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

 

[muppet]

The NZ PM and Deputy have both said in the last couple of days that they'd like a bubble to be operating by Christmas with QLD, Tasmania and NSW the states that they would consider being involved.

I honestly can’t see how that will work because I’m pretty sure the NSW Premier will want to open to Victoria as soon as its safe.... but the NZ PM is much more risk averse.

If NZ needs Victorians excluded how will that work. The NSW Premier is the most reasonable in this crisis so I can’t see her maintaining a Vic border for a couple of 737s worth of New Zealanders.

 

[jakeseven7]

If say the States drop their borders but don’t agree to hotspot, how would the Federal Government stop a NZ person crossing into the ‘recalcitrant’ State?

I suspect if there are still states playing state politics with domestic borders they will just not be allowed international flights - period. Which would actually be very very bad for states like QLD who rely on tourism so heavily.

But yes, if MEL and SYD and ADL have flights coming in from NZ I'm not sure how you would police NZ customers transferring onto domestic flights to QLD, WA, TAS for example - assuming of course those states even have their domestic borders open by then....

 

[BNEFlyer]

I honestly can’t see how that will work because I’m pretty sure the NSW Premier will want to open to Victoria as soon as its safe.... but the NZ PM is much more risk averse.

If NZ needs Victorians excluded how will that work. The NSW Premier is the most reasonable in this crisis so I can’t see her maintaining a Vic border for a couple of 737s worth of New Zealanders.

That's what PM Ardern has said she'd be happy with, but if Gladys opened to Victoria (a hotspot) then NSW would most likely be off the list.

 

[jakeseven7]

I honestly can’t see how that will work because I’m pretty sure the NSW Premier will want to open to Victoria as soon as its safe.... but the NZ PM is much more risk averse.

If NZ needs Victorians excluded how will that work. The NSW Premier is the most reasonable in this crisis so I can’t see her maintaining a Vic border for a couple of 737s worth of New Zealanders.

Exactly, NSW are already planning for the reopening of the VIC borders.

There is absolutely no way NZ would be prioritised over VIC.

Anyway we are talking this coming into effect in a few months and the rate VIC is crushing their outbreak now, they will probably be up for NZ flights themselves.

 

[p--and--t]

So SA misses out even with a better record.

.... so Qantas is right not having QFi from ADL, others making same decision.

 

[HappyFlyerFamily]

Well clearly we think NZ is a State or Territory of Australia ....lol.

the other factor is NZ shutting down once there is one case of community transmission/mystery case.....imagine being mid-flight.

 

[Pushka]

.... so Qantas is right not having QFi from ADL, others making same decision.

I much prefer QR and SQ over Qantas every single day. Works for me.

 

[antycbr]

Well clearly we think NZ is a State or Territory of Australia ....lol.

the other factor is NZ shutting down once there is one case of community transmission/mystery case.....imagine being mid-flight.

Ultimately we need to focus on what is best for Australia (as a whole). NZ can stay locked down indefinitely if they don't agree with Australia's arrangements, but NZ is the one hurting in the relationship as their economy is much worse off than ours.

There is no way that NZ will be prioritised over Australia's needs by the Federal Government, who are trying to sort out the impact of the domestic border closures (and consequential flow on for unemployment, Jobkeeper/seeker etc).

 

[MEL_Traveller]

Prediction: Scott Morrison will not allow states that don’t sign up to the federal hotspot management plan to have international travel.
It’s one power he has and can use.

We'd have to see how that goes in terms of the Constitution!

 

[jakeseven7]

Well clearly we think NZ is a State or Territory of Australia ....lol.

the other factor is NZ shutting down once there is one case of community transmission/mystery case.....imagine being mid-flight.

They'd be in good company with QLD, WA and TAS which is why it is critical that all these minion states agree to a hotspot definition that is smaller than a whole state of people

 

[Flashback]

Federal gov is aiming for 1 Dec it seems for all domestic borders to be reopened.

Exact date state borders will reopen

A plan by the federal government and tourism groups to restart Australia’s battered travel sector aims to have state border restrictions lifted by December 1 and a trans-Tasman travel bubble up and running by November.

amp.news.com.au

 

[DC3]

Federal gov is aiming for 1 Dec it seems for all domestic borders to be reopened ..

Are we waiting on Scomo to confirm?

 

[Pushka]

Are we waiting on Scomo to confirm?

He has reinforced that message a few times over the last few weeks but it in reality it's up to each state.

 

[DC3]

He has reinforced that message a few times over the last few weeks but it in reality it's up to each state.

So, in two months time, 1st December ?

 

[drron]

Hopefully the High court decides the Constitution has now been breached by then.

 

[DC3]

Hopefully the High court decides the Constitution has now been breached by then.

... or not.

 

[Seat0B]

And here it is, according to ABC news - WA Corona Virus border won't come down until 28 days of no community spread anywhere in Australia

Surely that must be a breach of the Constitution for taking it just a bit too far?

Edited to add link

 

[HappyFlyerFamily]

And here it is, according to ABC news - WA Corona Virus border won't come down until 28 days of no community spread anywhere in Australia

Surely that must be a breach of the Constitution for taking it just a bit too far?

Edited to add link

Wonder whether they mean mystery case or locally acquired......

 

[jakeseven7]

And here it is, according to ABC news - WA Corona Virus border won't come down until 28 days of no community spread anywhere in Australia

Surely that must be a breach of the Constitution for taking it just a bit too far?

Edited to add link

What. A. Joke.

Makes QLD look sane and that’s saying something.

Appears the WA CHO has been leaned on very heavily by someone as well as that’s a big backflip from his previous position. Very very fishy.

 

[oz_mark]

And here it is, according to ABC news - WA Corona Virus border won't come down until 28 days of no community spread anywhere in Australia

Surely that must be a breach of the Constitution for taking it just a bit too far?

As slow as the legal process is, I'm sure the High Court will have decided by the time the threshold is attained.