Login Now to remove this and all advertisements (GOLD and SILVER members)
Not a member? Register Now for free

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

bigbadbyrnes

Member
Joined
Oct 24, 2011
Messages
254
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
 
Last edited:

RooFlyer

Enthusiast
Joined
Nov 12, 2012
Messages
17,246
Qantas
Platinum
Flights
My Map
If you are talking black-letter law, then the topic headline on 'state border closures' is sloppy. No borders are 'closed', as far as I'm aware - just restrictions on personal movement. And all states except WA have many cross border personal movements, with conditions.

Can you eliminate anything in the policing/health/emergency type laws that would counter your general argument? Also, I think trade is still going on, even WA, so that eliminates the S.92 argument, I would think.
 

Pushka

Enthusiast
Joined
Jan 26, 2011
Messages
24,094
Flights
My Map
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.
I think the High Court got the memo and are working from home. Afterwards? We will all just want to get on with trying to repair our lives. And no need to waste money on lawyers fighting something we will just want to forget. If SA Escapes relatively unscathed then Thank God Stephen Marshall. That's all I have to say.
 

Vic

Active Member
Joined
Jan 31, 2017
Messages
834
Best have a read of section (maybe it's actually called a clause) 51 of the constitution.

The Parliament shall, subject to this Constitution, have power12 to make laws for the peace, order, and good government of the Commonwealth with respect to:

  1. trade and commerce with other countries, and among the States;
  2. taxation; but so as not to discriminate between States or parts of States;
  3. bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;
  4. borrowing money on the public credit of the Commonwealth;
  5. postal, telegraphic, telephonic, and other like services;
  6. the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
  7. lighthouses, lightships, beacons and buoys;
  8. astronomical and meteorological observations;
  9. quarantine;
and etc.
 

bigbadbyrnes

Member
Joined
Oct 24, 2011
Messages
254
If you are talking black-letter law, then the topic headline on 'state border closures' is sloppy. No borders are 'closed', as far as I'm aware - just restrictions on personal movement. And all states except WA have many cross border personal movements, with conditions.

Can you eliminate anything in the policing/health/emergency type laws that would counter your general argument? Also, I think trade is still going on, even WA, so that eliminates the S.92 argument, I would think.

The actual hard borders I'm referring to relate currently to WA and QLD.

There are still exceptions for the vital services you list, but not for someone who wants to journey to see their family across QLD or WA border unless its for exceptional reasons.

Reading over Gratwick Joshon, travel for both commercial/trade reasons and not commercial/trade reasons are considered and the restrictions set in place by the "National Security (Land Transport) Regulations" and "Restriction of Interstate Passenger Transport Order", and all restrictions are found incompatible with Sec 92 and are set aside.

Again, I'm sure everything is arguable and there's a zillion other relevant cases - it's all purely mastabatory until it gets before the high court.
Post automatically merged:

The Parliament shall, subject to this Constitution, have power12 to make laws for the peace, order, and good government of the Commonwealth with respect to:

  1. trade and commerce with other countries, and among the States;
...
  1. quarantine;
and etc.
nice one.

What Quarantine means under Section 51 isn't defined beyond just using the word itself.

While the legal definition is taken as including restriction on people, while the parliament can pass laws with regard to quarantine, the laws passed still need to be consistent with the constitution itself.
 
Last edited:

Vic

Active Member
Joined
Jan 31, 2017
Messages
834
There is also probably some emergency powers legislation that applies to restricting the borders.
The thing with many provisions of the constitution is that laws made by the parliament can override/modify the constitution.
 

p--and--t

Established Member
Joined
Sep 28, 2008
Messages
3,391
Qantas
Bronze
Virgin
Red
"unlimited" movement of goods and services has not applied for decades in certain states for certain reasons for good reason.

One example: the border post on the highway between SA and VIC that prevents "goods" of fruit and vegetables being transported over the border by citizens except in certain permitted circumstances.
 

bigbadbyrnes

Member
Joined
Oct 24, 2011
Messages
254
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.
I've been searching up hill and dale, this is exactly what I've been looking for.

Looks like if an individual could be proven to pose no health risk (if you could prove you were immune and not contagious) you could rely on the protection that you're not a public health risk and your restriction from crossing a board was inconsistent with Section 92.

But that would be the exception.

/thread
 

samh004

Enthusiast
Joined
Apr 1, 2009
Messages
19,077
Qantas
Platinum
Virgin
Red
Flights
My Map
Haven't seen you in a while! Still based in Northern NSW and commuting to QLD? I can see why this topic is important to you.

