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

 

[Melburnian1]

So people are happy to live with the flu even though the vaccine is normally often 30-50% effective.Indeed in 2017 the major strain causing severe flu had the vaccine being effective only 10% of the time.

And talking about loved ones dying do you realise how many have not been able to say their last goodbyes to a loved one because of border closures?Or been able to attend their funeral due to border closures and lockdown? i have seen it several times in the last 11 weeks.

And yes there are exemptions on compassionate grounds but many of those are denied.the worst case I have been associated with a daughter was given a compassionate exemption to come to Tasmania to be with her dying father but on arrival she was put into compulsory hotel quarantine and wasn't allowed out to visit him.So compassionate.

I gather 'the flu' each year causes 1500 to 3000 deaths annually in Australia.

So far with coronavirus we've had 102, although we're not through winter.

There are differences in transmission rates and as noted above we lack a vaccine for the present affliction but perhaps we all have to listen to medically trained individuals like drron who essentially say that we are 'cutting off our nose to spite our face,'

In Victoria, 99.8 per cent of the community is being punished for the actions of fewer than 0.2 per cent of the population. There's a cost to this in mental illness and worse, plus loss of careers and the shutdown of previously viable businesses.

 

[Pushka]

So people are happy to live with the flu even though the vaccine is normally often 30-50% effective.Indeed in 2017 the major strain causing severe flu had the vaccine being effective only 10% of the time.

And talking about loved ones dying do you realise how many have not been able to say their last goodbyes to a loved one because of border closures?Or been able to attend their funeral due to border closures and lockdown? i have seen it several times in the last 11 weeks.

And yes there are exemptions on compassionate grounds but many of those are denied.the worst case I have been associated with a daughter was given a compassionate exemption to come to Tasmania to be with her dying father but on arrival she was put into compulsory hotel quarantine and wasn't allowed out to visit him.So compassionate.

I have said to family several times to my family that I was pleased that my mother didn't have to go through this isolation in her nursing home and for 12 weeks because that would have just too much for her to bear. Had she been alive, I'm sure she would have preferred having ongoing contact and visits and even at risk at contracting and dying from Covid rather than just waiting for some unknown time in the future. And possibly not surviving that period anyway. And us knowing that her last days were spent completely alone.

And it was never visitors to nursing homes that brought the virus there but staff.

 

[Anna]

Not all Adelaide nursing homes decided to block visitors entirely. The one I have to visit has strict procedures eg questions about travel, illness, contact with ill people but if the answers are no then visits are allowed at set times with limited visitor numbers.

 

[Anna]

So there are several federal Deputy Chief Medical Officers but this one is my favourite. Dr Nick Coatsworth.

 

[JohnM]

So there are several federal Deputy Chief Medical Officers but this one is my favourite. Dr Nick Coatsworth.

View attachment 220809

Well, I won''t be putting up a picture of the DPRV deputy chief health officer...

 

[Pushka]

So there are several federal Deputy Chief Medical Officers but this one is my favourite. Dr Nick Coatsworth.

View attachment 220809

I have always listened to him

 

[nutwood]

And yes there are exemptions on compassionate grounds but many of those are denied.the worst case I have been associated with a daughter was given a compassionate exemption to come to Tasmania to be with her dying father but on arrival she was put into compulsory hotel quarantine and wasn't allowed out to visit him.So compassionate.

I find that seriously sad, mainly because I realise that the problem wouldn't have been lack of compassion, rather a simple surplus of beauracracy. My own efforts to engage in sensible discussion have been educational and the problem is easy to see!

 

[Pushka]

Not all Adelaide nursing homes decided to block visitors entirely. The one I have to visit has strict procedures eg questions about travel, illness, contact with ill people but if the answers are no then visits are allowed at set times with limited visitor numbers.

Maybe. But that doesn't help if your mum was in the wrong one.

