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

 

[MEL_Traveller]

So heaps more people are getting infected than we thought, and not getting sick, and not going to hospital, and not risking our health workers, and not taking up critical essential services and not an economic burden on the economy and potentially didn't infect anyone else because the numbers are not exploding.

When NSW gets down to 1 case per day in 7M people and QLD says they are a hotspot and too much of a risk - it would be laughable - except its not a laughing matter.

I think you just shot yourself in the foot.

But victoria remains a problem. I’m not sure whether the border closure needed to be assessed state by state. It’s either closed or it’s not.

The issue we don’t know the long term effects of the virus on those who were symptomatic. And just one of those asymptomatic people could have started a cluster at an aged care home.

The Federal Court seemed to find border closures were effective to control the spread.

 

[Pushka]

Fortunately that’s right! But if we hadn’t had the lockdowns and other measures, it could have been very different.

Yes agreed. Our very best move was to close to China way back, before the number of overseas students arrived here. Unfortunately in March we had been led astray by the infection rates of people from USA and Europe and that created the first wave. We needed to assess the impact of the virus on our population, climate and medical facilities to cope, along with the ability of health authorities to manage the tracing process. We have a much better handle on that now, additionally treatments are improving all the time, so it is also time to reassess everything we have done to date and know to do in the future, and move forward.

 

[p--and--t]

And just one of those asymptomatic people could have started a cluster at an aged care home.

Absolutely. Just as they do every year with the flu.

Ironically, deaths in aged care are down so far this year (official government statistics). So measures other than the border were most effective - tell everyone to get a flu injection (why was this not done before).

Additionally, mental health issues are understandably skyrocketing due to lockdowns, border issues, inability to go to weddings, funerals, visit sick or elderly loved ones, separated families. But suicides are down on previous years (official government statistics issued by coroner). Again other measures have been put in place that should have been there all along.

Borders are not the solution to our issues particularly after 8 months. Particularly when decisions are being deliberately held up for non-health reasons. [I'm not talking about Victoria where they still have a legitimate health justified reason for a month or two yet.]

I already know you will disagree, but that's OK, we can agree to disagree. That's the variety of life in our [normally] freely accessible commonwealth in a western democracy.

Some of your posts, I am a fan boy, but not on this subject.

YMMV

 

[MEL_Traveller]

I have no argument with respect to the compassionate grounds for exemptions to border controls. it’s the economic arguments - dispensing with the vulnerable - that cause me angst

 

[jakeseven7]

Was very interesting talking to our Perth office today, they were a bit envious/feeling left out with the border restrictions starting to open up over here, reported in their press very positively.

Will be interesting to watch the WA opinion continue to change - especially as the Victorian situation improves. Alot of tied between Melbourne and Perth.

----

States starting to shift on closed borders as public opinion swings

Lifting border restrictions means not letting the coronavirus dictate the way Australians live, Prime Minister Scott Morrison says.

States are beginning to shift their positions on closed borders after months of stalemate. Queensland has added five more northern NSW councils to its border bubble. Residents in Byron Bay, Ballina, Lismore, Richmond Valley and Glen Innes will now be allowed to travel north.

South Australia is also reopening to NSW after lifting restrictions for the ACT.

The Northern Territory is offering interstate travellers up to $1000 to visit the Top End during the wet season.

And Tasmania is considering opening its borders to some states before the end of October.

"I welcome the changes ... (and) I look forward to more in the future as we open up Australia," Mr Morrison said on Tuesday. "These are common sense changes, not before time.

Finance Minister Mathias Cormann said his home state of Western Australia, which has protected its closed borders, could soon follow the other states and territories. "I have detected a level of shifting on this front," he told the Nine Network.

States starting to shift on closed borders

Prime Minister Scott Morrison says he's pleased the states are starting to open their borders as coronavirus case numbers drop.

www.perthnow.com.au

 

[get me outta here]

“Over 25,000 Australians are stranded overseas, with more than 3,000 classified as vulnerable. Their right to come back home is being denied, which is against international laws”.

Take action to get these people home now!

Protect the rights of stranded Aussies

Demand the Government immediately bring home the thousands of Australians stranded overseas away from their families.

action.amnesty.org.au

 

[p--and--t]

“Over 25,000 Australians are stranded overseas, with more than 3,000 classified as vulnerable. Their right to come back home is being denied, which is against international laws”.

Take action to get these people home now!

