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

 

[drron]

All very well Straitman but it is often near impossible to get a QLD helicopter or Air ambulance to fly into NSW.Unfortunately the same can be said for NSW.Believe me working in a tourist area in QLD and wanting to get a tourist back to their family and friends is sometimes really difficult.It is where Lifeflight/careflight come into their own.
And don't get me started on transferring acutely ill patients from Tasmania to Melbourne.Can end up in a fight about who is going to pay despite the fact that in the end Tasmania always loses.Causes the referring doctor to waste a lot of time on the phone though.

 

[straitman]

All very well Straitman but it is often near impossible to get a QLD helicopter or Air ambulance to fly into NSW. Unfortunately the same can be said for NSW.Believe me working in a tourist area in QLD and wanting to get a tourist back to their family and friends is sometimes really difficult.It is where Lifeflight/careflight come into their own.
And don't get me started on transferring acutely ill patients from Tasmania to Melbourne.Can end up in a fight about who is going to pay despite the fact that in the end Tasmania always loses.Causes the referring doctor to waste a lot of time on the phone though.

Well the state governments need to pull their heads out of the dark places. It’s pathetic.
Subject to weather the crews will fly where and when ever they are tasked to fly. There are no state borders on aviation maps.
We did it faster (and obviously more efficiently) in the 1970s out of Amberley with Iroquois or Chinooks.

 

[HappyFlyerFamily]

Purported Qld view

How long can Queensland go it alone on border closures?

Premier Annastacia Palaszczuk appears lukewarm to the idea of a national framework for future border closures during COVID-19 outbreaks, writes Peter McCutcheon.

www.abc.net.au

 

[drron]

Though the ABC did not fact check that article.

Queensland's Chief Health Officer Jeannette Young has given clear advice, which included border closures — advice that federal medical authorities haven't necessarily echoed, but importantly haven't contradicted either.

Even the guardian proves them wrong.

Deputy chief medical officer Paul Kelly says there is no medical justifications for states keeping borders shut and offers to brief premiers.

Australian deputy CMO says no medical reason for state border closures – as it happened

Deputy chief medical officer Paul Kelly says there is no medical justifications for states keeping borders shut and offers to brief premiers. This blog is now closed

www.theguardian.com

 

[jakeseven7]

Purported Qld view

How long can Queensland go it alone on border closures?

Premier Annastacia Palaszczuk appears lukewarm to the idea of a national framework for future border closures during COVID-19 outbreaks, writes Peter McCutcheon.

www.abc.net.au

She will start warming up for a back flip post her election.

Blind Freddy can see her plan, disappointing as it is.

 

[MEL_Traveller]

The comment from the Deputy Chief MO was back in May? A lot has transpired since then.

 

[MEL_Traveller]

She will start warming up for a back flip post her election.

Blind Freddy can see her plan, disappointing as it is.

it would be interesting to know why some people are advocating so hard to open the borders... what exactly is their stake in the game? The majority of people seem to be in support of the borders being closed. We want to protect our families, and our health systems.

 

[jakeseven7]

Though the ABC did not fact check that article.


Even the guardian proves them wrong.

Australian deputy CMO says no medical reason for state border closures – as it happened

Deputy chief medical officer Paul Kelly says there is no medical justifications for states keeping borders shut and offers to brief premiers. This blog is now closed

www.theguardian.com

The QLD CHO is creeping further and further along the branch, away from her state counterparts and the federal equivalents, it is becoming very clear and now starting to be called out in media...

 

[trevella]

it would be interesting to know why some people are advocating so hard to open the borders... what exactly is their stake in the game? The majority of people seem to be in support of the borders being closed. We want to protect our families, and our health systems.

Some people don't think in such stark binary terms and want to protect their families from economic devastation. Others may realize that there is no viable non-vaccine exit plan in place. Still others may decry the lack of scientific justification for the current approach.

And there are also those who take issue with BS sloganeering.

 

[pangwen]

The QLD CHO is creeping further and further along the branch, away from her state counterparts and the federal equivalents, it is becoming very clear and now starting to be called out in media...

The only state counterparts she is creeping further away from are the NSW and VIC ones - she is still in close agreement with the majority (3 of 5) of the other states, i.e. 4 of 6 state CHOs agree.

WA's CHO stated late last month in Federal Court (A big decision is due today in the Clive Palmer vs WA border row — here's why it matters) "there was little public health justification for keeping WA closed to the five other states and territories that had eliminated coronavirus." The article didn't mention which were the "five other states and territories", but presumably that was SA, NT, TAS plus ACT and QLD (which had a lower level of contagion than NSW at that point). So in that respect, QLD is in lock-step with WA.

Earlier this month, Tasmania extended their closure until December (Premier defends decision to keep Tasmania closed for longer). Although the detailed health advice wasn't released, the premier mentioned that the closure would be reviewed and if it was "safe to open to another jurisdiction before the 1st of December, then we would take that advice". Presumably given the borders are still closed, that health advice has not been forthcoming.

SA has recently (earlier this week) loosened their border restrictions to create a "border bubble" that is similar in principle to the QLD/NSW bubble (South Australia ease a number of coronavirus restrictions and reintroduce 'buffer' zone with Victoria). They have also apparently stated that the border to QLD could be closed (Category: <span> </span> | The Courier Mail).

So out of the 6 states, 4 of them have CHOs that continue to believe in extensive border closures (and that's not counting NSW's closure to VIC). Qld's border closure is probably the loosest out of the 4 states still with broad multi-state closures (possibly tied with SA now that they have enacted a bubble).

