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

 

[pangwen]

SMH reporting that internal ALP Queensland communications indicate that the border is closed for reasons other than the health evidence:

However, in an email to Labor supporters on Tuesday, state secretary Julie-Ann Campbell reminded Queenslanders there were "60 days to keep Queensland's borders safe", referring to the October 31 election.

Makes any review at the end of September seem unlikely but is a smoking gun that the health advice is either being ignored or is fitting the political imperative.

I think people are reading more into that statement than necessary.

An alternative reading is that the LNP has flip-flopped on the border issue (I understand the current QLD LNP position is that they support the border closure now?) and that they should vote for Labor because they have held their ground.

In other words, the border closures themselves are no longer an election issue as both major parties (the state branches at least, the Federal LNP members in Qld continue to criticise the closure) now support them and both are likely to through to the election. The ALP is now trying to highlight the difference in that they have had a consistent hard-line view on the border.

EDIT: Explained a bit more eloquently here (Did someone say 'election'?: how politics met pandemic to create 'fortress Queensland')

This much is obvious in Frecklington’s newly struck tone of resigned consensus with the government’s border position. This is a bind opposition parties are experiencing nationwide, a hard reality especially in states and territories with elections nearing.

The LNP, having gambled on criticising the government’s border restrictions, now wears the fallout. Labor has pounced on the opportunity, in early signs of a de facto election campaign. Social media posts have highlighted how Frecklington – who’s had to endure her own party’s turmoil of late – called for Queensland’s borders to be opened “early” on dozens of occasions.

Queenslanders can expect to be reminded of this “rashness” from now until the election.

 

[antycbr]

I think people are reading more into that statement than necessary.

An alternative reading is that the LNP has flip-flopped on the border issue (I understand the current QLD LNP position is that they support the border closure now?) and that they should vote for Labor because they have held their ground.

In other words, the border closures themselves are no longer an election issue as both major parties (the state branches at least, the Federal LNP members in Qld continue to criticise the closure) now support them and both are likely to through to the election. The ALP is now trying to highlight the difference in that they have had a consistent hard-line view on the border.

EDIT: Explained a bit more eloquently here (Did someone say 'election'?: how politics met pandemic to create 'fortress Queensland')

So if the scientific advice changed (and was actually released for a change) would AP change her position? Or is the border closure based on something else?

 

[drron]

What good would a talk have done at that point? The local Tweed MP (part of the NSW government) had already come out swinging against any border move and had already stated it should be moved north to Tugun back when the mayor of Gold Coast suggested it. With all of the talk going in the media, something formal and written needed to be done rather than an informal chat.

Well it is usually good manners to have a talk about things such as border movements.
On top of that if she really believed in the border being moved south wouldn't she have tried to negotiate.
Forget the local Tweed MP.He is a national,Gladys a Liberal.Good politics to try and wedge Gladys.
The obvious conclusion is that this was just a thought bubble she could use for electioneering.Without the border issue she was looking at defeat.The polls before Covid were looking as grim as QLD's debt levels.
A survey released today reveals that 38% of QLD doctors have little or no confidence in the QLD public system in Health.Yes again release time indicates this is also electioneering.

 

[MEL_Traveller]

SMH reporting that internal ALP Queensland communications indicate that the border is closed for reasons other than the health evidence:

However, in an email to Labor supporters on Tuesday, state secretary Julie-Ann Campbell reminded Queenslanders there were "60 days to keep Queensland's borders safe", referring to the October 31 election.

Makes any review at the end of September seem unlikely but is a smoking gun that the health advice is either being ignored or is fitting the political imperative.

The article says all decisions have been based on health advice from the Chief Health Officer.

Instead of looking at the outcome, look at the motive. There is no benefit for premiers in keeping borders closed unless they absolutely have to.

If an election was to be held at the end of October, it would be convention that no major decisions affecting the state take place for a period before the election. Major decisions could be seen as sabotaging or fettering the incoming government.

