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

 

[drron]

There certainly is a case for closing the Victorian border.NSW is much more borderline.
But even in Victoria and NSW there are many areas that have not seen a covid case so why are they being penalised.

For the other State and territories there is no current health reason for them to have borders closed to each other.
Annastacia says she is keeping the borders closed on heath advice.Sorry in medicine people are entitled to a second opinion.I want mine.The Commonwealth CMOs have not been in favour of State border closures.So open your mind to some other opinions AP.

 

[Rembrandt]

When is the Palmer case coming back to court? It appears the situation with state borders has escalated this week with patently ridiculous actions from QLD (denying medical access to people and claiming their hospitals are only for Queenslanders). This is NOT a competition to see how tough you are and how much misery you can inflict on other Australians using Federal government money.

The idea of proportional risk assessment has gone right out the window. If all you ever listen to is health advice, you'd lock yourself away permanently.

I never thought I'd agree with Clive, but here we are.

Maybe the federal government should cut Job Keeper and the increased Job Seeker to some of these states. The popularity of some premiers would fall very quickly once their residents realise how little the state government can support them financially.

We're seeing European governments now refuse to go back into strict lock downs as they've seen the economic disaster this will cause. They're now choosing to live with the virus as best they can. Australia needs to find a compromise and road map to reopen after September or we're going to see many Aussies in poverty thanks to the bickering of federalism and the elections of a few leaders.

We can aim for elimination, but I'm almost certain the virus will come back into the country and spread. And if we go down the lock down path yet again there will be mass people protesting on the streets wanting the government sacked that makes that decision.

 

[VPS]

I was chatting to a cop in a coffee shop in Adelaide the other and it came up he has been based in Penola down on the SA Vic border. There are dozens of roads down there that people can get across but many of the farmers have permits if they have property both sides of the border.

One comment that I hadn't thought about was that the motels are very happy down there because the cops have the place booked for months and they are eating out and shopping in the community.

He didn't tell me this but someone else did that they are putting cameras on the dirt roads and in the pine forests so that even if they can't man all the roads they are checking on traffic.

 

[antycbr]

The problem is that the Nats are pretty much lightweights in the coalition government. They never seem to really be able to make much headway, even with all the well-intentioned talk. They never get to call the shots.

I think the Economic Dry end of the liberal party is in full agreement with the Nats here - these lock downs will drive thousands of businesses and individuals into bankruptcy.

 

[tgh]

these lock downs will drive thousands of businesses and individuals into bankruptcy

Perhaps… but the dry end , the coughing businesses, and whoever else is agitating… need to stand up and tell everyone how many oldies they propose to sacrifice for a bit of turnover...

 

[drron]

The border crossings from South West QLD to SA are also monitored.Most have a gate and an SA or QLD police vehicle.The Inforemation centre in thargomindah shows a couple of wecams from the border.
As an aside the Mayor of Thargomindah shire is Tractor ferguson.

As to the WA couple.Why did they need those plans?Only had to get into SA,get a border pass and fly from ADL to QLD.
Or if they had a 4WD upthe Birdsville or Strezlecki tracks.All legal.

 

[nutwood]

It's an opinion I've stated before but happy to do again, in that we need to look at this as a nation not States.
I've been asked to look at a job in western NSW. Wilcannia area. I'm Tasmanian based. My best shot is that I drive 250 km to Hobart, fly to Adelaide, head up via Broken Hill and drive 850 km to site. Conduct inspection and reverse trip.
Hobart to Adelaide, should be OK. SA to NSW, likewise. NSW to SA not so good. I have essential traveller permits for every State but they're still subject to assessment at the border. SA back to Tas. Again, essential traveller but I've now been to a hot spot; NSW. Doesn't matter that I only saw two people, twelve goats and a seriously big kangaroo, I crossed that border and cannot be sure of my reception back into Tasmania.
The situation is crazy. If this is going to be around for a while we need to develop an architecture of practical risk assessment and deal with localities not States.

