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

 

[jakeseven7]

Little fault lines starting to appear in Tasmania as well. It will only grow, especially when the eastern seaboard starts opening up.

Now we have yet another premier with an ‘interesting relationship’ with medical advice and how they are wielding it as a tool.

Anyway we have a few members on here who are in Tassie and appears their joking reference to a dictatorial state seems to have made it to mainstream news!

———-

Tasmania's Premier has moved away from Public Health advice in his border strategy


Tasmanian Premier Peter Gutwein has made a point of relying on Public Health advice throughout the coronavirus pandemic.

Anyone questioning a government decision has been accused of questioning the health experts — a serious slight in a global pandemic.

At one of these briefings on Monday, Public Health deputy director Scott McKeown was asked why essential travellers were still entering Tasmania without being tested.

He told attendees it was because the risk of transmission was low.

Dr McKeown estimated there was a one-in-10 million chance of coronavirus entering Tasmania from outside declared hotspots.

The Tasmanian Chamber of Commerce and Industry said the revealed risk was a "game changer", while the head of the Tourism Industry Council of Tasmania, Luke Martin, said the reasoning behind the state's tough restrictions was getting "beyond a joke".

A border bubble with similarly safe jurisdictions was floated, set in place, then popped because of the perceived ‘risk’ to Tasmanians.

Labor called on the Premier to release the advice he was relying on when keeping Tasmania's borders shut and internal restrictions in place until December 1.

This is not just typical opposition squawking. The Premier's own coronavirus recovery council made five recommendations to the Government specific to providing clearer messaging on his decisions.

That’s not to mention the Tasmanians who have made serious sacrifices. Funerals have been missed, businesses have been closed and weddings have been postponed.

It's worth mentioning another fear growing within the community: speaking out about the decisions that are made.

One business, practically bleeding money, declined to talk on camera on Saturday about their dissatisfaction with the situation out of concern about the potential public backlash.
They are not alone.

Has Tasmanian Premier Peter Gutwein stepped away from the word of public health experts?

Tasmania's Premier has been relying on Public Health advice when it comes to responding to the coronavirus pandemic. Is this what happens when it doesn't suit him?

mobile.abc.net.au

 

[antycbr]

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.

Western Australia cannot negotiate a travel bubble with Singapore, or Indonesia or anyone else unless Scomo agrees. That won't happen unless all citizens can travel internally in Australia.

External affairs is a power in the consitution reserved solely for the Commonwealth.

It was a shot at all state premiers to remind them they are states, not nation states.

 

[Pushka]

Western Australia cannot negotiate a travel bubble with Singapore, or Indonesia or anyone else unless Scomo agrees. That won't happen unless all citizens can travel internally in Australia.

External affairs is a power in the consitution reserved solely for the Commonwealth.

It was a shot at all state premiers to remind them they are states, not nation states.

And WA folk love a weekend trip to Bali. Thank goodness there is something that the Commonwealth has control of as far as WA is concerned. And its a biggie.

Looks like SA will open up to NSW and ACT without self iso in a matter of days assuming good figures. Now it will just be Victoria that is the issue for SA folk. And, well, the rest of Australia has issues there.

 

[jakeseven7]

And WA folk love a weekend trip to Bali. Thank goodness there is something that the Commonwealth has control of as far as WA is concerned. And its a biggie.

Looks like SA will open up to NSW and ACT without self iso in a matter of days assuming good figures. Now it will just be Victoria that is the issue for SA folk. And, well, the rest of Australia has issues there.

Hopefully it won’t be an issue for much longer the case numbers are really coming down in Vic let’s just hope it keeps on coming down.

 

[MEL_Traveller]

Hospitals are not stretched or near breaking point.Even in Victoria.

An example of the impacts on hospitals - one QLD nurse tests positive and 220 colleagues go into quarantine: Nurse tests positive to coronavirus, sending 220 staff into quarantine

 

[Pushka]

An example of the impacts on hospitals - one QLD nurse tests positive and 220 colleagues go into quarantine: Nurse tests positive to coronavirus, sending 220 staff into quarantine

So in SA if you are identified as a close contact of a positive case then you go into isolation. Does this not happen in Qld?

 

[antycbr]

An example of the impacts on hospitals - one QLD nurse tests positive and 220 colleagues go into quarantine: Nurse tests positive to coronavirus, sending 220 staff into quarantine

That sounds like a process failure - 220 staff should not be allowed to mingle with each other in any employment location.

 

[Pushka]

That sounds like a process failure - 220 staff should not be allowed to mingle with each other in any employment location.

And all close contacts of a positive case should go into isolation. Which means the Nurse should not have been working. Especially a Nurse. For this exact reason.

 

[jakeseven7]

So is Ipswich now a hot spot according to Dr Young?

 

[Princess Fiona]

And all close contacts of a positive case should go into isolation. Which means the Nurse should not have been working. Especially a Nurse. For this exact reason.