Protect the rights of stranded Aussies

Demand the Government immediately bring home the thousands of Australians stranded overseas away from their families.

action.amnesty.org.au

It raises my eyebrow when people think DFAT is competent to manage this.

So a family with a baby is advised to go to a homeless shelter because the gov can't help them.

Yet Abbott who could have done a job interview on Zoom was allowed to fly out with family members and possibly a hand maiden, swan around for a week and fly back home again all without any delays and impediments and willing to put money on the table he isn't in a 3/4* hotel in Sydney for 14 days as is the "requirement".

Then there is Lord Sugar, film crews, celebs and many others taking seats.

 

[drron]

I have no argument with respect to the compassionate grounds for exemptions to border controls. it’s the economic arguments - dispensing with the vulnerable - that cause me angst

With all due respects nobody really knows how effective lockdowns are in protecting the public health.many more public heath physicians and epidemiologists are expressing doubts on how effective lockdowns are.As usual look to Taiwan.Now 509 cases but still just 7 deaths.No severe lockdown,social distancing and masks but excellent contact tracing and effective quarantine means they are easily living with the virus.
.

Still cases most days but not letting it escape.
And just remember with lockdowns-correlation doesn't equate with causation.

 

[Flashback]

Medicos also weighing in on the border closure debate, saying it's not really on health grounds it's more political. Obviously not telling us something we don't already know.

Politics is keeping borders closed, say health experts

Health experts have backed NSW Premier Gladys Berejiklian's claim there is no legitimate health reason for state borders to remain closed.

www.afr.com

 

[antycbr]

Was very interesting talking to our Perth office today, they were a bit envious/feeling left out with the border restrictions starting to open up over here, reported in their press very positively.

Will be interesting to watch the WA opinion continue to change - especially as the Victorian situation improves. Alot of tied between Melbourne and Perth.

----

States starting to shift on closed borders as public opinion swings

Lifting border restrictions means not letting the coronavirus dictate the way Australians live, Prime Minister Scott Morrison says.

States are beginning to shift their positions on closed borders after months of stalemate. Queensland has added five more northern NSW councils to its border bubble. Residents in Byron Bay, Ballina, Lismore, Richmond Valley and Glen Innes will now be allowed to travel north.

South Australia is also reopening to NSW after lifting restrictions for the ACT.

The Northern Territory is offering interstate travellers up to $1000 to visit the Top End during the wet season.

And Tasmania is considering opening its borders to some states before the end of October.

"I welcome the changes ... (and) I look forward to more in the future as we open up Australia," Mr Morrison said on Tuesday. "These are common sense changes, not before time.

Finance Minister Mathias Cormann said his home state of Western Australia, which has protected its closed borders, could soon follow the other states and territories. "I have detected a level of shifting on this front," he told the Nine Network.

States starting to shift on closed borders

Prime Minister Scott Morrison says he's pleased the states are starting to open their borders as coronavirus case numbers drop.

www.perthnow.com.au

Let’s see how WA looks once NSW QLD SA NT and ACT are open. Tasmania is starting to make noises about bringing their closure review forward. VIC is on a different timetable.

As I have predicted the border closures are becoming increasingly unpopular as the months tick by - the school holidays now are making people think about Christmas coming up too.

WA also cannot participate in any trans Tasman bubble.

 

[oz_mark]

Let’s see how WA looks once NSW QLD SA NT and ACT are open. Tasmania is starting to make noises about bringing their closure review forward. VIC is on a different timetable.

As I have predicted the border closures are becoming increasingly unpopular as the months tick by - the school holidays now are making people think about Christmas coming up too.

I know many people that think the public mood in WA will change if there is sign of border closures extending past Christmas. Especially if there seems no good reason for it.

In November we'll see what the high court has to say, but being an outlier on the borders isn't going to look good..

 

[N860CR]

Interesting to note today that NSW hit its best position since June. The NSW/QLD border was (briefly) opened in July. How is it that we are in a better position that we were before the previous opening, and it remains closed? And we’ve had even more time to prepare hospitals, improve contract tracing etc which was the whole point from the beginning (if anyone even remembers)

 

[jase05]

Let’s see how WA looks once NSW QLD SA NT and ACT are open. Tasmania is starting to make noises about bringing their closure review forward. VIC is on a different timetable.

As I have predicted the border closures are becoming increasingly unpopular as the months tick by - the school holidays now are making people think about Christmas coming up too.

WA also cannot participate in any trans Tasman bubble.

