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

 

[Seat0B]

Why do the long suffering airlines have to come to the party yet again?

Last time I checked they will lose Jobkeeper supplements being stepped down on 1 January again, making their operations even less viable than they are now. They are not charities and it's about time that our airlines make that very clear to all governments, both state and federal.

Can we also define health risk in a consistent, national manner that is accepted by all parties and allow people to make decisions about bookings with some form of confidence?

I feel a bit split as I agree with you @antycbr and also you @MEL_Traveller on this one. People do need to be able to book flexibly, and at an affordable price, because things just keep changing, through no fault at all of the customer. The inability to do that is a big disincentive as you suggest @MEL_Traveller, for business clients as well as holiday makers. But as you say @antycbr, why should the airlines wear the cost. Seems to me that what we actually need is consistency of border openings, providing reasonable cancellation windows and affordable options so people don't decide to just fly anyway. I don't see why that is so hard for travel, but apparently it is.

Edit: fixed up my Friday afternoon typos!

 

[MEL_Traveller]

The airlines have been incredibly patient with our state premiers. The airlines have implemented every control possible in ensuring that they are not impacted by or create any form of transmission. After all, intrastate travel in NSW has been running with low community transmission with no sign that it's stopping or slowing down and no transmission occurring on aircraft. If the name of the game is to stop mobility then all flights should be grounded nationwide and a curfew imposed.

On international, once again your position is incoherent. Our obligations to citizens does not stop when they depart Australia.

The US CDC has reported multiple confirmed cases of transmission on aircraft. They were long haul flights, but the problem with the airlines' claims on HEPA filters is that there are other areas of transmission on aircraft... surfaces and toilets, etc. Plus the process of getting on and off planes.

The Australian government provides consular and other services to Aussies overseas, but that has never extended to protecting our health while overseas. As pointed out earlier, people do all sorts of silly things overseas... take drugs at full moon parties, ride motorcycles without helmets, etc. But the government doesn't ban travel to 'protect' us in those circumstances.

So can the AFF opinion/judiciary now conclude no reason for State border restrictions that have the effect of stopping people leaving because there is no valid health ground???

I agree - I don't think people should be prevented leaving a state. But entering another state, or indeed returning to your home state, that's up to the state you wish to enter and their restrictions.

But as you say @antycbr, why should the airlines wear the cost. Seems to me that what we actually need is consistency of border openings, providing reasonable cancellation windows and affordable options so people don't decide to just fly anyway. I don't see why that is so hard for travel, but apparently it is.

it's not the certainty of travel I was getting at, but those who might need to get tested, or quarantine following testing or other close contact. If the airlines (and any other public transport for that matter) don't offer them flexibility, they may feel they have no choice but to fly while sick.

The airlines are demanding the borders open, which carries risks. So perhaps they too should accept some risk?

 

[jase05]

The airlines have implemented every control possible in ensuring that they are not impacted by or create any form of transmission.

Are they doing everything possible?
Have had 5 flights on QF over the last week and a bit and 4 of them were packed and the other about 3/4 full. Masks not compulsory and on the flight from SYD-ADL I’d estimate only 30-40% wearing them. Why isn’t it compulsory and why are passengers crammed in like sardines when everywhere else we go we are told to socially distance ourselves?

 

[TheRealTMA]

Interestingly, looks like this Xmas will be one of the biggest for domestic tourism.

Those 11million overseas visits fast year now have to go somewhere.

 

[dajop]

If it was truly about health it wouldn't be about the artificial state borders. I was watching something the day that was rudely interrupted by Dan's Daily Lecture and Grilling, and it was telling the story of WA police patrolling the WA/NT border to the east of Hall's Creek. Is this what Australia has come to? What a waste of resources. Protect the outback? Yes. Protect each border within the outback? For goodness sake, things are really off the rails.

If Vic was to apply the Qld approach, now that Sydney has had a few cases, Dan should be closing off the NSW border to ensure that NSW residents can't enter regional Victoria!

 

[drron]

The WA government is living in a world of it's own.Today I talked to a woman whose son is a FIFO miner in WA.Working near Kalgoorlie on a 2 week on 1 week off roster and is supplied housing in Perth for the week off.He is swabbed every time he gets on a plane.I really can't think why.
So he has not seen his children back here in Tasmania since the end of february.What a heartless way to treat the people of whose backs the WA economy is working off.

 

[MEL_Traveller]

The WA government is living in a world of it's own.Today I talked to a woman whose son is a FIFO miner in WA.Working near Kalgoorlie on a 2 week on 1 week off roster and is supplied housing in Perth for the week off.He is swabbed every time he gets on a plane.I really can't think why.
So he has not seen his children back here in Tasmania since the end of february.What a heartless way to treat the people of whose backs the WA economy is working off.