 

[pangwen]

Well it is usually good manners to have a talk about things such as border movements.
On top of that if she really believed in the border being moved south wouldn't she have tried to negotiate.
Forget the local Tweed MP.He is a national,Gladys a Liberal.Good politics to try and wedge Gladys.
The obvious conclusion is that this was just a thought bubble she could use for electioneering.Without the border issue she was looking at defeat.The polls before Covid were looking as grim as QLD's debt levels.
A survey released today reveals that 38% of QLD doctors have little or no confidence in the QLD public system in Health.Yes again release time indicates this is also electioneering.

Agreed that the timing of her (re)running with the border movement is to do with the election. I don’t think negotiation would have worked in this case - the nsw government had been against the border closure in the first place, and the local member (yes National, but still part of the government) had already basically said the equivalent of “no,how about we do the total opposite of what you’re suggesting?” Not really much prospects of a successful negotiation.

In terms of the survey results, it’s hard draw conclusions from that single data point - the headline could have just as easily said “most (62%) doctors in qld have confidence in the system”. Do we have any trend data or comparisons against data from other states?

 

[jakeseven7]

I’ve been thinking of the announcements by both VA and QF CEOs about state borders and I’m wondering if they might take some more direct action if the impasse continues. Alan Joyce grounded the entire airline over an industrial dispute.

I don’t see why the airlines have to plead with the states to see logic. They have power but haven’t worked out that they can use it if they want.

The VA CEO is a CEO in title only now, just an instrument of Bain now, so will do exactly what he is told.... so will be interesting to see if Bain go on the offense to try and protect their shiny new toy! Would be quite the show if Bain turned on the QLD government....

QF of course has a history of being very assertive when it needs to be in disastrous situations, so would not at all be surprised if something surfaced, but its clear they are having a lot of discussions with the government behind closed doors.

 

[TheRealTMA]

Many of you are arguing politics against public opinion. Courier Mail Jul 23, 2020 - "QUEENSLANDERS have overwhelmingly backed closing the borders, according to a Courier-Mail Facebook poll. About 92 per cent support closure."

After something like 42 whinges, even the LNP demanded the borders be closed.

 

[jakeseven7]

Calls for a unified approach and for state leaders to come together and tackle it as one.


------

Warning to states on coronavirus border closures as tourism industry takes $55 billion hit


The Federal Government is again ramping up pressure on states and territories to open their borders, releasing modelling predicting a $55 billion hit to the nation's tourism industry this year.

• The Tourism Minister said the nation risks further job losses if borders remain shut "any longer than is necessary"
• He urged all state and territory leaders to take a "proportionate" approach to border restrictions
• The Prime Minister is on Friday expected to push for a nationally-agreed definition of a "hotspot"

A day after it was confirmed that Australia was in recession for the first time in nearly three decades, Tourism Minister Simon Birmingham said "disproportionate" approaches to state borders were costing jobs across the country.

Australian tourism worth $55b less even if state borders reopen, Government says

The Federal Government is again ramping up pressure on states and territories to open their borders, releasing modelling predicting a multi-billion-dollar hit to the nation's tourism industry this year.

www.abc.net.au

 

[antycbr]

Many of you are arguing politics against public opinion. Courier Mail Jul 23, 2020 - "QUEENSLANDERS have overwhelmingly backed closing the borders, according to a Courier-Mail Facebook poll. About 92 per cent support closure."

After something like 42 whinges, even the LNP demanded the borders be closed.

You’re entitled to your opinion provided others don’t have to pay for it.

 

[TheRealTMA]

You’re entitled to your opinion provided others don’t have to pay for it.

Well. I have no control over the borders. But public opinion has.

 

[nutwood]

Public opinion with always support tribal viewpoints. Basic human nature is to be suspect of foreigners, even if "foreign" is just up the road. The general idea is that after a few thousand years of civilisation we've moved on but it doesn't take a very loud dog whistle to bring us panting to the barricades, ready to defend our patch, and of course to support the leader who's blowing the whistle!