Mr 99% is idolised by folks over there.
In our daily dealings with Perth folk the overwhelming majority still want borders shut to prevent the Mongols invading from the East

 

[jakeseven7]

Interesting to note today that NSW hit its best position since June. The NSW/QLD border was (briefly) opened in July. How is it that we are in a better position that we were before the previous opening, and it remains closed? And we’ve had even more time to prepare hospitals, improve contract tracing etc which was the whole point from the beginning (if anyone even remembers)

Oh we remember, some certain leaders have just selectively forgotten for their own selective purposes coming up in October and March.

The great thing now is that they’ve announced the contact tracing systems used by the states will now be electronically interfaced (not merged just talking with each other) so we can tackle this as one country again.

Once these state borders are down we can finally align on what a hotspot looks like on a more granular basis and deal with it from there. And then we need to quickly figure out how to get these poor people back who are stranded overseas (stopping here because that’s for the other thread!)

 

[MEL_Traveller]

With all due respects nobody really knows how effective lockdowns are in protecting the public health.many more public heath physicians and epidemiologists are expressing doubts on how effective lockdowns are.As usual look to Taiwan.Now 509 cases but still just 7 deaths.No severe lockdown,social distancing and masks but excellent contact tracing and effective quarantine means they are easily living with the virus.

Still cases most days but not letting it escape.
And just remember with lockdowns-correlation doesn't equate with causation.

For sure. But covid didn't really get the foothold in Taiwan because of early border closures.

Taiwan is a good example of how things were managed well. Spain, Italy are perhaps examples of what can go wrong if we didn't have lockdowns in countries not used to health measures such as masks.

Taking Taiwan as an example - border closures work well and are an effective measure to control the import of the virus.

 

[jeza]

The winds of change in WA is barely a zephyr at the moment.

 

[oz_mark]

The winds of change in WA is barely a zephyr at the moment.

Although I have heard many comments about wanting the border open for Christmas

 

[drron]

And our International border was closed and would have meant we could have easily learnt to live with the virus except for the incompetent hotel quarantine in Victoria.
But you are mixing borders with lockdowns.And I specifically referred to lockdowns and that Taiwan basically didn't do.
As for State borders NSW and Victoria have shown what should be done.No closing of borders until the explosion of cases in Victoria but already the NSW Premier is talking about re opening the border at least to regional Victoria.
There is no excuse for SA,Tas,WA and QLD for their border closures except to Victoria recently.
The ACT and NT are also doing the right thing.NT did close borders tightly at first but they have a high number of remote indigenous communities who are at great risk and a lockdown of those communities definitely a good idea.But now open borders with even Victorians allowed in but have to quarantine.

Also lockdowns of Aged Care facilities is a good idea-we did that in 2009 with the swine flu.
For the rest of society the risks outweigh the benefits even in regartds to health.

 

[jeza]

Although I have heard many comments about wanting the border open for Christmas

Think that the way things currently are economically & socially, most are quite happy to sit back & watch for the moment. If all of the Eastern States are opened up & there are no or minimal adverse affects later in the year then yes I agree more pressure will come on the WA Govt.

 

[MEL_Traveller]

And our International border was closed and would have meant we could have easily learnt to live with the virus except for the incompetent hotel quarantine in Victoria.
But you are mixing borders with lockdowns.And I specifically referred to lockdowns and that Taiwan basically didn't do.
As for State borders NSW and Victoria have shown what should be done.No closing of borders until the explosion of cases in Victoria but already the NSW Premier is talking about re opening the border at least to regional Victoria.
There is no excuse for SA,Tas,WA and QLD for their border closures except to Victoria recently.
The ACT and NT are also doing the right thing.NT did close borders tightly at first but they have a high number of remote indigenous communities who are at great risk and a lockdown of those communities definitely a good idea.But now open borders with even Victorians allowed in but have to quarantine.

Also lockdowns of Aged Care facilities is a good idea-we did that in 2009 with the swine flu.
For the rest of society the risks outweigh the benefits even in regartds to health.

i don't think an aged care 'lockdown' is necessarily 'learning to live with it'... at least for any sort of dignity to the residents. Do we just lock them away out of sight and out of mind? Not fair on them or their families.

We should all be in this together, everyone with an equal interest and equal opportunity in the outcome.

Taiwan might not have had lockdowns, but they had border closures. Very easy to cherry-pick the bits we want in hindsight.

I haven't seen the data to support the claim that the risks of lockdown outweigh the benefits. The national cabinet has stated this is a health emergency, we fix that first, then we look to the economic side. Nothing so far seems to be contrary to that position.