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]

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.

Agree, the challenge will be when they drop a notch, but the active number of cases is plummeting and alot of them are contained in more controllable environments so lets hope they can keep it under control like NSW/QLD style moving forward.

 

[blackcat20]

Agree, the challenge will be when they drop a notch, but the active number of cases is plummeting and alot of them are contained in more controllable environments so lets hope they can keep it under control like NSW/QLD style moving forward.

Even moving to the next step, we're still not allowed outside our 5km. The following step moves to unrestricted travel, so no issue going regional.

 

[HappyFlyerFamily]

Even moving to the next step, we're still not allowed outside our 5km. The following step moves to unrestricted travel, so no issue going regional.

Yep, so hopefully Vic pull the trigger on Step 2 for Melbourne when it gets to below 30 for the 14-day average earlier than 28/9, then people can focus on the Vic community transmission figure over 14 days for Step 3.

 

[blackcat20]

Yep, so hopefully Vic pull the trigger on Step 2 for Melbourne when it gets to below 30 for the 14-day average earlier than 28/9, then people can focus on the Vic community transmission figure over 14 days for Step 3.

They've said they arent going to go the next step early, 28/9 is locked in.

 

[HappyFlyerFamily]

They've said they arent going to go the next step early, 28/9 is locked in.

Yes, I’m aware it’s currently stated as a hard date, but there is also room if you are below the target range to say “let’s do what we say in the case of ‘not a day longer than needed’. They didn’t stick to the 0 community transmission over the past 14 days for Regional Victoria to go to Step 3.

 

[jakeseven7]

I don't want us Queenslanders frozen out just because of our CHO disagreeing with everyone else!

----
State border stoush set to dominate tomorrow's national cabinet

Prime Minister Scott Morrison's goal of opening Australia up by Christmas appears no closer as ongoing disagreement between state and territory leaders over border restrictions looks set to dominate Friday's meeting of national cabinet.

Mr Morrison said this morning he was "not expecting a lot of progress" on the debate with state and territory leaders over a national COVID-19 "hotspot" model to guide domestic border decisions, threatening to freeze Queensland out as the only eastern state to keep its border closed to Victoria and NSW.

Mr Morrison is continuing to push his preferred domestic hotspot definition, drawn up by the federal health department, as more than 30 locally acquired cases over three consecutive days in metropolitan areas – a figure that would mean Queensland's border would open to NSW.

"If other states want to have more extreme definitions than that, that's up to them," the Prime Minister told Nine's Today show this morning.

"It may be we will have a border down between NSW and Victoria and South Australia before we have one down between NSW and Queensland."

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.theage.com.au

 

[bigbadbyrnes]

Pretty astonishing that despite NSW's proven ability to keep a lid on the outbreak that there is a strong prospect of not being able to cross the border from QLD at Christmas time.

I'm also astonished that no one else has taken the QLD govt to the High Court as yet to get some clarity on the issue. Of course, only the rich can do that - and they clearly play by a different set of rules.

Very sad, all this.

 

[jakeseven7]

Pretty astonishing that despite NSW's proven ability to keep a lid on the outbreak that there is a strong prospect of not being able to cross the border from QLD at Christmas time.

I'm also astonished that no one else has taken the QLD govt to the High Court as yet to get some clarity on the issue. Of course, only the rich can do that - and they clearly play by a different set of rules.

Very sad, all this.

I expect the Flight Centre boss, who rallied Bain/VA2, QF and Helloworld all together for the big publicity campaign has the cash to do it..... but it also takes so long and they all know it - businesses will be dead by the time the court case concludes.... the other high court case isn't even being heard until November....

 

[serfty]

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

Basically, it is to save the government money as generally a Magistrate would throw the fine out and issue a warning if someone in those circumstances presented at court pleading guilty.

 

[oz_mark]

I'm also astonished that no one else has taken the QLD govt to the High Court as yet to get some clarity on the issue. Of course, only the rich can do that - and they clearly play by a different set of rules.

The folk most likely to do it, dropped their case against Queensland. Obviously, they have chosen not to have another go.

 

[TheRealTMA]

The folk most likely to do it, dropped their case against Queensland. Obviously, they have chosen not to have another go.

Bet the lawyers are crying all the way yo their Noosa North shore holiday homes!

 

[MEL_Traveller]

I'm also astonished that no one else has taken the QLD govt to the High Court as yet to get some clarity on the issue. Of course, only the rich can do that - and they clearly play by a different set of rules.

I don't think anyone is confident enough they would win? Take away all the collateral commentary and you're left with a pretty simple question... are border closures effective at keeping out covid? The Fed Court found 'yes'. Economic issues aren't a factor here.

 

[bigbadbyrnes]

I don't think anyone is confident enough they would win? Take away all the collateral commentary and you're left with a pretty simple question... are border closures effective at keeping out covid? The Fed Court found 'yes'. Economic issues aren't a factor here.

