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

 

[jakeseven7]

Whoopsies....

——
WA Premier Mark McGowan damages his own defence of WA's hard border closure

The lawyers trying to topple WA's hard border on behalf of Clive Palmer might well be forgiven if their jaws dropped when they heard Mark McGowan's latest explanation for why the state's border remains closed.

"The benefit to opening to South Australia or the Northern Territory for WA is not there,"the Premier said on Thursday.

"All we would do is lose jobs, were we to open to those states.

"They're only saying all this for very self-interested reasons because we have higher incomes and people who are more used to travelling and therefore we will have more tourists from West Australians go to the east."

"I don't know whether this statement can be adduced as evidence, but certainly if it was it would really torpedo Western Australia's response to Palmer's claim," Charles Sturt University law lecturer Bede Harris said.

"The cat is out of the bag."

To what extent the comments will affect WA's defence of Clive Palmer's High Court challenge to the border closure remains to be seen.

But political damage was on display quickly.

Open criticism from the state's business leaders about the WA Government's border stance has followed over the past few days, with few holding back their unhappiness over Mr McGowan's commentary this week.

Is WA's hard border closing in on Mark McGowan?

Lawyers trying to topple WA's hard border on behalf of Clive Palmer might be forgiven if their jaws dropped when they heard Mark McGowan's latest explanation for why the state's border remains closed, writes political reporter Jacob Kagi.

www.abc.net.au

 

[Spongbob]

Yes because the health advice we are getting up here is massively flawed on all fronts...

And it it very clear in NSW: the regulation is "X", but the government recommendation is "XX".
So which do you follow?

 

[Pushka]

Whoopsies....

——
WA Premier Mark McGowan damages his own defence of WA's hard border closure

The lawyers trying to topple WA's hard border on behalf of Clive Palmer might well be forgiven if their jaws dropped when they heard Mark McGowan's latest explanation for why the state's border remains closed.

"The benefit to opening to South Australia or the Northern Territory for WA is not there,"the Premier said on Thursday.

"All we would do is lose jobs, were we to open to those states.

"They're only saying all this for very self-interested reasons because we have higher incomes and people who are more used to travelling and therefore we will have more tourists from West Australians go to the east."

"I don't know whether this statement can be adduced as evidence, but certainly if it was it would really torpedo Western Australia's response to Palmer's claim," Charles Sturt University law lecturer Bede Harris said.

"The cat is out of the bag."

To what extent the comments will affect WA's defence of Clive Palmer's High Court challenge to the border closure remains to be seen.

But political damage was on display quickly.

Open criticism from the state's business leaders about the WA Government's border stance has followed over the past few days, with few holding back their unhappiness over Mr McGowan's commentary this week.

Is WA's hard border closing in on Mark McGowan?

Lawyers trying to topple WA's hard border on behalf of Clive Palmer might be forgiven if their jaws dropped when they heard Mark McGowan's latest explanation for why the state's border remains closed, writes political reporter Jacob Kagi.

www.abc.net.au

When listening to a constitutional lawyer from UNSW back in April, it did sound like border closures were legal for a state to protect people, and animal and vegetable production from illness. Perhaps it was an omission but he did not say that border closures would be legal for any other reason.
Just a quick google today.

"The constitution does include some sections that prohibit a state discriminating against Australian citizens who are residents of other states.

However, constitutional experts contacted by Fact Check said it has long been accepted by the courts that there can be valid exceptions to these prohibitions, where it is necessary to protect the people of a state from the risk of injury from inbound goods, animals, and people.

They said the deadly coronavirus was likely to fall under such an exception as long as the restrictions imposed by a state are limited to the life of the emergency, tailored to protecting public health and do not single out people's interstate status without good reason."

Another point to note, perhaps again an omission, is that in SA, SA residents are refused entry back to SA of they have been to Victoria. I suspect that is unconstitutional as well. As per bolding above.

I think WA premier has made a big mistake.

