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

 

[oz_mark]

WA - honestly I have no idea because the language coming out of them is just so ridiculous right now. Their CHO is back flippping around on his advice rather conveniently for a looming date in March... I suspect post March will be the only time we may start to see some common sense coming out of them.

I am not sure there has been that much back-flipping. The latest health advice from WA also includes the possibility that restrictions on travellers from SA and QLD could be reviewed on different triggers

 

[jakeseven7]

I am not sure there has been that much back-flipping. The latest health advice from WA also includes the possibility that restrictions on travellers from SA and QLD could be reviewed on different triggers

He provided advice to the WA premier that it would be minimal risk and it was his opinion that it was safe to open borders to SA, NT and TAS - and this was a few months ago now. The WA premier ignored that advice.

Now the CHO has completely changed his tune and said, all states and territories, all 28 days, together with some scraggly 'possibilities of different bits and pieces allowing some states maybe on different timelines ' with no timing or details attached.

Backflip.

But works well for the Premier and March so good for him.

 

[oz_mark]

He provided advice to the WA premier that it would be minimal risk and it was his opinion that it was safe to open borders to SA, NT and TAS - and this was a few months ago now. The WA premier ignored that advice.

Now the CHO has completely changed his tune and said, all states and territories, all 28 days, together with some scraggly 'possibilities of different bits and pieces allowing some states maybe on different timelines ' with no timing or details attached.

Backflip.

The advice is a bit dynamic - the original advice was before the outbreak in Victoria. That changed the advice. It will evolve for a while, and I am sure it will get back to where it was. And ignored again.

Anyhoo. The High Court will likely be the trigger for a reopening.

 

[DC3]

Much hyper-ventilating creeping back in on this thread. Some getting over-concerned about things which we have no control. Also, becoming over-politicised again, most likely due to entrenched views.


The High Court involvement should settle the issue for us.

 

[jakeseven7]

Queensland Chief Health Officer Dr Jeannette Young confirmed it would still be treated as a mystery case and the border clock was now at seven of 28 days.

"The discussion was that it needed to be linked within 48 hours and we are beyond that time frame now," she said. "So it is about easily linking a case."

Oh right here is the fine print thanks Dr Young. Has to be an easy link in 48 hours or it doesn't count.

Dr Young said the trigger for a border opening with NSW would be reached on October 22 if no unlinked cases of COVID-19 were found before then.

But the earliest Queensland would actually open the border would be on November 1, the day after the Queensland state election, Mr Miles confirmed.

I thought it was the CHO and QLD health call, so why the added week? Does QLD Health also stop working during an election campaign? That is a bit worrying......

 

[jakeseven7]

The advice is a bit dynamic - the original advice was before the outbreak in Victoria. That changed the advice. It will evolve for a while, and I am sure it will get back to where it was. And ignored again.

Anyhoo. The High Court will likely be the trigger for a reopening.

I agree - that would make some sense if those states had kept their borders open to Vic. Which they didn't. So it doesn't make sense.

Its not dynamic advice, it is unfortunately becoming clearer and clearer it is all being used as a political weapon.

 

[jakeseven7]

South Australia, NSW look to lift borders with Regional Victoria

The South Australian government will on Thursday consider opening its border to Victorians from regional areas, where no community transmission of coronavirus has been reported in the past fortnight.

Victorian regions have recorded a total of four COVID-19 infections in the past 14 days, all linked to known outbreaks, and had just three active cases on Wednesday, prompting the state's Chief Health Officer, Brett Sutton, to say they would be “COVID-free soon enough”.

Deputy Prime Minister Michael McCormack has weighed in on the border push, telling The Age and The Sydney Morning Herald that regional communities needed “more flexibility” as they battled a border shut by Ms Berejiklian since July 7.

Ms Berejiklian last week discussed the idea of excluding “Melbourne-ites for now but open [the border] up to everybody else in the interim.

A spokeswoman for South Australian Premier Steven Marshall confirmed the state’s main COVID-19 committee, led by SA Police and Chief Public Health Officer Nicole Spurrier, was meeting on Thursday and would discuss the process of reopening to regional Victoria.

As it happened: Victoria records 15 new COVID-19 cases as SA reconsiders border restrictions; Australian death toll jumps to 888

The Victorian government has stood down private security in the state’s remodelled hotel quarantine program and sent in police.

www.theage.com.au

 

[oz_mark]

I agree - that would make some sense if those states had kept their borders open to Vic. Which they didn't. So it doesn't make sense.

Its not dynamic advice, it is unfortunately becoming clearer and clearer it is all being used as a political weapon.

A few things happened when Victoria had its outbreak. Another was the WA delayed easing restrictions within the state further. That was because the health advice changed, based on the situation at the time.

So the health advice changes, even if the public policy response changes aren't always in line with them.

 

[jakeseven7]

A few things happened when Victoria had its outbreak. Another was the WA delayed easing restrictions within the state further. That was because the health advice changed, based on the situation at the time.

So the health advice changes, even if the public policy response changes aren't always in line with them.

Sure thing, my point entirely

- WA Medical advice given months ago that doesn't suit a leaders narritive - ignored.
- WA Medical advice given days ago that does - leapt on, press release issued, media interviews granted.

They can't have it both ways... but they will, because they are using it for March.

 

[jase05]

South Australia, NSW look to lift borders with Regional Victoria

The South Australian government will on Thursday consider opening its border to Victorians from regional areas, where no community transmission of coronavirus has been reported in the past fortnight.

Victorian regions have recorded a total of four COVID-19 infections in the past 14 days, all linked to known outbreaks, and had just three active cases on Wednesday, prompting the state's Chief Health Officer, Brett Sutton, to say they would be “COVID-free soon enough”.