That sounds like a process failure - 220 staff should not be allowed to mingle with each other in any employment location.

It’s actually pretty much impossible to effectively social distance in a HCW setting. We try as hard as we can but it’s far from easy.
If someone in my workplace tested positive for COVID-19 and worked a couple of shifts in the 48 hours prior to having symptoms, half of our staff would be considered close contacts. Half of the staff taken off the roster.
In case you are unaware a close contact is not just face to face at 15 minutes. It’s also someone who has spent two or more hours with the person in the same space eg waiting room, clinic, Emergency Dept etc.

In regards to the nurse at Ipswich hospital she was tested after being identified as a close contact of a case. There is no suggestion that she did anything wrong prior to being identified and tested as a close contact.

 

[Pushka]

It’s actually pretty much impossible to effectively social distance in a HCW setting. We try as hard as we can but it’s far from easy.
If someone in my workplace tested positive for COVID-19 and worked a couple of shifts in the 48 hours prior to having symptoms, half of our staff would be considered close contacts. Half of the staff taken off the roster.

Agree it is hard but 220 staff have now been locked out now anyway. Admittedly an educational setting but 1000 were isolated in SA from potential contact and another 100 put into hotel quarantine as close contacts. Hospital staff are of course essential so that adds significant complexities. And no suggestion that the Nurse did anything wrong at all, it just surprised me that in Qld this might happen as a system issue. Understandable in Victoria where the health system is potentially overwhelmed.

 

[MEL_Traveller]

There is no suggestion that she did anything wrong prior to being identified and tested as a close contact.

Agree there is no suggestion of any wrongdoing. This was an example to show the impacts on the health care system, our hospitals and staff.

We can't just look at the number of hospital admissions... there's a bigger picture.

 

[jakeseven7]

Understandable in Victoria where the health system is potentially overwhelmed.

It isn't overwhelmed though so thats good. Wasn't even at the peak. In fact it looks like it will probably be overwhelmed when they re-open for electives and apparently a huge announcement on that is in the works on that...

 

[Pushka]

It isn't overwhelmed though so thats good. Wasn't even at the peak. In fact it looks like it will probably be overwhelmed when they re-open for electives and apparently a huge announcement on that is in the works on that...

SA hospitals are currently overwhelmed for some unknown reason. No COVID. No flu so

 

[MEL_Traveller]

It isn't overwhelmed though so thats good. Wasn't even at the peak.

i think you are not understanding the issue. There may have been spare beds, but that doesn't mean there were sufficient staff to manage the patients there. many staff are exhausted. Others are in quarantine. We've had to bring in the army to drive ambulances because there aren't enough regular paramedics.

The QLD example is telling. 1 nurse = 220 in quarantine. If it is just three nurses at separate hospitals... 600-700 staff taken out. And that could be on multiple occasions.

 

[Bundy Bear]

I wonder if Ipswich hospital phoned UQ and asked if there was any space on the vaccine trials, you only need 1 COVID19 case a week to screw your work force.

On the other thread you have the Queenslander going to Tweed Heads to pick up a rod and then not allowed back into the state.

Are there any restrictions going out bound.

 

[jakeseven7]

Massive Q&A on tonight and it’s 100% on borders both international and internal it is riveting and highly depressing hearing all the awful stories of people stranded all over the world and Australia. Government is getting flayed, why on earth they let the deputy front up

Big focus on the double standards, legality of the borders both international and domestics, the caps that the Feds and states have cooked up for international being unworkable, lack of any sensible ideas and work arounds like using secondary ports, special treatment being given for special people and not for others, political use of border closures and calls for a national approach, to forget this state v state politicking.

 

[bigbadbyrnes]

Western Australia cannot negotiate a travel bubble with Singapore, or Indonesia or anyone else unless Scomo agrees. That won't happen unless all citizens can travel internally in Australia.

External affairs is a power in the consitution reserved solely for the Commonwealth.

It was a shot at all state premiers to remind them they are states, not nation states.

I’d be tempted to say to him “Why bring the constitution into now, eh McGowan? Starting to sound like crazy old Clive and the Palmy Army. Gotta keep your citizens safe.”

 

[HappyFlyerFamily]

Interesting development...Qld exemption.

Queensland waives travel restrictions for NSW and ACT school boarders

Queensland's Chief Health Officer Jeanette Young grants travel exemptions for boarders from areas of New South Wales and the Australian Capital Territory with no active COVID-19 cases.

www.abc.net.au

 

[drron]

Interesting development...Qld exemption.

Queensland waives travel restrictions for NSW and ACT school boarders

Queensland's Chief Health Officer Jeanette Young grants travel exemptions for boarders from areas of New South Wales and the Australian Capital Territory with no active COVID-19 cases.

www.abc.net.au

Of course nothing to do with the case of an 11 year old boarder in Toowoomba whose parents lived 10KM out of the Moree post code bubble in northern NSW.Parents had been turned down twice to get him home.The day after the story hits the media something is done.