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

 

[MEL_Traveller]

So their own rhetoric meant that clinicians and administrators were unsure of their ability to organise and access care...

Or just assumed and didn’t attempt to find out?

It’s quite possible, for example, that a doctor was anti lockdown/anti government and simply in their own mind believed that they would not be permitted treatment without an exemption.

Plenty of folk have made up their minds that the government must be acting at their worst in all of this. (When in reality they are doing the best they can.)

@ drron... yes, maybe they should have had something like this from the outset... but the workload is extreme at the moment. And it’s not helped by the community being ‘confused’ (often in their minds only) because they don’t believe rules and exemptions apply or them. It means the government is working overtime on things they really shouldn’t need to work on, because people should be able to be trusted. But unfortunately that isn’t always the case.

Just as an example, Victoria’s ‘only leave home for four reasons’ .... pretty simple right? Well, supposedly not for many people. The directions generated dozens and dozens of Q&As because people constantly looked for loopholes. The ‘it’s ok for me to take a learner driver out’ or ‘it’s ok for me to drive 50km to exercise’, ‘why can’t i play golf’ require time and resources to deal with them. And there’s only so much time in the day to do that.

 

[Must...Fly!]

Or just assumed and didn’t attempt to find out?

It’s quite possible, for example, that a doctor was anti lockdown/anti government and simply in their own mind believed that they would not be permitted treatment without an exemption.

Plenty of folk have made up their minds that the government must be acting at their worst in all of this. (When in reality they are doing the best they can.)

@ drron... yes, maybe they should have had something like this from the outset... but the workload is extreme at the moment. And it’s not helped by the community being ‘confused’ (often in their minds only) because they don’t believe rules and exemptions apply or them. It means the government is working overtime on things they really shouldn’t need to work on, because people should be able to be trusted. But unfortunately that isn’t always the case.

Just as an example, Victoria’s ‘only leave home for four reasons’ .... pretty simple right? Well, supposedly not for many people. The directions generated dozens and dozens of Q&As because people constantly looked for loopholes. The ‘it’s ok for me to take a learner driver out’ or ‘it’s ok for me to drive 50km to exercise’, ‘why can’t i play golf’ require time and resources to deal with them. And there’s only so much time in the day to do that.

Wow. I'll openly admit I stopped reading at that sentence.

Doctors in this country are professionals and not political party employees.

 

[antycbr]

Wow. I'll openly admit I stopped reading at that sentence.

Doctors in this country are professionals and not political party employees.

It's been established that the NSW treating doctors approached the Mater Hospital for advice regarding this patient transfer.

I feel that certain commentators on here are pushing a very strong line and facts are getting distorted including discrediting media sources that do not align with their world view, which feels very Trumpian.

It is a good move that Queensland has created a priority service for getting NSW patients to their Queensland specialists (including emergency, urgent and ongoing care management). However it should have been done at the time of the border closure.

 

[Seat0B]

And now there is talk about the "unintended" consequences on agricultural workers. NSW Deputy Premier John Barilaro's press release today highlights the difficulties NSW farmers are facing getting workers to do essential tasks.

"Our farmers have had a gutful of these senseless border restrictions and so have I. As Agriculture Minister I am not going to stand by quietly while our primary producers face failed crops and animal welfare disasters due to well-meaning but impractical road blocks."

If freight can have permission to move across state borders as part of essential services (as it should be), then surely growing the food and fibre the truckies are freighting should also be essential?

 

[drron]

Unfortunately there have been no plans for a range of inevitable COVID related matters (I won’t be listing them to stay on topic).

It is a wonder what the public service departments are advising and how much heed is taken in the haze of a pandemic.

Not actually true but you are forgiven for thinking so if getting your info from the media.
For example I have seen on AFF comments that the Commonwealth didn't have a plan for Aged care.They did and it was released on 13/3/20.Updated after Newmarch house.
About the same time they released a plan for remote Indigenous communities re Covid.As part of that plan rapid testing kits were supplied to 75 remote communities enabling results in 15 minutes.

These plans were all done with the co operation of the States.The Indigenous communities plan was organised by the Hunter New England regional Indigenous community.

And this article shows that Victoria was saying that they were learning the problems from the Newmarch house cluster and were working to stop a repeat in Victorian aged care homes.

Victorian health authorities ramp up measures to prevent Newmarch House repeat

Four Melbourne nursing homes remain in lockdown as authorities work to prevent a repeat of the deadly Newmarch House cluster in NSW.

www.theage.com.au

 

[p--and--t]

Doctors in this country are professionals and not political party employees.

