State border closures illegal under the highest law in the country?

bigbadbyrnes

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Oct 24, 2011
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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
 
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Repeating because it's fun to get caught up in the political sideshow media (and politicians) are trying to ham up;

Reduced tax receipts + unprecedented levels of govt. debt = unbuilt hospitals, unmaintained roads, tighter budgets for police and health professionals for years. This will cost lives.
 
Repeating because it's fun to get caught up in the political sideshow media (and politicians) are trying to ham up;

Reduced tax receipts + unprecedented levels of govt. debt = unbuilt hospitals, unmaintained roads, tighter budgets for police and health professionals for years. This will cost lives.

Similarly, doing nothing would have cost lives.
Finding the balance is a challenge, and different people have different opinions.
 
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Repeating because it's fun to get caught up in the political sideshow media (and politicians) are trying to ham up;

Reduced tax receipts + unprecedented levels of govt. debt = unbuilt hospitals, unmaintained roads, tighter budgets for police and health professionals for years. This will cost lives.

Not if we borrow from China, we just cancel the debt ourselves and let people in China suffer, the best punishment of China imposing National Security Laws in HK IMO.
 
Similarly, doing nothing would have cost lives.
Finding the balance is a challenge, and different people have different opinions.

Totally agree. Anyone who wants to start the conversation with "this is difficult and there's great points on both sides and we're working with incomplete information" is totally right.

That's a conversation that just isn't happening enough.

A premier this week described the states border restriction as 'an inconvenience'. Probably a slip of the tongue because I imagine they're very briefed on the information from both sides of the argument, but it's anything but an 'inconvenience'.
 
SA’s “state of emergency” is set to end at midnight tomorrow but hearing that cabinet has put a request in to the Governor to extend it by another month. Looks like our border might be staying shut 😔
 
SA’s “state of emergency” is set to end at midnight tomorrow but hearing that cabinet has put a request in to the Governor to extend it by another month. Looks like our border might be staying shut 😔
Maybe open for school holidays in July. Issue has lessened for our business somewhat with Andrews ban today on return to office for the month.

NSW reported 2 more cases - more damage - yet both were in Quarantine from OS travel. Sigh.
 
Premier Marshall has just said the following re SA's state borders. Revisiting the idea that they will open state borders incrementally and not all at once.

So, we know, in South Australia, that we have the transition committee, which has been established.

And they are looking very carefully at the easing of the borders. It’s likely to be done in an incremental way in South Australia.

It’s likely to be done with those jurisdictions with low or no numbers, and certainly those jurisdictions with no community transmission, before we would look to opening up our borders more broadly.
/QUOTE]
 
ScoMo's just said in his presser that it was never envisaged that state borders would open before July
 
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Totally agree. Anyone who wants to start the conversation with "this is difficult and there's great points on both sides and we're working with incomplete information" is totally right.

That's a conversation that just isn't happening enough.

A premier this week described the states border restriction as 'an inconvenience'. Probably a slip of the tongue because I imagine they're very briefed on the information from both sides of the argument, but it's anything but an 'inconvenience'.

Obviously peoples level of inconvenience varies, but to me shutting all the restaurants, cafes and bars has been more of an inconvenience.
 
Obviously peoples level of inconvenience varies, but to me shutting all the restaurants, cafes and bars has been more of an inconvenience.

Me too.

Unbuilt hospitals, maintenance and upgrade delays to roads, and restricted funds to police, health care professionals and everything else over the next ten years probably not so much an inconvenience, but rather something that will cost lives.
 
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So the talk today is a bubble for SA and Canberra. Seems very likely. Soon. Canberra's 'border' is open so really it's just SA talking here. No one seems to be thinking about the elephant in the room.
 
As ScoMo's judgement is often unsound, I would not put much weight on what he thought or did not think (e.g. in mid-March he thought it was OK to have large gatherings at sporting events, yet two weeks later 10 people at an event was too many).
Well the same can be said by our own Health Department who allowed a huge gathering at Festival of arts and Fringe on the Sunday in mid March and Monday said everything was off limits! Same weekend.
 
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Queensland lifts ban on travel within the state
By Stuart Layt
In a press conference at the same time as her Victorian counterpart, Queensland premier Annastacia Palaszczuk has announced a lifting of travel bans within the state, but its borders remain closed.
Ms Palaszczuk said she believed it was the best way to boost struggling local tourism operators while also balancing health concerns around opening the state borders to interstate visitors.

The Premier has been under pressure in recent weeks from NSW and federal government figures as well as business groups to reopen the borders to stimulate the economy and help struggling businesses.

Queensland has recorded another day of no new coronavirus cases on Sunday, with a coughulative total of 1058 cases.

Source: Coronavirus Australia updates LIVE: COVID-19 cases surpass 6 million, Australia death toll at 103

Queensland has just lifted the ban on travel within the State, so I think it may be a matter of next month whether we can see Interstate travel resumes again.

If Queensland is to take a cautious approach, I think they will wait and see whether there will be more community transmission as NSW opens up, as well as whether Victoria can reduce the number of cases there. If that's the case, we might be able to see Queensland open up by July or August (definitely not September) and Trans-Tasman travel open initially to NSW, and Victoria then to Queensland by the same time.
 
He never envisaged they would close! But I agree, end of June seems a key date, all going well.

Although they did envisage that there would be no (or very limited) leisure travel, so I guess for some states it was a way of implementing that (and going a bit further...)
 

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