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

 

[Pushka]

Was anyone watching Insiders this AM?

They are quite good at hinting at what is coming up.

There was unanimous condemnation and joking about how the QLD government is handling state border restrictions but also a great tip right at the end that the ACT is apparently poised to announce this week they have negotiated border openings with SA, which will put more pressure on QLD as well.

Friday was my tip a couple of days ago. They are meeting this Tuesday in SA.

 

[jase05]

Friday was my tip a couple of days ago. They are meeting this Tuesday in SA.

Yeah, thought the transition meeting on Friday may have led to something but I guess they will look at the data from the weekend and reconsider on Tuesday. Would think they would be trying to negotiate for a joint NSW/ACT opening rather than just ACT but we will see. Even just the ACT would bring some joy to our family so my brother can see his kids for the first time in ages.

 

[Seat0B]

Was anyone watching Insiders this AM?

They are quite good at hinting at what is coming up.

There was unanimous condemnation and joking about how the QLD government is handling state border restrictions but also a great tip right at the end that the ACT is apparently poised to announce this week they have negotiated border openings with SA, which will put more pressure on QLD as well.

Yes and I thought the Dutton interview was quite interesting too - outright slamming of all states - Labor or Liberal - that have border restrictions that do not reflect the actual state of corona infection in the area the traveller is coming from. Quite slippery though on similar questions about why Tony Abbott got an exemption to leave and Tom Hanks to arrive, when plenty of ordinary Australians can't leave for funerals, or are unable to get back in.

Edit for typos

 

[TheRealTMA]

Yes and I thought the Dutton interview was quite interesting too - outright slamming of all states - Labor or Liberal - that have border restrictions that do not reflect the actual state of corona infection in the area the traveller is coming from. Quite slippery though on similar questions about why Tony Abbott got an exemption to leave and Tom Hanks to arrive, when plenty of ordinary Australians can't leave for funerals, or are unable to get back in.

Edit for typos

Slippery character all round IMHO.

 

[jase05]

Haha

https://twitter.com/i/web/status/1304974559200698368

 

[antycbr]

Yes and I thought the Dutton interview was quite interesting too - outright slamming of all states - Labor or Liberal - that have border restrictions that do not reflect the actual state of corona infection in the area the traveller is coming from. Quite slippery though on similar questions about why Tony Abbott got an exemption to leave and Tom Hanks to arrive, when plenty of ordinary Australians can't leave for funerals, or are unable to get back in.

Edit for typos

Abbott has no excuse at all.

Hanks however was allowed to enter based on a request from the Queensland Government who provided a letter of support. I suspect if Queensland ask for the same thing again in the future it will be declined by the Federal Government without a second thought.

 

[MEL_Traveller]

Queensland AMA fully supports QLD CHO and decisions to keep border closed: AMA comes to Dr Jeannette Young’s defence amid backlash

 

[p--and--t]

Queensland AMA fully supports QLD CHO and decisions to keep border closed: AMA comes to Dr Jeannette Young’s defence amid backlash

That's been posted in QLD 2020 election thread where most of the discussion is occurring.

 

[MEL_Traveller]

That's been posted in QLD 2020 election thread where most of the discussion is occurring.

Excellent. It provides some needed counter-balance to this thread as well.

 

[Pushka]

Queensland AMA fully supports QLD CHO and decisions to keep border closed: AMA comes to Dr Jeannette Young’s defence amid backlash

Of course they would. All Doctors would keep everyone locked up because that is the way they work in their extremely low risk profile and they have no concern for what it means to actually run and finance the State.

 

[MEL_Traveller]

Of course they would. All Doctors would keep everyone locked up because that is the way they work in their extremely low risk profile and they have no concern for what it means to actually run and finance the State.

Yes, that may be true. But this is a pandemic, which is a health emergency. Not an economic one.

This crosses over to the other thread on the ethics of care... we can avoid that becoming an issue if we focus on the health aspect first and foremost.

 

[Pushka]

Yes, that may be true. But this is a pandemic, which is a health emergency. Not an economic one.

This crosses over to the other thread on the ethics of care... we can avoid that becoming an issue if we focus on the health aspect first and foremost.

Except the thread is all about Border Closures and both health and finance impact on that. Obviously NSW has managed quite well given its very much open border except recently with Victoria. Is Qld not up to facing that challenge?

 

[MEL_Traveller]

Except the thread is all about Border Closures and both health and finance impact on that. Obviously NSW has managed quite well given its very much open border except recently with Victoria. Is Qld not up to facing that challenge?

According to the title the thread is about the legality of border closures. We know, historically, border closures have been allowed under the Constitution if there are valid health grounds. The economic impacts aren't really a a consideration, as mentioned by the Federal Court in its fact finding for the High Court case.

 

[drron]

The AMA is now a true doctor's Union.the leadership is left of centre.
The medical experts in this situation are the infectious disease specialist,virologists and epidemiologists and many of them are not supporting State border closures.

 

[antycbr]

Yes, that may be true. But this is a pandemic, which is a health emergency. Not an economic one.

This crosses over to the other thread on the ethics of care... we can avoid that becoming an issue if we focus on the health aspect first and foremost.

If it’s a health emergency can you please tell the a Queensland CHO to stop reflecting on AFL and Hanks being important to the state economy?

 

[HappyFlyerFamily]

Hopefully the HIgh Court find it illegal given the ‘hotspots‘ of ACT, SA, Tasmania, NT and even with the difficulty of WA needing to treat residents and non-residents (of WA) equally.

A graduated quarantine requirement should have been sufficient.

 

[Pushka]

According to the title the thread is about the legality of border closures. We know, historically, border closures have been allowed under the Constitution if there are valid health grounds. The economic impacts aren't really a a consideration, as mentioned by the Federal Court in its fact finding for the High Court case.

And I would question the validity of the current health risk exposure in NSW and ACT and which is why a very conservative SA is strongly considering bringing down the border. NSW could always travel here with just a 14 day self iso.

 

[MEL_Traveller]

And I would question the validity of the current health risk exposure in NSW and ACT and which is why a very conservative SA is strongly considering bringing down the border. NSW could always travel here with just a 14 day self iso.

Agree! That's the issue that needs to be addressed. The legality of the border closure should not be about balancing economic factors with health. There is only one consideration, the merits public safety.

 

[Pushka]

Agree! That's the issue that needs to be addressed. The legality of the border closure should not be about balancing economic factors with health. There is only one consideration, the merits public safety.

That is according to the constitution but each state will make their decision based on their risk appetite and perceived ability to handle breakouts. And sadly, the chances of winning an election.

 

[jakeseven7]

QLD government forced to back down, again. The pressure is working.

———

'Ecstatically relieved': Parents given permission to visit dying son in Queensland

The parents of terminally ill cancer patient Mark Keans say health officials have granted the family an exemption to travel to Queensland to see him.

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