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]

Borders 'not a substitute' for contact and trace COVID suppression measures


The Prime Minister has given an update on Australia's management of COVID-19. Mr Morrison said Australia is the "model to follow" in its virus response – but warned people can't become complacent, even as new case numbers decline.

Mr Morrison has warned that state borders are "not a substitute" for other COVID-19 tracing measures and operations.

"I know that there is a sense of security people feel from being behind a border, but that border is not a substitute for testing, tracing and outbreak containment," the PM said.

"And NSW has demonstrated that, and they've got both the health and the jobs to prove it."

Mr Morrison was asked if the federal government finds the requirements of some premiers to reopen their borders "unrealistic". "Well, the Federal Government definition of a hotspot is obviously very different to that and we released that some weeks ago," Mr Morrison said. "And that also works hand in glove with having a strong testing, tracing and outbreak containment regime which we have in place'

The PM said he knows there's "a lot of frustration" about states continuing to keep their borders shut and accusations of state premiers using them as 'political weapons'

"I know there's a lot of frustration about this. But you know, what I'm basically trying to do is get us all heading in that direction, get us opening up safely, and I think Australians very much want it to be done safely and they want to have confidence that the testing and the tracing and the outbreak containment is there."

Coronavirus Victoria, live: PM's letters to Andrews revealed

<p>Prime Minister Scott Morrison pressured Daniel Andrews to accept 1000 Australian Defence Force troops to Victoria in July to help the state fight the deadly second wave of COVID-19, according to a series of letters released through Freedom of Information laws.</p>

www.news.com.au

 

[jakeseven7]

Just on ABC News Radio:

South Australia reviewing border restrictions with Regional Victoria and considering opening to Regional Victoria ahead of Metro Melbourne.

 

[HappyFlyerFamily]

SA Premier 'pretty confident' the border will open tonight


SA's Premier Steven Marshall has let slip a little spoiler ahead of the NSW press conference today, which is expected at 11:00am.

He was interviewed on Channel 9's Today Show this morning, when he said he got an update from NSW before 8:00pm last night and "there hadn't been anything that had been reported".

"So we are pretty confident that it's going to happen," he said.

 

[jakeseven7]

QLD refuses to participate in new farmer / border crossing code, is lashed by NSW minister

Ms Berejiklian announced NSW would become the first signatory of a new national agricultural code developed at national cabinet that will provide permits for farmers and other agriculture workers to travel across state borders, similar to the freight code.

NSW Agriculture Minister Adam Marshall said it was "bitterly disappointing" that Queensland refused to sign on. "I don't know what they're doing out there and why they don't value agriculture, but it's going to certainly have an impact in northern NSW," Mr Marshall said.

"I continue to appeal to the Queensland Premier, and my ministerial colleague in Queensland, to think again about signing up to this code, because it's a crying shame that they won't support the agricultural sector, as all the other states have as well."

Acting Deputy Premier and Regional Transport Minister Paul Toole said the code would help NSW farmers harvest this year's bumper crop.

Zero local COVID cases in NSW for second day

NSW has reported zero locally acquired cases of COVID-19 for the second consecutive day.

www.smh.com.au

 

[jakeseven7]

Please pick up the phone and explain this to Dr Young

----

'No epidemiological argument for border closure' if case numbers continue to fall


Daily infection numbers in states around the country, including Victoria, are approaching a level that could result in borders opening up, epidemiologist and Chair of Deakin University, Catherine Bennet said.

Ms Bennet said Victoria's dropping case numbers are "tracking better" than modelling initially suggested and the state's daily figures could warrant fast-tracking the lifting of restrictions.

Ms Bennet said reopening state borders would be a logical step forward for governments if numbers continue on their downward trajectory.

"We are definitely getting down to a level of control in all states that wouldn't give you an epidemiological argument for border closure.

"Particularly now that our contact tracing systems from the Australian Government perspective are linked up so they talk to each other really well. It means if someone moved across borders you've got that option to manage any of that spread at a national level as well."

State health officials are today expected to meet and discuss easing border closures between NSW, regional Victoria and South Australia.

Locals in regional Victorian communities could soon be allowed to travel in and out of NSW freely, with Premier Gladys Berejikilian considering the changes.

Ms Berejikilian is also pushing for Queensland to open its borders to NSW and with South Australia could reopening to NSW residents.

'No epidemiological argument for border closure' if case numbers fall at this rate

Daily infection numbers in states around the country, including Victoria, are approaching a level that no l...

www.9news.com.au

 

[HappyFlyerFamily]

Please pick up the phone and explain this to Dr Young

----

'No epidemiological argument for border closure' if case numbers continue to fall


Daily infection numbers in states around the country, including Victoria, are approaching a level that could result in borders opening up, epidemiologist and Chair of Deakin University, Catherine Bennet said.