I don't know if these rules have been updated, but according to the WA website, the FIFO worker is free to leave WA, and is an exempt worker to return, subject to a 2-week quarantine: https://www.wa.gov.au/sites/default/files/2020-04/Frequently Asked Questions - Border Controls.pdf

 

[oz_mark]

I don't know if these rules have been updated, but according to the WA website, the FIFO worker is free to leave WA, and is an exempt worker to return, subject to a 2-week quarantine: https://www.wa.gov.au/sites/default/files/2020-04/Frequently Asked Questions - Border Controls.pdf

The requirement for a 2 week quarantine makes it unworkable for many FIFO workers.

 

[drron]

The requirement for a 2 week quarantine makes it unworkable for many FIFO workers.

Exactly.He was presented with the choice of seeing his family or keeping his job.

 

[antycbr]

Tick Tock, Christmas is getting closer for our beloved Premiers:

Almost one in two Australians say state borders should be opened within a month, and two in three say they should be open by Christmas, new research shows.

Sixty-five per cent said they wanted interstate travel to be possible by Christmas, and 75 per cent said they supported border openings within three months.

No Cookies | The Courier Mail

No Cookies

www.couriermail.com.au

 

[jeza]

Have been helping to facilitate a bit of training at work this week, mainly with Uni students & just from listening to conversations it would seem the closed WA border is still very popular. I thought there may have been differing views to that of my normal work & social connections but very similar views were expressed.

This is consistent with recent polling of 3500 respondents in 5 Marginal seats giving 77% supporting the hard border.

Essential Research budget expectations polling – The Poll Bludger

www.pollbludger.net

In other poll news, The West Australian has been dealing out further results from the poll of 3500 respondents that recorded a 16% swing on state voting intention to Labor – remembering that this was a poll of five selected marginal seats, and not of the entire state. The poll found support for Western Australia’s hard border at 77% with 14% opposed, and support for secession at 28% and opposition at 55%, with 17% somehow unclear of their opinion.

Essential Research on State Government response to Covid.

State government response to Covid-19 - The Essential Report Archive

Q. How would you rate your state government’s response to the Covid-19 outbreak? TOTAL: Good 05/10 21/09 07/09 24/08 10/08 27/07 13/07 22/06 15/06 08/06 01/06 NSW 65% 67% 57% 59% 61% […]

essentialvision.com.au

From my own personal interactions if the views on the WA hard border are changing it is by small increments at the moment.

 

[antycbr]

Have been helping to facilitate a bit of training at work this week, mainly with Uni students & just from listening to conversations it would seem the closed WA border is still very popular. I thought there may have been differing views to that of my normal work & social connections but very similar views were expressed.

This is consistent with recent polling of 3500 respondents in 5 Marginal seats giving 77% supporting the hard border.

Essential Research budget expectations polling – The Poll Bludger

www.pollbludger.net

Essential Research on State Government response to Covid.

State government response to Covid-19 - The Essential Report Archive

Q. How would you rate your state government’s response to the Covid-19 outbreak? TOTAL: Good 05/10 21/09 07/09 24/08 10/08 27/07 13/07 22/06 15/06 08/06 01/06 NSW 65% 67% 57% 59% 61% […]

essentialvision.com.au

From my own personal interactions if the views on the WA hard border are changing it is by small increments at the moment.

We need to go through Christmas to really see the pain of the closed borders. It's still abstract at the moment but when people realise our Beloved Leaders are serious about not opening and it's 1 December... thats then the opinion will change.

 

[jeza]

We need to go through Christmas to really see the pain of the closed borders. It's still abstract at the moment but when people realise our Beloved Leaders are serious about not opening and it's 1 December... thats then the opinion will change.

I have a feeling many in WA are quite happy to wait & see if all the other States & Territories can actually successfully open up to each other without COVID getting loose again.

 

[desafinado74]

What do they have to gain? It’s a fast track to electoral defeat if it goes wrong. There is no manual for this, no playbook. No one knows whether any particular action is going to lead to electoral victory... so on that basis, it would seem anything they do is a pretty big risk. That leads me to think their motives are genuine, driven by trying to get the best outcomes, at least health wise, that they can.

Try telling that to Premier Dan Andrews. Disturbingly, he seems to be enjoying his new found powers a bit too much. (Re the now watered down Omnibus bill after fierce opposition) On top of that, he and his gang of 8 and CHO are totally incompetent with the virus management with their ridiculous re opening targets, and draconian restrictions such as the curfew and 5km rule limit. (Don't forget about the shocking contact tracing department which was still using fax machines until recently)

Plus Dan, the CHO Sutton and cabinet should get a vaccine for amnesia, since they could not recall / remember anything during the hotel inquiry.