Looks like if an individual could be proven to pose no health risk (if you could prove you were immune and not contagious) you could rely on the protection that you're not a public health risk and your restriction from crossing a board was inconsistent with Section 92.
Perhaps this will be the eventual dystopian future we live in, where those vaccinated against COVID-19 (or whatever correct term) have the freedom to move about with a permit, and those who have yet to be vaccinated, do not.
 

Max Samuels

Active Member
Joined
Jun 30, 2010
Messages
921
Qantas
Platinum
Virgin
Gold
Not for the Federal Constitution. The only way you can change that is via a referendum. The High Court interprets the constitution.
Correct. But any argument against the possible illegality and unconstitutionality of the actions our various states are taking are bound to fall on deaf ears on this forum... as everyone seems happy to turn a blind eye to the suspension of civil liberties... but that will change, I am sure. As the country descends into chaos, and as it begins to affect more and more individuals in a personal way ("what? you can't do that to me! I am an AFF member!" )

Just like the many discussions about things like First Class catering on this forum meant little to those that didn't fly in First - until they did - so too will be discussions about the Government's probable overreach into our lives with regard to COVID-19.

So when they start kicking down your door in the middle of the night to make sure you don't have any guests.... come and vent here!
 

Vic

Active Member
Joined
Jan 31, 2017
Messages
834
Not for the Federal Constitution. The only way you can change that is via a referendum. The High Court interprets the constitution.
I wasn't talking about changing the constitution itself. There are many provisions in the constitution that start with "Until the parliament makes laws to say otherwise..."

The making of a law by the parliament on those matters then overrides or modifies whatever provision is in the constitution.

for example:
48. Allowance to members
Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

I'm pretty sure MHRs are paid more than 400 pounds a year...

It would be good to actually read a post before commenting
 
Last edited:
The Qantas Premier Platinum Card delivers up to 100k Qantas Points, 75 bonus Status Credits, complimentary lounge invitations and travel insurance. All this with a reduced first-year annual fee of $199.

Recommended by the Australian Frequent Flyer

MEL_Traveller

Enthusiast
Joined
Apr 27, 2005
Messages
21,575
I wasn't talking about changing the constitution itself. There are many provisions in the constitution that start with "Until the parliament makes laws to say otherwise..."

The making of a law by the parliament on those matters then overrides or modifies whatever provision is in the constitution.

for example:
48. Allowance to members
Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

I'm pretty sure MHRs are paid more than 400 pounds a year...

It would be good to actually read a post before commenting
i see what you mean, but it's two different things. The powers (and limits) of the federal parliament to make laws are set out in the constitution and can't change unless by referendum. There are 'administrative' aspects, such as the one you mention for determining salaries - but they are using the power afforded to them in the constitution to do so.
 

Must...Fly!

Established Member
Joined
Jan 12, 2010
Messages
4,037
Qantas
Bronze
Virgin
Platinum
I haven't read every post but I do recall reading Mark McGowan stating that the advice was that they could do a hard boarder but could not discriminate based on residence. So if you were a resident of WA and left after the installation of a hard boarder and wanted to come back (excluding for the stated exceptions) then you would be refused entry.

I think the general implication was that while the state can implement the policy, it needs to apply to all Australians and cannot unequally be applied to a certain subset of citizens (i.e. residents of WA)
 

CaptJCool

Established Member
Joined
May 31, 2012
Messages
1,813
NT Chief Minister Gunner WAS GUNNA do this and. Today’s press conference announced that the Constitution got in the way of him doing that so instead they are going to make it extremely difficult for people to come to the Northern Territory stick them in quarantine for four days and stick them with the bill
 

nutwood

Active Member
Joined
Mar 4, 2015
Messages
604
My take on this question is that no borders are closed. I'm in Tasmania and visited the North Island last week. I'm now in isolation for fourteen days but no impediments were put in my way. If I had taken the same trip this week, I'd now be locked up in a hotel room, but I would not have been prevented from taking the trip.
Conclusion is that you can still travel where you wish but you may have to quarantine when you cross borders. I believe this is compliant with the constitution.
 

Steady

Senior Member
Joined
Feb 3, 2013
Messages
7,978
Flights
My Map
But even though I am an "essential"worker I am told I need to present my passport with my Tassie visa when I arrive.
From your direct experience, do you feel they are over doing it, or do you agree with the requirements placed on you?
 

Community Statistics

Threads
86,403
Messages
2,087,552
Members
53,785
Latest member
carsonjohn404
Top