 

[antycbr]

Public opinion with always support tribal viewpoints. Basic human nature is to be suspect of foreigners, even if "foreign" is just up the road. The general idea is that after a few thousand years of civilisation we've moved on but it doesn't take a very loud dog whistle to bring us panting to the barricades, ready to defend our patch, and of course to support the leader who's blowing the whistle!

What's new is it appearing on a sub-national level in Australia where it actually means something.

 

[PineappleSkip]

A new WA poll indicates support for their border closure as high now as the poll a few months ago (Which was IIRC 91% support for border closure in WA then, and the greatest support of any state).

WA premier has backing for border stance

A new poll shows Mr McGowan has the backing of 92 per cent of West Australians for his hard border policy...The survey of 837 West Australians also shows the Labor premier's approval rating has soared to 91 per cent this month, from 87 per cent in June.

That is a remarkably high approval rating.

Cheers skip

 

[jakeseven7]

Indeed. A new WA poll indicates support for their border closure as high now as the poll a few months ago (Which was IIRC 91% support for border closure in WA then, and the greatest support of any state).

WA premier has backing for border stance



That is a remarkably high approval rating.

Cheers skip

Sadly this doesn't mean it is the right thing to do, by any stretch. Especially when he has gone against medical advice in respect to some states.

 

[antycbr]

Sadly this doesn't mean it is the right thing to do, by any stretch. Especially when he has gone against medical advice in respect to some states.

If you asked if we should bring back the death penalty you'd probably get a similar response.

 

[PineappleSkip]

Sadly this doesn't mean it is the right thing to do, by any stretch.

I'm just a reporter, not an endorser!

Cheers skip

 

[woodborer]

Sadly this doesn't mean it is the right thing to do, by any stretch. Especially when he has gone against medical advice in respect to some states.

But it is in accordance with his legal advice that it has to be all states or no states (which is different to the advice other states have).
If nothing else, perhaps the High Court will resolve that issue.

 

[drron]

Agreed that the timing of her (re)running with the border movement is to do with the election. I don’t think negotiation would have worked in this case - the nsw government had been against the border closure in the first place, and the local member (yes National, but still part of the government) had already basically said the equivalent of “no,how about we do the total opposite of what you’re suggesting?” Not really much prospects of a successful negotiation.

In terms of the survey results, it’s hard draw conclusions from that single data point - the headline could have just as easily said “most (62%) doctors in qld have confidence in the system”. Do we have any trend data or comparisons against data from other states?

No other surveys I am aware of.But the alternate headline Would have been 17% of doctors have some or a lot of faith in the public system.
83% think standards are dropping though 45% think that drop is only "somewhat"'.

 

[nutwood]

What's new is it appearing on a sub-national level in Australia where it actually means something.

Depends where you are. I'm in the north of Tasmania and you can still meet elderly people who the last time they went to Hobart was on a school excursion and they'd happily man the ramparts to stop Southerners crossing the Boags line.

 

[jakeseven7]

NSW prepared for 'very sobering' national cabinet border talks

Berejiklian lobbies Qld Premier in 'polite' border discussion as NSW records 12 new cases

The national cabinet discussion concerning border measures will be “very sobering”, NSW Premier Gladys Berejiklian has said, urging her counterparts to trust in their health systems.

“If you have confidence in your health system, if you have confidence that contact tracing is something you can deal with in your state there shouldn’t be a reason for you to keep your border closed” she said.

“Everyone wants certainty, everyone wants to be able to plan ahead whether it’s businesses or reuniting with family,” she said.

As the day unfolded: Victoria records 113 COVID-19 cases as state's draft roadmap flags stage four lockdown extension; Australia in recession as nation's death toll jumps to 678

Victoria has recorded 113 new cases on Thursday, its highest daily total for four days. The state's death toll has increased by 15.

www.theage.com.au