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]

Massive flight demand as NSW - SA border reopens, NSW Premier warns state will be not be covid19 free and we 'must learn to live with the virus'


Qantas says there's huge demand for inter-state flights following border announcements this week. NSW residents can now travel to South Australia without needing to self-quarantine after border restrictions were scrapped this morning.

Qantas CEO of Domestic and International Travel, Andrew David said the airline is ready to deal with the spike in demand. The first flight touched down in Adelaide at 11am.

"The flight is all but sold out today. We have very high load factors for tomorrow and Saturday," he said. "We have urgently added second services already on Friday, Saturday, Sunday, Monday. Clearly demonstrates a pent-up demand for people to travel."

NSW Premier Gladys Berejiklian has said the first flight from Sydney to Adelaide this morning was "a wonderful sight for sore eyes".

"We won't let them down, we will do everything we can in NSW to keep the virus under control," she said.

However, the Premier said she would not be promising any state leader that her state would be virus free, after recently recording 72 hours without a local case.

"We're not going to have zero cases every day in NSW, I want to make that abundantly clear. There will not be zero cases of community transmission every day in NSW."

As it happened: Victoria records 12 COVID-19 cases as Daniel Andrews flags further easing of restrictions; SA border opens to NSW as Australian death toll jumps to 861

More restrictions may be eased in Melbourne this weekend, beyond those previously flagged, while NSW residents can now travel to South Australia without having to quarantine.

www.theage.com.au

 

[Flashback]

Massive flight demand as NSW - SA border reopens, NSW Premier warns state will be not be covid19 free and we 'must learn to live with the virus'


Qantas says there's huge demand for inter-state flights following border announcements this week. NSW residents can now travel to South Australia without needing to self-quarantine after border restrictions were scrapped this morning.

Qantas CEO of Domestic and International Travel, Andrew David said the airline is ready to deal with the spike in demand. The first flight touched down in Adelaide at 11am.

"The flight is all but sold out today. We have very high low factors for tomorrow and Saturday," he said. "We have urgently added second services already on Friday, Saturday, Sunday, Monday. Clearly enters a pent-up demand for people to travel."

NSW Premier Gladys Berejiklian has said the first flight from Sydney to Adelaide this morning was "a wonderful sight for sore eyes".

"We won't let them down, we will do everything we can in NSW to keep the virus under control," she said.

However, the Premier said she would not be promising any state leader that her state would be virus free, after recently recording 72 hours without a local case.

"We're not going to have zero cases every day in NSW, I want to make that abundantly clear. There will not be zero cases of community transmission every day in NSW."

As it happened: Victoria records 12 COVID-19 cases as Daniel Andrews flags further easing of restrictions; SA border opens to NSW as Australian death toll jumps to 861

More restrictions may be eased in Melbourne this weekend, beyond those previously flagged, while NSW residents can now travel to South Australia without having to quarantine.

www.theage.com.au

High low factors or load factors?

 

[jase05]

What has Marshall done!
Convoy of grey nomads heading across to SA via Broken Hill

 

[p--and--t]

What has Marshall done!
Convoy of grey nomads heading across to SA via Broken Hill

They might feel more welcome there than heading north.

 

[Pushka]

They might feel more welcome there than heading north.

Those of us without tin hats will welcome them their money with open arms.

 

[drron]

Another problem with border closures.The tasmanian First Secretary was under fire as Tasmania imports all it's guide dogs from SA.They are not allowed as unaccompanied freight on the JQ ADL-HBA service.

COVID-19 restrictions ruff on Guide Dog puppies

Specialist Guide Dog puppies stranded in South AustraliaPups can't travel unaccompaniedGuide Dogs Tasmania staff do not have essential worker

www.miragenews.com

But a little relief this week with 2 people with Essential worker exemptions detoured via Adelaide and each brought with them a young puppy in the cabin.

 

[jase05]

Those of us without tin hats will welcome them their money with open arms.