 

[MEL_Traveller]

The Grattan Institute writes that QLD and WA border closures are the right thing. We know there are asymptomatic carriers, and if we need to quarantine international arrivals, sates should do the same thing: https://www.abc.net.au/news/2020-06...nd-western-australia-border-closures/12378410

So there is a risk. Will the High Court want to go into a detailed examination of the actual risk, or simply accept there 'is' a risk?

 

[Pushka]

The Grattan Institute writes that QLD and WA border closures are the right thing. We know there are asymptomatic carriers, and if we need to quarantine international arrivals, sates should do the same thing: Queensland and WA right to keep borders closed: Grattan report

So there is a risk. Will the High Court want to go into a detailed examination of the actual risk, or simply accept there 'is' a risk?

Elimination was never the plan. We can't eliminate and have an economy left. The plan was always to reduce impact on the health services so that people who needed a respirator would have access to one. I don't think there is more than one or two currently in Australia on a respirator. Yet in SA alone we have thousands sitting unused. Going forward it was supposed to be about managing clusters as they occur. SA did that really well in the Barossa as a region, and with the Baggage Handlers and Qantas ground staff as an occupational group. That is what we have to do in the future.

If the Grattan Institute wants ongoing funding from the Federal Government and State Governments, plus large corporates, then someone has to provide the money to pay for the funding. Currently there aren't many businesses able to think about profit, let alone tax, and that includes some of the very big ones. Can't imagine shareholders letting too many funds being driven away from core business or dividends, if they are even in the mix.

 

[jakeseven7]

So there is a risk. Will the High Court want to go into a detailed examination of the actual risk, or simply accept there 'is' a risk?

Of course there is a risk. There is also a risk of measles. There is also a risk of influenza which will more than likely take more lives this year in Australia.

They will have to look at the level it poses.

 

[MEL_Traveller]

I agree Pushka that at the outset, the aim was to reduce those needing intensive care and ensure ventilators were available. Since then we have discovered that ventilators aren’t the answer, you are very likely going to die if you get to the stage of needing a ventilator.

So we changed path to try and prevent even getting to that stage.

To me, I can’t put a price on my family being alive. The economy will have to take a temporary freeze.

 

[blackcat20]

Elimination was never the plan. We can't eliminate and have an economy left. The plan was always to reduce impact on the health services so that people who needed a respirator would have access to one. I don't think there is more than one or two currently in Australia on a respirator. Yet in SA alone we have thousands sitting unused. Going forward it was supposed to be about managing clusters as they occur. SA did that really well in the Barossa as a region, and with the Baggage Handlers and Qantas ground staff as an occupational group. That is what we have to do in the future.

If the Grattan Institute wants ongoing funding from the Federal Government and State Governments, plus large corporates, then someone has to provide the money to pay for the funding. Currently there aren't many businesses able to think about profit, let alone tax, and that includes some of the very big ones. Can't imagine shareholders letting too many funds being driven away from core business or dividends, if they are even in the mix.

And if we do go with elimination, we're never going to be able to open our international borders.
Even though Vic has a few cases at the moment, they are managing them (excluding the idiots who failed to isolate), which is really the whole point. Cases are going to pop up as more things open, as long as they can be identified and contained, then we should be ok.

 

[Pushka]

And if we do go with elimination, we're never going to be able to open our international borders.
Even though Vic has a few cases at the moment, they are managing them (excluding the idiots who failed to isolate), which is really the whole point. Cases are going to pop up as more things open, as long as they can be identified and contained, then we should be ok.

And thankfully this is the new message being promoted by SA Health. To expect the occasional positive and deal with it thoroughly.

Post automatically merged: Jun 22, 2020

I agree Pushka that at the outset, the aim was to reduce those needing intensive care and ensure ventilators were available. Since then we have discovered that ventilators aren’t the answer, you are very likely going to die if you get to the stage of needing a ventilator.

So we changed path to try and prevent even getting to that stage.

