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]

Just out of Interest I looked up the Covid stats for Eurobodalla shire as the QLD CHO used that as an excuse for the ACT still being a hotspot.The last positive case diagnosed in Batemans Bay was 12/8.So 35 days with zero community cases.
So to Dr. Young in view of this-please explain.

 

[james4321]

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

I presume he could apply to see out the required 14 day quarantine in a privately funded location? But he would still have to do it, like everyone else, including politicians of all persuasions

Post automatically merged: Sep 16, 2020

Just out of Interest I looked up the Covid stats for Eurobodalla shire as the QLD CHO used that as an excuse for the ACT still being a hotspot.The last positive case diagnosed in Batemans Bay was 12/8.So 35 days with zero community cases.
So to Dr. Young in view of this-please explain.

I might be wrong but I dont think she is directly answerable to you.

 

[nutwood]

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.

I totally agree. The problem is that the people silly enough to get mixed up about where they could, and could not go, are precisely the people who are very unlikely to argue their case in court. I've encountered some truly tragic situations over the years. People who obviously had the law in their favour paying off massive debts caused only by their lack of understanding of the situation.
With regard to OTSF in general, it's way too easy for police. $10k is a serious penalty. It shouldn't be handed out under rules originally intended for parking offenses.

 

[MEL_Traveller]

I totally agree. The problem is that the people silly enough to get mixed up about where they could, and could not go, are precisely the people who are very unlikely to argue their case in court. I've encountered some truly tragic situations over the years. People who obviously had the law in their favour paying off massive debts caused only by their lack of understanding of the situation.
With regard to OTSF in general, it's way too easy for police. $10k is a serious penalty. It shouldn't be handed out under rules originally intended for parking offenses.

I don't buy that. If you can't be bothered to challenge a $10,000 fine... maybe you were guilty? In most (all?) states there's the right to appeal a fine direct with the agency, and then take it to court if you're still unhappy.

 

[drron]

I don't buy that. If you can't be bothered to challenge a $10,000 fine... maybe you were guilty? In most (all?) states there's the right to appeal a fine direct with the agency, and then take it to court if you're still unhappy.

But your opinion is based on what you and people you know would do.
Different for a lot of the population.Amazing how many out there who can't read or write for example.And then many who have no understanding of the way the country works let alone the legal system.And these are the people for whom such a fine is an inappropriate punishment.

 

[nutwood]

I don't buy that. If you can't be bothered to challenge a $10,000 fine... maybe you were guilty? In most (all?) states there's the right to appeal a fine direct with the agency, and then take it to court if you're still unhappy.

I can only say that your experience is limited. I would take a $10 fine to court if I felt it was not justified but many people will not engage that way.
I had a neighbour once who went twelve weeks without income, because of a simple Social Security stuff-up. Some form or other was deemed not to have been done correctly. Automatic system kicks in. Bang.
I only found out because of their landlord trying to evict them. Their family were bringing them food parcels so that they could eat but would they lodge a dispute?
It happens all the time. Without being political, that's the real problem with Robo debt. It's the people who pay up, even though they've done nothing wrong. Those of us who live in an adversarial world can find it hard to realise that some people just roll over, all the time.

 

[N860CR]

But your opinion is based on what you and people you know would do.
Different for a lot of the population.Amazing how many out there who can't read or write for example.And then many who have no understanding of the way the country works let alone the legal system.And these are the people for whom such a fine is an inappropriate punishment.

On the spot fines are a really disgusting breach of our right to innocence until proven guilty. Police hand them out like lollies and it puts the onus back onto the individual to prove their innocence without having been actually charged (which requires an element of proof/evidence).

It‘s all well and good to say “just contest it”, but that then leaves the “accused” having to pay for representation, prepare for a hearing, be subjected to the legal system and all its flaws and then risk a higher fine, costs and a potential recorded conviction. Most would just go “I can’t be bothered” and wear it. Admittedly, for $5000 it could be worth thinking about.