And no excuses not to re open all state borders by December.
Cases are so low everywhere within Australia, including Victoria, and the chances of catching the Corona virus is very low inside a plane.

 

[MEL_Traveller]

Try telling that to ... Dan Andrews. Disturbingly, he seems to be enjoying his new found powers a bit too much. (Re the now watered down Omnibus bill after fierce opposition)

Quite the opposite, in fact. It shows democracy in action, with the government subject to parliamentary process.

 

[OATEK]

All i seem to recall from the Ruby Princess was that no one took responsibility? Border force said ‘no’, states are responsible for health. Yet the feds are responsible for determining international quarantine. So mixed messages and no one really took responsibility. Well... that was my take. Appreciate others may have a different view.

Needing clear and transparent guidelines applies across the board. We need them for medical exemptions, just as we need them for international departures/travel. It is relevant to link both in the context of needing clear, transparent and equitable policy.

Watch the video hearings of those held responsible for Ruby Proncess (like this one), and contrast those to the "I don't know, it wasn't me" interviews in Vic.

 

[jakeseven7]

I have a feeling many in WA are quite happy to wait & see if all the other States & Territories can actually successfully open up to each other without COVID getting loose again.

What does that even mean? Covid is already ‘loose’ in small numbers in VIC, NSW, QLD.

 

[Pushka]

And then there is this:
Palaszczuk lets millionaire skip quarantine

Hannah Paine
A former airline boss has been granted an exemption by Queensland Premier Annastacia Palaszczuk's government to skip hotel quarantine.
Former Jetstar boss Jayne Hrdlicka was photographed getting into a limo at Brisbane airport on September 26, with the exemption understood to have been granted because her husband is battling cancer, The Courier Mail reports.
There is no suggestion of any wrongdoing on Ms Hrdlicka's part.
It comes as a brain cancer patient given just months to live was initially forced into hotel quarantine by the Queensland government.
Queensland’s Chief Health Officer Dr Jeannette Young yesterday announced Gary Ralph had been granted an exemption to isolate at his Brisbane home following surgery in Sydney.
The change of heart came after Mr Ralph went public with his plight, prompting pleas from A Current Affair host Tracey Grimshaw and Prime Minister Scott Morrison to make an exception for the terminally ill man.

Post automatically merged: Oct 10, 2020

I have a feeling many in WA are quite happy to wait & see if all the other States & Territories can actually successfully open up to each other without COVID getting loose again.

So SA has been open to all but NSW and Victoria since July and NSW for a few weeks now. Waiting waiting. What for?

And nephew has been deployed from SA to WA last week for maintaining border control/quarantine issues for 3 months. He will miss Christmas at home. And is still required to serve 14 days quarantine in Perth. Nice of the WA Government.

 

[jakeseven7]

And then there is this:
Palaszczuk lets millionaire skip quarantine

Hannah Paine
A former airline boss has been granted an exemption by Queensland Premier Annastacia Palaszczuk's government to skip hotel quarantine.
Former Jetstar boss Jayne Hrdlicka was photographed getting into a limo at Brisbane airport on September 26, with the exemption understood to have been granted because her husband is battling cancer, The Courier Mail reports.
There is no suggestion of any wrongdoing on Ms Hrdlicka's part.
It comes as a brain cancer patient given just months to live was initially forced into hotel quarantine by the Queensland government.
Queensland’s Chief Health Officer Dr Jeannette Young yesterday announced Gary Ralph had been granted an exemption to isolate at his Brisbane home following surgery in Sydney.
The change of heart came after Mr Ralph went public with his plight, prompting pleas from A Current Affair host Tracey Grimshaw and Prime Minister Scott Morrison to make an exception for the terminally ill man.

QLD’s / Dr Young’s border policies have come undone spectacularly this week, yet again.

This was supposed to have been fixed after QLD / Dr Young made a huge amount of poor decisions earlier this year that were called out publicly. She had some of her decision responsibility stripped from her and a new process put in place apparently.

Clearly this new process is not working with normal people with cancer detained in a hotel but again people with $$$$ and status are waved through with big smiles and compliments.... (coincidence that this person is working with the QLD government on VA2 - something the QLD gov just sank $200m into?!)

Disgusting double standards. Again. Clearly something very very fishy going on here.

It’s number 1 news item up here so hopefully this forces Dr Young to front up and explain herself. Again.

 

[jakeseven7]

The airlines have been incredibly patient with our state premiers. The airlines have implemented every control possible in ensuring that they are not impacted by or create any form of transmission.

And in return certain Bain/VA2 airline staff are getting very very special treatment from QLD on state border restrictions, getting to skip hotel quarantine via compassionate exemptions that other normal people are denied.... because the QLD now government owns a part of VA2? Little bit weird now....