State border closures illegal under the highest law in the country?

bigbadbyrnes

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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
 
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As ScoMo's judgement is often unsound, I would not put much weight on what he thought or did not think (e.g. in mid-March he thought it was OK to have large gatherings at sporting events, yet two weeks later 10 people at an event was too many).

Goodness. What would you say about Victoria where an abattoir outbreak was either deliberately hidden or poorly handled, and now there's been more than 100 persons infected as a result?

Most world leaders think Australia's done a very good job in handling coronavirus. Some nations/regions have been even better - like Hong Kong, Taiwan, Macao and until very recently South Korea - but generally ScoMo's judgment has been very good. We've achieved a similar result to NZ but with what seems to be (at this point) less economic pain. Its economy over there isn't as diversified as ours, and it looks to have been economically devastated. There'll be a lot of Kiwis coming to Australia soon.
 
I feel someone got into Qld’s ear....if you don’t open State borders, then the trans Tasman bubble might not happen.

Everyone now seems to be aiming for interstate travel by winter school holidays......just a matter of which states open to who.

Its a chance the trans Tasman bubble happens by then.
 
Well Scotty has handled it very well.The problems have the Prime Minister from the Premiers. So instead of 1 set of conditions we have 9.
Indeed he has. Agree re the Premiers. They created the mosh pit of interpretations. Some worked. Others haven't. Still not.
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States rights?
Which applied at the commencement of the pandemic but now - that's the issue for the high court.
 
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And some state premiers seem to be doing a better job than others.

Exactly, and it seems this has exposed the weakness of the Australian federation where some states are better than others and that creates inequality.

Especially those states who advocates hard borders promotes equality, I think it's time to open the borders so opportunity arises.

Just a dozen of cases should mean that Australia is officially free from Cornonavirus (WARS). If we don't open our borders now, then when?
 
Obviously peoples level of inconvenience varies, but to me shutting all the restaurants, cafes and bars has been more of an inconvenience.
Yes, financial ruin for some, an inconvenience for many, but a necessary move.
 
Well the Prime Minister has handled it very well.The problems have come from the Premiers. So instead of 1 set of conditions we have 9.
No not really. He has followed scientific advice (unusually) and has provisioned what’s appropriate for each state. One thing Scotty has done (unlike a few other cabinet ministers) is try to keep the politics and usual dog-whistling out of it and let the National Cabinet work to make suitable decisions. Would be nice in future if decisions were made on evidence and science rather than the anti-science stance of many in the government. It looks possible, but not likely, that COAG being dumped in favour of the new National Cabinet system maybe good for us all in the future.
 
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... that's the issue for the high court.
I may have lost track, but it hasn’t got to the High Court has it? Even if the matter is lodged, (wild) guess is that the borders (some, if not all) may well be opened within weeks anyway.

Vic and NSW already have their own bubble. 😉. The rest may create another series of bubbles.
 
I may have lost track, but it hasn’t got to the High Court has it? Even if the matter is lodged, (wild) guess is that the borders (some, if not all) may well be opened within weeks anyway.

Vic and NSW already have their own bubble. 😉. The rest may create another series of bubbles.
I think Palmer has launched one now. It will take weeks. By which time borders will be gone.
 
I may have lost track, but it hasn’t got to the High Court has it? Even if the matter is lodged, (wild) guess is that the borders (some, if not all) may well be opened within weeks anyway.

Vic and NSW already have their own bubble. 😉. The rest may create another series of bubbles.
A lot of it is due to the Relevance Deprivation of Pauline Hanson and vindictiveness of our National Living Treasure, Clive Palmer, who was pissed that WA would not let him violate state entry and lockdown laws. (Why could he not use Zoom like the rest of us?)
 
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Brett hasn’t done much legal work outside of the usual petty crime and conveyancing but after inspecting his university transcript, his constitutional law knowledge is undeniable. On his second attempt at the subject, he received a credit,”

Rolling on the floor 😂 😂 😂 😂 😂 😂 😂 😂

They certainly have an eye for the comic response. I could almost imagine that as being true.
 
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2020 is providing us with the most interesting timeline possible. I'm sure it would not have been lost on anyone else that following three months of being told to stay home at all costs to negate the spread, and after closing down, or making non-viable, whole industries (a move which will ultimately lead to higher govt debt, lower tax receipts and in turn fewer hospitals and health workers etc. which will in turn cost lives), we now have rallies in every capital city between 5,000 and 20,000 people.

I'm all for the issue the rallies are highlighting.

Australia's success must be attributable to something - it's not clear exactly what. But the die is cast. In ten days, we will either see the mother and father of all second waves, or restricting people from large gatherings isn't a risk (regardless of cause), and we should immediately relax the restrictions and try to encourage whatever recovery we can.
 

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