That's a rather broad generalisation. They are human beings and have similar frailties and interests as all other human beings. (we do have a few doctors in various parliaments and they are certainly very political)

 

[nutwood]

Hard border: 'The walls close in' for West Australians on the wrong side of state's iron ore curtain

Caught on the wrong side of the state's 'hard border' these West Australians are angry, frustrated and abandoned. They're not high-flying business people or celebrities, they just want to come home.

www.watoday.com.au

Thanks for posting this one. I must admit I hadn't realised just how hard nosed WA is being. I left there twenty years ago for various reasons but one of them was the police state attitude that was creeping in.
It's difficult to see how the WA residents in the article could pose a health risk to WA, especially if they self isolated for fourteen days upon return to the State. Another classic case of laws being enforced with total disregard to the reason for the laws.

 

[antycbr]

Thanks for posting this one. I must admit I hadn't realised just how hard nosed WA is being. I left there twenty years ago for various reasons but one of them was the police state attitude that was creeping in.
It's difficult to see how the WA residents in the article could pose a health risk to WA, especially if they self isolated for fourteen days upon return to the State. Another classic case of laws being enforced with total disregard to the reason for the laws.

At least the borders this time are being enforced in BOTH directions. The ultimate insult was when Queensland closed their border to NSW but let thousands of Brisbane residents travel to Byron.

Had a long chat to a friend in BNE tonight who finally realised that the Queensland restrictions would most likely stop him going to the NRL grand final (if they allow spectators)...

 

[james4321]

Had a long chat to a friend in BNE tonight who finally realised that the Queensland restrictions would most likely stop him going to the NRL grand final (if they allow spectators)...

Wow ! Good to see the big issues coming to the surface !!

 

[Must...Fly!]

That's a rather broad generalisation. They are human beings and have similar frailties and interests as all other human beings. (we do have a few doctors in various parliaments and they are certainly very political)

While true those you mention are not politicising an individual case of care delivery as a physician.

Hundreds of thousands of public servants in this country leave their political beliefs at the door when they go to work every day.

 

[MEL_Traveller]

While true those you mention are not politicising an individual case of care delivery as a physician.

It doesn't mean a person is politicising an issue. It recognises there can be all sorts of reasons why people make assumptions, for example confirmation bias.

Not saying that is what happened here, but it doesn’t necessarily mean the ‘QLD rhetoric’ left doctors ‘unsure’.

 

[antycbr]

It doesn't mean a person is politicising an issue. It recognises there can be all sorts of reasons why people make assumptions, for example confirmation bias.

Not saying that is what happened here, but it doesn’t necessarily mean the ‘QLD rhetoric’ left doctors ‘unsure’.

The establishment of the special unit in the Queensland CHO office is admission of the issue, in effect an admission they could do better in being clear about their self imposed border and “who will
come to Queensland and the circumstances in which they come” - to quote John Howard

 

[Spongbob]

Can Victorian residents use NSW hospitals?

 

[drron]

Indeed.Each year the Commonwealth puts out funding sources for public hospitals.mostly the States keep secret what they pay each other but some are reticent.SA doesn't reveal those figures at all in the report I accessed.WA and Tas only report what they pay each other.NSW is the most transparent and they pay out a lot to other states for NSW residents using their hospitals.
So the Queanbeyan residents in 2019 obviously suffer bad health as NSW paid the ACT 99.12 million.Victoria 48.3 million and QLD 60 million.
They got back 9.6 million from Victoria and 37.2 million from QLD.

 

[antycbr]

Indeed.Each year the Commonwealth puts out funding sources for public hospitals.mostly the States keep secret what they pay each other but some are reticent.SA doesn't reveal those figures at all in the report I accessed.WA and Tas only report what they pay each other.NSW is the most transparent and they pay out a lot to other states for NSW residents using their hospitals.
So the Queanbeyan residents in 2019 obviously suffer bad health as NSW paid the ACT 99.12 million.Victoria 48.3 million and QLD 60 million.
They got back 9.6 million from Victoria and 37.2 million from QLD.

Canberra Hospital is the tertiary hospital for all of SE NSW including most of the Riverina and South Coast.

Interestingly, Albury-Wodonga Health is run by both states through an agreement, reflecting the fact that borders shouldn't affect health outcomes and that joined-up service delivery delivers those outcomes in the most efficient and effective way.

 

[jakeseven7]

Temperature is being turned up on the states........

---------
State border controls to be subject to Morrison push for national plan


State premiers will be urged to embrace a national approach to opening the economy in a federal plan to tell Australians when they will be able to cross state borders.

Prime Minister Scott Morrison will take the proposal to a national cabinet meeting this Friday in a renewed bid to phase out border controls that are being blamed for prolonging the recession.

