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]

Even the EU is having problems with Schengen countries and borders.

EU Union Tries To Get Clarity To Intra-Group Travel

EU tries to get clarity intra-bloc travel with common rules.

loyaltylobby.com

 

[MEL_Traveller]

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.

I dunno abut the GPS tracking. While it can prevent someone in quarantine leaving... does it stop people coming to visit you?

The Vic Charter of Rights I think can be suspended to the extent necessary during a declared State of Disaster. The State of Emergency doesn't overrule it. So it would be potentially difficult to get the GPS through given the State of Disaster is tougher to satisfy.

Many countries have been through lockdown. Dunno the logistics of having to introduce GPS vs a few weeks in lockdown?

 

[jakeseven7]

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.

Well the good news is VIC’s new contact tracing systems appear to be working well and cutting down the manual work significantly according to people I know using them now!

 

[antycbr]

Well the good news is VIC’s new contact tracing systems appear to be working well and cutting down the manual work significantly according to people I know using them now!

God knows they've had long enough now to fix this incompetence. Each state really needs to fund public health properly - if i recall correctly Victoria spends ONE FIFTH of what NSW spends on Public Health.

 

[MEL_Traveller]

God knows they've had long enough now to fix this incompetence. Each state really needs to fund public health properly - if i recall correctly Victoria spends ONE FIFTH of what NSW spends on Public Health.

Link?

This publication suggests:

In 2017–18, average per capita health spending was similar across all states and territories, except for the Northern Territory where average spending was $10,857 per person, compared with the national average of $7,485 (Figure 2.4).​

​

Source: https://www.aihw.gov.au/getmedia/91e1dc31-b09a-41a2-bf9f-8deb2a3d7485/aihw-hwe-77-25092019.pdf.aspx (see page 10)

 

[jakeseven7]

God knows they've had long enough now to fix this incompetence. Each state really needs to fund public health properly - if i recall correctly Victoria spends ONE FIFTH of what NSW spends on Public Health.

The new VIC system was launched quietly a week or two ago, it will be a backbone of the recovery strategy no doubt.

Re: your spending number, that is not a correct recall by you

 

[OATEK]

Well the good news is VIC’s new contact tracing systems appear to be working well and cutting down the manual work significantly according to people I know using them now!

A friend's daughter (from NSW) has done two stints in the Vic tracing group, and reported it was a shambles. Was reluctant to go the second time, but did it out of a sense of duty. Was able to quarantine at home on return.

 

[jakeseven7]

A friend's daughter (from NSW) has done two stints in the Vic tracing group, and reported it was a shambles. Was reluctant to go the second time, but did it out of a sense of duty. Was able to quarantine at home on return.

I have good friends doing it remotely from Canberra actually, don’t have to travel and they say the new system is working well so far - I expect only having 80 cases a day to
deal with now is helping as well!

 

[antycbr]

Link?

This publication suggests:

In 2017–18, average per capita health spending was similar across all states and territories, except for the Northern Territory where average spending was $10,857 per person, compared with the national average of $7,485 (Figure 2.4).​

​

Source: https://www.aihw.gov.au/getmedia/91e1dc31-b09a-41a2-bf9f-8deb2a3d7485/aihw-hwe-77-25092019.pdf.aspx (see page 10)

Found it The Age
Not 1/5 but certainly the lowest in the country.
Note that Public Health spending is very different to Health spending in general.

 

[p--and--t]

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.

Can you provide a reference for that?

 

[ethernet]

PPPPP. Prior planning prevents poor performance. That's how I conclude Australia's dismal and inadequate planning. Zero Leadership, and certainly systemic failures. There is zero evidence Australia is ready for anything, and plenty that sheer penny pinching and risk denials that deny national security and prosperity at multiple levels.

My understanding of Australia's constitution is that it can be anything the Federal/Cwth wants it to be, including using the international treaty angle to acquire traditional state powers. Furthermore it could choose to limit or scope funding until states agreed. Jobkeeper excluded the education sector to a large degree, and there is no reason why the tourism/hospitality sectors windfall should not end going forward. Also note it includes telecommunications. meaning benign activity in an emergency is OK.

