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

 

[Seat0B]

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.

I meant that I don;t see a federal govt (of any colour) being willing to say people from NSW and SA can go overseas, but people from WA cannot. I agree that it logically makes sense and would be a massive motivator, but I just don't think the Feds have the stomach to do that. They would then be seen as the baddies by the people of WA, and they do get to vote in Federal elections. Whilst we who live outside WA or QLD don;t get to vote against their state level border restrictions.

I feel that our constitutional allocation of residual powers to the states has hamstrung the Prime Minister in these particular and probably unforeseen circumstances.

 

[antycbr]

I meant that I don;t see a federal govt (of any colour) being willing to say people from NSW and SA can go overseas, but people from WA cannot. I agree that it logically makes sense and would be a massive motivator, but I just don't think the Feds have the stomach to do that. They would then be seen as the baddies by the people of WA, and they do get to vote in Federal elections. Whilst we who live outside WA or QLD don;t get to vote against their state level border restrictions.

I feel that our constitutional allocation of residual powers to the states has hamstrung the Prime Minister in these particular and probably unforeseen circumstances.

The ground work has been set. Only states that agree to the federal definition of hotspots will be able to open to travel by NZers, as agreed with Ardern. This doesn’t give us the right to go there however, but it is a clear example of the federal governments power on the borders being applied.

This was announced on Friday so it’s happening.

It'll be a long time before most of WA's electorates would stomach an Albanese ALP government so the political risk is very minor.

 

[straitman]

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.)

I ask you to please go back and read what I said in post #1172.

• We asked the government help line and they couldn't give a suitable answer.
• The Police were unsure of what was correct.
• The web sites are contradictory.
• etc

I restate that it is all very contradictory. Something I learnt long ago was to use the 'KISS' principal. ie Keep It Simple Stupid. My friend who is a research scientist has been through ALL the rules in detail and states that 'You could drive a train through the current rules as they are written'

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.

Though you used that as a current example. I knew it was from an earlier period however I am sure many who don't follow all the news wouldn't appreciate the difference. ie things need to be spelt out to many of the masses.

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

Going back to the court was not a possibility.

 

[HappyFlyerFamily]

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

You need a holiday place in the border bubble on the NSW side.

I think Gold Coast can cross NSW but stay in bubble and ACT can travel anywhere in NSW, both without extra quarantine.

 

[antycbr]

You need a holiday place in the border bubble on the NSW side.

I think Gold Coast can cross NSW but stay in bubble and ACT can travel anywhere in NSW, both without extra quarantine.

They can go into Tweed shire but not Byron Shire... that’s why I’m looking forward to my trip to Brunswick Heads...

If nothing else this whole thing is an exercise in Civics education... and a study in LGA boundaries (looking at you Mitchell Shire)

 

[Anna]

Going back to the court was not a possibility.

They wouldn't tell you anything anyway about how to interpret the order. They would read from a prepared script that says we are unable to give you legal advice, please speak to your lawyer.

 

[MEL_Traveller]

I ask you to please go back and read what I said in post #1172.

• We asked the government help line and they couldn't give a suitable answer.
• The Police were unsure of what was correct.
• The web sites are contradictory.
• etc

...

Going back to the court was not a possibility.

I might have been confused... I thought you were saying you called the DHHS, the police, etc in relation to whether or not you needed to travel for something in a court order? But did you contact the court (by telephone or other means) to ask them your obligations? If it's a court order, they would seem the relevant body for advising what you need to do.

 

[Anna]

If it's a court order, they would seem the relevant body for advising what you need to do.

No, it's the court's job to hand out justice. Courts do not give legal advice.

 

[MEL_Traveller]

No, it's the court's job to hand out justice. Courts do not give legal advice.

Agree. The Victorian courts have however issued extensive Q&As on all manner of things potentially impacted by COVID-19. Not sure if that extends to other states.

 

[Anna]

Finally some news from the High Court. There was a directions hearing last Friday afternoon in the Palmer v WA matter. The transcript is here - Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 131 (4 September 2020)

Key quote - 'the likelihood is that it will be set down [for hearing] for the November sittings'.

 

[Anna]

Agree. The Victorian courts have however issued extensive Q&As on all manner of things potentially impacted by COVID-19. Not sure if that extends to other states.

Every Court and tribunal in Australia will have issued guidance about how covid19 affects court appearances, lodging court documents and 'all manner of things' about the general effect on court processes and procedure. Not about how to apply orders issued by the court to your own individual circumstances.