 

[oz_mark]

I think WA premier has made a big mistake.

Matthius Corman thought so

WA border 'protection' breaches constitution

Finance Minister Mathias Cormann has accused Premier Mark McGowan of breaching the constitution through his economic 'protectionist' border closures.

www.afr.com

 

[jakeseven7]

NSW expected to be next to ease restrictions with VIC. Unless SA sneaks in first.

——
Breaking: Northern Territory to remove border restrictions with regional Victoria


People living in regional Victoria could be able to travel to the Northern Territory without undergoing mandatory quarantine from next month.

The NT Government announced on Monday it was set to revoke its coronavirus hotspot declaration for most of the state from November 2.

“All the numbers basically amount to this – Victoria has crushed the coronavirus,” Mr Gunner said.

The four areas to remain on the watch list are Greater Geelong, the Macedon Ranges, Mitchell Shire and East Gippsland Shire, as they have all recorded at least one positive case in the last fortnight.

However, Mr Gunner said those areas could be also be removed as declared hot spots by November 2 if they continue to suppress new cases.

NT to ease Victorian border restrictions

People living in regional Victoria could be able to travel to the Northern Territory without undergoing mandatory quarantine from next month.

www.news.com.au

 

[HappyFlyerFamily]

NSW expected to be next

——
Breaking: Northern Territory to remove border restrictions with regional Victoria


People living in regional Victoria could be able to travel to the Northern Territory without undergoing mandatory quarantine from next month.

The NT Government announced on Monday it was set to revoke its coronavirus hotspot declaration for most of the state from November 2.

“All the numbers basically amount to this – Victoria has crushed the coronavirus,” Mr Gunner said.

The four areas to remain on the watch list are Greater Geelong, the Macedon Ranges, Mitchell Shire and East Gippsland Shire, as they have all recorded at least one positive case in the last fortnight.

However, Mr Gunner said those areas could be also be removed as declared hot spots by November 2 if they continue to suppress new cases.

NT to ease Victorian border restrictions

People living in regional Victoria could be able to travel to the Northern Territory without undergoing mandatory quarantine from next month.

www.news.com.au

So NSW can expect the same treatment in 4 days - apparently NSW had 10 days without a recent local case........hopefully they can announce it before the post-school holiday figure come in.

i do wonder how many in NSW won’t get tested due to long weekend / school holidays and whether there is bubbling....down to 4000s in the last 24 hours

 

[jakeseven7]

More of the medical community now openly attacking Dr Young’s ‘rationale’, rules and border clock for border closures.

——
'Too conservative': Qld border criteria under fire from leading epidemiologists

Queensland's criteria to open borders only 28 days after the last diagnosis of a COVID-19 case from an unknown source has been slammed by epidemiologists as far too conservative.

Bruce Thompson, dean of health sciences at Swinburne University, said Queensland's criteria for opening to other states, which was not used by any other state or territory, was too high a bar to meet.

"It is too conservative, there's no two ways about it," Professor Thompson told The Australian Financial Review.

Professor Thompson said he was concerned that the Queensland government, through the state's Chief Health Officer Jeannette Young, was setting itself up to fail with 8-day rule.

"Even the 14-day incubation period is double what the actual incubation period for the coronavirus is. It's a 14-day window [to be on the safe side] and we know the actual incubation period is two to three days or four to five days."

UNSW epidemiologist Marylouise McLaws said last week a 28-day clock was extreme because it was twice the maximum incubation period, rather than the usual use of "twice the average" incubation period of 14 days.

She said the borders could be safely lowered with less than five cases a day outside of returned travellers, "mystery or not".

Professor Thompson said states needed to be able to deal with COVID-19 outbreaks or clusters with open borders, potentially for years, until an effective vaccine was developed.

"We have to learn how to live with this," he said, citing NSW's approach as the way to go. He said state border closures should be the last option

Other critics, such as NSW Health Minister Brad Hazzard, said the border deadlines were driven by politics rather than public health.