EDIT: This article (Deputy Chief Medical Officer says Queensland's border conditions are a 'big ask') says it in a more succinct way than I did above:

Chief health officers from Western Australia, Tasmania, South Australia, and the Northern Territory are all recommending state borders remain shut, with only NSW and Victoria urging the country to reopen.

 

[jakeseven7]

Some people don't think in such stark binary terms and want to protect their families from economic devastation. Others may realize that there is no viable non-vaccine exit plan in place. Still others may decry the lack of scientific justification for the current approach.

And there are also those who take issue with BS sloganeering.

And it’s not just about binary it’s also practicality and thinking realistically - with a short/medium/term view and understanding that there is no perfect solution.

 

[drron]

The comment from the Deputy Chief MO was back in May? A lot has transpired since then.

Indeed less cases in NSW now than in the month prior to that statement.

 

[MEL_Traveller]

Indeed less cases in NSW now than in the month prior to that statement.

And running rampant in Victoria All it takes is one person. Didn't the Federal Court say border closures were the most effective way to mitigate the health risk?

But, my position is pretty simple... I don't believe that non-essential or commercial business opportunities outweigh the value of human life or exhausted health care workers and a stretched hospital system. We can repair the economy. We can't bring people back.

 

[aus_flyer]

But, my position is pretty simple... I don't believe that non-essential or commercial business opportunities outweigh the value of human life or exhausted health care workers and a stretched hospital system. We can repair the economy. We can't bring people back.

The two aren't mutually exclusive. Economic devastation ruins lives. People take their lives.

 

[drron]

And running rampant in Victoria All it takes is one person. Didn't the Federal Court say border closures were the most effective way to mitigate the health risk?

But, my position is pretty simple... I don't believe that non-essential or commercial business opportunities outweigh the value of human life or exhausted health care workers and a stretched hospital system. We can repair the economy. We can't bring people back.

So all states and territories close their border to Victoria and open up to all others.Tell that to the Tasmanian and WA Premiers.

And if your answer is if there is 1 active case in a State that state should be blocked we may as well all give up now as that is not going to happen.even if their is a vaccine as none have claimed 100% effectiveness.

 

[trevella]

my position is pretty simple

Simplistic, yes.

 

[Pushka]

And running rampant in Victoria All it takes is one person. Didn't the Federal Court say border closures were the most effective way to mitigate the health risk?

But, my position is pretty simple... I don't believe that non-essential or commercial business opportunities outweigh the value of human life or exhausted health care workers and a stretched hospital system. We can repair the economy. We can't bring people back.

We will always have this virus. Even when there is a vaccine, people will still get it. We have to manage it and deal with it and come out from under the doona.

 

[trevella]

Those under the doona also tend to be on a relatively sound economic footing, and rely on the less fortunate to make their hibernation possible.

It's quite understandable to want to free-ride on the nation's internationally enviable public health situation. But I'm sure that those under the doona also derive huge utility from public safety, and it doesn't take all that much imagination to envisage how that will deteriorate as economic inequality worsens.

Failing to recognize and account for the inextricable ties between health and economic issues will doom us to an even bleaker future than the one that already awaits us.

 

[MEL_Traveller]

We will always have this virus. Even when there is a vaccine, people will still get it. We have to manage it and deal with it and come out from under the doona.

Agree... but once we have a vaccine or treatment, it then becomes more about choice... choice to be vaccinated, to be able to protect yourself. Even a partially effective vaccine will reduce stress on the hospital system.

At the moment our options are pretty limited.

Those under the doona also tend to be on a relatively sound economic footing, and rely on the less fortunate to make their hibernation possible.

It's quite understandable to want to free-ride on the nation's internationally enviable public health situation. But I'm sure that those under the doona also derive huge utility from public safety, and it doesn't take all that much imagination to envisage how that will deteriorate as economic inequality worsens.

Failing to recognize and account for the inextricable ties between health and economic issues will doom us to an even bleaker future than the one that already awaits us.

There is jobseeker and jobkeeper. It's true there are one million out of work, but there are another 12 million still in work.

Supermarkets, Bunnings, retailers like HarveyNorman... some big profits. There's been a shift from cafes and bars to different sectors. Travel and tourism has been hit, but opening the borders doesn't guarantee people will travel, or stay at your AirBnb.

People aren't marching in the street because they can't put food on the table.

 

[PineappleSkip]

WA's CHO stated late last month in Federal Court "there was little public health justification for keeping WA closed to the five other states and territories that had eliminated coronavirus."

I can’t find any such statement in the judgement, so ABC might have been parahrasing something he said under cross examination. However such a claim is contrary to the tenor of his evdence, which was referred to at numerous points. This was his most qualified comment in the judgement, and it was in a report in March, not in his evidence:

123 When Dr Robertson provided advice to the second respondent [WA Commissioner of Police] on 29 March 2020 about border restrictions, he stated that closing the Western Australian borders would have an impact on slowing the spread of COVID-19, but it would not reduce the risk significantly further than that achieved by measures already in place, such as isolation and restricting opening of retail outlets and mass gatherings

His evidence was also that with no apparent cases in WA the other measures had been reduced or broken down (especially social distancing) which meant the border closures assumed additional significance.

All it takes is one person. Didn't the Federal Court say border closures were the most effective way to mitigate the health risk?

The Federal court did say, in effect, that ‘all it takes is one person’, at a couple of points, to produce an outbreak. IIRC the Court said it was impossible to quantify the relative effectiveness of each measure but they did find that the closures were effective.

cheers skip