 

[MEL_Traveller]

Every Court and tribunal in Australia will have issued guidance about how covid19 affects court appearances, lodging court documents and 'all manner of things' about the general effect on court processes and procedure. Not about how to apply orders issued by the court to your own individual circumstances.

For example, the Family Court has provided general advice on the adherence to court orders: Information for parents - questions and answers - Family Court of Australia

 

[Anna]

You mean the bit that says 'Every family’s circumstances are different and this is only to be used as general information'?

 

[straitman]

For example, the Family Court has provided general advice on the adherence to court orders: Information for parents - questions and answers - Family Court of Australia

You are missing the point.
The question was 'Are we allowed to do xx_YYYxx_ in accordance with and to fulfil this court item as approved by the court?'

• The general advice did not cover it.
• The government hotline (Covid helpline) would not give an answer as the rules were changing continually. (Their words, not mine)
• The gov't Q&A and DHHS were contradictory.
• The police gave an each way answer.

ie The rules were unclear. No one was attempting to defy the rules but I was trying to see if something was allowed and I couldn't get a straight answer. Because of this the trip wasn't made and this has created another whole big issue.

 

[jakeseven7]

The ground work has been set. Only states that agree to the federal definition of hotspots will be able to open to travel by NZers, as agreed with Ardern. This doesn’t give us the right to go there however, but it is a clear example of the federal governments power on the borders being applied.

This was announced on Friday so it’s happening.

It'll be a long time before most of WA's electorates would stomach an Albanese ALP government so the political risk is very minor.

Well that would be a spectacular twist of a knife into WA if there was a scenario where VIC NSW QLD opened to NZ and Scomo said WA couldn’t....!

There are a lot of kiwis in Perth and VV.... they had a few direct flights pre covid...

 

[p--and--t]

Well that would be a spectacular twist of a knife into WA if there was a scenario where VIC NSW QLD opened to NZ and Scomo said WA couldn’t....!

There are a lot of kiwis in Perth and VV.... they had a few direct flights pre covid...

I'm not so sure it would be just Scomo. I got the impression (could be wrong) that Ardern was seeking a singular agreement with Australia that would define the risk level of two way traffic. WA would be ruling themselves out if they didn't participate in a single signed agreement on the standard measures and processes. I also sensed from various statements that maybe she wouldn't be happy with on again off again state border closures and different rules all over the place. Scomo is obviously using this as a bargaining chip to get the Premiers/Chief Ministers on board his "bus".

 

[jakeseven7]

I'm not so sure it would be just Scomo. I got the impression (could be wrong) that Ardern was seeking a singular agreement with Australia that would define the risk level of two way traffic. WA would be ruling themselves out if they didn't participate in a single signed agreement on the standard measures and processes. I also sensed from various statements that maybe she wouldn't be happy with on again off again state border closures and different rules all over the place. Scomo is obviously using this as a bargaining chip to get the Premiers/Chief Ministers on board his "bus".

Yes but there well could be a big block of states that agree and operate on this basis in a few months, most likely being NSW/ACT, VIC and QLD (once Anna has won her election) combined and that would be pretty easy to manage. I suspect out of FOMO SA will jump in too.

 

[antycbr]

I'm not so sure it would be just Scomo. I got the impression (could be wrong) that Ardern was seeking a singular agreement with Australia that would define the risk level of two way traffic. WA would be ruling themselves out if they didn't participate in a single signed agreement on the standard measures and processes. I also sensed from various statements that maybe she wouldn't be happy with on again off again state border closures and different rules all over the place. Scomo is obviously using this as a bargaining chip to get the Premiers/Chief Ministers on board his "bus".

Remember nation states sign agreements not subnational governments. Scomo bringing up the foreign relations bill recently was no accident and designed to remind states of their place in the pecking order. The main target was Victoria but I am sure the message was not lost in Perth.

 

[MEL_Traveller]

Remember nation states sign agreements not subnational governments. Scomo bringing up the foreign relations bill recently was no accident and designed to remind states of their place in the pecking order. The main target was Victoria but I am sure the message was not lost in Perth.

I'm not sure of the relevance of the Fed's mention of international treaties. That was a separate issue to do with Australia's relationship with China, not the management of covid.

The Feds can only do what their powers permit in the Constitution. if they don't have a head of power, they need State cooperation.

 

[oz_mark]

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

Yes - have to go through the approvals process both ways, but a traveller from the Indian Ocean Territories is an exempt traveller if coming in by air

Exempt Traveller Approval (Indian Ocean Territories) (No 2)

Approval to Indian Ocean Territories travellers to enter Western Australia.

www.wa.gov.au