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Australian state border restrictions

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I know that many of us have an interest in what is happening in regard to state border restrictions. So I have therefore created this (sticky) thread so that we can "crowd source" the latest information.

As at 7 August, the situation is best described in Matt's article which was published in the Gazette on that date.

Feel free to add to this thread when any new information comes to hand.
 

Pushka

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If Ardern had been PM of Australia, you can bet that wouldn't have happened.
The Australian constitution would not have allowed her to over rule State boundaries in this situation. Period. That is why Palmer is doing his High Court thing but every consitutional lawyer I have heard has stated that in the early stages of the pandemic, each state has the sovereign right to restrict their border and there aint nothing that the Feds could do to stop it.
 

Gremlin

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The Australian consitution would not have allowed her to over rule State boundaries in this situation. Period.
Setting up an appropriate process for managing international quarantine? Nothing there would require a PM to overrule state boundaries. As mentioned, it's a federal responsibility. Or at least, it should be if you have a federal government willing to put something in place that satisfactorily met the needs of the population.

Or do you mean liaising to construct a nationally accepted framework and consistent standards? Yes, in Australia that requires exceptional collaboration skills and authenticity from the PM to achieve. The fact that the national framework so quickly fell apart speaks to this in the Australian context. But again, good leadership doesn't require overruling any state boundaries whatsoever.
 

Pushka

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Setting up an appropriate process for managing international quarantine? Nothing there would require a PM to overrule state boundaries. As mentioned, it's a federal responsibility. Or at least, it should be if you have a federal government willing to put something in place that satisfactorily met the needs of the population.

Or do you mean liaising to construct a nationally accepted framework and consistent standards? Yes, in Australia that requires exceptional collaboration skills and authenticity from the PM to achieve. The fact that the national framework so quickly fell apart speaks to this in the Australian context. But again, good leadership doesn't require overruling any state boundaries whatsoever.
I still believe you are ignoring the State versus Federal legalities and responsibilities in for example, the management of the international quarantine.
 

PineappleSkip

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Setting up an appropriate process for managing international quarantine? Nothing there would require a PM to overrule state boundaries. As mentioned, it's a federal responsibility.
The federal responsibility is limited to things like visas and passports, border controls at airports, anti smuggling, etc. AQIS deals with goods through airports. As soon as you leave the airport, you’ve left that realm.
 

Pushka

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In my view the Departments had too much input over ‘responsibilities’. I think international arrivals (including quarantine requirements) should have been handled by the Commonwealth. It’s like Customs, so closely connected.
I totally agree however I’m not sure the Constitution allows it. That’s why there was the Ruby Princess issue when Feds and State Health didn’t mesh well. There are obviously issues in core alignments and responsibilities that haven’t been addressed for decades.
 

HappyFlyerFamily

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I totally agree however I’m not sure the Constitution allows it. That’s why there was the Ruby Princess issue when Feds and State Health didn’t mesh well. There are obviously issues in core alignments and responsibilities that haven’t been addressed for decades.
Getting off topic, but if you have time read commentary about the Act I mentioned and ask yourself why do Commonwealth Incoming Passenger Cards ask about tuberculosis?
 

Gremlin

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The federal responsibility is limited to things like visas and passports, border controls at airports, anti smuggling, etc. AQIS deals with goods through airports. As soon as you leave the airport, you’ve left that realm.
So genuine question. What's changed over time?

It's a question of defining when you've entered the country. The Commonwealth managed quarantine at the international borders during the Spanish Flu. You weren't determined to have entered the country until your quarantine had been signed off by Commonwealth officials. You may then have faced other quarantine restrictions in moving from state to state. But at international ports, this was managed by the Commonwealth.

Unless there's been a major devolution of responsibilities from federal to state since 1918, it strikes me that it still should be...
 

PineappleSkip

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So genuine question. What's changed over time?

It's a question of defining when you've entered the country. The Commonwealth managed quarantine at the international borders during the Spanish Flu. You weren't determined to have entered the country until your quarantine had been signed off by Commonwealth officials. You may then have faced other quarantine restrictions in moving from state to state. But at international ports, this was managed by the Commonwealth.

Unless there's been a major devolution of responsibilities from federal to state since 1918, it strikes me that it still should be...
Federation was a deal done among the Colonies, who morphed into States, and agreed the Commonwealth. Each state has a constitution which gives it a general remit of power, for example NSW Parliament can
make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever
There are minor wording differences but the substance is the same for each state.