To me, I can’t put a price on my family being alive. The economy will have to take a temporary freeze.

Then as far as SA goes, stay off the roads! And please remember the hidden cost of significant mental health issues being experienced now.

 

[blackcat20]

And thankfully this is the new message being promoted by SA Health. To expect the occasional positive and deal with it thoroughly.

Post automatically merged: Jun 22, 2020

Then as far as SA goes, stay off the roads! And please remember the hidden cost of significant mental health issues being experienced now.

The problem is you've got places like QLD/WA who think it should be eliminated and therefore want nothing to do with us southerners. But they/we cant stay closed forever. Learning to manage the outbreaks is a far better outcome for everyone. We just have to get used to being tested and isolating as required.

 

[nutwood]

I think a bit of risk management is order at this stage. Our business is back in operation, but at the price of me being in perpetual quarantine. I'm out of quarantine at the moment but have to go to Sydney on Monday and then again towards the end of July.
I'm getting pretty experienced at COVID travelling and would say that I'm at a low risk of picking it up. All things are possible of course, but I'd have to be unlucky and I could be unlucky in Tasmania. Based on that, it would be nice if I could make a case, based on my risk assessment, procedures, and of course the nature of my travel. I go to specific locations, I log my contacts and don't mix with strangers.
Not sure how this could be incorporated into the border protection regime. Possibly along the lines of a visa? You submit an application, make your case, and hopefully receive a pass that allows you to travel across borders. They're sort of doing that now for "essential" workers but it's not really risk based and it's not open to everyone.

 

[DC3]

I’m not sure what happened to the ‘common good’ that was floating around in these threads a couple of months ago. It seems to have morphed a bit into something approaching ‘me, me, me’.

 

[antycbr]

The problem is you've got places like QLD/WA who think it should be eliminated and therefore want nothing to do with us southerners. But they/we cant stay closed forever. Learning to manage the outbreaks is a far better outcome for everyone. We just have to get used to being tested and isolating as required.

I think there are legitimate concerns at the highest levels of NSW/QLD/WA/SA state governments about the effectiveness of Victoria's medical track/trace/quarantine program.

• We've had large numbers of contractors at TWO quarantine hotels spike, pointing to lax process or poor control regimes.
• The Cedar Meats employee claims of not being at work while infectious were lies and this was not checked due to "privacy" with the employer.
• People directed to home quarantine seem to not be being checked randomly to make sure they are home and not hosting extended family members/friends yet people on a pier fishing are fined.

The Victorians may need to get an intervention to sort their s*** out - like what happened in northwest Tasmania.

 

[blackcat20]

I think there are legitimate concerns at the highest levels of NSW/QLD/WA/SA state governments about the effectiveness of Victoria's medical track/trace/quarantine program.

• We've had large numbers of contractors at TWO quarantine hotels spike, pointing to lax process or poor control regimes.
• The Cedar Meats employee claims of not being at work while infectious were lies and this was not checked due to "privacy" with the employer.
• People directed to home quarantine seem to not be being checked randomly to make sure they are home and not hosting extended family members/friends yet people on a pier fishing are fined.

The Victorians may need to get an intervention to sort their s*** out - like what happened in northwest Tasmania.

I don't think we have any issues with contact tracing, my understanding is that the origins of every current case is known.

People lying and failing to quarantine isnt a state issue, that's just people being selfish a-holes.

 

[antycbr]

I don't think we have any issues with contact tracing, my understanding is that the origins of every current case is known.

People lying and failing to quarantine isnt a state issue, that's just people being selfish a-holes.

You do have issues with contract tracing - it's taking too long and is not being crosschecked or enforced. At some point the common good must have to overcome concerns about "privacy" for the employee and the rigourous enforcement of home quarantine for positive cases must occur.

If Victoria can't sort this out the state borders will close. I have a number of friends who have written to their state members of NSW parliament asking for the VIC border to be closed.