'Too conservative': Qld border criteria under fire

The Palaszczuk government has flagged a conditional opening to NSW on November 1, provided it does not have any more local transmission.

www.afr.com

 

[HappyFlyerFamily]

More of the medical community now openly attacking Dr Young’s ‘rationale’, rules and border clock for border closures.

——
'Too conservative': Qld border criteria under fire from leading epidemiologists

Queensland's criteria to open borders only 28 days after the last diagnosis of a COVID-19 case from an unknown source has been slammed by epidemiologists as far too conservative.

Bruce Thompson, dean of health sciences at Swinburne University, said Queensland's criteria for opening to other states, which was not used by any other state or territory, was too high a bar to meet.

"It is too conservative, there's no two ways about it," Professor Thompson told The Australian Financial Review.

Professor Thompson said he was concerned that the Queensland government, through the state's Chief Health Officer Jeannette Young, was setting itself up to fail with 8-day rule.

"Even the 14-day incubation period is double what the actual incubation period for the coronavirus is. It's a 14-day window [to be on the safe side] and we know the actual incubation period is two to three days or four to five days."

UNSW epidemiologist Marylouise McLaws said last week a 28-day clock was extreme because it was twice the maximum incubation period, rather than the usual use of "twice the average" incubation period of 14 days.

She said the borders could be safely lowered with less than five cases a day outside of returned travellers, "mystery or not".

Professor Thompson said states needed to be able to deal with COVID-19 outbreaks or clusters with open borders, potentially for years, until an effective vaccine was developed.

"We have to learn how to live with this," he said, citing NSW's approach as the way to go. He said state border closures should be the last option

Other critics, such as NSW Health Minister Brad Hazzard, said the border deadlines were driven by politics rather than public health.

'Too conservative': Qld border criteria under fire

The Palaszczuk government has flagged a conditional opening to NSW on November 1, provided it does not have any more local transmission.

www.afr.com

I’m not sure Professor Thompson is an epidemiologist. Let’s wait for the Qld AMA to come out in support of the Qld CHO

 

[antycbr]

I’m not sure Professor Thompson is an epidemiologist. Let’s wait for the Qld AMA to come out in support of the Qld CHO

I’ve been pondering what would happen if NSW continues to have the odd case here and there.

Let’s say we get to December 1 and Queensland have had their election, the ALP win and NSW hasn’t met the 28 day criteria. What’s the Queensland Government exit strategy?

After all having the border closed hurts Queensland and Queenslanders more than NSW, and Queensland is a net importer of interstate tourists. People are actively booking away from Queensland due to the uncertainty and this will continue.

What will AP and JY do?

 

[HappyFlyerFamily]

I’ve been pondering what would happen if NSW continues to have the odd case here and there.

Let’s say we get to December 1 and Queensland have had their election, the ALP win and NSW hasn’t met the 28 day criteria. What’s the Queensland Government exit strategy?

After all having the border closed hurts Queensland and Queenslanders more than NSW, and Queensland is a net importer of interstate tourists. People are actively booking away from Queensland due to the uncertainty and this will continue.

What will AP and JY do?

They will probably make up a reason for that too. Perhaps something like:

A) the Commonwealth has now settled on a hotspot definition
B) National Cabinet has now settled on a hotspot definition which allows us to drop border restrictions
C) we can now see NSW Data through the new Cth overlay

 

[jakeseven7]

They will probably make up a reason for that too. Perhaps something like:

A) the Commonwealth has now settled on a hotspot definition
B) National Cabinet has now settled on a hotspot definition which allows us to drop border restrictions
C) we can now see NSW Data through the new Cth overlay

Option A and B would see a pretty much instant drop of borders with VIC as well

 

[jakeseven7]

Open your borders to us, NSW's Gladys Berejiklian tells Tasmanian Premier


New South Wales Premier Gladys Berejiklian says her Tasmanian counterpart Peter Gutwein should already have opened the island's borders to residents of her state.

