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

 

[jase05]

Did I hear the PM say states and territories — with the exception of WA — are working on a plan to open up Australia’s internal borders by Christmas?

 

[MEL_Traveller]

Did I hear the PM say states and territories — with the exception of WA — are working on a plan to open up Australia’s internal borders by Christmas?

So despite the intervention by the Prime Minister, we have ended up exactly where the state premiers said they would... borders potentially open by the end of the year?

 

[jakeseven7]

Did I hear the PM say states and territories — with the exception of WA — are working on a plan to open up Australia’s internal borders by Christmas?

Basically and simply yes, with a helping hand to assist QLD along the path...

They (bar WA) will all agree on a mechanic to do so that prevents the 'Whack a mole' border games which is destroying consumer confidence by having a national medically aligned version of a hot spot and not leaving it how a state CHO feels after their cup of morning tea.....

There is the possibility that other states may open prior to this and if VIC continues its downwards trajectory this could also include them.

 

[drron]

.

I don't think Gladys and AP got on pre-covid.

 

[NM]

View attachment 226784.

I don't think Gladys and AP got on pre-covid.

And they remain "socially distanced" ...

 

[bigbadbyrnes]

I wrote a few insults regarding the honourable premiers in QLD & WA before I realised this isn't the place. But the strong feeling & reaction has not gone away.

I suspect myself (& many others in similar positions) will not be reunited with families either side of the WA border (and probably others) until mid-2021.

Restraint is always the better part of valour. I do wish there were less politically charged individuals driving this constitutional issue into the high court. The failure of statecraft we've seen unravel today and over the last six months is exactly what the relevant sections of the constitution is designed to prevent. The premiers have indeed failed, in my opinion, to either act within the bounds of the constitution, or effectively balance the risks and costs of the situation.

 

[jase05]

Premier Marshall has said there is a possibility of the NSW/ACT border being opened by the October long weekend. He stated that he is looking for a 14 day period without community transmissions before opening up the border

 

[Pushka]

Premier Marshall has said there is a possibility of the NSW/ACT border being opened by the October long weekend. He stated that he is looking for a 14 day period without community transmissions before opening up the border

And ACT is already months into that. Hopefully NSW has it sorted.

 

[HappyFlyerFamily]

Hotspot defined, wonder if that might impact the High Court case (despite the declared facts by the Federal Court)

metro 30 locally acquired over 3 days
regional 9 locally acquired over 3 days.

Magic ‘hotspot’ numbers to reopen borders

New ‘hotspot’ rules to govern how state borders can reopen before Christmas will declare metropolitan areas no-go areas if they record 30 new COVID-19 cases or more in three days.

www.news.com.au

 

[oznflfan]

Hotspot defined, wonder if that might impact the High Court case (despite the declared facts by the Federal Court)

metro 30 locally acquired over 3 days
regional 9 locally acquired over 3 days.

Magic ‘hotspot’ numbers to reopen borders

New ‘hotspot’ rules to govern how state borders can reopen before Christmas will declare metropolitan areas no-go areas if they record 30 new COVID-19 cases or more in three days.

www.news.com.au

Forum, help me out here. If this rule comes in it will destroy any domestic tourism immediately, and Qantas won't be flying much at all.

Is this how you understand it:

Let's say Melbourne is under control, all sweet, and I book a couple of months out a cheap return flight NT to Melbourne on a Friday. Go to a couple of games Saturday and Sunday. Fly back Monday. Sounds good so far......

Let's say out of the blue and unbeknown to my before I board the plane there's an outbreak of 11 cases in Melbourne. This happens again Saturday and Sunday. Sunday night 33 cases and hotspot declared. I board my flight and upon landing I have to quarantine for 14 days at my $3,000 expense?

If this is the case any interstate trips will be max of 48 hours just in case?

 

[Pushka]

Forum, help me out here. If this rule comes in it will destroy any domestic tourism immediately, and Qantas won't be flying much at all.

Is this how you understand it:

Let's say Melbourne is under control, all sweet, and I book a couple of months out a cheap return flight NT to Melbourne on a Friday. Go to a couple of games Saturday and Sunday. Fly back Monday. Sounds good so far......

Let's say out of the blue and unbeknown to my before I board the plane there's an outbreak of 11 cases in Melbourne. This happens again Saturday and Sunday. Sunday night 33 cases and hotspot declared. I board my flight and upon landing I have to quarantine for 14 days at my $3,000 expense?

