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

 

[TheRealTMA]

'This is a nuclear attack': McGowan slams latest legal challenge by Clive Palmer

WA Premier Mark McGowan signals the state's hard border could remain in place until March 2021, while responding to mounting litigation from mining billionaire Clive Palmer, likening the numerous legal challenges as a "nuclear attack" on the state.

www.abc.net.au

It would be funny if it were not so sad.

Not in anyway a supporter of our 57th national living treasure Clive Palmer (Clive Palmer, mining magnate, placed on list after his staff were instructed to vote for him), it is quite appalling that the WA govt passed retrospective legislation to override a contract they signed in 2002.

 

[MEL_Traveller]

No one is arguing that the Victorian border needs to stay closed. What you keep pointing out does NOT apply in other, arguably better managed jurisdictions.

On the second point, there are many factors that people vote on. However the current situation with border closures is leading to economic impacts which are being borne by others. If you are able to close borders with a low cost to your own citizens because NSW and VIC are paying for your Jobkeeper and Jobseeker, that’s not fair. The states need to be accountable for the decision and bear the COST of that decision rather than transferring it to others.

That's the thing. Victoria started from one family. And presumably one person carrying that out to the wider community. If it can happen here then it could happen anywhere.

I'm from Victoria, I personally have no problem with any state using my tax money for jobkeeper/jobseeker (well, I *did* have an issue where a causal was earning 4x their weekly salary under jobkeeper due to the fixed-rate of the payment, but that's getting fixed now.)

 

[Must...Fly!]

That's the thing. Victoria started from one family. And presumably one person carrying that out to the wider community. If it can happen here then it could happen anywhere.

I'm from Victoria, I personally have no problem with any state using my tax money for jobkeeper/jobseeker (well, I *did* have an issue where a causal was earning 4x their weekly salary under jobkeeper due to the fixed-rate of the payment, but that's getting fixed now.)

What if it takes 3 years to find a vaccine?

 

[drron]

Yes in a designated flu ward you do wear PPE most of the day.Usually not shields though.And yes staff who work in such a ward do have to have had a flu vaccination.
As I have said before I did work in a flu ward in 2019.As the physician in charge.

 

[MEL_Traveller]

Yes in a designated flu ward you do wear PPE most of the day.Usually not shields though.And yes staff who work in such a ward do have to have had a flu vaccination.
As I have said before I did work in a flu ward in 2019.As the physician in charge.

But I'm still trying to establish the connection. It was stated hospitals are not being stretched, or at their limits. And a comparison was made with the flu at this time of year.

Does the flu infect 1000+ medical staff each year and they have to quarantine for 14 days as a result, with other staff having to work double shifts to compensate? And retired nurses and doctors have to be called up every year to boost staff numbers? It's not necessarily a case of beds with covid, but the impact on staff.

Elective surgery may have been cancelled, but hospitals are being used to accommodate aged care residents where adequate care cannot be provided in their usual place of residence.

 

[antycbr]

That's the thing. Victoria started from one family. And presumably one person carrying that out to the wider community. If it can happen here then it could happen anywhere.

I'm from Victoria, I personally have no problem with any state using my tax money for jobkeeper/jobseeker (well, I *did* have an issue where a causal was earning 4x their weekly salary under jobkeeper due to the fixed-rate of the payment, but that's getting fixed now.)

Victoria started from one family but the lack of effective contact tracing (which is specific to Victoria and a failing of the State Department of Health and Human Services) resulted in many more cases before the penny dropped. NSW jumps on every single case and investigates thoroughly. Public health messaging is done clearly and effectively. Interventions are made where necessary such as the school system changes. The economy is open.

An observation: The whole country does not need to be treated the same as Victoria which has unique factors that have led to its outbreak. Remember the approved national strategy is supposed suppression, allowing the economy to open with a few cases which need to be managed effectively. The recent cases in QLD will show how effective QLD is in managing a similar level to NSW.

 

[MEL_Traveller]

True. But an error can be made anywhere, at any time. Is it worth the risk? Many state governments say it is not.

 

[antycbr]

True. But an error can be made anywhere, at any time. Is it worth the risk? Many state governments say it is not.

Life is a risk.

 

[MEL_Traveller]

Life is a risk.

Again true. But this has been declared first and foremost as a health emergency by the PM. He has been very clear that the priority is to fix the health risks, then look at the economy. In that light, none of the current actions by the states or feds are really that confusing.

 

[antycbr]

Again true. But this has been declared first and foremost as a health emergency by the PM. He has been very clear that the priority is to fix the health risks, then look at the economy. In that light, none of the current actions by the states or feds are really that confusing.

The PMs tune is changing. He has asked for a definition of a hotspot to make it clear when border closures are not required by a health risk, and are in fact a political decision.

Watch this space, the economic argument is coming, whether you like it or not.

If I was Alan Joyce I’d be wargaming shutting the whole airline down to force the issue. He has form on this before...

 

[drron]

But I'm still trying to establish the connection. It was stated hospitals are not being stretched, or at their limits. And a comparison was made with the flu at this time of year.

Does the flu infect 1000+ medical staff each year and they have to quarantine for 14 days as a result, with other staff having to work double shifts to compensate? And retired nurses and doctors have to be called up every year to boost staff numbers? It's not necessarily a case of beds with covid, but the impact on staff.