 

[antycbr]

these lock downs will drive thousands of businesses and individuals into bankruptcy

Perhaps… but the dry end , the coughing businesses, and whoever else is agitating… need to stand up and tell everyone how many oldies they propose to sacrifice for a bit of turnover...

So what is the plan? Zero transmission at all? That didn’t work for NZ.
From what I can see there is no need to have states with minimal or no transmission isolated from each other. Remember these are just lines on a map set in the 19th century Colonial Office in London. If we are doing lockdowns can we use something vaguely useful like LGAs? States in Australia are too big for lockdowns to make sense.

On the economic argument states that have no community transmission and open domestic economies can make do without Jobkeeper as it’s clearly not needed based on the state premiers interpretation.

You cannot hold the economic future of younger people hostage for older people indefinitely without mass civil insurrection starting to break out. There’s already enough inter generational resentment towards boomers as it is.

 

[tgh]

If this is going to be around for a while we need to develop an architecture of practical risk assessment and deal with localities not States.

indeed… but guvm'nt is always glacial when the cost of failure = votes.
We are all just marking time and sweating on a vaccine

 

[tgh]

You cannot hold the economic future of younger people hostage for older people indefinitely without mass civil insurrection starting to break out. There’s already enough inter generational resentment towards boomers as it is.

Passionate words.. but vacuous nonetheless.. how many do you personally advocate killing.. for the amelioration of the inter generational resentment ?

 

[MEL_Traveller]

You cannot hold the economic future of younger people hostage for older people indefinitely without mass civil insurrection starting to break out. There’s already enough inter generational resentment towards boomers as it is.

Sad isn't it? The 'older people' gave up five years of their life fighting a world war to keep us safe. We can't even spend five months on the couch to keep them safe.

 

[antycbr]

You cannot hold the economic future of younger people hostage for older people indefinitely without mass civil insurrection starting to break out. There’s already enough inter generational resentment towards boomers as it is.

Passionate words.. but vacuous nonetheless.. how many do you personally advocate killing.. for the amelioration of the inter generational resentment ?

Passionate words.. but vacuous nonetheless.. How many do you propose to kill through suicide and self harm caused by the economic damage?

Older Australians receive services that are funded by working Australians who pay taxes and contribute to the economy.

I am not proposing let it rip but at this stage with such a tiny number of cases outside VIC and Metro Sydney there is no justification why every other state is not open.

 

[nutwood]

If this is going to be around for a while we need to develop an architecture of practical risk assessment and deal with localities not States.

indeed… but guvm'nt is always glacial when the cost of failure = votes.
We are all just marking time and sweating on a vaccine

So very true, but at the moment marking time is Jobkeeper subsidised. The hard discussions can be avoided whilst there's two billion plus being dropped into the economy every week.

 

[antycbr]

Sad isn't it? The 'older people' gave up five years of their life fighting a world war to keep us safe. We can't even spend five months on the couch to keep them safe.

Fewer than 3000 WW2 veterans are alive in Australia according to the DVA

I doubt we would tolerate more than 100 billion of debt and a future decade of unemployment for thousands, when we could come up with an effective framework to protect the vulnerable including all WW2 veterans.

Somewhere we have lost all idea of risk management.

 

[MEL_Traveller]

Passionate words.. but vacuous nonetheless.. How many do you propose to kill through suicide and self harm caused by the economic damage?

Older Australians receive services that are funded by working Australians who pay taxes and contribute to the economy.

I am not proposing let it rip but at this stage with such a tiny number of cases outside VIC and Metro Sydney there is no justification why every other state is not open.

in an article posted by drron in another thread, the increase in suicide from Covid could be as low as 1%.

It's 1% vs the breakdown of our health system.

There are 345 families that couldn't be with their parents as they died these last couple of weeks in Victoria. Putting commercial interests above dignity at death? Tough call. but one that has been rejected by the PM and all state governments.

That being said... the border closures should not be impacting on essential services such as food or medical care. That is a clear case of one size not fitting all.

 

[antycbr]

in an article posted by drron in another thread, the increase in suicide from Covid could be as low as 1%.

Any conclusion about the rate of suicide at this stage is premature. Let’s see what happens when JobKeeper stops.