On the other hand, the Commonwealth was handed a fairly limited slice of powers, mainly set out in section 51 of the Commonwealth Constitution, which notably excluded Health and Education. It seems all powerful, with departments looking at Education and Health, because of the history of the Commonwealth’s Financial power and the attendant politics, which turned the Commonwealth into a Frankeinstein’s monster that the Colonies didn’t atnticipate when they sewed it together.

In practice, we have a torturous scheme of competing powers. The States can agree to refer particular powers to the Commonwealth, and in practice have done so from time to time, so in practice there is a political argy-bargy process, through institutions like COAG and more recently the National Cabinet. Haven’t studied the argy bargy regarding the Spanish Flu, but this article suggests that, as in this case, everything done was done by agreement between the Commonwealth and the States. The comment below suggests that nothing really has changed, the Commonwealth was handed administration of quarantine by the good grace of the States.
This delayed reaction allowed the virus to spread to New South Wales and South Australia, which annoyed leaders of the newly Federated states so much they closed borders and withdrew from an earlier agreement to allow the Federal Government to take control of the situation.
One significant and potentially valuable change has been the creation of the National Cabinet to supplant the clunky old COAG process. A six monthly COAG meeting supported by a brace of portfolio-specific Ministerial Councils was ill suited to nimble decision making and the management of annoyances. Good stuff, Commonwealth! Good stuff, States! I just hope it doesn’t sink into the usual mire of petty politicking over time
 

drron

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So genuine question. What's changed over time?

It's a question of defining when you've entered the country. The Commonwealth managed quarantine at the international borders during the Spanish Flu. You weren't determined to have entered the country until your quarantine had been signed off by Commonwealth officials. You may then have faced other quarantine restrictions in moving from state to state. But at international ports, this was managed by the Commonwealth.

Unless there's been a major devolution of responsibilities from federal to state since 1918, it strikes me that it still should be...
Well the Spanish flu changed it.At that time only the Commonwealth could insist on interstate Quarantine.The States as now insisted they had the right to manage their own affairs.The 2 most quarrelsome States were QLD and WA.
QLD didn't want troops landing in QLD and WA "seized" interstate trains.

The policy response to Spanish flu by the Australian states
and territories was reminiscent of a pre-federation Australia
just two decades prior (Beddie 2001). Not only was Australia
unprepared, but state/territory and Commonwealth disputes
hampered coordinated responses. This included the failure of a
1918 agreement in which only the Commonwealth could declare
interstate quarantine after notification by a state/territory chief
health officer of regional concerns. Once the Commonwealth
deemed interstate quarantine necessary, only the Commonwealth
and not the state/territory could manage the response. When
Victoria and New South Wales quibbled over whether New
South Wales had accurately diagnosed an influenza epidemic, the
situation devolved into “every State for itself” (McQueen 1975,
566). Some states closed, while others, such as Queensland, battled
the Commonwealth over whether soldiers could land at quarantine
stations, and still others, such as Western Australia, “seized the
trans-Australian trains” (McQueen 1975, 56

After that once again States had to cede Quarantine powers to the Commonwealth and the Commonwealth Det. Of Health was set up.

But when Covid struck the States amended their own Health Acts and took back control.Here is QLD.

COVID-19 amendments
to the 2005 Health Act allowed Queensland’s chief health officer to
declare a COVID-19 public health emergency, make it a notifiable
and quarantinable disease, and issue public directions to restrict the
movement of people, ban nonessential gatherings, and other public
health directives. The current Health Act and this amendment
consolidate significant pandemic policy power in the state, not the
Commonwealth. This reflected the fact that while Commonwealth
involvement in the health system has greatly increased so that
it is now the dominant public funder, states/territories remain
responsible for public hospitals and significant aspects of public
health and safety. Other states/territories similarly updated their
legislation in the last 15 to 20 years. Each update is a partial reversal
of Australia’s post–Spanish flu policy response
So the States took control.Bit rich to now try and blame the Commonwealth.