Taiwan has documented its reasoning, and knows its capability. If this happens then we will do that, and spend money on the enablers/critical path lines yesterday. It is not go into problem management mode, and say it is a storm in a teacup, or in the words of Sir Johannes Bjelke-Petersen KCMG 'Never you mind about that'. Especially if it concerns poking your nose into 'State' issues, or picking up the tab for cost shifting, such as public health.

I will add to this post when I find out why IE is using 25-40% cpu.

 

[Pushka]

Can you provide a reference for that?

For the downsizing? It was referenced here a few weeks ago. I will need to go digging again.

 

[p--and--t]

For the downsizing? It was referenced here a few weeks ago. I will need to go digging again.

Yes thanks, would be interested to be better informed on that. Must have missed the reports.

 

[Seat0B]

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?

Happened to my sister on the way from Canberra to Darwin in July/August. No direct flight, so chose to go via Brisbane. Can't do that in a single day any more so had to overnight in Brisbane. On the flight between Canberra and Brisbane, NT declared whole of Brisbane a hot spot = 14 days quarantine on arrival in NT.

Very stressful sleepless night until the NT announced that people who were already underway, who stayed in an airport hotel and did not use restaurant, bar or public mass transit (taxi/uber ok) would be allowed in. What we learned from that is to absolutely NEVER book anything that is not fully refundable, and to NEVER expect that your plans will happen.

 

[Seat0B]

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.

Yes this was driving us wild in July. Mr Seat 0A's family are all from the Gold Coast. They were up and down to their Evans Head holiday home in far north NSW repeatedly in this time frame, with no requirement to quarantine in either direction. Whilst we, from the COVID hotspot of the ACT were not allowed in to QLD without quarantine. We would not have been allowed without quarantine if we lived in Evans Head. Very lopsided risk assessment in my view.

Anyway, tables have turned a bit and now we can go to Evans Head and they can't unless they do the 14 day quarantine. Plus they have to fly into Queensland and cannot drive over the border. And we still can't go to QLD because we are allegedly a hotspot. Honestly, it is beyond ridiculous.

Edited for clarity of dates and quarantine requirements

 

[oz_mark]

PPPPP. Prior planning prevents poor performance.

.....

I will add to this post when I find out why IE is using 25-40% cpu.

Plan to move off IE may help

 

[Seat0B]

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.

Kind of agree, but in the end all this does is punish us in other states by not allowing us to travel because of behaviour in states like WA and Qld that we cannot manage and can't even express displeasure at the ballot box.

Or did you mean keeping the international border closed for residents of those states only. Now that would certainly get people's focus! But I can't see that happening.

 

[antycbr]

Kind of agree, but in the end all this does is punish us in other states by not allowing us to travel because of behaviour in states like WA and Qld that we cannot manage and can't even express displeasure at the ballot box.

Or did you mean keeping the international border closed for residents of those states only. Now that would certainly get people's focus! But I can't see that happening.

I can definitely see it happening. You can’t have people in WA able to go overseas while they deny other Australians the right to enter. After all its about health and we can’t trust other jurisdictions to be honest about their numbers and the “Virus May Be Lurking”

remember we will do whatever it takes to keep our residents safe...

Therefore making WA a huge prison unless you want to do 14 days quarantine.

 

[oz_mark]

I can definitely see it happening. You can’t have people in WA able to go overseas while they deny other Australians the right to enter. After all its about health and we can’t trust other jurisdictions to be honest about their numbers

Although WA people can go to Christmas Island or Cocos (Keeling) Island. Might be overseas enough (if not cheap!)

 

[antycbr]

Although WA people can go to Christmas Island or Cocos (Keeling) Island. Might be overseas enough (if not cheap!)

Can they? Sounds like a federal health order is needed ASAP like Lord Howe Island (imposed by NSW)