Ms Bennet said Victoria's dropping case numbers are "tracking better" than modelling initially suggested and the state's daily figures could warrant fast-tracking the lifting of restrictions.

Ms Bennet said reopening state borders would be a logical step forward for governments if numbers continue on their downward trajectory.

"We are definitely getting down to a level of control in all states that wouldn't give you an epidemiological argument for border closure.

"Particularly now that our contact tracing systems from the Australian Government perspective are linked up so they talk to each other really well. It means if someone moved across borders you've got that option to manage any of that spread at a national level as well."

State health officials are today expected to meet and discuss easing border closures between NSW, regional Victoria and South Australia.

Locals in regional Victorian communities could soon be allowed to travel in and out of NSW freely, with Premier Gladys Berejikilian considering the changes.

Ms Berejikilian is also pushing for Queensland to open its borders to NSW and with South Australia could reopening to NSW residents.

'No epidemiological argument for border closure' if case numbers fall at this rate

Daily infection numbers in states around the country, including Victoria, are approaching a level that no l...

www.9news.com.au

Well Dr Jeanette Young formerly from Sydney is not an epidemiologist, so I guess she doesn’t need to put forward such reasons. As Qld CHO, only public health reasons are required

Queensland’s Chief Health Officer Dr Jeannette Young – the woman behind the role

An interview with Dr Young about her medical career, leadership in a pandemic and what happens on a CHO's day off.

www.health.qld.gov.au

 

[Pushka]

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.

Agree. However there must be a review of how Nursing Homes are funded so as to be effectively and safely staffed. Sadly for too long they have been money making ventures for a few individuals and more church based homes have simply been very poorly managed. There should be a requirement for visitors to have flu shots at the minimum. On a more expensive scale there should be a higher level of medical care place that people can be transferred that don't need full scale hospital treatment but certainly more than what is provided in the home.

 

[DC3]

.... However there must be a review of how Nursing Homes are funded so as to be effectively and safely staffed. Sadly for too long they have been money making ventures for a few individuals and more church based homes have simply been very poorly managed. There should be a requirement for visitors to have flu shots at the minimum ...

Staying a bit off-topic here. And lock up any bollywood-style dancers, nurses or not, who don’t conform to COVID-safe precautions in nursing homes and those who authorise such irresponsible interaction with residents. I thought that the message should have got through by now, especially in Melbourne. Seems not to be the case.

Edited

 

[p--and--t]

As Qld CHO, only public health reasons are required

......or economic ones, or celebrity requirement ones, or futball ones, or.....

 

[drron]

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.

I'm sorry but you really have been taken in by the scare campaign by many of our politicians and most of the media.basically apart from Victoria's second wave everything has been much less severe than the models and forecasts suggested.Indeed even in Victoria the latest modelling just before your lockdown has already been shown to be way on the pessimistic side.

NSW is the model.The Cross Roads hotel cluster started by a super spreader from Victoria.Although several positives and many contacts the tracers had everyone interviewed within 24 hours and they have successfully prevented a major outbreak.Now that contact tracing has gone national with all states linked means that there really isn't a case for State border closures.

And just think if we didn't have these State Border closures to States other than Victoria we would have more hotel quarantine space for those Aussies still overseas.So QLD,TAS,SA and WA have all had interstate travellers in their hotels.Surely that is a real benefit of opening the borders.And read jakeseven7's post 1645 in this thread.Another epidemiologist who says there is no epidemiological reason for State border closures.

Then you keep confusing border closures with lockdowns.So I haven't cherry picked data at all.They are 2 different things.I totally agree with the closure of our National border though it should have been done earlier.Again from Taiwan they closed their border to Wuhan on 31/12/19 and to all of China on 23/1/20 and the rest of the world on 18/3.I do now think that we should at least consider partially opening our border before the end of March 2021 which has been suggested as the earliest possible date.

As to the downsides of lockdowns there is the obvious mental health issues,delayed diagnosis particularly with cancer which is the major facto influencing mortality,suspension of routine surgery-again leading to delayed diagnosis in many cases.And that is not taking into account the economic costs.For example the 1 month severe lockdown in NZ resulted in a 12.2% fall in the June Quarter GDP-the largest fall in NZ's history.

