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]

And on Health grounds the former Commonwealth CMO and the current Acting CMO don't believe State borders should be closed.
We know that the Victorian and NSW CMOs didn't believe State borders should be closed until the Victorian outbreak.And NSW still open to all others.
We know now that the Tasmanian and WA Premiers have gone against their CMOs in keeping the borders closed.
We are unsure in SA.But the decision on borders is made by the Police and the fact that today when announcing that the border is still basically closed to NSW he wouldn't release the written Health advice that he got suggests that their CMO doesn't agree.
The NT medical advice is also now open borders and even Victorians can enter though have to Quarantine.
ACT wants borders to open.
So it seems to be only the QLD CHO that holds this opinion.And quite frankly some of the medical statements she makes are ludicrous.

 

[oz_mark]

It should be on Constitutional grounds.

Nothing more, nothing less.

That is the role of the High Court.

It will be an interpretation of the constitution, and how it applies to the facts presented.

 

[jakeseven7]

It will be an interpretation of the constitution, and how it applies to the facts presented.

So between now and Nov some certain little CHO's will being whipped by their electoral obsessed premiers to come up with some 'facts' to back up their politically charged decisions....? Who gets to determine the health 'facts'?

Two have already provided advice that their premiers have not 'agreed' with and acted differently and one has been basically dismissed by every other CHO.... so what hope do we have...?

 

[HappyFlyerFamily]

So between now and Nov some certain little CHO's will being whipped by their electoral obsessed premiers to come up with some 'facts' to back up their politically charged decisions....? Who gets to determine the health 'facts'?

Two have already provided advice that their premiers have not 'agreed' with and acted differently and one has been basically dismissed by every other CHO.... so what hope do we have...?

I believe the facts were settled by the Federal Court a few weeks back.

 

[oz_mark]

So between now and Nov some certain little CHO's will being whipped by their electoral obsessed premiers to come up with some 'facts' to back up their politically charged decisions....? Who gets to determine the health 'facts'?

Two have already provided advice that their premiers have not 'agreed' with and acted differently and one has been basically dismissed by every other CHO.... so what hope do we have...?

The Federal Court has already established/ruled on the facts.

 

[antycbr]

The Federal Court has already established/ruled on the facts.

In one state only.

Post automatically merged: Sep 15, 2020

Looks like the pressure from the tourism industry inside Queensland is starting to mount:

Queensland considers slashing 28-day clock to reopen NSW border

The bar to reopening the NSW-Queensland border could be halved to a requirement of just two weeks without community transmission. NSW last achieved that in mid-June.

www.smh.com.au

 

[jakeseven7]

In one state only.

Post automatically merged: Sep 15, 2020

Looks like the pressure from the tourism industry inside Queensland is starting to mount:

Queensland considers slashing 28-day clock to reopen NSW border

The bar to reopening the NSW-Queensland border could be halved to a requirement of just two weeks without community transmission. NSW last achieved that in mid-June.

www.smh.com.au

Yes it is mounting but seriously, NZ would fail that test right now.... and what if there is 1 community transmission case in one fortnight, then not the next, then on again the next fortnight, which could quite possibly happen. By this metric QLD border would be open for two weeks, shut again, then open again..... really? How is that practically going to work?

 

[antycbr]

Yes it is mounting but seriously, NZ would fail that test right now.... and what if there is 1 community transmission case in one fortnight, then not the next, then on again the next fortnight, which could quite possibly happen. By this metric QLD border would be open for two weeks, shut again, then open again..... really? How is that practically going to work?

Their tourism industry can explain those issues to AP. Clearly it won't work.

 

[oz_mark]

In one state only.

It was a ruling that considered the facts in relation to the particular high court case. But the ruling will have some applicability to other states, given that it considered the issues between Western Australia and various other states with different levels of community/local transmission.

 

[MEL_Traveller]

According to media report this morning, ANU has developed a new test which found 8 in 3000 people, previously 'covid free' under the nasal swab test, to have had covid. This potentially increases cases to 70,000+ in Australia: ANU blood test finds 60,000 undetected COVID-19 case

Declaring a state 'covid free' is really only based on the current testing we have.