 

[nutwood]

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

Thanks for that. The question remains though. Where does the $165.22 come from?
I note the sums show that the $4957 should actually be $4956.60. May be a pedantic point but if they base these things on obscure figures, they really should honour their system. Even if announcing a $4956.60 fine doesn't have the same ring!
Of course, they could call it a 30.262 unit offence and go for the round $5k

 

[p--and--t]

Thanks for that. The question remains though. Where does the $165.22 come from?
I note the sums show that the $4957 should actually be $4956.60. May be a pedantic point but if they base these things on obscure figures, they really should honour their system. Even if announcing a $4956.60 fine doesn't have the same ring!
Of course, they could call it a 30.262 unit offence and go for the round $5k

I think you might find it relates to a figure set some time ago and rises automatically with an inflation index incorporated into the original establishing legislation.

 

[HappyFlyerFamily]

Thanks for that. The question remains though. Where does the $165.22 come from?
I note the sums show that the $4957 should actually be $4956.60. May be a pedantic point but if they base these things on obscure figures, they really should honour their system. Even if announcing a $4956.60 fine doesn't have the same ring!
Of course, they could call it a 30.262 unit offence and go for the round $5k

Probably inflation......here is the link to the explanation, which will probably be ridiculously unclear.

Penalties and values

Information about penalty units (related to fines), late charges and penalty interest rates (related to a civil judgment debt or court order).

www.justice.vic.gov.au

 

[oz_mark]

Thanks for that. The question remains though. Where does the $165.22 come from?
I note the sums show that the $4957 should actually be $4956.60. May be a pedantic point but if they base these things on obscure figures, they really should honour their system. Even if announcing a $4956.60 fine doesn't have the same ring!
Of course, they could call it a 30.262 unit offence and go for the round $5k

It was set at $100 back around 2004, and annual inflation adjustments have resulted in where it is now.

Under the act, penalties can be rounded to the nearest dollar.

 

[MEL_Traveller]

On the spot fines are a really disgusting breach of our right to innocence until proven guilty. Police hand them out like lollies and it puts the onus back onto the individual to prove their innocence without having been actually charged (which requires an element of proof/evidence).

It‘s all well and good to say “just contest it”, but that then leaves the “accused” having to pay for representation, prepare for a hearing, be subjected to the legal system and all its flaws and then risk a higher fine, costs and a potential recorded conviction. Most would just go “I can’t be bothered” and wear it. Admittedly, for $5000 it could be worth thinking about.

Contesting the fine doesn't mean going to court. It starts with a request for a review by the issuing agency.

The reverse of your argument is also true... issuing fines stops people having to go to court unnecessarily. And to have to pay for representation and get caught up in the legal system.

I'd like to see the data on any $10,000 fines which were paid without question because the person didn't know they had the right to contest it.

Thanks for that. The question remains though. Where does the $165.22 come from?

Penalty units increase by CPI (or something similar) each year. Hence the odd amounts that they end up with. So what would have started as $100 10 years ago will be 165.22 now (or whatever).

 

[drron]

I presume he could apply to see out the required 14 day quarantine in a privately funded location? But he would still have to do it, like everyone else, including politicians of all persuasions

Post automatically merged: Sep 16, 2020

I might be wrong but I dont think she is directly answerable to you.

Though my application for a postal vote has gone in.
And basically she is answerable to the people of QLD.

 

[N860CR]

Contesting the fine doesn't mean going to court. It starts with a request for a review by the issuing agency.

The reverse of your argument is also true... issuing fines stops people having to go to court unnecessarily. And to have to pay for representation and get caught up in the legal system.

Requesting a review from the department who issued it will achieve nothing in 99.9% of cases.

The concept of the on the spot fine system was designed to counteract my point, yes. In practice, however, these fines are handed out for offenses that would never result in a charge as there were not grounds for one. I’ve seen countless “on the spot” fines where basic words are spelt incorrectly by the officers who issued them. The concept was good, to an extent, but it’s now gotten out of control. Issuing $5000 fines is well beyond the intent.

 

[MEL_Traveller]

Requesting a review from the department who issued it will achieve nothing in 99.9% of cases.

I'd need to see the data on that. The Age states as of 27 May some 6000 infringements had been issued in respect of covid breaches. 327 of those were withdrawn and 400 reviews had been applied for (it's not clear if the 327 are a subset or in addition to the 400 requests for review): Ahead on penalties: Victoria leads nation on COVID-19 lockdown fines

By comparison if you look at traffic infringements issued by the police, out of ~354,000 on-the-spot or camera fines issued, approximately 15,000 of those were converted on review to an official warning. Official warnings vs fines - 2019-20 | Cameras Save Lives

Looking at about 5% success on seeking a review.

