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

 

[DC3]

“Victoria-The place to be“. I guess there are still plenty of vehicles on the road with those rego plates.

 

[p--and--t]

“Victoria-The place to be“. I guess there are still plenty of vehicles on the road with those rego plates.

The slogan must be on point. Nobody but a few lawbreakers have left for weeks and weeks, once you are here you stay put .

Actually there are few cars on the road ATM around the city area. Looking out the window at the moment onto one of the three main thoroughfares through the city E-W, 2 cars have passed in the last 5 minutes.

 

[MEL_Traveller]

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

Agree... but we are just a few months in to a pandemic.

First round of lockdowns the media, commentators, business... all demanded we open at the first sign the numbers started to go down.

Thousands of hours have been wasted on people looking for every loophole they could in the otherwise pretty simple restrictions. Thousands of hours are being spend dealing with businesses demanding we look after them.

Those hours could have been spent looking at the process to open up in the measured way everyone wants.

 

[antycbr]

One side effect of the WA approach is that the state is now effectively a prison for its own citizens. I hope they enjoy visiting their own state indefinitely.

I am ok with those states isolating themselves providing whatever restriction they apply to citizens of OTHER states they apply to their own citizens.

Queenslanders should not be allowed to swan about in Byron Bay (when the borders are slightly relaxed) and return home without quarantine while residents of Bryon Bay would have to quarantine if they went to Brisbane.

 

[drron]

One side effect of the WA approach is that the state is now effectively a prison for its own citizens. I hope they enjoy visiting their own state indefinitely.

I am ok with those states isolating themselves providing whatever restriction they apply to citizens of OTHER states they apply to their own citizens.

Queenslanders should not be allowed to swan about in Byron Bay and return home without quarantine while residents of Bryon Bay would have to quarantine if they went to Brisbane.

But QLD residents do have to undergo 14 days hotel quarantine if they have been in Victoria or NSW.
I believe WA insists on the same for their citizens.
Plus Tasmanians returning from Victoria,NSW and 3 LGAs in QLD-Brisbane,Logan and Ipswich.

 

[DC3]

... Queenslanders should not be allowed to swan about in Byron Bay and return home without quarantine while residents of Bryon Bay would have to quarantine if they went to Brisbane.

But they do quarantine on return to sunny QLD. Have I missed something here?

 

[antycbr]

But they do quarantine on return to sunny QLD. Have I missed something here?

Im saying going forward when they eventually start to let Queenslanders and WA people out to travel - the Byron example - but then deny other states citizens the rights of entry into Queensland or WA.

This was happening earlier in the year when people from anywhere in Queensland were able to go over the border to Byron whenever they wanted, all the while denying NSW residents the ability to cross.

 

[DC3]

Im saying going forward - that has not always been the case.

You wouldn’t just be trying to get your post count up, would you?

 

[jakeseven7]

One side effect of the WA approach is that the state is now effectively a prison for its own citizens. I hope they enjoy visiting their own state indefinitely.

I am ok with those states isolating themselves providing whatever restriction they apply to citizens of OTHER states they apply to their own citizens.

Queenslanders should not be allowed to swan about in Byron Bay and return home without quarantine while residents of Bryon Bay would have to quarantine if they went to Brisbane.

There are some small faultlines starting to appear in WA now too.... their chamber of commerce has started publicly lobbying on the back of research that 3/5 WA businesses are under severe financial stress and once job keeper notches down again / then out completely in March that will really bite.

The tourism, hospitality and events industry has also been decimated.

And the fact that so many WA families are broken up across the continent now will start bubbling up more and more as the eastern states more than likely normalise and open up to each other, there will be very green faces peering over the ‘border’ over time, looking at how we manage (hopefully!)

Not saying anything will really happen quickly in WA at all, especially with their election looming early next year and the garbage coming out of their Premiers mouth to make sure he gets back in but the seeds are already sown....

 

[antycbr]

There are some small faultlines starting to appear in WA now too.... their chamber of commerce has started publicly lobbying on the back of research that 3/5 WA businesses are under severe financial stress and once job keeper notches down again / then out completely in March that will really bite.

The tourism, hospitality and events industry has also been decimated.

And the fact that so many WA families are broken up across the continent now will start bubbling up more and more as the eastern states more than likely normalise and open up to each other, there will be very green faces peering over the ‘border’ over time, looking at how we manage (hopefully!)

Not saying anything will really happen quickly in WA at all, especially with their election looming early next year and the garbage coming out of their Premiers mouth to make sure he gets back in but the seeds are already sown....

There’s only so many times people can go to Margaret River, Albany and the wheatbelt. I don’t think many people want to holiday in Newman or Port Hedland, particularly in summer.


Where scomo has leverage is to keep the international borders closed while the state borders are closed. No Bali trips for WA people will get to them eventually.

 

[DC3]

I understand that the WA Premier is held in very high regard by the majority of those living in WA. So, he must be doing something right.

 

[straitman]

Thousands of hours have been wasted on people looking for every loophole they could in the otherwise pretty simple restrictions. Thousands of hours are being spend dealing with businesses demanding we look after them.

Those hours could have been spent looking at the process to open up in the measured way everyone wants.

Why are so many hours wasted? Because the written ‘rules’ are so contradictory! Look at the Gov’t web sites, the DHHS web site and the actual regulations. They are VERY unclear and VERY contradictory.

Twice I have had a reason to travel somewhere and have been into the rules to see if it was actually within the rules. (Not to see a way around the rules). I even rang up the COVID help line. The answer was It wouldn’t like to advise you on that as the gov’t is changing the rules daily.’ So we asked several Police personal to get ‘ I wouldn’t book you but someone else might.'

