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

 

[DC3]

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

Although, the state government seems to be very popular in WA.

 

[oz_mark]

Although, the state government seems to be very popular in WA.

At the moment...

 

[nutwood]

I recently had occasion to ponder the logic of border restrictions. I was in Renmark (SA) on the 19th, needing to be in Griffith (NSW) on the morning of the 21st. Plan was a relatively relaxed seven hour drive on the 20th, cutting around under Lake Victoria and dodging State Victoria.
Heavy rain closed the roads I was intending to take so I ended up doubling back around Burra and heading up to Broken Hill. As the problem weather had come from the north, things just got messier and I ended spending fourteen hours driving, covering some 1360 kms in the day.
As I drove along into the evening, pondering on goats and how much bigger kangaroos become when you leave Tasmania, I couldn't help reflecting on the nice sealed road heading east from Renmark. Unfortunately, it passes through the State of Victoria. You'd be more likely to be abducted by aliens than catch Covid driving from Renmark to Griffith via the Sturt Highway but a border is a border.
I've no doubt my sentiments are shared by people who are being affected every day. Farmers with properties on either side of borders who naively thought we were one country. It's probably very necessary that this issue is looked at by the High Court. The actual case may not be as significant as the implications into the future. Invoking State tribalism has proven to be a political winner. It is now on the tactics list!

 

[bigbadbyrnes]

From 'We have higher incomes': Premier says desire for WA tourist dollars driving anti-border push


WA's hard border has repeatedly been criticised by some other state governments for being too strict, but Mr McGowan said "self-interested reasons" were behind the comments.

"The other states want us to open the border so that West Australian tourists will flow east," he said.

"We have higher incomes, we have people that are more used to travelling, and therefore will have more tourists go from Western Australia to the east.

"They're not advocating for it for any other reason than they want to see West Australian incomes spent in Sydney or Brisbane or wherever it might be."



Unhelpful public declarations if there were any intentions of keeping the country unified - or at least pretending. Sounds a bit protectionisty too. The politicisation of the borders is a real tragedy; they remain a legal matter, not a political matter.

33 sleeps until hearing.

 

[oz_mark]

From 'We have higher incomes': Premier says desire for WA tourist dollars driving anti-border push


WA's hard border has repeatedly been criticised by some other state governments for being too strict, but Mr McGowan said "self-interested reasons" were behind the comments.

"The other states want us to open the border so that West Australian tourists will flow east," he said.

"We have higher incomes, we have people that are more used to travelling, and therefore will have more tourists go from Western Australia to the east.

"They're not advocating for it for any other reason than they want to see West Australian incomes spent in Sydney or Brisbane or wherever it might be."



Unhelpful public declarations if there were any intentions of keeping the country unified - or at least pretending. Sounds a bit protectionisty too. The politicisation of the borders is a real tragedy; they remain a legal matter, not a political matter.

33 sleeps until hearing.

Wa Chamber of commerce weren't too happy:

Those comments drew criticism from WA Chamber of Commerce and Industry chief executive Chris Rodwell, who said border decisions should be based on health advice – not the economy.

“The West Australian business community expects that decisions regarding the removal of border restrictions will be made solely on health advice, not on the basis of economic protectionism,” he said on Twitter.

McGowan digs in on hard border after advice restrictions could lift for low-risk states

Health advice provided by the state's top doctor to the Premier on September 25 stated it could be safe for WA to open borders to low-risk states if he was satisfied with their border controls.

www.brisbanetimes.com.au

 

[HappyFlyerFamily]

Is WA able to claim having "higher incomes" because of the FIFOs who are unable to leave to go back to their Eastern families?

 

[jakeseven7]

From 'We have higher incomes': Premier says desire for WA tourist dollars driving anti-border push


WA's hard border has repeatedly been criticised by some other state governments for being too strict, but Mr McGowan said "self-interested reasons" were behind the comments.

"The other states want us to open the border so that West Australian tourists will flow east," he said.

"

Such a clever and well thought out defence..... Oh yes of course that’s the only reason, please please open up so all the ‘cashed up’ Bali bogans can come visit the eastern states and spend all their money in our casinos

Clearly scrambling after his massive error calling out SA and NT as useless states earlier and confirming to everyone the reason for the border closures are now economic.... tsk tsk this is entertaining now!

