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]

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.

There are plenty of examples around the world where politicians are doing the wrong thing but they are popular.

 

[jakeseven7]

States have no excuse for border closures: NSW Premier


Berejiklian urged Queensland Premier Annastacia Palaszczuk to show compassion and take a step back from a narrow state-focused approach that has resulted in a patchwork of border restrictions across the country.

"I think really during a pandemic you need to look at this issue from a compassionate perspective, from a human perspective," Ms Berejiklian said.

"I think what is constructive is that all of us agreed that having a consistent definition of a hotspot would ensure that states have no excuse to keep their borders up."

All states, with the exception of Western Australia, agreed to consider lifting hard borders by December at Friday's national cabinet meeting, prompting Prime Minister Scott Morrison to warn national decisions could soon be made without 100 per cent consensus.

NSW Treasurer Dominic Perrottet told the Herald that Ms Palaszczuk needed to do what was right, not what was "politically expedient".

Ms Berejiklian believes no state border restrictions should exist by Christmas if current trends continue.

States have no excuse for border closures: NSW Premier

There is no reason for Queensland to keep its border closed to NSW under the preliminary definition of a coronavirus "hotspot" agreed on Friday.

www.google.com.au

 

[DC3]

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

There are plenty of examples around the world where politicians are doing the wrong thing but they are popular.

Not to mention those who are popular for doing the right thing.

 

[drron]

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

Not to mention those who are popular for doing the right thing.

There are as many positions on covid deaths/illnesses as there are politicians.
And again many examples where politicians do the right thing and are unpopular.

 

[DC3]

There are as many positions on covid deaths/illnesses as there are politicians.
And again many examples where politicians do the right thing and are unpopular.

Well, at least some of our states are doing a good job at protecting our health.

Edit: You are fortunate in being able to zip between TAS and QLD, even though the current trip is not officially just about consuming scallop pies.

 

[bigbadbyrnes]

I've texted my pals in America to see if we can get the contact details of the guys who re-print all their flags every time the number of states change. To be fair, we just need a point removed from one star, so we should get a decent rate.

 

[drron]

Well, at least some of our states are doing a good job at protecting our health.

Edit: You are fortunate in being able to zip between TAS and QLD, even though the current trip is not officially just about consuming scallop pies.

I still go back to Taiwan.If our states were doing a great job they should measure up to their stats.Population 23.78 million.492 positive cases,7 deaths.
4 Australian states have higher total numbers than that including WA and QLD as well as having smaller populations.
In fact per 100,000 people no Australian State does as good a job as Taiwan.
And Taiwan has not has had a strict a lockdown as any where in Australia.
It closed it's border to China in January.It has excellent contact tracing and enforces quarantine way better than Australia.We should learn from them.

 

[MEL_Traveller]

I still go back to Taiwan.If our states were doing a great job they should measure up to their stats.Population 23.78 million.492 positive cases,7 deaths.
...
And Taiwan has not has had a strict a lockdown as any where in Australia.
It closed it's border to China in January.It has excellent contact tracing and enforces quarantine way better than Australia.We should learn from them.

The key is the bolded sentences at the end.

Taiwan locked down very early and mask wearing is already common.

Australia - either its politicians or citizens - simply weren't experienced to handle a pandemic of this nature. We can't undo what has been done... the measures in Taiwan were there well before talk of a pandemic was even entertained in Australia.

So, we are where we are. We will know for next time.

 

[TomVexille]

I've texted my pals in America to see if we can get the contact details of the guys who re-print all their flags every time the number of states change. To be fair, we just need a point removed from one star, so we should get a decent rate.

Let's be fair, the number of US states hasn't changed since 1959

 

[PineappleSkip]

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.

Yes, this is the worst of it, together with rules saying one thing, politicians saying another, media saying something different and all sorts of gibberish on Facebook. Most of the gibberish is well meaning, but the rules are constantly changing and

Case in point: Pineapple gathering on the day the rules in Qld changed. 3 residents, 8 guests. Argument about whether it is legal as pollies are saying 10 guests max. AP‘s people put up a determination the day the change started saying quite clearly and unambiguously that hosts can have 10 guests, from up to 10 different households, but hosts weren’t included in the 10. Ok, we’re legit. Odd because the pollies are saying max 10. By next morning it had changed, now saying clearly max 10 including hosts. Not sure whether the wrong determination had been published or it was retrospectively changed to match the polly speak. You couldn’t make this stuff up. You may say we should have listened to the pollies but there have been numerous occasions where Qld govt pollies have said something different to what their determinations have. Retrospective criminality is as bad as it gets.

cheers skip

 

[OZDUCK]

I still go back to Taiwan.If our states were doing a great job they should measure up to their stats.Population 23.78 million.492 positive cases,7 deaths.
4 Australian states have higher total numbers than that including WA and QLD as well as having smaller populations.
In fact per 100,000 people no Australian State does as good a job as Taiwan.
And Taiwan has not has had a strict a lockdown as any where in Australia.
It closed it's border to China in January.It has excellent contact tracing and enforces quarantine way better than Australia.We should learn from them.

