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

 

[antycbr]

Currently given we have been locked out of Victoria for so long I can't see why the border needs to be open just yet. NSW has only just opened and their case numbers have been controlled for some time. Just too many unknowns and let's just say my confidence with management just isn't there right now. SA is open to all but Victoria and has no active cases in the community and hasn't for weeks now but it seems to be ignored when it comes to the NZ bubble so if NZ dont want us then not interested.

I think NSW and SA will be considered the same from a NZ perspective. NZ needs the hotspot definition to work otherwise they have no certainty about intra/interstate movement in Australia.

The big question will be if NSW opens to regional VIC then metro VIC, what will SA do? I think SA and NSW will have to follow the same opening path from now on - otherwise there is no point having the SA border closed to VIC when you can bypass it via NSW.

 

[Pushka]

I think NSW and SA will be considered the same from a NZ perspective. NZ needs the hotspot definition to work otherwise they have no certainty about intra/interstate movement in Australia.

The big question will be if NSW opens to regional VIC then metro VIC, what will SA do? I think SA and NSW will have to follow the same opening path from now on - otherwise there is no point having the SA border closed to VIC when you can bypass it via NSW.

That makes sense about the border with NSW. But I'd like SA residents to get the first option to return from Victoria before others can. Also we do have AFL football finals here in October and we do have crowds allowed I think up to 25,000 so that is a stick point.

 

[antycbr]

That makes sense about the border with NSW. But I'd like SA residents to get the first option to return from Victoria before others can. Also we do have AFL football finals here in October and we do have crowds allowed I think up to 25,000 so that is a stick point.

If anything I suspect NSW will open to VIC first. Gladys will want to get the two largest state economies open to each other as will Scomo and Andrews. The border impact along the Murray is also very significant and a huge drain of resources for NSW Police.

 

[blackcat20]

We've tentatively booked some Gold Coast accommodation for December in the hopes that it might all be open by then. If we move to Covid normal before then, then I don't see why everyone should remain shut.

 

[Pushka]

We've tentatively booked some Gold Coast accommodation for December in the hopes that it might all be open by then. If we move to Covid normal before then, then I don't see why everyone should remain shut.

I'd expect that borders with reasonable states would be available in mid December. Election in Qld done. WA, well, who knows.

It will be an interesting issue for crowds at sporting matches in Victoria. Thinking of the Boxing Day test. If Victoria still won't allow crowds, will they want the test match to be moved to a state that allows crowds or will they keep it in Victoria but with few people. The restrictions on crowds and membership numbers of SA cricket mean that even many members won't get access to Adelaides Test match so likely general public will completely miss out.

 

[antycbr]

We've tentatively booked some Gold Coast accommodation for December in the hopes that it might all be open by then. If we move to Covid normal before then, then I don't see why everyone should remain shut.

If there is no tourism to the GC in December, then there won't be a tourism industry left on the GC.

 

[HappyFlyerFamily]

Well the mooted hotspot definition of 30 over 3 days has now not been met, meaning Victoria/Melbourne is no longer a hotspot. So now what??? Lol

Edit Correction, tomorrow

 

[blackcat20]

If there is no tourism to the GC in December, then there won't be a tourism industry left on the GC.

We got a fabulous price for a hotel that would normally be out of our budget, so fingers crossed. They are clearly desperate.

 

[MEL_Traveller]

Someone at QF actually said that as a reason?

I hope that their case relies on things a bit more substantial than that.

The CEO himself. He gave two reasons, one of which was the grandkids.

 

[DC3]

If there is no tourism to the GC in December, then there won't be a tourism industry left on the GC.

Wow. Over 1700 posts on the question “ State border closures illegal under the highest law in the country?” And still no answer to the OPs question from April, just a lot of conjecture.

Yes, I know about the High Court matter. Glacial speed.

 

[Spongbob]

I think it has been answered by the Federal Court (more or less).

 

[antycbr]

I think it has been answered by the Federal Court (more or less).

They Federal Court is not the HCA and can agree on facts, but the ultimate decision lies with the HCA.

The Federal Government withdrawing from the case was a move that made sense politically at the time (August) with the VIC second wave and beating up on states who closed their borders was political suicide for the Commonwealth. However the matter will eventually be heard but by the time it is WA and TAS may be the only states closed.

 

[Pushka]

Wow. Over 1700 posts on the question “ State border closures illegal under the highest law in the country?” And still no answer to the OPs question from April, just a lot of conjecture.

Yes, I know about the High Court matter. Glacial speed.

Wot? You expect us to have answers?

 

[oz_mark]

Wot? You expect us to have answers?

Who knows? There may be a high court judge among us

 

[antycbr]

Who knows? There may be a high court judge among us

They would want the Chairmans Lounge open again I am guessing...

 

[Pushka]

Who knows? There may be a high court judge among us

Who would be spilling their guts on AFF? .

 

[jakeseven7]

If anything I suspect NSW will open to VIC first. Gladys will want to get the two largest state economies open to each other as will Scomo and Andrews. The border impact along the Murray is also very significant and a huge drain of resources for NSW Police.

NSW and VIC are already planning border openings - it is on the record. Thankfully these two states, despite their political differences seem to have an open and pragmatic approach to discussions on borders.

It is expected Regional Vic will be open within a few weeks to NSW. I can't imagine Melbourne metro will be that far behind, probably early November looking at the VIC roadmap?

 

[jase05]

The restrictions on crowds and membership numbers of SA cricket mean that even many members won't get access to Adelaides Test match so likely general public will completely miss out.

Negotiations still ongoing with CA in regards to moving the test but aiming for capacity to be at least 35k at Adelaide Oval by then so should be plenty of general public seats available

 

[jakeseven7]

They Federal Court is not the HCA and can agree on facts, but the ultimate decision lies with the HCA.

The Federal Government withdrawing from the case was a move that made sense politically at the time (August) with the VIC second wave and beating up on states who closed their borders was political suicide for the Commonwealth. However the matter will eventually be heard but by the time it is WA and TAS may be the only states closed.

And both WA and TAS have weaker healthcare systems and ability to manage anything themselves so I wonder if they will use that to argue their border restrictions? (not in court, in general). I'm actually a little surprised they haven't pulled that card out yet to defend going against their CHO's advice.

TAS in particular has been in the news alot talking about how they are 'investing to get ready to open' but there seems to be some severe doubts about their health departments ability to manage even a small amount of community transmission that will pop up once borders do open, to anywhere.... Its a funny little state!

 

[HappyFlyerFamily]

Wow. Over 1700 posts on the question “ State border closures illegal under the highest law in the country?” And still no answer to the OPs question from April, just a lot of conjecture.

Yes, I know about the High Court matter. Glacial speed.

Including a few posts from you...and me lol