Then your idea of lockdowns of Aged Care Facilities is faulty.Just as in Victoria you have Step 4 lockdown in Melbourne and step 3 in regional Victoria so there are levels of lockdown in Aged Care Facilities.So during the swine flu pandemic the homes were supplied with PPE and all staff and visitors were told to wear masks.1 visitor at a time was allowed but had a temperature check and questions re symptoms.The temperature checks and questionnaire was also required for staff.Indeed here in Tasmania I have to fill in a questionnaire every day I go into work.Temperature taking is random.In fact this was the advice given with this pandemic but many Nursing Homes just stopped all visitors.

And there is no way we are all in this together.It now is a majority of States that have increased pay and still no major job losses.But many in the private sector have lost their jobs with many losing their business that had taken a lifetime to build up.

 

[HappyFlyerFamily]

......or economic ones, or celebrity requirement ones, or futball ones, or.....

Officially the exemption reasons are known as the person is essential for the proper functioning of the State and the person must be physically present in Queensland or extreme exceptional circumstances exist.

PS Qld Border Restrictions Direction 14 commences at 3pm today

Border Restrictions Direction (No. 60)

To reduce the risk of COVID-19 in Queensland and manage outbreaks, the Queensland Government has put in place declaration requirements for all travel into Queensland from interstate and New Zealand (on quarantine free flights).

www.health.qld.gov.au

 

[HappyFlyerFamily]

Interesting turn of events

AFL family members not allowed into South Australia


Six Victorian family members of Port Adelaide footballers have had exemptions to travel to South Australia revoked.

They were among 11 family members who were travelling to the state ahead of the AFL finals.

Five have already arrived and are in hotel quarantine.

They will be allowed to stay.

South Australia's Chief Public Health Officer Nicola Spurrier overruled a decision to grant them exemptions, saying special treatment should be reserved for compassionate grounds, such as people visiting dying relatives or attending funerals.

South Australia currently has a hard border with Victoria, which prevents even South Australians returning home unless they are considered essential travellers.

 

[p--and--t]

the person is essential for the proper functioning of the State

KInda laughable when you think of Eddie Everywhere and many others. Not sure deciding to temporarily relocate a TV game show to a different capital so the host can be closer to a football match he wants to watch is essential for the proper functioning of the state.

 

[MEL_Traveller]

I'm sorry but you really have been taken in by the scare campaign by many of our politicians and most of the media.basically apart from Victoria's second wave everything has been much less severe than the models and forecasts suggested.Indeed even in Victoria the latest modelling just before your lockdown has already been shown to be way on the pessimistic side.

A good result, partly because of the measures we have taken. Dealing with the medical emergency first, and the economic impacts later.

NSW is the model.The Cross Roads hotel cluster started by a super spreader from Victoria.Although several positives and many contacts the tracers had everyone interviewed within 24 hours and they have successfully prevented a major outbreak.Now that contact tracing has gone national with all states linked means that there really isn't a case for State border closures.

Unfortunately this could be a good example of outcome bias. There is no guarantee contact tracing will work the same way, every time.

And read jakeseven7's post 1645 in this thread.Another epidemiologist who says there is no epidemiological reason for State border closures.

There seem to be quite a few epidemiologists keen for the opportunity to talk to the media. Just like judges and lawyers... pick the one that suits your argument!

Then you keep confusing border closures with lockdowns.So I haven't cherry picked data at all.They are 2 different things.I totally agree with the closure of our National border though it should have been done earlier.Again from Taiwan they closed their border to Wuhan on 31/12/19 and to all of China on 23/1/20 and the rest of the world on 18/3.I do now think that we should at least consider partially opening our border before the end of March 2021 which has been suggested as the earliest possible date.

I don't see a difference between national and state borders. A border is a border. We have state governments, they have a border they can close in response to a health emergency.

As to the downsides of lockdowns there is the obvious mental health issues,delayed diagnosis particularly with cancer which is the major facto influencing mortality,suspension of routine surgery-again leading to delayed diagnosis in many cases.And that is not taking into account the economic costs.For example the 1 month severe lockdown in NZ resulted in a 12.2% fall in the June Quarter GDP-the largest fall in NZ's history.

National Cabinet has said this is a health emergency first. Fix that, then repair the economics.

Then your idea of lockdowns of Aged Care Facilities is faulty.Just as in Victoria you have Step 4 lockdown in Melbourne and step 3 in regional Victoria so there are levels of lockdown in Aged Care Facilities.So during the swine flu pandemic the homes were supplied with PPE and all staff and visitors were told to wear masks.1 visitor at a time was allowed but had a temperature check and questions re symptoms.The temperature checks and questionnaire was also required for staff.Indeed here in Tasmania I have to fill in a questionnaire every day I go into work.Temperature taking is random.In fact this was the advice given with this pandemic but many Nursing Homes just stopped all visitors.