Her comments signal looming tensions between the two Liberal leaders, come after Mr Gutwein announced on Friday that Tasmania would reopen its borders to "lower-risk" jurisdictions from October 26.

Mr Gutwein said the state would open to Queensland, Western Australia, South Australia, the Northern Territory, the ACT and possibly NSW, depending on public health advice.

While Ms Berejiklian has welcomed the indication that the Premier will consider opening the border to NSW residents, she called on him to treat the state like other jurisdictions.

"I do not think the Queensland, West Australian or Tasmanian borders should be closed to people from NSW," she said in a statement.

Open borders to us, NSW Premier says

Don't lump us in with Victoria, Berejiklian tells Gutwein following announcement

www.canberratimes.com.au

 

[antycbr]

Open your borders to us, NSW's Gladys Berejiklian tells Tasmanian Premier


New South Wales Premier Gladys Berejiklian says her Tasmanian counterpart Peter Gutwein should already have opened the island's borders to residents of her state.

Her comments signal looming tensions between the two Liberal leaders, come after Mr Gutwein announced on Friday that Tasmania would reopen its borders to "lower-risk" jurisdictions from October 26.

Mr Gutwein said the state would open to Queensland, Western Australia, South Australia, the Northern Territory, the ACT and possibly NSW, depending on public health advice.

While Ms Berejiklian has welcomed the indication that the Premier will consider opening the border to NSW residents, she called on him to treat the state like other jurisdictions.

"I do not think the Queensland, West Australian or Tasmanian borders should be closed to people from NSW," she said in a statement.

Open borders to us, NSW Premier says

Don't lump us in with Victoria, Berejiklian tells Gutwein following announcement

www.canberratimes.com.au

I'm sure South Australia is capitalising on being the first mover here.

 

[Lat34]

I'm sure South Australia is capitalising on being the first mover here.

Weather-wise at this time of year, I would much rather go to SA and Kangaroo Island from SYD than say the Whitsundays or further north (been sailing/racing there many times anyway). Have also pretty much "done" TAS after numerous SYD-HOB races. Just sayin...

 

[antycbr]

Weather-wise at this time of year, I would much rather go to SA and Kangaroo Island from SYD than say the Whitsundays or further north (been sailing/racing there many times anyway). Have also pretty much "done" TAS after numerous SYD-HOB races. Just sayin...

The businesses on Kangaroo Island would definitely appreciate the business after the bushfires.

We have booked 3 nights in Adelaide in November, we did it the day that Marshall opened the border. Now making restaurant reservations and doing the Adelaide Oval roofclimb.

Next year planning Port Lincoln and the Eyre Peninsula.

 

[jakeseven7]

Tourism operators are starting to speak up as March looms (end of Jobkeeper) and the case count continues to drop everywhere.

——
WA Tourism operators rail against WA's hard border

Western Australian tour operators say they're being bled dry by the state's ongoing hard border, as other jurisdictions around Australia open up, taking advantage of relaxed border restrictions to travel interstate.

The backyard holiday boom has benefited some operators, but most are only just scraping by, propped up by the JobKeeper subsidy, especially in the Greater Perth area.

Interstate tourists spent more than $2.7 billion in Western Australia in the year to March – an average of $1500 per tourist.

"The truth is, we will save more tourism jobs with interstate tourism than without," Tourism Council of WA CEO Evan Hall said.

But Premier Mark McGowan claimed "other states" wanted Western Australia to open its border so westerners would travel east, not the other way around.

WA tourism operators are also still waiting for cash grants from the state government to help them through the pandemic.

And meanwhile, bookings for next year are being lost.

"They're going to be going to Cairns instead of Broome, they're going to go to Tasmania instead of Margaret River, and those bookings are being made now," Mr Hall said.

Coronavirus borders: Western Australia tourism operators angry about lost money

www.google.com.au

 

[jakeseven7]

I'm sure South Australia is capitalising on being the first mover here.