They haven't yet analysed if the relevant sections of the constitution provide any limit to what they're doing. Having ploughed through the history of jurisprudence on the relevant sections, I'd be surprised if there is not some limitations which would apply even under these circumstances. What the Federal Court did find is that there are health related reasons for the border closures. I could have told them that.

As far as the law goes; the constitution, and how it's applied, is the only relevant factor.

Politically; health, freedom, economics (or long term health, given that doctors and hospitals cost money and without a functioning economy, there aint no tax revenue alas) are the competing factors the premiers are (IMHO) not weighing up correctly. And they're certainly not acting as a team.

 

[jakeseven7]

Another awful story and even more awful because the Tasmanian premier has been given the advice by his own CHO that opening to SA would be absolutely minuscule risk (0.00001% chance of the person travelling in having covid) and is acting politically against health advice.

Devastating for this poor family. You only get one chance to say goodbye

------

South Australian woman blocked from Tasmanian funeral due to border closures


Closed state borders are continuing to cause emotional pain for Aussies.

A South Australian woman who couldn’t be by her grandmother’s side after she had a heart attack said the border rules “broke my heart”. Cas told ABC's 7.30 her grandmother passed away a few days later from the heart attack.

“When somebody passes away, you are meant to be with your family,” she said.

Despite South Australia not reporting a single case of community transmission since April, Cas was told she’d have to quarantine for two weeks to attend her grandmother’s funeral in Tasmania. She was told the cost for the stay in hotel quarantine would be $2800.

“I would be allowed to attend my grandmother's funeral with the appropriate protection gear – mask and so forth,” she said.

She said she was confused by the rules when Tasmanians are free to travel into South Australia.

“My uncle can get on a plane from Tasmania and come here. He doesn't have to self-isolate. Why isn't that reciprocated,” she asked.

“If he poses no risk to me, why do I pose a risk to him? And to Tasmania?”

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

 

[drron]

Sorry but that South Australian woman was not blocked from attending her grandmother's funeral.But she would have to go into quarantine but she would still be able to attend the funeral.she would be escorted there and have to wear a mask.
It is the only good thing about the Tasmanian border closure is that they do allow compassionate exemptions unlike QLD.
But there is no medical reason for the quarantine with people from all states except Victoria.

 

[Pushka]

Another awful story and even more awful because the Tasmanian premier has been given the advice by his own CHO that opening to SA would be absolutely minuscule risk (0.00001% chance of the person travelling in having covid) and is acting politically against health advice.

Devastating for this poor family. You only get one chance to say goodbye

------

South Australian woman blocked from Tasmanian funeral due to border closures


Closed state borders are continuing to cause emotional pain for Aussies.

A South Australian woman who couldn’t be by her grandmother’s side after she had a heart attack said the border rules “broke my heart”. Cas told ABC's 7.30 her grandmother passed away a few days later from the heart attack.

“When somebody passes away, you are meant to be with your family,” she said.

Despite South Australia not reporting a single case of community transmission since April, Cas was told she’d have to quarantine for two weeks to attend her grandmother’s funeral in Tasmania. She was told the cost for the stay in hotel quarantine would be $2800.

“I would be allowed to attend my grandmother's funeral with the appropriate protection gear – mask and so forth,” she said.

She said she was confused by the rules when Tasmanians are free to travel into South Australia.

“My uncle can get on a plane from Tasmania and come here. He doesn't have to self-isolate. Why isn't that reciprocated,” she asked.

“If he poses no risk to me, why do I pose a risk to him? And to Tasmania?”

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

I understand the angst but even in pre Covid times, not attending a grandparents funeral especially in modern travel times, isn't something that makes me feel awful. I missed my grandmothers funeral because I had a toddler, she lived interstate in a country area and I simply couldn't get there as we didn't have a safe enough car back then and I didn't want to drive for 8 hours to get there. DIL missed both grandparents funerals as she was in Australia and they were in UK (grandmother likely had Covid).

 

[bigbadbyrnes]

I understand the angst but even in pre Covid times, not attending a grandparents funeral especially in modern travel times, isn't something that makes me feel awful.

It would depend on their circumstances rather than someone else's. Some people certainly won't be affected by border closures, and some people will. I hope the premiers are doing a good job trying to take all this into account.

 

[BNEFlyer]

Sorry but that South Australian woman was not blocked from attending her grandmother's funeral.But she would have to go into quarantine but she would still be able to attend the funeral.she would be escorted there and have to wear a mask.
It is the only good thing about the Tasmanian border closure is that they do allow compassionate exemptions unlike QLD.
But there is no medical reason for the quarantine with people from all states except Victoria.

Just like the woman from Canberra would've had to do.

 

[Pete98765432]

Queensland are opening their border for ACT residents from next Friday.

 

[Seat0B]

ABC news report re above. Looks like not NSW though - so again this will be interesting - if you "travel" to Quangers looks like you will probably not be allowed to QLD. And of course, that also means you can only get to/from Qld by air. Still, things are heading in the right direction.