MEL_Traveller]

To the first point just look at the opinion polls and the numbers that are not going to do anything until there is a vaccine.i did hear an opininion poll on local Launceston radio that 40% will not even go into a local store until there is a vaccine.

As to your second point tell me which experts disagree.Most of the local virologists don't support the State border closures.And as I said Prof.Kelly the DCCMO is an expert with his primary research project influenza epidemics.None of the State CMO/CHOs have such expertise.
And why haven't the States released their expoert medical advice in support of border closures.if indeed they have it that would stop argument straight away.As well QLD lawyers argued against supplying that advice in court.Hopefully they will be forced to release it in the Federal court action.

You refer quite often to polls, UN data, etc. But you aren't linking these sources. You state people have been 'scared by the enormous amount of flawed modelling'. Where is that evidence, as opposed to folk seeing what's happening in Italy, UK, USA and making a rational decision that we don't need to take the risk?

As to the second point, if 'most' local virologists don't support the border closure, that means some do?

I don't even know if governments need to release their medical advice in support of border closure. We have declared states of emergency in most (all?) states. Those SOEs are on medical grounds. I'm not sure we need to look behind that and pick and choose which bits of the SOE we want to adhere to, and which we don't. This isn't a box of Quality Street.

 

[trevella]

Not quite all, unfortunately. We just had an example in Canberra of a foreign diplomat who has tested positive in the last couple of days, but because he was a diplomat, was not required to quarantine in Sydney where he arrived, like anyone else would have been. Instead he drove to Canberra, and may or may not have stopped on the way, may or may not have been doing a home based quarantine, that may or may not have involved his family as well. It is infuriating that over-entitled people like that are above the rules that apply to everyone else. I understand obligations under Geneva protocols for diplomats, but really - the virus obviously cannot tell him apart from everyone/anyone else, clearly does not know (or care) who he is. Selfish actions like this have exposed others.

All better now, thanks for your concern.

 

[nutwood]

To the first point just look at the opinion polls and the numbers that are not going to do anything until there is a vaccine.i did hear an opininion poll on local Launceston radio that 40% will not even go into a local store until there is a vaccine.

As to your second point tell me which experts disagree.Most of the local virologists don't support the State border closures.And as I said Prof.Kelly the DCCMO is an expert with his primary research project influenza epidemics.None of the State CMO/CHOs have such expertise.
And why haven't the States released their expoert medical advice in support of border closures.if indeed they have it that would stop argument straight away.As well QLD lawyers argued against supplying that advice in court.Hopefully they will be forced to release it in the Federal court action.

The border closures are obviously political but I'm not sure that I'm meaning that as criticism. The State Premiers stepped forward due to the obvious Federal COVID vacuum. It's probably fair that they garner some popular support from their varied policies.
That said, the border policies are simply based on local prejudice. I had a call this week from an associate in Adelaide. He'd woken up with a sore throat and was going in for testing. I was duly sympathetic but was surprised that the reason for the call was that he was concerned he may have caught COVID from me. We'd spent a morning together, two weeks previous. I'd come from a Tasmanian farm, he was living in suburban Adelaide, however any ailment must have come from the interstate traveller.
He tested clear, which was nice for my travel log!!

 

[blackcat20]

So Dan isn’t the man
Victoria holding back the country with 25 cases today and looks like the easing of restrictions won’t happen and they will actually be tightening them. Time to build that wall

Can’t blame him for the idiots failing to isolate after testing positive. Selfish buggers ruining it for the rest of us.