Will be interesting as all the borders come down, what the next move will be the in case of an inevitable community transmission (mystery case)....? By QLD’s definition they will be shutting our borders every few months or so - not giving people much certainty to book trips here.

The National covid hotspot agreement is going to have to really hurry up to ensure people have confidence in booking...

 

[N860CR]

Will be interesting as all the borders come down, what the next move will be the in case of an inevitable community transmission (mystery case)....? By QLD’s definition they will be shutting our borders every few months or so - not giving people much certainty to book trips here.

The National covid hotspot agreement is going to have to really hurry up to ensure people have confidence in booking...

Yep. That’s been my concern since the beginning. Maybe one day soon we’ll say “yay, no cases!”. But then what?

 

[jakeseven7]

Calls to remove SA-Regional Victoria border restrictions after NT plans revealed

Those affected by a border bubble are pleading for eased restrictions after the NT announced plans to open its borders to most of regional Vic.

Those on both side of the border affected by the 40-kilometre border bubble are calling for eased restrictions after the Northern Territory on Monday announced plans to open its borders to most of regional Victoria at the beginning of November.

Currently, Victorians living within the 40km zone are allowed into the state only for essential purposes. They must have completed a registration form and returned a negative COVID-19 test in the past seven days.

Nick McBride, Liberal MP for MacKillop – the electorate that covers border towns including Naracoorte, Bordertown and Penola – said it was time for those rules to be revised.

Mr McBride said South Australia had done a good job managing the virus, but it was now time to broaden the focus.

Mr McBride said he held concerns Adelaide-based decision makers lacked knowledge of the way regions functioned, particularly in terms of the cross-border community.

“The community has engaged well and they haven’t broken the rules,” he said. “Testing has all proven to be negative. They’ve been tested to death.

“We’re hoping that we get a better understanding and representation than we’ve seen so far.”

However, a state government spokesperson maintained border restrictions would lift as soon as health advice allowed.

Chief Minister Michael Gunner said the Northern Territory will revoke its coronavirus hotspot declaration for most of regional Victoria from November 2.

‘Tested to death’: SA-Vic cross-border community urges rule rethink

South Australia risks alienating Victorian people and businesses if it does not keep up with the reopening timelines of other states, border communities say.

www.news.com.au

 

[jase05]

Calls to remove SA-Regional Victoria border restrictions after NT plans revealed

Those affected by a border bubble are pleading for eased restrictions after the NT announced plans to open its borders to most of regional Vic.

Those on both side of the border affected by the 40-kilometre border bubble are calling for eased restrictions after the Northern Territory on Monday announced plans to open its borders to most of regional Victoria at the beginning of November.

Currently, Victorians living within the 40km zone are allowed into the state only for essential purposes. They must have completed a registration form and returned a negative COVID-19 test in the past seven days.

Nick McBride, Liberal MP for MacKillop – the electorate that covers border towns including Naracoorte, Bordertown and Penola – said it was time for those rules to be revised.

Mr McBride said South Australia had done a good job managing the virus, but it was now time to broaden the focus.

Mr McBride said he held concerns Adelaide-based decision makers lacked knowledge of the way regions functioned, particularly in terms of the cross-border community.

“The community has engaged well and they haven’t broken the rules,” he said. “Testing has all proven to be negative. They’ve been tested to death.

“We’re hoping that we get a better understanding and representation than we’ve seen so far.”

However, a state government spokesperson maintained border restrictions would lift as soon as health advice allowed.

Chief Minister Michael Gunner said the Northern Territory will revoke its coronavirus hotspot declaration for most of regional Victoria from November 2.

‘Tested to death’: SA-Vic cross-border community urges rule rethink

South Australia risks alienating Victorian people and businesses if it does not keep up with the reopening timelines of other states, border communities say.

www.news.com.au

SA/VIC border bubble has been increased from 40km to 70km but still not far enough.
Hopefully in the next week or so it’s lifted