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]

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.

LOL. Queensland medical practitioners are left wing. Ahaha. I’ve never met one.

 

[TheRealTMA]

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?

Well, they are aren’t they? Obviously victorians and nswelshmen are upset that the footy finals can’t be played in their states. Not being a footy supporter, it seems there would be no footy if QLD haven’t stepped up.

 

[nutwood]

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.

mobile.abc.net.au

If a decision was based on genuine health grounds, there should be no reason to back down. If they do, it indicates the original decision was based on flawed reasoning and all other decisions based on that same reasoning should immediately be reviewed, regardless of "pressure".

 

[james4321]

If a decision was based on genuine health grounds, there should be no reason to back down. If they do, it indicates the original decision was based on flawed reasoning and all other decisions based on that same reasoning should immediately be reviewed, regardless of "pressure".

Oh Yes. Send it upstairs to the bunker !!!!!

 

[Pete98765432]

If a decision was based on genuine health grounds, there should be no reason to back down. If they do, it indicates the original decision was based on flawed reasoning and all other decisions based on that same reasoning should immediately be reviewed, regardless of "pressure".

So if there are health reasons for the border closures (including WA, SA & Tas), then no compassionate exemptions (backdowns) should be made?

 

[p--and--t]

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.

On that basis I have a lot of problems with the statement from the QLD CHO that AFL and film stars merit special consideration because of the economic impact on the state, yet from her actions it would appear the mental health and other health concerns of border residents do not warrant any consideration at all.

I also question the balance in the actions of the AMA who (to my knowledge) have not come out in support of doctors & patients trying to get assistance/support across the border region nor have they questioned (once again - to my knowledge) the Premiers statement that QLD hospitals are for QLDers.

 

[MEL_Traveller]

On that basis I have a lot of problems with the statement from the QLD CHO that AFL and film stars merit special consideration because of the economic impact on the state, yet from her actions it would appear the mental health and other health concerns of border residents do not warrant any consideration at all.

Dunno why footballers/film stars are allowed in!

Part B - not sure whether that necessarily comes into the consideration? All they would need to show is that (a) there is a health threat, and (b) border closures will go to addressing that health threat. We know there is (a) because a pandemic has been declared. We suspect following the Fed Crt finding that (b) border closures might be seen as an effective measure. The mental health impacts might not factor in terms of closing a border to keep out covid.

 

[p--and--t]

So if there are health reasons for the border closures (including WA, SA & Tas), then no compassionate exemptions (backdowns) should be made?

IMHO you are taking @nutwood out of context. That is not what I read into the statement.

If the decision was made on sound grounds and no error was made, then backdowns should not occur if there is a fuss. If decisions are overturned on the basis of a bit of fuss, then the grounds for making the decision are a bit sus.

That is not questioning the legality of border closures. It is questioning the decision making with the exceptions that are being granted.

If the border is closed on health grounds and a single negative person is of sufficient risk not to be granted access on compassionate grounds then surely 400+ persons with zero compassionate grounds should also be debarred

 

[p--and--t]

Dunno why footballers/film stars are allowed in!

Part B - not sure whether that necessarily comes into the consideration? All they would need to show is that (a) there is a health threat, and (b) border closures will go to addressing that health threat. We know there is (a) because a pandemic has been declared. We suspect following the Fed Crt finding that (b) border closures might be seen as an effective measure. The mental health impacts might not factor in terms of closing a border to keep out covid.

Interesting logic that 1 or 40, or whatever the number is, citizens from low or no covid risk areas are too great a health risk to be allowed in as they are unable to manage the risk even if the person has been tested and can prove they are negative, but plane loads of untested people (many non-citizens) from very high risk covid areas overseas can land every day and be managed adequately with no pre-screening.

 

[HappyFlyerFamily]

Interesting logic that 1 or 40, or whatever the number is, citizens from low or no covid risk areas are too great a health risk to be allowed in as they are unable to manage the risk even if the person has been tested and can prove they are negative, but plane loads of untested people (many non-citizens) from very high risk covid areas overseas can land every day and be managed adequately with no pre-screening.

The threat of 1 community transmission per day Or every second day in Sydney is too great to allow ACT people to go to Qld/WA without quarantine....because of ACT people’s holiday homes (not in Sydney) and Sydney people lying and transiting via Canberra (since Victoria has been since blocked from going to Canberra)..... not that quarantine fixes all ills, especially any from overseas.....good grief.

 

[MEL_Traveller]

IMHO you are taking @nutwood out of context. That is not what I read into the statement.

If the decision was made on sound grounds and no error was made, then backdowns should not occur if there is a fuss. If decisions are overturned on the basis of a bit of fuss, then the grounds for making the decision are a bit sus.

That is not questioning the legality of border closures. It is questioning the decision making with the exceptions that are being granted.

If the border is closed on health grounds and a single negative person is of sufficient risk not to be granted access on compassionate grounds then surely 400+ persons with zero compassionate grounds should also be debarred

Do we know how many people have successfully sought and been granted exemptions? Decisions should be overturned on review if an error was made. The decision making process, and criteria, can also evolve as issues become known.

 

[HappyFlyerFamily]

Do we know how many people have successfully sought and been granted exemptions? Decisions should be overturned on review if an error was made. The decision making process, and criteria, can also evolve as issues become known.