Mr Morrison will put the plan to premiers and chief ministers in the hope of creating a unified approach to removing the barriers as coronavirus case numbers fall below agreed benchmarks.

The Prime Minister will instead argue for an "exit plan" so Australians know there is a plan to relax the measures that have stopped tourism and trade.


When state borders are used as political tools against us it's time to consider scrapping them


Why are Western Australia, Queensland and South Australia allowed to close their borders to each other? Is this more political than anything....? How wrong-headed has the Federation become when people travelling from Victoria through NSW to the ACT cannot move for days beyond Victoria because of bureaucratic malaise in NSW? Something is very wrong. Borders as we know them are a real problem.

We should be looking at ourselves. Do we need state boundaries when they are used as tools against us? Should we not be weighing the real cost of the closures? Should we be taking back some responsibility for what has happened? Where has the balance gone?

There is a strong case now for adopting a national view, for recognising that we have a national crisis and need a perspective that looks at the situation dispassionately. We should calmly weigh up all the costs. As a country, we need this now more than ever. The jobless numbers will grow exponentially when assistance comes to an end. Many businesses will need to be re-established. Many will cease to exist.

State border controls to be subject to Morrison push for national plan

The Prime Minister will urge state and territory leaders to agree to a plan on how to reopen state borders when they speak in national cabinet on Friday.

www.smh.com.au

When state borders are used as tools against us it's time to consider scrapping them

No one wants a "third wave", but travel exemptions may not put us at risk while boosting the economy.

www.smh.com.au

 

[nutwood]

Temperature is being turned up on the states........

---------
State border controls to be subject to Morrison push for national plan


State premiers will be urged to embrace a national approach to opening the economy in a federal plan to tell Australians when they will be able to cross state borders.

Prime Minister Scott Morrison will take the proposal to a national cabinet meeting this Friday in a renewed bid to phase out border controls that are being blamed for prolonging the recession.

Mr Morrison will put the plan to premiers and chief ministers in the hope of creating a unified approach to removing the barriers as coronavirus case numbers fall below agreed benchmarks.

The Prime Minister will instead argue for an "exit plan" so Australians know there is a plan to relax the measures that have stopped tourism and trade.


When state borders are used as political tools against us it's time to consider scrapping them


Why are Western Australia, Queensland and South Australia allowed to close their borders to each other? Is this more political than anything....? How wrong-headed has the Federation become when people travelling from Victoria through NSW to the ACT cannot move for days beyond Victoria because of bureaucratic malaise in NSW? Something is very wrong. Borders as we know them are a real problem.

We should be looking at ourselves. Do we need state boundaries when they are used as tools against us? Should we not be weighing the real cost of the closures? Should we be taking back some responsibility for what has happened? Where has the balance gone?

There is a strong case now for adopting a national view, for recognising that we have a national crisis and need a perspective that looks at the situation dispassionately. We should calmly weigh up all the costs. As a country, we need this now more than ever. The jobless numbers will grow exponentially when assistance comes to an end. Many businesses will need to be re-established. Many will cease to exist.

State border controls to be subject to Morrison push for national plan

The Prime Minister will urge state and territory leaders to agree to a plan on how to reopen state borders when they speak in national cabinet on Friday.

www.smh.com.au

When state borders are used as tools against us it's time to consider scrapping them

No one wants a "third wave", but travel exemptions may not put us at risk while boosting the economy.

www.smh.com.au

Very valid points. The David Buckingham article was worth reading. The virus really is a national issue and should be treated as such. To date the Federals have been essentially missing in action so it's good to see them stepping into the breach.
The cynical might say that they've judged the political sweet spot, based on how much pain the Premiers are inflicting but fortunately, I'm not cynical.

 

[MEL_Traveller]

lol. A 'decisive' action plan. Plan being the word. The 'action' bit seems to be around December.

Hardly a speedy outcome achieved by the intervention of the Feds?

 

[HokitikaGold]

Heard snippets of Abbot's "speech" in the UK. I do, in some way, understand the idea that the economic harm needs to be taken into account. But he spoke as if it was just about some cold numbers. That we should accept a few premature aged deaths. His whole angle stank with me, can't explain all my feelings. But I had the thought, why doesn't he get down into the nitty gritty reality. This Covid is a truly nasty beast for certain groups. Instead of restricting himself to vague and detached notions, I would like him to see it in a uniquely australian way. Our indigenous citizens are extremely susceptible to this plague. Would he be prepared to say that it is OK to sacrifice X amount of our treasured elders so that some coffee shops stay in business? Because this is what would happen.

 

[TheRealTMA]

I think it’s amusing that Gladys says AP won’t talk to her. Where was she when AP wanted to discuss temporarily moving the border closures to south of the Tweed? No answer AFAIK.