Yes, it was only said in jest.
There are a stack on their way currently and many caravan parks are fully booked out well in advance which is of course great for the local pubs, restaurants etc.
Hopefully regional Victoria isn’t far away either as that little corner encompassing Mildura is vital for SA (and Mildura) as it’s a long way around going via Broken Hill

 

[jakeseven7]

Yes, it was only said in jest.
There are a stack on their way currently and many caravan parks are fully booked out well in advance which is of course great for the local pubs, restaurants etc.
Hopefully regional Victoria isn’t far away either as that little corner encompassing Mildura is vital for SA (and Mildura) as it’s a long way around going via Broken Hill

And Melbourne won’t be too far behind regional VIC (which really should be now).

Melbourne active cases are plummeting, new cases and mystery cases in a downward spiral too. Let’s hope keeps going that way.

 

[jakeseven7]

Winds of change in Tassie now too. The Premier has been ignoring his own CHO’s medical advice on opening to at the very least SA, NT, ACT and WA to start with.
Surely ignoring your CHO should be illegal?

——-

Tasmanian Chamber of Commerce and Industry says government’s border strategy needs immediate rethink


PREMIER Peter Gutwein has been too conservative with Tasmania’s hard border strategy and travel bubbles with COVID-safe states should have been established at least a month ago, the state’s peak business body says.

Redirect Notice

 

[MEL_Traveller]

The Mercury article is behind a paywall.

The thoughts of a business council/chamber/peak body - none are relevant to the the issue of the legality of border closures in response to a pandemic.

 

[OATEK]

The Mercury article is behind a paywall.

The thoughts of a business council/chamber/peak body - none are relevant to the the issue of the legality of border closures in response to a pandemic.

Funny that, I could have sworn that one of the key sections of the consitution that we are talking about, refers to crtoss border trade etc - I am sure business councils etc would think it has a great deal to do with them.

 

[MEL_Traveller]

Funny that, I could have sworn that one of the key sections of the consitution that we are talking about, refers to crtoss border trade etc - I am sure business councils etc would think it has a great deal to do with them.

Yes, but the issue is whether states can close their borders. A response to a health emergency has previously been an accepted reason to close borders. I’m not sure it’s been an issue of weighing up a health emergency against economics.

 

[Pushka]

Yes, but the issue is whether states can close their borders. A response to a health emergency has previously been an accepted reason to close borders. I’m not sure it’s been an issue of weighing up a health emergency against economics.

And there comes a time when the initial reason is no longer relevant and becomes unconstitutional. Had Victoria not done its thing then all border closures would now be unconstitutional. Now the only state where it could be considered legal are those with Victoria.

 

[MEL_Traveller]

And there comes a time when the initial reason is no longer relevant and becomes unconstitutional. Had Victoria not done its thing then all border closures would now be unconstitutional. Now the only state where it could be considered legal are those with Victoria.

I think that's going to be the issue - the point in time the reason is no longer relevant. An international pandemic is still in progress. Various states have declared emergencies. Victoria, NSW and Queensland all have active cases. The Federal government has closed international borders. The HC might find that a state wanting to pursue 'elimination' - rather than 'suppression' - is valid and up for the state to decide (rather than the courts).

 

[tgh]

The onerous new site rules prevent direct reference , however its is conceivable to allude that the current Qld border setting have less to do with covid and more to do with other forthcoming events….

 

[Pushka]

I think that's going to be the issue - the point in time the reason is no longer relevant. An international pandemic is still in progress. Various states have declared emergencies. Victoria, NSW and Queensland all have active cases. The Federal government has closed international borders. The HC might find that a state wanting to pursue 'elimination' - rather than 'suppression' - is valid and up for the state to decide (rather than the courts).

Given that Australia's borders are effectively closed, the worldwide issue isn't relevant in determining interstate matters. Just wish elimination had never entered anyone's head because that is the stumbling block. Flatten the curve got tossed out the more successful we got.

 

[oz_mark]

And there comes a time when the initial reason is no longer relevant and becomes unconstitutional. Had Victoria not done its thing then all border closures would now be unconstitutional. Now the only state where it could be considered legal are those with Victoria.

We'll probably have to wait for the high court to rule, but the WA position is that border closures are an all or nothing proposition.
Being an outlier in this view may suggest they are wrong, but that's for the court..

 

[MEL_Traveller]

The onerous new site rules prevent direct reference , however its is conceivable to allude that the current Qld border setting have less to do with covid and more to do with other forthcoming events….

