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

 

[straitman]

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.

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

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

Agreed. Build the wall and keep NSW health away from everywhere else. They are the biggest single contributor to the spread in Australia.

 

[PineappleSkip]

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

Yes, it wouldn't be a significant additional charge on top of the cost of quarantining inbound travellers to simply quarantine anyone who tests positive. Unfortunately that would dissuade people from getting tested in the first place. Hope they throw the book at these idiots.

Cheers skip

 

[drron]

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.

Well the post above yours gives one such poll.The UN advice I have linked to in the past.
What evidence do you have that opposing border opening is a rational decision on health grounds?As I have said closing the national border and quarantine are rational doing in view of what is happening elsewhere but US,UK etc experience has nothing to do with State border closures.That should be totally dependent on the number of Australian cases.

If the states don't release their advice how are we to know it is rational?surely the public is entitled to know because of the huge effect on everyday life.

Now even in Victoria which has had 168 cases so far for June that is just 0.0026% of Victoria's population.The total number of cases is 1817 and still the majority are from OS and most of those quarantined but it represents just 0.028% of the population.
Deaths 19.).00029% of the population.

 

[MEL_Traveller]

Well the post above yours gives one such poll.The UN advice I have linked to in the past.
What evidence do you have that opposing border opening is a rational decision on health grounds?As I have said closing the national border and quarantine are rational doing in view of what is happening elsewhere but US,UK etc experience has nothing to do with State border closures.That should be totally dependent on the number of Australian cases.

If the states don't release their advice how are we to know it is rational?surely the public is entitled to know because of the huge effect on everyday life.

Now even in Victoria which has had 168 cases so far for June that is just 0.0026% of Victoria's population.The total number of cases is 1817 and still the majority are from OS and most of those quarantined but it represents just 0.028% of the population.
Deaths 19.).00029% of the population.

The polls suggest many would like the borders to stay closed... but where is the poll saying people were 'scared' by the 'flawed modelling'?

The basis we currently have is that many states - if not all - have declared states of emergency on health grounds. Under a state of emergency it is not unreasonable that measures such as border control are permitted.

The low number of cases is great! People would like to keep it that way and minimise the spread. We have seen just today an increase in the number of community transmissions in Victoria. We have also seen that people are going to work while they are not well. They are also travelling. This seems to go across all groups and professions - from security guards to doctors and nursing staff.

 

[drron]

Yet the numbers in Australia are really low.At this time of year the flu season is active.Virtually every year we have more cases and more deaths than this month with covid this month.And no state of emergency or border closures.
And do you have any evidence that the State of Emergency declarations are correct.of course not as the states won't reveal the evidence.Anyway hopefully all will be revealed in the Federal court and then border closures declared unconstitutional in the High court at this time.

 

[MEL_Traveller]

Yet the numbers in Australia are really low.At this time of year the flu season is active.Virtually every year we have more cases and more deaths than this month with covid this month.And no state of emergency or border closures.
And do you have any evidence that the State of Emergency declarations are correct.of course not as the states won't reveal the evidence.Anyway hopefully all will be revealed in the Federal court and then border closures declared unconstitutional in the High court at this time.

You can vaccinate against the flu (that is, you can vaccinate against other people ignoring the rules, the anti-vaxxers, whatever). We cannot with covid.

Without the declarations of emergency we likely couldn't have had the physical distancing laws. Did closing businesses help stop the spread? of course it did.

Evidence? USA, Sweden, UK, Italy... and the list goes on. Evidence that closures work? New Zealand, Australia.

There may be other examples of Asian countries that have not needed the extreme physical distancing we did. But two totally different environments and mind-sets. We didn't live with the immediate proximity of avian flu, swine flu in Australia, nor are we a society that regularly wears masks.

 

[jakeseven7]

You can vaccinate against the flu (that is, you can vaccinate against other people ignoring the rules, the anti-vaxxers, whatever). We cannot with covid.

Without the declarations of emergency we likely couldn't have had the physical distancing laws. Did closing businesses help stop the spread? of course it did.

Evidence? USA, Sweden, UK, Italy... and the list goes on. Evidence that closures work? New Zealand, Australia.

There may be other examples of Asian countries that have not needed the extreme physical distancing we did. But two totally different environments and mind-sets. We didn't live with the immediate proximity of avian flu, swine flu in Australia, nor are we a society that regularly wears masks.

America has been pretty good at wearing masks

 

[drron]

You can vaccinate against the flu (that is, you can vaccinate against other people ignoring the rules, the anti-vaxxers, whatever). We cannot with covid.

Without the declarations of emergency we likely couldn't have had the physical distancing laws. Did closing businesses help stop the spread? of course it did.

Evidence? USA, Sweden, UK, Italy... and the list goes on. Evidence that closures work? New Zealand, Australia.

There may be other examples of Asian countries that have not needed the extreme physical distancing we did. But two totally different environments and mind-sets. We didn't live with the immediate proximity of avian flu, swine flu in Australia, nor are we a society that regularly wears masks.