Elective surgery may have been cancelled, but hospitals are being used to accommodate aged care residents where adequate care cannot be provided in their usual place of residence.

It's not just the flu that is down.Other respiratory viruses are also down.in victoria no elective surgery.
And yes in winter even amongst hospital staff sick leave is a lot higher and around Australia more than 1000 would be off due to illness of one sort or another.
And where did you get the 1000+ medical staff infected?That is way more than the true figure.Even for hospital staff.

 

[MEL_Traveller]

And where did you get the 1000+ medical staff infected?That is way more than the true figure.Even for hospital staff.

That's the Victorian figure, widely reported, and acknowledged by the nurses/medical union. 1000+ staff have been infected wih covid, and of course all will involve 14 day+ isolation. I'm trying to establish if that's normal to have so many staff off for such an extended period with the flu? I suspect not if the army has to be called in to drive ambulances.

one article is here: Number of infected healthcare workers in Victoria 'of profound concern', doctor says

 

[drron]

So health care workers not medical staff.
And not just hospital staff.From your link-
"Just over 50 per cent were "other healthcare" workers — which includes disability workers, pharmacists, paramedics and other allied health professionals.
"
So includes workers in the private sector,disability and aged care.So not hospital staff alone.
Hospitals are not stretched or near breaking point.Even in Victoria.

 

[p--and--t]

That's the Victorian figure, widely reported, and acknowledged by the nurses/medical union. 1000+ staff have been infected wih covid, and of course all will involve 14 day+ isolation. I'm trying to establish if that's normal to have so many staff off for such an extended period with the flu? I suspect not if the army has to be called in to drive ambulances.

The article states that only 42% of that 1,000 are nurses and less than 50% are hospital staff. The remainder are "allied" people like pharmacists, physios, ambos, disability workers .

I read somewhere there were around 75,000 nurses in Victoria in 2011 in normal times (they have organically increased since then and allegedly additionally been supplemented from interstate for Covid)

500 out of around [Edit] 96,500 as at June 2015 80,000 doesn't seem a large number of absentees to me. Especially when all non-essential surgery has been cancelled. There have been several media stories of hospital staff being stood down because there is/was no work for them.

There must be a plenty supply to service needs as the gov has on request from the feds moved underutilised nurses from hospitals into nursing homes to beef up expertise, and shore up staff shortages (which were chronic before covid).

one article is here: Number of infected healthcare workers in Victoria 'of profound concern', doctor says

I think the main concern of the AMA is they don't know how they are getting infected and covid is potentially more lethal than the flu and other things the staff often contract. Additionally there is no vaccine for covid, whereas there is for seasonal flu. PPE and social distancing have to be relied upon to limit the spread.

A compounding factor is that close associates of nurses, if they are also nurses are stood down for 14 days or until they have a clear covid test which reduces numbers if there is a large outbreak at a particular facility.

 

[MEL_Traveller]

So health care workers not medical staff.
And not just hospital staff.From your link-
"Just over 50 per cent were "other healthcare" workers — which includes disability workers, pharmacists, paramedics and other allied health professionals.
"
So includes workers in the private sector,disability and aged care.So not hospital staff alone.
Hospitals are not stretched or near breaking point.Even in Victoria.

Unfortunately in Victoria we’ve also had to direct nurses to aged care homes. So there are indirect implications as well.

Victoria’s CHO has stated the system is stretched, not sure of the motivation for him to be misleading.

I think the majority of us want to support our health professionals.

 

[Princess Fiona]

So health care workers not medical staff.
And not just hospital staff.From your link-
"Just over 50 per cent were "other healthcare" workers — which includes disability workers, pharmacists, paramedics and other allied health professionals.
"
So includes workers in the private sector,disability and aged care.So not hospital staff alone.
Hospitals are not stretched or near breaking point.Even in Victoria.

There are plenty of very stretched frontline staff in ED in Victoria, I can assure you from first hand reports. I have never in my 20 years experience in Australia experienced or heard of similar reports with any of the previous viral outbreaks we have had.

 

[DC3]

... If I was Alan Joyce I’d be wargaming shutting the whole airline down to force the issue. He has form on this before...

It’s practically shut down already. Minimal flights between most destinations anyway.

 

[antycbr]

It’s practically shut down already. Minimal flights between most destinations anyway.

Agree. A full shutdown will stop a lot of Parliamentarians getting to Parliament.

 

[jakeseven7]

There are plenty of very stretched frontline staff in ED in Victoria, I can assure you from first hand reports. I have never in my 20 years experience in Australia experienced or heard of similar reports with any of the previous viral outbreaks we have had.

Yes it is lucky the EDs are very quiet, in Melbourne at least. Would be very tough if they were rammed.

 

[Anna]

Meanwhile in the Federal Court ....

The 2 separate actions against Qld were withdrawn in July.

Clive Palmer's company's Constitutional case against WA went to hearing in late July for findings of fact to be made and the last set of written submissions were filed on 15 August. The judgment is reserved (which means, the judge hasn't made a decision yet and there is no time set for when it will be made by).

A new case was filed against WA by Clive Palmer's company on 12 August. It is not under the Constitution, it is for 'unconscionable conduct' so presumably it is under the Australian Consumer Law (née the Trade Practices Act). Annoyingly the statement of claim is apparently not public yet.

I speculate that maybe Clive issued the new proceedings in August because he has an inkling he's not going to succeed under the Constitution but who knows, certainly not me anyway.