I have a friend who drives freight trains and regularly travels from Gippsland, through the edge of Melbourne towards Albury. He has ALL the appropriate paperwork and still gets anything from being waved through to you can’t continue until I can check on whether that is a valid reason’

The rules are convoluted, unclear and messy and more importantly they are confusing IF you have a need to do something.

 

[DC3]

There’s only so many times people can go to Margaret River ....

No, there’s no limit. Bring it on.

 

[straitman]

I understand that the WA Premier is held in very high regard by the majority of those living in WA. So, he must be doing something right.

I get the impression that the novelty is wearing off though.

 

[MEL_Traveller]

Why are so many hours wasted? Because the written ‘rules’ are so contradictory!

Are the rules so unclear? They weren't until the media got involved.

Leave home for one of four reasons... essential work - if you cannot work from home - is included.

Wasted hours? Some quick examples:

• taking my child for a driving lesson is actually 'education'
• I should be able to drive 50km to go hiking/bird watching/star gazing
• 'why can't I'... play golf, go fishing, swim in the ocean. These are solo activities and they should be exempted.
• I want to visit my intimate partner (... who I might have just met on tinder yesterday)
• can i travel to my holiday home
• why can't I sit on a park bench to eat a kebab

Yes, there are genuine cases that need to be considered, but lots of hours wasted on things which didn't really need to be spelled out

There are some small faultlines starting to appear in WA now too.... their chamber of commerce has started publicly lobbying on the back of research that 3/5 WA businesses are under severe financial stress and once job keeper notches down again / then out completely in March that will really bite.

...

Not saying anything will really happen quickly in WA at all, especially with their election looming early next year and the garbage coming out of their Premiers mouth to make sure he gets back in but the seeds are already sown....

Key words... 'chamber of commerce'.

This is a health emergency... not a business emergency.

There are just over 500 families burying one or more parents who died with covid. Business profits aren't at the forefront of most people's minds right now. Jobkeeper hasn't been phased out yet. And by the Treasurer's own statement - more than half the jobs lost to covid are already reinstated.

The Federal Court has found border closures are the most effective way of mitigating the health risks.

 

[straitman]

Are the rules so unclear? They weren't until the media got involved.

Leave home for one of four reasons... essential work - if you cannot work from home - is included.

Wasted hours? Some quick examples:

• taking my child for a driving lesson is actually 'education'
• I should be able to drive 50km to go hiking/bird watching/star gazing
• 'why can't I'... play golf, go fishing, swim in the ocean. These are solo activities and they should be exempted.
• I want to visit my intimate partner (... who I might have just met on tinder yesterday)
• can i travel to my holiday home
• why can't I sit on a park bench to eat a kebab

Yes, there are genuine cases that need to be considered, but lots of hours wasted on things which didn't really need to be spelled out



Key words... 'chamber of commerce'.

This is a health emergency... not a business emergency.

There are just over 500 families burying one or more parents who died with covid. Business profits aren't at the forefront of most people's minds right now. Jobkeeper hasn't been phased out yet. And by the Treasurer's own statement - more than half the jobs lost to covid are already reinstated.

The Federal Court has found border closures are the most effective way of mitigating the health risks.

Yes the rules are unclear! The various Gov't sites are convoluted and contradictory.

• taking my child for a driving lesson is actually 'education'. --- Allowable in country Victoria
• I should be able to drive 50km to go hiking/bird watching/star gazing. --- Partly allowable in country Victoria
• 'why can't I'... play golf, go fishing, swim in the ocean. These are solo activities and they should be exempted. --- Partly allowable in country Victoria
• I want to visit my intimate partner (... who I might have just met on tinder yesterday) --- Allowable in country Victoria (Look up the definition of intimate)
• can i travel to my holiday home. --- No
• why can't I sit on a park bench to eat a kebab. --- Allowable in country Victoria

Read the Government sites. They are contradictory. ps. The reason I needed to travel was for something in a court order but that was too hard to define (even by the Police) as legal OR illegal.

 

[DC3]

I get the impression that the novelty is wearing off though.

Really? I must be following a different media source. However, we are blessed on AFF for having our differing views.

 

[MEL_Traveller]

• taking my child for a driving lesson is actually 'education'. --- Allowable in country Victoria
• I should be able to drive 50km to go hiking/bird watching/star gazing. --- Partly allowable in country Victoria
• 'why can't I'... play golf, go fishing, swim in the ocean. These are solo activities and they should be exempted. --- Partly allowable in country Victoria
• I want to visit my intimate partner (... who I might have just met on tinder yesterday) --- Allowable in country Victoria (Look up the definition of intimate)
• can i travel to my holiday home. --- No
• why can't I sit on a park bench to eat a kebab. --- Allowable in country Victoria

Read the Government sites. They are contradictory. ps. The reason I needed to travel was for something in a court order but that was too hard to define (even by the Police) as legal OR illegal.

Sure, that's now under the two-tiered metro/regional model. But the whole state was subject to the same restrictions at the time those examples arose.

(As for a court order, I would have contacted the court to ask my responsibilities.)

 

[DC3]

Chamber of Commerce. Not answerable to anyone but their business members.

Edit: What is their position on COVID deaths/illness?

 

[jakeseven7]

The slogan must be on point. Nobody but a few lawbreakers have left for weeks and weeks, once you are here you stay put .

Actually there are few cars on the road ATM around the city area. Looking out the window at the moment onto one of the three main thoroughfares through the city E-W, 2 cars have passed in the last 5 minutes.

That would be why car fatalities are down.

And aged care fatalities are down massively as well year on year, even with Victoria factored in.

Bizarre world right now.