 

[nutwood]

Sad isn't it? The 'older people' gave up five years of their life fighting a world war to keep us safe. We can't even spend five months on the couch to keep them safe.

Understand the sentiment but really? Second World War started in 1939. A seventeen year old who joined up was born in 1922. They are currently 98. Totally agree there may be some who fit this category but surely, if this is about this very small number of people, they could be kept in comfort at a far less cost than the entire country "five months on the couch"?
I'm not dismissing the effect of Covid on older people but the World War reference is a bit too much!

 

[p--and--t]

As an aside the Mayor of Thargomindah shire is Tractor ferguson.

off topic, but

Mayor ‘Tractor’ Ferguson awarded OAM for services to LG - Australian Local Government Association

John (“Tractor”) Ferguson, who began his career as a grader driver for the Bulloo Shire and later became its mayor, has been awarded a Medal of the Order of Australia (OAM). Mr Ferguson was one of 12 serving or retired councillors who were recognised in the 2020 Queen’s Birthday Honours for...

alga.asn.au

 

[Steady]

It's an opinion I've stated before but happy to do again, in that we need to look at this as a nation not States.
I've been asked to look at a job in western NSW. Wilcannia area. I'm Tasmanian based. My best shot is that I drive 250 km to Hobart, fly to Adelaide, head up via Broken Hill and drive 850 km to site. Conduct inspection and reverse trip.
Hobart to Adelaide, should be OK. SA to NSW, likewise. NSW to SA not so good. I have essential traveller permits for every State but they're still subject to assessment at the border. SA back to Tas. Again, essential traveller but I've now been to a hot spot; NSW. Doesn't matter that I only saw two people, twelve goats and a seriously big kangaroo, I crossed that border and cannot be sure of my reception back into Tasmania.
The situation is crazy. If this is going to be around for a while we need to develop an architecture of practical risk assessment and deal with localities not States.

AFAIK only Vic is considered a hotspot by Tas - not NSW, as a Tassie resident you will be able to quarantine at your place of residence.

I have an employee returning from a job in Parkes next week. The others are heading home to QLD and that will now cost $2,700.00 for gov lodgings and 80h Wages each. Not the case when they went on the job 5 weeks ago

(assuming I have understood what you are saying in your post correctly)

 

[drron]

Sad isn't it? The 'older people' gave up five years of their life fighting a world war to keep us safe. We can't even spend five months on the couch to keep them safe.

But we don't keep them safe even staying on the couch for 5 months.
How many of the Victorian dead are elderly.So your solution is also a failure.

I keep going back to Taiwan.No complete lockdown.restaurants,schools and many businesses still opening with some distancing and with a population virtually the same as Australia's - 486 cases with 7 deaths.If we had the same death rate as Taiwan per 100000 population we would have had just 8 Covid deaths.
And the major weapons are the old fashioned masks and hand washing and digital technology supported by penalties that really send a message.

How Taiwan is battling coronavirus with tech, crowdsourced data and trust

Taiwan has kept its COVID-19 numbers low compared to other countries: It has seen fewer than 500 cases and seven deaths. Much of that success has been attributed to Taiwan's approach to technology, led by the government's digital minister Audrey Tang.

www.pri.org

And how they did it initially.

Analysis of Imported Cases of COVID-19 in Taiwan: A Nationwide Study

In the early stages of the 2019 novel coronavirus disease (COVID-19) pandemic, containment of disease importation from epidemic areas was essential for outbreak control. This study is based on publicly accessible data on confirmed COVID-19 cases in Taiwan ...

www.ncbi.nlm.nih.gov

But we could have done much more and should be doing much more to prevent the elderly from dying.Basically they should be locked down.And yes tgh it means you and I and even the sprightly JohnM being locked down.

But there will be some who despite the risk will not want to be restricted and who are willing to take the risk.Which is OK if they have made a truly informed choice.Hope is a magic medicine and there are many examples where hope has let people live way longer than they really should have.I can recount many examples of people near death who have lived at least many months just by being allowed to travel