Despite vaccination for the flu the death toll is usually greater than we have had with Covid 19.In 2017 the vaccine was only 10% effective against the predominant strain H3N2.

The border closures that have been effective have been National border closures as the major source of infection is outside the country and in Australia not within.NZ didn't close provincial borders for example.The bolded part provides no evidence for State border closures as I have repeatedly said and evidenced.
I agree that National border closures have been the most important factor in many countries good results in this pandemic.

There would have been much more effective closures if limited to those areas with significant clusters such as done in South Korea and even in Tasmania with the North West cluster.Closing the State border had no effect on that but closing down the North West region did.

So we probably would have done better to close down SEQ,Greater Sydney,Greater Melbourne and let the rest of the country remain economically reasonably normal.

 

[jakeseven7]

Despite vaccination for the flu the death toll is usually greater than we have had with Covid 19.In 2017 the vaccine was only 10% effective against the predominant strain H3N2.

The border closures that have been effective have been National border closures as the major source of infection is outside the country and in Australia not within.NZ didn't close provincial borders for example.The bolded part provides no evidence for State border closures as I have repeatedly said and evidenced.
I agree that National border closures have been the most important factor in many countries good results in this pandemic.

There would have been much more effective closures if limited to those areas with significant clusters such as done in South Korea and even in Tasmania with the North West cluster.Closing the State border had no effect on that but closing down the North West region did.

So we probably would have done better to close down SEQ,Greater Sydney,Greater Melbourne and let the rest of the country remain economically reasonably normal.

You do realise you basically shut down 90% of the economy with those three areas so they probably said oh whatever just chuck the rest in too!

 

[MEL_Traveller]

Despite vaccination for the flu the death toll is usually greater than we have had with Covid 19.In 2017 the vaccine was only 10% effective against the predominant strain H3N2.

The border closures that have been effective have been National border closures as the major source of infection is outside the country and in Australia not within.NZ didn't close provincial borders for example.The bolded part provides no evidence for State border closures as I have repeatedly said and evidenced.
I agree that National border closures have been the most important factor in many countries good results in this pandemic.

There would have been much more effective closures if limited to those areas with significant clusters such as done in South Korea and even in Tasmania with the North West cluster.Closing the State border had no effect on that but closing down the North West region did.

So we probably would have done better to close down SEQ,Greater Sydney,Greater Melbourne and let the rest of the country remain economically reasonably normal.

I think we're debating the technicalities of how you would define a border here. China sealed off whole cities and regions. While China doesn't call their provinces 'states', I don't see that as any different to a state in Australia.

 

[drron]

And China had a lot more cases than australia.The numbers now do not support our State border closures now.We will see when it gets to the High court.
and for the umteenth time it was closing our borders to all non citizens and quarantining returning Australians that was and is the major factor in keeping our numbers low.And to repeat the North West Tasmania cluster was not stopped by closing the Tasmanian border but by shutting down the North West area.

 

[ethernet]

An international treaty on quarantine at the cwth level would override state decisions. Or Job Keeper, in its new cut back form could be variable, and less in states imposing financial burdens, deepening unemployment - because the cwth is footing nanny state protectionism, say by job classification. Then the power drunk Premiers would sing a different tune.

 

[eastwest101]

You do realise you basically shut down 90% of the economy with those three areas so they probably said oh whatever just chuck the rest in too!

Sorry - I must have missed seeing all the iron ore, aluminium, coal, copper and gold mines, oil and gas projects, tourism operations and all the agricultural food and textile production located in downtown Sydney and Melbourne, I will look closer next time I am there.

 

[HappyFlyerFamily]

And China had a lot more cases than australia.The numbers now do not support our State border closures now.We will see when it gets to the High court.
and for the umteenth time it was closing our borders to all non citizens and quarantining returning Australians that was and is the major factor in keeping our numbers low.And to repeat the North West Tasmania cluster was not stopped by closing the Tasmanian border but by shutting down the North West area.

I’m probably in the camp for State borders to re-open/quarantine for inter-State travel to be removed, but I think your arguments are flawed.

Each restriction has an effect of reducing local transmission whether it be for example a closed State border or asking people from a certain area not to leave home. Some will be more effective restrictions and some will be less, but we can never be certain how effective because of the unknown number and location of asymptomatic carriers (which I have previously read could in rare cases last months)

Our hospital systems should be able to cope with any likely increase in cases, but the counter-point is how would you feel if by opening a border your vulnerable/elderly parent/grandparent/spouse died?

For some leaders it’s taking the saying ‘every life matters’differently. Some will view it literally; others may accept some loss of life as acceptable. Is the latter narcissistic or paying lip-service? Is the former too empathetic/idealistic?

