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

 

[MEL_Traveller]

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

No. Just highlighting the irony

As mentioned, the state borders closures at least have some basis in law. The international ban doesn’t appear to be equally footed.

The Cth is willing to apply a set of questions for state borders, but won’t ask them of themselves for international travel.

Perhaps the states should ask the Cth to provide its plan for international travel on which they, the states, can then model their border openings?

 

[antycbr]

As mentioned, the state borders closures at least have some basis in law.

Not any more they don't. McGowan shot his own argument to pieces yesterday. Western Australia is a workers paradise and if the borders are opened people might leave.

I remember a certain country in Europe that used the same argument, they even had the Ministerium für Staatssicherheit to keep the population under control.

 

[HappyFlyerFamily]

No. Just highlighting the irony

As mentioned, the state borders closures at least have some basis in law. The international ban doesn’t appear to be equally footed.

The Cth is willing to apply a set of questions for state borders, but won’t ask them of themselves for international travel.

Perhaps the states should ask the Cth to provide its plan for international travel on which they, the states, can then model their border openings?

Perhaps read the UN document I posted on the other forum.

Read it how you wish, but I believe it’s effectively stating banning international travel is consistent with Human rights (hence international law).

For both issues (State and International), it’s a matter of proportionality.

In my view quarantine is probably the most appropriate measure, but as cases get to zero, others think a traffic light system would be appropriate.

My issue with traffic lights is really there is no definition and mid-trip you could get caught in an elevation which either (a)puts you in a lockdown or (b) makes you do and pay for unexpected quarantine,

 

[HappyFlyerFamily]

Qld announced an open date with NSW of 1am 1 November (guessing Qld time, so 2am NSW time) provided there is no community transmission in the preceding 28 day (ie I think from tomorrow onwards)

I’m guessing the 48 hour rule applies.....sigh.

 

[jakeseven7]

I guess its official now that AP finally emerged and said it herself but in the process we broke our own Dr Young's border clock rule book and NSW will actually have to demonstrate a longer than 28 day period in order to be granted access to QLD because some people can't seem to read a calender

So fingers crossed NSW 'We’re watching NSW very closely'......

------

Qld announces NSW border to open November 1

Queenslanders will be able to stand while they eat and drink from Friday afternoon, as a road map for further easing of restrictions is announced which details the NSW border is likely to open on November 1.

The goal of a new COVID Safe future, as released by Premier Annastacia Palaszczuk on Friday morning, breaks further restrictions easing into three more parts.

Under the road map, the new stage 4 commenced at 1am on October 1, 2020, which added extra local government areas included in the declared border zone across northern NSW.

Stage 5 would commence at 1am on November 1, which would see the borders open to New South Wales, with visitors and returned travellers not having to complete mandatory quarantine.

Ms Palaszczuk has made it clear the border would only reopen if there was no community transmission in the southern state for 28 days.

“We have made it very clear that our borders have kept us safe … We’re watching NSW very closely,” Ms Palaszczuk said.

NoCookies | The Australian

www.theaustralian.com.au

 

[DC3]

So many arm-chair High Court judges-in-waiting on this thread.

 

[antycbr]

So many arm-chair High Court judges-in-waiting on this thread.

Some of us are just keen for the court to make a decision!

 

[HappyFlyerFamily]

So many arm-chair High Court judges-in-waiting on this thread.

Go back to sleep ....lol

a decision probably won’t happen this side of Christmas (to give you a roadmap).....lol

 

[antycbr]

I guess its official now that AP finally emerged and said it herself but in the process we broke our own Dr Young's border clock rule book and NSW will actually have to demonstrate a longer than 28 day period in order to be granted access to QLD because some people can't seem to read a calender

So fingers crossed NSW 'We’re watching NSW very closely'......

------

Qld announces NSW border to open November 1

Queenslanders will be able to stand while they eat and drink from Friday afternoon, as a road map for further easing of restrictions is announced which details the NSW border is likely to open on November 1.

The goal of a new COVID Safe future, as released by Premier Annastacia Palaszczuk on Friday morning, breaks further restrictions easing into three more parts.

Under the road map, the new stage 4 commenced at 1am on October 1, 2020, which added extra local government areas included in the declared border zone across northern NSW.

Stage 5 would commence at 1am on November 1, which would see the borders open to New South Wales, with visitors and returned travellers not having to complete mandatory quarantine.

Ms Palaszczuk has made it clear the border would only reopen if there was no community transmission in the southern state for 28 days.

“We have made it very clear that our borders have kept us safe … We’re watching NSW very closely,” Ms Palaszczuk said.

NoCookies | The Australian

www.theaustralian.com.au

This 28 day thing, similarly to Victoria, will have the perverse outcome of disincentivising people from going to test. One single test result can keep 8 million people out of a state indefinitely. Similarly in Victoria, more positive test results will continue the pain of lockdown. Combined with the general disincentives to test, why would anyone with mild symptoms choose to go get tested?

Appeals to "civic duty" are starting to wear thin.

 

[bigbadbyrnes]

So many arm-chair High Court judges-in-waiting on this thread.

Keep this up and we'll find you in contempt *adjusts peruke *

 

[DC3]

Some of us are just keen for the court to make a decision!

Yes, this a good forum for venting.

The HC doesn’t exactly seem to be rushing this matter.

Post automatically merged: Oct 2, 2020

Go back to sleep ....lol

a decision probably won’t happen this side of Christmas (to give you a roadmap).....lol

Zzzzzzzzzzzzzzzzzzzzzz.