Then there will be those who elect to go to court.

 

[HappyFlyerFamily]

I'd need to see the data on that. The Age states as of 27 May some 6000 infringements had been issued in respect of covid breaches. 327 of those were withdrawn and 400 reviews had been applied for (it's not clear if the 327 are a subset or in addition to the 400 requests for review): Ahead on penalties: Victoria leads nation on COVID-19 lockdown fines

By comparison if you look at traffic infringements issued by the police, out of ~354,000 on-the-spot or camera fines issued, approximately 15,000 of those were converted on review to an official warning. Official warnings vs fines - 2019-20 | Cameras Save Lives

Looking at about 5% success on seeking a review.

Then there will be those who elect to go to court.

For traffic offences sometimes you get an official warning because it’s your first offence in a while.

In NSW, for example, if you had a clear driving record for at least 10 years before the offence your penalty may be downgraded to a caution, which means you won't have to pay the fine and demerit points won't apply. But a caution will be recorded on your driving history.

In Victoria, you may be able to get a fine downgraded to a warning if you were speeding less than 10km over the limit and have had a clear driving record for the past two years.

So you've been done for speeding - how to get out of the fine

You open a letter to find that you've been done for speeding or running a red light, so what can you do to get out of the fine?

www.moneymag.com.au

 

[jakeseven7]

I just don’t understand how NSW can release/change restrictions mid month! It’s incredible they don’t have to wait until the end of each calendar month?!

——
NSW extends border zone, loosens restrictions with VIC

NSW will ease restrictions on the NSW-Victoria border today, in light of more relaxed rules coming into force in regional Victoria.

Victorian residents in the border zone will no longer need to comply with stay-at-home directions while in NSW or be restricted to entering NSW for a "permitted purpose".

In a statement on Thursday morning, NSW Health Minister Brad Hazzard thanked the border communities for their patience.

As the day unfolded: Victoria records just 28 COVID-19 cases in lowest daily new case tally in almost 3 months; state's regional areas reopen as Australian death toll jumps to 832

Restrictions have eased in regional Victoria this morning. NSW has, in turn, loosened its border rules.

www.smh.com.au

 

[jakeseven7]

Queensland considers slashing controversial 28-day clock to reopen NSW border

Queensland is considering lowering the bar to reopen the border with NSW by halving the required number of days with no community transmission to 14.

However the last time NSW achieved 14 days of no community transmission was in mid-June.

Each time health authorities are unable to figure out how someone acquired the virus, the clock resets to zero, as it did on Tuesday, leading to fierce criticism from the NSW government that ‘an impossible target had been replaced with a highly unlikely one’.

There are also serious concerns about how such a measure would work in practice and what would constitute a ‘hotspot’ zone. This definition amongst other border related issues is high on the agenda to discuss at the National Cabinet meeting on Friday.

Queensland Tourism Industry Council CEO Daniel Gschwind said the Queensland Government "has suggested they are considering a 14 day rule".

“We believe such a high bar is going to be very hard to achieve, it is almost aiming for elimination which appears to be a far off objective."

UNSW epidemiologist Professor McLaws said a 28-day clock was extreme because it was twice the maximum incubation period, rather than the usual use of "twice the average" incubation period of 14 days.

She said the borders could be safely lowered with less than five cases a day outside of returned travellers, "mystery or not."

"Less than five cases a day is not just numerically safe in a mathematical model, it’s safe because contact tracers have the ability to do their job rapidly to find cases within 72 hours." Dr McLaws said.

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.google.com.au

 

[Pushka]

Nephew in Airforce is off to three months Covid duty interstate (from SA). I'm thinking he will be reinforcing Dans Ring of Steel. But he could be sent anywhere in the east coast.

 

[blackcat20]

I totally agree. The problem is that the people silly enough to get mixed up about where they could, and could not go, are precisely the people who are very unlikely to argue their case in court. I've encountered some truly tragic situations over the years. People who obviously had the law in their favour paying off massive debts caused only by their lack of understanding of the situation.
With regard to OTSF in general, it's way too easy for police. $10k is a serious penalty. It shouldn't be handed out under rules originally intended for parking offenses.

It's no secret that metro melbourne residents are banned from regional Vic, you'd have to be living with your head in the sand to think you could travel more than 5km from home. So anyone caught trying to go regional knows they're doing the wrong thing.