By denigrating a continuing State border closure, it’s a possible view that you are on the same side of the argument as say an asymptomatic carrier who went out because they felt why does lockdown (when it applied) apply to me. Both can be seen as low risk of a kind. One person’s reasonable can be another’s unreasonable.

 

[drron]

I’m probably in the camp for State borders to re-open/quarantine for inter-State travel to be removed, but I think your arguments are flawed.

Each restriction has an effect of reducing local transmission whether it be for example a closed State border or asking people from a certain area not to leave home. Some will be more effective restrictions and some will be less, but we can never be certain how effective because of the unknown number and location of asymptomatic carriers (which I have previously read could in rare cases last months)

Our hospital systems should be able to cope with any likely increase in cases, but the counter-point is how would you feel if by opening a border your vulnerable/elderly parent/grandparent/spouse died?

For some leaders it’s taking the saying ‘every life matters’differently. Some will view it literally; others may accept some loss of life as acceptable. Is the latter narcissistic or paying lip-service? Is the former too empathetic/idealistic?

By denigrating a continuing State border closure, it’s a possible view that you are on the same side of the argument as say an asymptomatic carrier who went out because they felt why does lockdown (when it applied) apply to me. Both can be seen as low risk of a kind. One person’s reasonable can be another’s unreasonable.

Your last sentence is a step too far.Are you also saying that the deputy Commonwealth Medical Officer who from the start on health grounds is also like your hypothetical asymptomatic carrier.
I have always argued on health grounds ie that the numbers inside Australia are too small for the closures to have any real benefit.EG Tasmania as I have also repeatedly said.

 

[HappyFlyerFamily]

Your last sentence is a step too far.Are you also saying that the deputy Commonwealth Medical Officer who from the start on health grounds is also like your hypothetical asymptomatic carrier.
I have always argued on health grounds ie that the numbers inside Australia are too small for the closures to have any real benefit.EG Tasmania as I have also repeatedly said.

I’m not sure what you mean.

If you mean the Deputy CMO was an asymptomatic carrier who broke lockdown, then doesn’t that prove my point.

If you mean that the Deputy CMO is not asking for State borders to be closed is like the choice of an asymptomatic carrier to break lockdown, then yes they are they same.

Both are making a choice that some restriction is low risk and is unlikely to be effective. The only difference is one has studied about it and has been given power/authority because of the position he holds, the other is using their common sense - what their experiences has told them is reasonable.

It seems quite clear that some State CMO/CHO disagree with the AHPPC consensus decision (even though as I understand it they are a member) on State border closures. They also have studied about it and have some authority/power from their State position.

It becomes real to a person when someone they love dies due to something else happening. I hope no one’s loved one dies when a possible say asymptomatic Melbourne person travels Interstate and causes a new cluster.

 

[jakeseven7]

It becomes real to a person when someone they love dies due to something else happening. I hope no one’s loved one dies when a possible say asymptomatic Melbourne person travels Interstate and causes a new cluster.

What about an intrastate traveller who travels and causes transmission and the start of a flu cluster? Influenza deaths are now creeping up and predicted to surpass corona. How do you propose the health organisations manage intrastate transmission of this?

 

[MEL_Traveller]

What about an intrastate traveller who travels and causes transmission and the start of a flu cluster?

i get the flu shot.

 

[HappyFlyerFamily]

What about an intrastate traveller who travels and causes transmission and the start of a flu cluster? Influenza deaths are now creeping up and predicted to surpass corona. How do you propose the health organisations manage intrastate transmission of this?

My statement was in relation to State borders, but yes I hope no one else’s loved one dies from this virus regardless of how the cluster forms or what restriction is relaxed/not implemented.

If you did not note I earlier stated I’m probably in favour of borders opening, I was just pointing out the argument is flawed.

Every restriction should reduce the number of interactions and hence reduce the risk of local transmission.

I’m just pointing out the difficult decision our leaders are making for the country/State/Territory. Every life matters means different things to different people - some will be viewed as narcissistic on one extreme and the other idealistic on the other extreme by people with extreme well-embedded opposite views.

I don’t know the answers and I don’t think I could have all the answers, but I know from my own experience that I’m trying to have less social/physical interactions and have definitely increased my personal hygiene.

Post automatically merged: Jun 21, 2020

i get the flu shot.

Oh I mis-read, I didn’t realise he was referring to the flu. Lol

 

[drron]

So people are happy to live with the flu even though the vaccine is normally often 30-50% effective.Indeed in 2017 the major strain causing severe flu had the vaccine being effective only 10% of the time.

And talking about loved ones dying do you realise how many have not been able to say their last goodbyes to a loved one because of border closures?Or been able to attend their funeral due to border closures and lockdown? i have seen it several times in the last 11 weeks.

And yes there are exemptions on compassionate grounds but many of those are denied.the worst case I have been associated with a daughter was given a compassionate exemption to come to Tasmania to be with her dying father but on arrival she was put into compulsory hotel quarantine and wasn't allowed out to visit him.So compassionate.