Actually we have some idea, Qld

"Since June, more than 21,000 exemption requests have been received and 80% of exemptions requested relate to the border restrictions and are significant in number. Reviewing requests requires assessment and consideration and requests are prioritised based on meeting criterial described in the Directions and urgency of the exemption."

Entering Queensland from an Australian hotspot – exemptions and specialist or essential worker status

Exemptions from the Chief Health Officer for Queensland Public Health Directions are granted only under exceptional circumstances and can take up to 7 days to process.

www.health.qld.gov.au

and WA

"It's a busy workload for these officers, with more than 1,700 people a day applying to return to WA, and a backlog of thousands of resubmitted applications."

It's the hardest border in the country, but each day hundreds slip through. Here's how it works

If you are one of the thousands of people trying to get to Western Australia and you're struggling to secure an exemption to enter the state on compassionate grounds, there are things you can do to improve your chances.

www.abc.net.au

 

[p--and--t]

Actually we have some idea, Qld

Entering Queensland from an Australian hotspot – exemptions and specialist or essential worker status

Exemptions from the Chief Health Officer for Queensland Public Health Directions are granted only under exceptional circumstances and can take up to 7 days to process.

www.health.qld.gov.au

and WA

"It's a busy workload for these officers, with more than 1,700 people a day applying to return to WA, and a backlog of thousands of resubmitted applications."

It's the hardest border in the country, but each day hundreds slip through. Here's how it works

If you are one of the thousands of people trying to get to Western Australia and you're struggling to secure an exemption to enter the state on compassionate grounds, there are things you can do to improve your chances.

www.abc.net.au

Interesting the QLD one says up to 7 days to process cases yet examples are being quoted in the media of 20 days to receive notification of a "no".

I expected QLD to be high given Tweed Heads / Coolangatta community cut in half and needing to cross for work and back daily etc.

WA basically has no border towns of any note.

 

[HappyFlyerFamily]

Interesting the QLD one says up to 7 days to process cases yet examples are being quoted in the media of 20 days to receive notification of a "no".

I expected QLD to be high given Tweed Heads / Coolangatta community cut in half and needing to cross for work and back daily etc.

WA basically has no border towns of any note.

I thought cross-border get an X pass and don't need an exemption if staying in the bubble border suburbs.

 

[p--and--t]

I thought cross-border get an X pass and don't need an exemption if staying in the bubble border suburbs.

Not looked into it, just going from media stories of people needing to apply for a pass online and display on dash to go to work or the doctors etc. They do, I believe, get an auto exemption from having to quarantine.

 

[antycbr]

I thought cross-border get an X pass and don't need an exemption if staying in the bubble border suburbs.

Lots of Queenslanders just remove the X pass once south of the border and go to areas outside the bubble. NSW won’t enforce Queensland restrictions.

Use of the X pass yesterday seemed mainly to be to go to the surfing carnival at Cabarita. Not sure how that is vital.

Maybe NSW should start to enforce restrictions on Queenslanders who can’t follow their own rules.

 

[HappyFlyerFamily]

Lots of Queenslanders just remove the X pass once south of the border and go to areas outside the bubble. NSW won’t enforce Queensland restrictions.

Use of the X pass yesterday seemed mainly to be to go to the surfing carnival at Cabarita. Not sure how that is vital.

Maybe NSW should start to enforce restrictions on Queenslanders who can’t follow their own rules.

Perhaps, but there is no NSW law for NSW Police to enforce. (Not trying to be facetious) If Qld Police needed cooperation, guess NSW Police would provide assistance eg luxury yacht example.

 

[antycbr]

Perhaps, but there is no NSW law for NSW Police to enforce. (Not trying to be facetious) If Qld Police needed cooperation, guess NSW Police would provide assistance eg luxury yacht example.

I’m aware that there is no NSW law to enforce but it would be nice to see Queenslanders on the receiving end for a change.

 

[HappyFlyerFamily]

I’m aware that there is no NSW law to enforce but it would be nice to see Queenslanders on the receiving end for a change.

I’m sure there is a Qld dob-in line somewhere. Though proof might be hard to obtain.

 

[Pushka]

On that basis I have a lot of problems with the statement from the QLD CHO that AFL and film stars merit special consideration because of the economic impact on the state, yet from her actions it would appear the mental health and other health concerns of border residents do not warrant any consideration at all.

I also question the balance in the actions of the AMA who (to my knowledge) have not come out in support of doctors & patients trying to get assistance/support across the border region nor have they questioned (once again - to my knowledge) the Premiers statement that QLD hospitals are for QLDers.

Ah. But the costs of mental health can be neatly swept under the carpet and are very unsexy in an election campaign as opposed to mega movie stars and the glitz life and joy they bring to the great unwashed. And this thinking applies to every political colour.

Interesting logic that 1 or 40, or whatever the number is, citizens from low or no covid risk areas are too great a health risk to be allowed in as they are unable to manage the risk even if the person has been tested and can prove they are negative, but plane loads of untested people (many non-citizens) from very high risk covid areas overseas can land every day and be managed adequately with no pre-screening.

Oh. This has always caused me to bang my head on the desk in frustration. At least these people are (generally) Aussies. Marshall in SA currently locks out its own residents if they have been in Victoria (even if they are happy to pay for isolation) yet is trying furiously to bring a group of 300 University students from overseas, likely China, and not an Aussie amongst them.