The national borders are controlled by the Commonwealth and not the states so there is little they could have done at the time of the initial infections.

In W.A, as far as I can recall, no deaths have occurred from anyone who became infected within the state. All deaths have been from people who were infected overseas. I believe all deaths were cruise ship passengers including at least 4 from the 'German' cruise ship the Artania that came into port requesting emergency assistance. So on a metric that W.A had a chance to affect it appears to have performed at least as well as Taiwan.

 

[DC3]

Let's be fair, the number of US states hasn't changed since 1959

Probably not a great business venture to be in; adding another star to Old Glory.

Although, selling current flags/patriotism should be good.

Edit: Although POTUS was eyeing-off Greenland.

 

[jakeseven7]

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

Well the news reported that the largest crowd of all cap city anti lockdown border closures etc protests was in.... Perth, followed by Melbourne....

 

[p--and--t]

Well the news reported that the largest crowd of all cap city anti lockdown border closures etc protests was in.... Perth, followed by Melbourne....

We might need to wait for corroborating information. The ABC is saying Melbourne followed by Perth. However AFAIK neither have quoted official sources.

 

[MEL_Traveller]

300 or so in Melbourne. Out of 4.9 million.

 

[jakeseven7]

We might need to wait for corroborating information. The ABC is saying Melbourne followed by Perth. However AFAIK neither have quoted official sources.

Doesn’t really matter I guess, just heard it on radio but clearly there are cracks are forming in Perth now as well. March is very close or a very long way away as they say in politics!

 

[drron]

The key is the bolded sentences at the end.

Taiwan locked down very early and mask wearing is already common.

Australia - either its politicians or citizens - simply weren't experienced to handle a pandemic of this nature. We can't undo what has been done... the measures in Taiwan were there well before talk of a pandemic was even entertained in Australia.

So, we are where we are. We will know for next time.

Except that mask wearing not as common as we think.A friend was in Taiwan for 3 weeks in March.Common in Taipeh the capital but definitely people without masks.Outside the capital under 50% wore masks.
And in a couple of restaurants were even allowed to have a buffet.
The real reason apart from the closed National border is effective Quarantine with large penalties if broken-up to $US50000 and/or up to 6 months in the slammer.
But they enforced quarantine by checking your phone via GPS.If you battery happened to go flat there would be a knock on the door within 10 minutes.
But on top of that they had contact tracing teams ready to go and to be rapidly escalated.
Sorry but Australia has done quarantine badly.OK for the good guys but too many want to buck the system.

 

[MEL_Traveller]

Except that mask wearing not as common as we think.A friend was in Taiwan for 3 weeks in March.Common in Taipeh the capital but definitely people without masks.Outside the capital under 50% wore masks.
And in a couple of restaurants were even allowed to have a buffet.
The real reason apart from the closed National border is effective Quarantine with large penalties if broken-up to $US50000 and/or up to 6 months in the slammer.
But they enforced quarantine by checking your phone via GPS.If you battery happened to go flat there would be a knock on the door within 10 minutes.
But on top of that they had contact tracing teams ready to go and to be rapidly escalated.
Sorry but Australia has done quarantine badly.OK for the good guys but too many want to buck the system.

I think that's right. All the reasons you have given show that Australia can't be compared with Taiwan. We just didn't have the experience, the public acceptance, or the level of compliance they have in Taiwan.

I agree it shows what *should* be possible if this ever happens again.

 

[drron]

I think that's right. All the reasons you have given show that Australia can't be compared with Taiwan. We just didn't have the experience, the public acceptance, or the level of compliance they have in Taiwan.

I agree it shows what *should* be possible if this ever happens again.

Well we could certainly learn how to not have our contact tracing teams over whelmed and how not to stuff up hotel quarantine.the obvious underlying cause of our second wave which should not have happened.
And I see no reason why the Taiwan methods can't be adopted in Australia.Sure some will complain that their rights are being infringed because of the GPS tracking but we are seeing in Victoria their charter of rights being put aside any way for a few weeks.To me far less damage to society as a whole than the lockdowns we have had.

 

[Pushka]

Well we could certainly learn how to not have our contact tracing teams over whelmed and how not to stuff up hotel quarantine.the obvious underlying cause of our second wave which should not have happened.

The only state that seemed to be overwhelmed with contact tracing was Victoria and that was because reports indicate they scaled back their staff severely in June after a slow start to begin with, while other states were ramping up in January and continued to ramp up rather than scale back.