If this is the case any interstate trips will be max of 48 hours just in case?

Welcome to the new order Covid world. We recently flew from Adelaide to Qld. All free borders when we left. But every day I checked to see whether border restrictions back to Adelaide were likely to change

 

[TheRealTMA]

Welcome to the new order Covid world. We recently flew from Adelaide to Qld. All free borders when we left. But every day I checked to see whether border restrictions back to Adelaide were likely to change

NP, if you need isolating, there’s always a lilo in our swimming pool for you. We can float wine (Stanthorpe) and cheese out to you. (POI: not a general offer for other state refugee.)

 

[HappyFlyerFamily]

Forum, help me out here. If this rule comes in it will destroy any domestic tourism immediately, and Qantas won't be flying much at all.

Is this how you understand it:

Let's say Melbourne is under control, all sweet, and I book a couple of months out a cheap return flight NT to Melbourne on a Friday. Go to a couple of games Saturday and Sunday. Fly back Monday. Sounds good so far......

Let's say out of the blue and unbeknown to my before I board the plane there's an outbreak of 11 cases in Melbourne. This happens again Saturday and Sunday. Sunday night 33 cases and hotspot declared. I board my flight and upon landing I have to quarantine for 14 days at my $3,000 expense?

If this is the case any interstate trips will be max of 48 hours just in case?

Actually NSW figures show it can happen without warning in two days. 9, then 12 plus 12. So arguably/theoretically it can happen in 24 hours if the detection gives a supercluster of 20 in one day....NSW got 17 as a high on one day, but in that case there was a preceding build up.

 

[PineappleSkip]

Welcome to the new order Covid world. We recently flew from Adelaide to Qld. All free borders when we left. But every day I checked to see whether border restrictions back to Adelaide were likely to change

Sounds like our brief foray into NSW, the whole time listening to the radio hourly for any border closure announcement. As it happened we made it back to Qld with a few days to spare.

I board my flight and upon landing I have to quarantine for 14 days at my $3,000 expense?

Yes, absolutely valid concern, because no-notice hotspot declarations are the NT’s special subject, and how much notice wasn’t part of the deal apparently.

Travel isn’t as fun as it used to be

cheers skip

 

[Pushka]

NP, if you need isolating, there’s always a lilo in our swimming pool for you. We can float wine (Stanthorpe) and cheese out to you. (POI: not a general offer for other state refugee.)

Very tempting indeed

 

[TheRealTMA]

Very tempting indeed

You missed the warning in my text.

 

[jakeseven7]

Yes, absolutely valid concern, because no-notice hotspot declarations are the NT’s special subject, and how much notice wasn’t part of the deal apparently.

Do keep in mind that first minister guy from the NT had an election to win when he was swinging around being the ‘tough man’ on borders.

He has won now so let’s see rational and national approaches please!

 

[MEL_Traveller]

Do keep in mind that first minister guy from the NT had an election to win when he was swinging around being the ‘tough man’ on borders.

He has won now so let’s see rational and national approaches please!

I think we need a little bit of perspective here... vaccines are currently in stage 3 trials. Treatments and cures are being trialed and explored. The virus is mutating to less virulent strains. We are learning lessons to manage and protect the vulnerable.

Around half the jobs lost at the beginning of the pandemic have been restored. For those out of work, rent or mortgage relief and base income is available.

I'm not convinced of the benefit to the public of open borders today, rather than a measured approach over the next few months.

 

[drron]

But Switzerland with a case load higher than Australia thinks it is time to consider the economy and open up.

Bullish Switzerland moves on from lockdown and focuses on economy

Critics warn of complacency but Bern believes the country must learn to live with virus

amp.ft.com

 

[straitman]

I think we need a little bit of perspective here... vaccines are currently in stage 3 trials. Treatments and cures are being trialed and explored. The virus is mutating to less virulent strains. We are learning lessons to manage and protect the vulnerable.

Around half the jobs lost at the beginning of the pandemic have been restored. For those out of work, rent or mortgage relief and base income is available.

I'm not convinced of the benefit to the public of open borders today, rather than a measured approach over the next few months.

Agreed, however we need a well thought out process rather than more of the localised political expediency that we are getting from most states.