 

[Seat0B]

This article explains the teething problems with the ACT/SA bubble - " ACT residents can now travel to Adelaide without needing to quarantine — if they can find a flight, afford a ticket and haven't popped over the border to Queanbeyan."

So it's a step in the right direction for sure, but a few more things to iron out before it is workable.

 

[get me outta here]

Yes terrible for those who may pop into Queanbeyan for lunch, or who live in Queanbeyan. ACT/NSW issues like this have been with us for a while in various guises.

This article explains the teething problems with the ACT/SA bubble - " ACT residents can now travel to Adelaide without needing to quarantine — if they can find a flight, afford a ticket and haven't popped over the border to Queanbeyan."

So it's a step in the right direction for sure, but a few more things to iron out before it is workable.

 

[Pushka]

This article explains the teething problems with the ACT/SA bubble - " ACT residents can now travel to Adelaide without needing to quarantine — if they can find a flight, afford a ticket and haven't popped over the border to Queanbeyan."

So it's a step in the right direction for sure, but a few more things to iron out before it is workable.

Maybe the only people it suits are Politicians and their staff.

 

[jakeseven7]

NSW declared 'hotspot free', calls for state border restrictions to be lifted immediately


NSW Premier Gladys Berejiklian said the state was now free of coronavirus hotspots and was "holding the line fell" following another day of low case numbers.

Speaking today, Ms Berejiklian said that meant residents should be free to travel across the country.

"Hopefully in the last months we've demonstrated our ability to get on top of any outbreaks and more importantly our community's capacity to come forward and get tested," she said.

"I'd be arguing there's no reason to even keep the (Queensland) border closed today."

New cluster spread through rule-breakers

Prime Minister Scott Morrison today announced his plans to bring some 24,000 stranded Australians home from overseas - but WA Premier Mark McGowan revealed his state won't be taking part.

www.news.com.au

 

[nutwood]

The problem with large, on the spot, penalties is that they provide increasingly unjust results. A $4957 (where do they get these figures?!) has the ability to destroy someone's life, where's to someone else, it would be annoying but able to be absorbed.
Realistically, you could see a couple getting hit with a $10k penalty because they made a mistake in where they could or couldn't go. People make mistakes all the time, especially with constantly changing rules. If the offence is so serious, it should be dealt with in court, where a, hopefully, trained and dispassionate magistrate can assess the seriousness and the intent. On the spot is nasty as many people won't take up their right to have it heard in court.

 

[jase05]

A $4957 (where do they get these figures?!)

Victoria works on a prescribed penalty unit system. Currently 1 penalty unit is $165.22.
Various misdemeanours attract certain penalty units and in this case they have deemed it a 30 unit offence I’m guessing

 

[p--and--t]

The problem with large, on the spot, penalties is that they provide increasingly unjust results. A $4957 (where do they get these figures?!) has the ability to destroy someone's life, where's to someone else, it would be annoying but able to be absorbed.
Realistically, you could see a couple getting hit with a $10k penalty because they made a mistake in where they could or couldn't go. People make mistakes all the time, especially with constantly changing rules. If the offence is so serious, it should be dealt with in court, where a, hopefully, trained and dispassionate magistrate can assess the seriousness and the intent. On the spot is nasty as many people won't take up their right to have it heard in court.

Isn't the system providing a choice?

You have a choice of paying the OTSF (IIRC not admitting guilt) or not paying it and going to court to get independent adjudication and possibly pay nothing if it was in error/considered disproportionate.

 

[Himeno]

Yes terrible for those who may pop into Queanbeyan for lunch, or who live in Queanbeyan. ACT/NSW issues like this have been with us for a while in various guises.

The ACT might as well just expand the border and annex places like Queanbeyan, Bungendore and Murrumbateman.

 

[jase05]

The ACT might as well just expand the border and annex places like Queanbeyan, Bungendore and Murrumbateman.

There is a new subdivision going up around the corner from my brothers house and the border runs down the middle of the street.

 

[jase05]

No exemptions?

Scott Morrison banned from entering Queensland for AFL grand final

Scott Morrison has made a subtle dig at the Queensland Premier over her state’s border restrictions when discussing his ban from the AFL Grand Final.

amp.news.com.au