Australian Quarantine Policy 673
Table 1 Subnational Health Legislation in Australia
State/Territory Legislation Previous Acts COVID-19 Updates
*
Australian Capital
Territory
Public Health Act 1997 Public Health Act 1928 At least eight emergency declarations since March 16, 2020, along with
currently pending legislation

New South Wales Public Health Act 2010 Public Health Act 1902, Public Health
Act 1991
Public Health Amendment (Scheduled Medical Conditions and Notifiable
Diseases) Order 2020 (January 21, 2020), Public Health Amendment
(Scheduled Medical Conditions and Notifiable Diseases) Order No. 2
2020 (March 20, 2020), COVID-19 Legislation Amendment (Emergency
Measures) Act 2020 (March 25, 2020)

Northern Territory Public and
Environmental Health
Act 2011
Public Health Ordinances based on
South Australia’s Health Act 1898,
Public Health Amendment Act 1981,
Public Health Amendment Act 1985
Amendment extending emergency powers from 5 to 90 days (March 24,
2020)

Queensland Public Health Act 2005 Health Act 1897, An Act to
Consolidate and Amend Laws
relating to Public Health (1937)
Public Health (Declared Public Emergencies) Amendment Act 2020 No. 1
(February 7, 2020), Public Health and Other Legislation (Public Health
Emergency) Amendment Act 2020 No. 11 (March 19, 2020)

South Australia South Australian Public
Health Act 2011
Health Act 1898, Health Act 1935,
Public and Environment Health Act
of 1987
Amendment Public Health and Wellbeing Regulations to order tests
(February 5, 2020), COVID-19 Emergency Response Act 2020 (April 9,
2020)

Tasmania Public Health Act 1997 Public Health Act 1885, Public Health
Act 1903, Public Health Act 1962
COVID-19 Disease Emergency (Miscellaneous Provisions) Act (No. 2) 2020
(May 6, 2020)

Victoria Public Health and
Wellbeing Act 2008
Health Act 1896, Health Act 1958 Local Government Act 2020, No. 9/2020 (March 24, 2020) amendments as
related to Public Health and Wellbeing Act 2008 on March 1, 2020, and
April 6, 2020

Western Australia Public Health Act 2016 Health Act 1898, Health Act 1911 At time of COVID-19, WA Parliament had not passed regulations relating
to the 2016 act. The act was in Stage 4 of a five-stage implementation
plan. COVID-19 emergency declarations were made via the Emergency
Management Act 2005 and the Public Health Act 2016
 

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HappyFlyerFamily

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i Just got a note from a moderator that discussion of quarantine powers in Australia is allowed as relevant to this discussion thread about NZ, so here goes.....

I accept that in practice much of the quarantine of overseas arrivals (returning citizens, incoming migrants, foreign travellers/workers) is being carried out by the States - ref drron links

But how is the Commonwealth allowed to make a law about quarantine and bio security which covers public health? Isn’t there some rule of law perhaps saying you can only makes laws where you have been given power. So clearly the Federal Government is exercising that power under some specific law when it’s incoming passenger card asks about tuberculosis. The ABF has the power to refuse a visa if an incoming passenger has an active tuberculosis. So what happens then? From what I note they have to see a Commonwealth Medical Officer - it’s probably a role carried out by an everyday authorised doctor.

When we see citizens returning from Wuhan being quarantined at Christmas Island or similarly near Darwin on I’m guessing Commonwealth property, then surely this must be under a Commonwealth power?

So to say it’s not legal for the Commonwealth to carry out quarantine at times doesn’t sound right.

I feel it’s a similar line to what Gremlin is saying, but rather a lack of leadership, perhaps more a case of the Federal Government not wanting the responsibility and political baggage to carry out any quarantine even though they have the power to and probably should be. It seems a politically convenient line to say ‘after a person passes immigration, it’s not our (Fed) problem’ as it makes clear sense
 
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Gremlin

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Hardly releases them.I believe they are escorted to the Quarantine hotel.
As the states have all this year passed amendments to their health acts to take control of the pandemic it is definitely the States taking control.

And by the way seeing this is the NZ thread note that Jacinda hasn't made mask wearing mandatory but strongly urges their use.Just like Gladys.
They are released from ABF into the jurisdiction of the state. It is the state authorities that escort them to quarantine. So yes, the federal govt does release unquarantined pax across the international border.

Again, my point here is that I believe Australia's response to the pandemic would be stronger and far better integrated if we had one international quarantine system operating before crossing the international border rather than five international quarantine systems operating after crossing the border. As I said earlier in this thread, as a nation we are beholden to the weakest of those five systems.