Your description of lockdown in aged care matches my understanding. I don't see why some people are allowed out to bars and restaurants, or to play sports, and those in aged care can't, and are limited to one visitor.

And there is no way we are all in this together.It now is a majority of States that have increased pay and still no major job losses.But many in the private sector have lost their jobs with many losing their business that had taken a lifetime to build up.

In terms of addressing the health emergency, we are all in this together. The same restrictions apply - at least in theory - to everyone in a respective area. (I acknowledge this hasn't always been the case, for example the Lady Pamela). The other issues you raise are economic ones, which aren't really the focus of this thread - unless the High Court decides they are going to expand the current medical/health exception to s92.

 

[drron]

There is a very big difference between our National border and our State borders.
Outside our national border are places with cases well over 100 per 100,000 population per day.The worst day in Australia was when Victoria had 725 cases in one day.A rate of 10.9 per 100,000.Way less than many other countries.That is why our Commonwealth CMO,an experienced virologist and epidemiologist,wanted the National border shut and the State borders to remain open.
We have the situation where ther is basically only 1 State CHO who wants borders closed.And she is the CHO with the least experience in Virology and epidemiology.Of course there are 2 State Premiers,TAS and WA,who overrule their medical advice.

And at least you gave me a laugh this time with this statement-
"Your description of lockdown in aged care matches my understanding. I don't see why some people are allowed out to bars and restaurants, or to play sports, and those in aged care can't, and are limited to one visitor. "
I don't really think you get a lot of nursing home residents going to bars or restaurants and even fewer going out to play sport.Basically occasionally a nursing home resident will be taken out by family for a meal or a cup of tea.

The health Emergency is basically over.We should be now seeing how we live with the virus as we will have to do.

 

[MEL_Traveller]

I don't really think you get a lot of nursing home residents going to bars or restaurants and even fewer going out to play sport.Basically occasionally a nursing home resident will be taken out by family for a meal or a cup of tea.

But it's not just nursing home residents who are bed bound. There's a whole range of aged care and senior facilities. There are retirement villages that will have vulnerable people. They play bowls, go to the pool for swimming exercises. Go to the local pub for seniors' lunches. Go to the movies. Visit their families.

I don't think we should be excluding people from all those activities, long term, simply because it would be 'more convenient' or 'easier'.

One family, one incident kicked off Victoria's tragic second wave. Border closures may have been effective in preventing that occurring in other states.

 

[drron]

Moving the argument again.We were talking about Nursing homes so now you are talking retirement villages.
But you are the one complaining about the mortality rates of older persons and how much death we are willing to accept.So the way to limit the mortality is to protect the elderly.The price of that is limitations on their activities.

But tell me why do we close down schools when there haven't been major outbreaks in schools.The youngest man claimed to have died of Covid was aged 30.But he actually died of a drug overdose.
So again why do people from 20-40 have to suffer the same limitations as the elderly-just so you can be happy that everyone is treated the same?That is patently absurd.

So I am coming up to my 74th birthday so i am one in the more at risk group.Though I do have a genetic problem with excess iron levels.there have been reports that high iron levels are associated with milder disease.But I am happy to take care of myself.I am prepared to wear a mask where social distancing is impossible.I can choose the times when supermarkets etc are not as busy.
I am happy to go to restaurants here in Tassie and on the Sunshine Coast where there are no active cases of Covid.
What upsets me is that younger people especially those that are just starting out in their working life.Why are they being sacrificed to protect me?Morally wrong.

So I am sorry I just don't agree with your thoughts.Maybe you could find an international expert on pandemics who is still in favour of State border closures and lockdowns.

As I have said it is time to start living with this virus.

 

[tgh]

What upsets me is that younger people especially those that are just starting out in their working life.
Why are they being sacrificed to protect me?
Morally wrong

This is a very disturbing vision coming from a medical practitioner.
I have no interest in the value you place on your life but object to you placing value on mine.
Your position presents as judgmental of a right to survive based some kind of a community economic comfort parameter.
Humans are , for the most part, caring creatures , at great community cost we keep our dysfunctional brethren
alive and comfortable and we should continue to do so.

 

[DC3]

.... What upsets me is that younger people especially those that are just starting out in their working life.Why are they being sacrificed to protect me? ....

Call me confused.

I’ve obviously totally missed something here.

 

[Pushka]

This is a very disturbing vision coming from a medical practitioner.
I have no interest in the value you place on your life but object to you placing value on mine.
Your position presents as judgmental of a right to survive based some kind of a community economic comfort parameter.
Humans are , for the most part, caring creatures , at great community cost we keep our dysfunctional brethren
alive and comfortable and we should continue to do so.

I'm in a high risk group. And older. And I understand the medical practitioners comment.