Deputy Prime Minister Michael McCormack has weighed in on the border push, telling The Age and The Sydney Morning Herald that regional communities needed “more flexibility” as they battled a border shut by Ms Berejiklian since July 7.

Ms Berejiklian last week discussed the idea of excluding “Melbourne-ites for now but open [the border] up to everybody else in the interim.

A spokeswoman for South Australian Premier Steven Marshall confirmed the state’s main COVID-19 committee, led by SA Police and Chief Public Health Officer Nicole Spurrier, was meeting on Thursday and would discuss the process of reopening to regional Victoria.

As it happened: Victoria records 15 new COVID-19 cases as SA reconsiders border restrictions; Australian death toll jumps to 888

The Victorian government has stood down private security in the state’s remodelled hotel quarantine program and sent in police.

www.theage.com.au

My understanding is that the normal Friday transition meeting was brought forward to today but AFAIK there hasn’t been any changes to border restrictions. A few minor restrictions have been lifted for hotels and entertainment but that’s it at this stage. Next meeting is now Tuesday again

 

[antycbr]

My understanding is that the normal Friday transition meeting was brought forward to today but AFAIK there hasn’t been any changes to border restrictions. A few minor restrictions have been lifted for hotels and entertainment but that’s it at this stage. Next meeting is now Tuesday again

So we will end up with NT/SA/VIC/ACT/NSW against the rest of the country.

 

[jakeseven7]

Seems fair, we couldn't see NZ citizens clogging up QLD's quarantine hotels blocking Australians that QLD are forcing to stay there too because of their state border restrictions.

Also, Jacinda wants AU states to all agree to a hotspot definition too..... Join the club mate! How embarrassing for us as a nation.... some of our state premiers look like kindergarten kids....


---------

QUEENSLAND BACK OF THE LINE FOR NZ FLIGHTS, SAYS MORRISON



Prime Minister Scott Morrison has revealed he will likely not allow Queensland to receive flights from New Zealand because of the state’s insistence on hotel quarantine for domestic travel.

The PM argued he couldn’t justify allowing trans-Tasman flights into Brisbane if it would mean precious hotel quarantine rooms were taken up by Kiwi arrivals.

The intervention came on the day Queensland’s Deputy Premier Steven Miles confirmed he wouldn’t open his domestic borders to NSW until after the state’s election on 31 October.

Speaking on Adelaide’s FiveAA radio on Thursday, PM Morrison said, “I would see South Australia as well as NSW in the front end of that arrangement because they’ve both taken their borders down.

PM Morrison’s words come alongside new comments by New Zealand Prime Minister Jacinda Ardern hinting travel between the two countries could be very close, and begin with one-way flights from New Zealand to Australia.

However, she hinted travel the other way was still slightly further away; “What we just need to hear a bit more from Australia on is what the definition of a hotspot will be, how they’ll manage the state borders in those situations, but we’re working that through.

Queensland back of the line for NZ flights, says Morrison

The PM has said he will not allow Queensland to receive trans-Tasman flights because the state still hotel quarantines those entering from NSW.

australianaviation.com.au

 

[antycbr]

Seems fair, we couldn't see NZ citizens clogging up QLD's quarantine hotels blocking Australians that QLD are forcing to stay there too because of their state border restrictions.

Also, Jacinda wants AU states to all agree to a hotspot definition too..... Join the club mate! How embarrassing for us as a nation.... some of our state premiers look like kindergarten kids....


---------

QUEENSLAND BACK OF THE LINE FOR NZ FLIGHTS, SAYS MORRISON



Prime Minister Scott Morrison has revealed he will likely not allow Queensland to receive flights from New Zealand because of the state’s insistence on hotel quarantine for domestic travel.

The PM argued he couldn’t justify allowing trans-Tasman flights into Brisbane if it would mean precious hotel quarantine rooms were taken up by Kiwi arrivals.

The intervention came on the day Queensland’s Deputy Premier Steven Miles confirmed he wouldn’t open his domestic borders to NSW until after the state’s election on 31 October.

Speaking on Adelaide’s FiveAA radio on Thursday, PM Morrison said, “I would see South Australia as well as NSW in the front end of that arrangement because they’ve both taken their borders down.

PM Morrison’s words come alongside new comments by New Zealand Prime Minister Jacinda Ardern hinting travel between the two countries could be very close, and begin with one-way flights from New Zealand to Australia.

However, she hinted travel the other way was still slightly further away; “What we just need to hear a bit more from Australia on is what the definition of a hotspot will be, how they’ll manage the state borders in those situations, but we’re working that through.

Queensland back of the line for NZ flights, says Morrison

The PM has said he will not allow Queensland to receive trans-Tasman flights because the state still hotel quarantines those entering from NSW.

australianaviation.com.au

Might see NZ, VA or QF try CBR-AKL, or CHC-ADL...

 

[jase05]

QF try CBR-AKL, or CHC-ADL..

Bit early for the Melbourne comedy festival

 

[DC3]

Might see NZ, VA or QF try CBR-AKL, or CHC-ADL...

Doesn’t VA only do some domestic routes, now? I may have missed something.

 

[antycbr]

Bit early for the Melbourne comedy festival

More like NZ than QF.

 

[drron]

Well the WA election is on March 13th next year.Hence the WA borders are closed until then.Pathetic.

 

[DC3]

We are waiting on the High Court to decide the matter?

 

[Pushka]

Well the WA election is on March 13th next year.Hence the WA borders are closed until then.Pathetic.

The locals will be champing at the bit come Christmas time.

 

[oz_mark]

The locals will be champing at the bit come Christmas time.

Not just the locals. There are a number of FIFO workers that haven't seen their families for months.

Unless something happens outbreak wise, I doubt the borders will be closed until the election. They will, however, likely be closed long enough for the high court to have to decide.