 

[antycbr]

Such a clever and well thought out defence..... Oh yes of course that’s the only reason, please please open up so all the ‘cashed up’ Bali bogans can come visit the eastern states and spend all their money in our casinos

Clearly scrambling after his massive error calling out SA and NT as useless states earlier and confirming to everyone the reason for the border closures are now economic.... tsk tsk this is entertaining now!

S.92 here we come.
I am amazed that QF hasn’t sued the state governments yet.

 

[drron]

And the QLD CHO makes the case for the border closure is not due to health reasons.

"We also know now what to do if we do have a case, because we are going to get more cases - that's inevitable," Dr Young said.


"Across the world, there are well over 13 million cases and over a million deaths, so we will see cases coming to Queensland in the future, but we know how to manage them.


"We know what we need to do, so we can very rapidly respond but not have to close everything down as we had to do back in March, because we've now got those systems in place.


"That's a really good position for us to be in as we go into summer in Queensland."

No Cookies | The Courier Mail

No Cookies

www.dalbyherald.com.au

 

[antycbr]

Although, the state government seems to be very popular in WA.

Just because something is popular doesn’t make it right. I’m sure capital punishment is also popular with the electorate.

 

[DC3]

Just because something is popular doesn’t make it right. ..

Well it seems to be right for the good folks in WA.

So, must be doing something right.

 

[DC3]

.... 33 sleeps until hearing.

Please wake me up when we have the HC decision.

 

[oz_mark]

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.

I think we should now be able to dispense with the idea of a backflip from the CHO.

 

[bigbadbyrnes]

S.92 here we come.
I am amazed that QF hasn’t sued the state governments yet.

Expensive and politically toxic. Who want's to be associated with Palmer? PR disaster - cost more than it's worth. People think "McGowan and Palmer are fighting - go McGowan go! (or) go Palmer go!" not "the seven best judges in the country need to do the job of independently assessing if these restrictions are proportionately consistent with our founding law".

 

[antycbr]

Well it seems to be right for the good folks in WA.

So, must be doing something right.

Someone missed the idea of morality.

 

[antycbr]

Looks like someone in the Federal Government is awake...

Senator Cormann (as reported in The Australian)
“Mark McGowan yesterday was running an economic protectionist argument in favour of continued state border closures. Economic state protectionism is explicitly prohibited in the Australian constitution,” he told Sky News.

“The people of Western Australia deserve to know that if zero active cases and zero community transmission in South Australia and the Northern Territory are not good enough to restore the freedoms Australians are entitled to - the Premier has to explain that to the people.

“What is enough? What are the objective, predictable criteria to let Western Australians enjoy their freedoms, as Australians, guaranteed under the Constitution.”

I would not be surprised to see the Commonwealth rejoin the Palmer case against the WA Government or open thier own case on these grounds. Hopefully this can be done to save the second collapse of VA and collapse of QF.

 

[MEL_Traveller]

EXACTLY the same questions that should be applied to international travel! We deserve the right to know when our freedoms will be restored. And why we aren’t allowed to travel to places with no or low infection such as Taiwan, Singapore and New Zealand.

The Commonwealth is the pot calling the kettle black!

As an aside, the Commonwealth doesn’t exactly have a good track record here. Aside from the social security net, what exactly have they done? Close international borders. That’s about it. Their handling of aged care shows they don’t really have an edge when it comes to knowing what’s right for public health.

 

[HappyFlyerFamily]

EXACTLY the same questions that should be applied to international travel! We deserve the right to know when our freedoms will be restored. And why we aren’t allowed to travel to places with no or low infection such as Taiwan, Singapore and New Zealand.

The Commonwealth is the pot calling the kettle black!

As an aside, the Commonwealth doesn’t exactly have a good track record here. Aside from the social security net, what exactly have they done? Close international borders. That’s about it. Their handling of aged care shows they don’t really have an edge when it comes to knowing what’s right for public health.

So have you changed your tune on State borders??? I think not

 

[Spongbob]

S.92 here we come.
I am amazed that QF hasn’t sued the state governments yet.

Perhaps Qantas listen to their legal advisers?

 

[antycbr]

So have you changed your tune on State borders??? I think not

I can't like this comment enough.

I'd be happy for all of this to be tested in court, so that we know what powers government, both state and federal have in the future and people can make a risk based assessment to emigrate.