 

[MEL_Traveller]

Perhaps read the UN document I posted on the other forum.

Read it how you wish, but I believe it’s effectively stating banning international travel is consistent with Human rights (hence international law).

For both issues (State and International), it’s a matter of proportionality.

In my view quarantine is probably the most appropriate measure, but as cases get to zero, others think a traffic light system would be appropriate.

My issue with traffic lights is really there is no definition and mid-trip you could get caught in an elevation which either (a)puts you in a lockdown or (b) makes you do and pay for unexpected quarantine,

I took a slightly different view on the UN document. My understanding is that bans on freedoms must be proportional and relevant. Closing borders is fine... but preventing people *leaving*?

Preventing people leaving a country is neither proportional or relevant in this case (perhaps a case if we all had ebola or something might be relevant). Why should australia care if one of its citizens travels? (coming back is a different issue.)

If the Cth is ready with a set of criteria it demands from the states, it should apply those criteria to its own actions. Otherwise it calls the legitimacy into doubt and lacks transparency.

 

[DC3]

... Preventing people leaving a country is neither proportional or relevant in this case (perhaps a case if we all had ebola or something might be relevant). Why should australia care if one of its citizens travels? (coming back is a different issue.)

If the Cth is ready with a set of criteria it demands from the states, it should apply those criteria to its own actions. Otherwise it calls the legitimacy into doubt and lacks transparency.

What is the reasoning of the Government that forbids us from the leaving the country, again? With all of the state borders hoo-ha going on, the matter of leaving (without an approved exemption) has been lost.

 

[DC3]

.... As mentioned, the state borders closures at least have some basis in law. The international ban doesn’t appear to be equally footed.

The Cth is willing to apply a set of questions for state borders, but won’t ask them of themselves for international travel ..

Yes, some seem to want to ignore this.

 

[HappyFlyerFamily]

I took a slightly different view on the UN document. My understanding is that bans on freedoms must be proportional and relevant. Closing borders is fine... but preventing people *leaving*?

Preventing people leaving a country is neither proportional or relevant in this case (perhaps a case if we all had ebola or something might be relevant). Why should australia care if one of its citizens travels? (coming back is a different issue.)

If the Cth is ready with a set of criteria it demands from the states, it should apply those criteria to its own actions. Otherwise it calls the legitimacy into doubt and lacks transparency.

The WA and Qld hard borders had the effect of stopping people leaving.

Perhaps go to the other forum, but the law stopping people leaving Australia is under the Biosecurity Act. Feel free to go to Court if you have an issue with it, but I’m guessing it’s lawful under the right to human life (of the intending traveller and everyone else the traveller comes in contact with) Which takes precedence over the right to movement.

 

[DC3]

.. Feel free to go to Court if you have an issue with it ...

Now, now.

 

[MEL_Traveller]

The WA and Qld hard borders had the effect of stopping people leaving.

Perhaps go to the other forum, but the law stopping people leaving Australia is under the Biosecurity Act. Feel free to go to Court if you have an issue with it, but I’m guessing it’s lawful under the right to human life (of the intending traveller and everyone else the traveller comes in contact with) Which takes precedence over the right to movement.

For sure the enabling legislation is the biosecurity act, but I don’t know if the biosecurity act overrules an international treaty/convention (they usually don’t, that’s the whole point of international treaties).

There is no ‘right to human life’ in preventing me leaving the country. Coming back, maybe!

People do silly things overseas all the time... get drunk and cross roads, breach local laws and customs starting fights, take drugs attracting the death penalty, ride motorcycles without a helmet. But Australia doesn’t ban people leaving on those grounds... all clearly a danger to the health and safety of aussies travelling.

So the ban is for what exactly? To stop us catching covid?

I don’t agree with the pick and match approach... either the states and cth can close borders and prevent travel, or they both can’t.Why do people accept a Cth law ‘must be ok’, but don’t assume the same for the states?

 

[DC3]

... So the ban is for what exactly? To stop us catching covid?

I don’t agree with the pick and match approach... either the states and cth can close borders and prevent travel, or they both can’t.Why do people accept a Cth law ‘must be ok’, but don’t assume the same for the states?

Good post. I hope that no-one will respond that you are free to take it to court.

 

[jakeseven7]

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.

I can't believe he came out and argued this - why would he risk it?

He or someone managed to backflip their own CHO to trot out 'every state and territory must all go 28 days community transmission free at the same time' from a previous position of saying 'NT, SA, TAS' are safe to open now....' so why would he even need to risk talking illegally about economic state protectionism....?

Assuming he slipped under the mounting pressure from media and public?

 

[antycbr]

I can't believe he came out and argued this - why would he risk it?

He or someone managed to backflip their own CHO to trot out 'every state and territory must all go 28 days community transmission free at the same time' from a previous position of saying 'NT, SA, TAS' are safe to open now....' so why would he even need to risk talking illegally about economic state protectionism....?

Assuming he slipped under the mounting pressure from media and public?

Clive's raised it just a little while ago also in The Australian live blog... I suspect this will be fatal to Mr McGowan's high court case.

“I have always maintained that Mark McGowan closed the borders for economic reasons. He wants to separate WA from the rest of Australia,’’ Mr Palmer said.

“There is no reason why WA should not immediately open its borders to the states where the virus is under control .... He doesn’t want Australia united.

“I’m confident that when this issue gets to the High Court the borders will be opened so we can trade between States again and get the Australian economy moving.”