There is nothing in any of the state legislation that has passed that restricts what can happen prior to a pax crossing the international border. In fact, it should be noted that "The National Health Security Agreement recognises that state and territory governments have “primary responsibility for the public health response” to public health events within their own jurisdictions, while the Commonwealth government has “primary responsibility for international border surveillance and public health events occurring at international borders.”
 

HappyFlyerFamily

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On a purely practical note I do not believe Australia has sufficient Federal quarantine facilities for the huge number of international arrivals flying in since the policy of mandatory supervised quarantine was introduced - Christmas Island certainly couldn't have processed. On North Head in Sydney Harbour is the old quarantine station (now a convention centre) that was used well into the 20th century for ship arrivals - would need something similar not too far from airport in each state that arrivals could be directed straight to.
....

Now back on the topic of this thread which is NZ!

The NZ Deputy PM in an interview with ABC this arvo basically admitted he knows its a quarantine breach. He said it is to a new strain hither to unknown in NZ - stay tuned.
You have interestingly added previous ship quarantine.....do you know if it was State or Commonwealth run?

Well I asked a moderator To start a new thread and got the reply that this discussion is relevant. I was preferring to keep this NZ only, but c’est la vie. I don’t write the rules.
 

Lynda2475

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You have interestingly added previous ship quarantine.....do you know if it was State or Commonwealth run?
It was a commonwealth facility right up until 1984.

From: Sydney Quarantine Station (Our History) From the 1830s until 1984, migrant ships arriving in Sydney with suspected contagious disease stopped inside North head and offloaded passengers and crew into quarantine to protect local residents. After its closure as an operational maritime quarantine facility on 16th March 1984, ownership of the Quarantine Station was transferred from the Commonwealth to the State Government and it was reserved as part of Sydney Harbour National Park.

Back in the 90's did a ghost tour there and then slept over night in the old hospital, as part of a work team building weekend. Great views, isolated but plenty of outdoor space and a private beach for swimming whilst in quarantine.
 

PineappleSkip

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None of this says Quarantine can’t occur before crossing the international border. Pretty much proves my point that there is no common national leadership being shown here.

It’s hardly the states “taking control” when the Federal govt releases unquarantined pax across the international border into the respective states in the first place.
Well, Commonwealth Quarantine could occur again, if you set up the infrastructure for it to occur and the States agreed. But with pandemic emergencies it’s never a matter of either the States or the Commonwealth “taking control” becase of the overlapping powers and overlapping responsibilities that come with them.. Both the Commonwealth have control - and responsibility, and accountability - around aspects of the problem. Common National leadership involves the Commonwealh and States getting together and sorting the problem.

There is some interesting commentary on the decision making and law making on the run on AusPubLaw and the constitutional context. This article more fully (and better than I can) outlines the relevant Commonwealth Powers wrt COVID response, and discusses whether the Biosecutity Act exceeds the Commonwealth’s Power in a context where the States retain both Health and Emergency powers.

cheers skip
 

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After all, that's what great leadership delivers, doesn't it? It finds solutions to tough problems, owns them and delivers on them. I'll reiterate, we don't have that kind of leadership here.
Pretty much proves my point that there is no common national leadership being shown here.
even though they have the power and probably should be" is pretty much the textbook definition of "a lack of leadership" in my books...
I think we get the argument, or rather, opinion.

To me, the greatest display of leadership was the creation of the bipartisan National Cabinet which from all accounts has worked exceptionally well.

A leader can only lead in the jurisdictional areas that apply in our National and State Constitutions. In prior cases where the states' control and implementation has been messy, the Feds have attempted to take control (eg by using the Corporations Law), but that ability is limited. The Feds, for instance, can only 'offer' the ADF to the States.

Getting back to NZ, as has been noted a number of times, its much easier for the Ardern government to control the pandemic there as they hold all the relevant powers; much easier to appear a great leader.
 

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From today, ACT residents can travel to South Australia without quarantine and vice-versa. This is only permitted, however, for Canberrans that have not been in NSW in the previous 14 days.

Meanwhile, NT says it plans to remove greater Sydney from its list of declared hotspots from 9 October. Qantas plans to resume daily SYD-DRW flights from this date.
 

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