Given that Australia's borders are effectively closed, the worldwide issue isn't relevant in determining interstate matters. Just wish elimination had never entered anyone's head because that is the stumbling block. Flatten the curve got tossed out the more successful we got.

The worldwide issue is evidence that a health ground exists (ie coronavirus is real and not made up). in terms of state response to that pandemic, there’s lots to suggest the restriction of movement is beneficial on health grounds. The federal government has limited arrivals. Quarantine isn’t necessarily 100% effective. There are active cases in VIC, NSW and Queensland.

I know people are hoping the high court will weigh up health against economics, future national debt, people wanting to see their families. And weigh into the debate between suppression and elimination. And try and decide between the 100 or so ‘medical experts’ which one is right. But it might not come to that.

At its very simplest, the question is only ‘is there a health ground to close the border’? The federal court has found they are effective in dealing with the health issue. The rest of the balancing act, and consideration of any political motives may not even come into it.

 

[Pushka]

The worldwide issue is evidence that a health ground exists (ie coronavirus is real and not made up). in terms of state response to that pandemic, there’s lots to suggest the restriction of movement is beneficial on health grounds. The federal government has limited arrivals. Quarantine isn’t necessarily 100% effective. There are active cases in VIC, NSW and Queensland.

I know people are hoping the high court will weigh up health against economics, future national debt, people wanting to see their families. And weigh into the debate between suppression and elimination. And try and decide between the 100 or so ‘medical experts’ which one is right. But it might not come to that.

At its very simplest, the question is only ‘is there a health ground to close the border’? The federal court has found they are effective in dealing with the health issue. The rest of the balancing act, and consideration of any political motives may not even come into it.

In reality the only issue will be WA. The rest of Australia will likely be open come January.

 

[HappyFlyerFamily]

The worldwide issue is evidence that a health ground exists (ie coronavirus is real and not made up). in terms of state response to that pandemic, there’s lots to suggest the restriction of movement is beneficial on health grounds. The federal government has limited arrivals. Quarantine isn’t necessarily 100% effective. There are active cases in VIC, NSW and Queensland.

I know people are hoping the high court will weigh up health against economics, future national debt, people wanting to see their families. And weigh into the debate between suppression and elimination. And try and decide between the 100 or so ‘medical experts’ which one is right. But it might not come to that.

At its very simplest, the question is only ‘is there a health ground to close the border’? The federal court has found they are effective in dealing with the health issue. The rest of the balancing act, and consideration of any political motives may not even come into it.

Sorry I think you over simplify the legal question.

Border closures, COVID-19 and s 92 of the Constitution – what role for proportionality (if any)? — Australian Public Law

BY SHIPRA CHORDIA

auspublaw.org

Clive Palmer’s High Court challenge

How does this relate to Mr Palmer’s challenge in the High Court? It appears that Mr Palmer will maintain that the Direction has a protectionist effect in respect of trade and commerce because “businesses that have their head offices or are managed from outside Western Australia will be commercially disadvantaged to those that have their senior management inside Western Australia”. If Mr Palmer is successful in establishing this practical effect, and further establishing it as being protectionist, then the next stage will be to suggest that the Direction is not reasonably necessary as there are other obvious and reasonably practicable alternative forms of regulation that could achieve a slowing of the spread of COVID-19 but with less protectionist effects. To that end, it may be open to Mr Palmer to maintain that a much lighter form of regulation – such as mandatory quarantine on arrival or limiting closures to vulnerable parts of the state only – would have less protectionist effects but achieve the same public health outcomes. If accepted, that may suggest that the Direction is, in reality, protectionist in its underlying purpose. Of course, it would be open to Western Australia to counter that contention on the basis that, notwithstanding its protectionist effects, having regard to the terms of the Direction contextually construed and to the wider circumstances in which the Direction was put into place, it was always directed to a public health rather than a protectionist purpose.

If the matter is heard, central to the Court’s decision will be characterising the Direction based on its true purpose and then determining whether that purpose is protectionist. Due to the nature of the test set down in Cole v Whitfield, assessing whether an optimal balance has been struck between the value to be ascribed to the Direction’s purpose and the nature and degree of intrusion upon the competing constitutional freedom embodied in s 92 is not relevant to the Court’s task. Accordingly, while a form of the “necessity” test may be of assistance to the Court, structured proportionality does not have a role to play in this context.