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

 

[antycbr]

And in return certain Bain/VA2 airline staff are getting very very special treatment from QLD on state border restrictions, getting to skip hotel quarantine via compassionate exemptions that other normal people are denied.... because the QLD now government owns a part of VA2? Little bit weird now....

If that’s true QF would be up in arms as it’s anti competitive. Let alone the moral issue you raise.

 

[desafinado74]

And the Victorian Premier today hosed down expectations of meaningful restrictions being eased next Sunday, even though Melbourne has an average daily case of 9.

There goes the thought of every state border re opening by Xmas !

Is the QLD premier related in any shape or form ?! Their actions are eerily similar.

Andrews to ease fewer restrictions than planned

Premier Daniel Andrews has confirmed Victoria would begin easing restrictions from next Sunday, though not as quickly or as far-reaching as initially planned as his state recorded 14 new cases of coronavirus.

www.skynews.com.au

 

[jeza]

What does that even mean? Covid is already ‘loose’ in small numbers in VIC, NSW, QLD.

Once you have unrestricted movement are you able to do that without ending up with what is happening in Europe a few months later. Cases are increasing, restrictions & lockdowns are back. Now sadly deaths are just starting their climb up.

Covid: How is Europe lifting lockdown restrictions?

Europe is gradually easing lockdown measures ahead of the tourist season.

www.bbc.com

So SA has been open to all but NSW and Victoria since July and NSW for a few weeks now. Waiting waiting. What for?

And nephew has been deployed from SA to WA last week for maintaining border control/quarantine issues for 3 months. He will miss Christmas at home. And is still required to serve 14 days quarantine in Perth. Nice of the WA Government.

Your nephew is doing his part to help which is great. Being part of the defence force you may expect to miss the odd Xmas with the family. You wouldn't have ever expect it to be for having to keep Australians out of parts of Australia.

SA situation, very recently opened up to one of the 2 states that makes up nearly 50% of the population of Oz with the other which makes up over 20% still a fair way off due to their issues with covid.

Onto more info on polling. 932 WA residents polled by Painted Dog Research about whether to open the border by Xmas was in todays West.

Most want hard WA border to stay for Christmas

Support for the State’s hard border remains high with just one third of people in WA saying they want interstate travel to resume before Christmas, according to an exclusive new poll.

thewest.com.au

A bit of summary

- 36% in favour of opening the border by Xmas.
- 82% of 18-24 year olds against opening the border by Xmas. (Surprised me it was that high)
- Those groups that were worst affected by the shutdown such as hospitality & retail were most against borders being opened
- support for the closed border decreased as age increased with over 70's having 54% in favour of maintaining the border restrictions until Xmas

 

[HappyFlyerFamily]

And nephew has been deployed from SA to WA last week for maintaining border control/quarantine issues for 3 months. He will miss Christmas at home. And is still required to serve 14 days quarantine in Perth. Nice of the WA Government.

It just occurred to me that you indicated ADF is being used on border and quarantine.

If you get more info, it would be interesting to know if it’s the border or not, because I thought ADF is withdrawing from manning State borders (but remaining on international borders/quarantine).

 

[oz_mark]

A bit of summary

- 36% in favour of opening the border by Xmas.
- 82% of 18-24 year olds against opening the border by Xmas. (Surprised me it was that high)
- Those groups that were worst affected by the shutdown such as hospitality & retail were most against borders being opened
- support for the closed border decreased as age increased with over 70's having 54% in favour of maintaining the border restrictions until Xmas

It somewhat surprises me that it is the way around it is, although given my age perhaps why I see more people wanting the border open than others.

Will be interesting to see what the stats look like closer to Xmas, especially if other parts of Australia lift their restrictions!

 

[DC3]

... nephew has been deployed from SA to WA last week for maintaining border control/quarantine issues for 3 months. He will miss Christmas at home. And is still required to serve 14 days quarantine in Perth. Nice of the WA Government.

Yes, deployments and missing the occasional Christmas break with family does come with the ADF job. I spent over 15 years in the ADF, so know something about it.

The ADF will send you wherever they need/want you, of course, although some volunteer for various deployments for all sorts of reasons. Young people are often keen to do that sort of thing, especially if single.

 

[straitman]

And nephew has been deployed from SA to WA last week for maintaining border control/quarantine issues for 3 months. He will miss Christmas at home. And is still required to serve 14 days quarantine in Perth. Nice of the WA Government.

Be thankful that he is still in Aust. Many of us have spent Christmas in a lot less hospital locations.

 

[Pushka]

Be thankful that he is still in Aust. Many of us have spent Christmas in a lot less hospital locations.

Oh yes. I agree. It comes with the job and as you say, it a nice placement. It's the WA making him do 2 weeks quarantine in a hotel having come from Adelaide that in the situation is irksome.

Post automatically merged: Oct 10, 2020

Yes, deployments and missing the occasional Christmas break with family does come with the ADF job. I spent over 15 years in the ADF, so know something about it.

The ADF will send you wherever they need/want you, of course, although some volunteer for various deployments for all sorts of reasons. Young people are often keen to do that sort of thing, especially if single.

Yes. Absolutely.

 

[OZDUCK]

It just occurred to me that you indicated ADF is being used on border and quarantine.

If you get more info, it would be interesting to know if it’s the border or not, because I thought ADF is withdrawing from manning State borders (but remaining on international borders/quarantine).

The ADF members currently in W.A are not being used on State Borders but only for International borders/quarantine assistance like in all states.

 

[Pushka]

The ADF members currently in W.A are not being used on State Borders but only for International borders/quarantine assistance like in all states.

Thanks. Nephew is still in quarantine in WA for 5 more days so will be interesting to see where he is posted.

It just occurred to me that you indicated ADF is being used on border and quarantine.

If you get more info, it would be interesting to know if it’s the border or not, because I thought ADF is withdrawing from manning State borders (but remaining on international borders/quarantine).

I will update in a few days time when he is out of quarantine.

 

[jakeseven7]

QLD state border restrictions still number 1 on the news up here with the double standards applied by Dr Young / QLD Health the leading story.
PM now also asking her to actually share her medical evidence on border closures which will be interesting....

But at least her quarantine exemption list is widening! All you have to be is one (or more) of the following to skip quarantine in QLD:

Rich, Movie Star, TV Star, Sports Star, Links the Caretaker Government....
——

PM calls on Qld Chief Health Officer to share medical evidence on state border closures, calls for end to “double standards”

Mr Morrison made the comments while visiting the Gold Coast on Saturday, saying exemptions needed to be "applied consistently" as Queensland eyes November 1 as the hoped-for border reopening date.

The Prime Minister's comments followed two cases recently publicised; one of a cancer patient returning from Sydney who was initially refused an exemption to quarantine at home by Dr Young and a high-profile businesswoman with links to the Queensland government, who was approved to quarantine at home with her partner, who also has cancer.

Mr Morrison said Queensland should weigh up its planned reopening to NSW on November 1 on medical advice and share that medical advice.

“Everything should be driven by the health advice and that health advice should be transparent, should be clear to all and backed up by the medical evidence that is available and that should be openly shared. That's what I've always said," he said.

He said he was "not having a quibble" with Queensland's decision to close its borders, but there should be no more "double standards".

Premier Annastacia Palaszczuk said her state government was compassionate in the exemptions process and tried to dismiss claims about the lack of consistency applied.

Opposition leader Deb Frecklington called for a "complete overhaul" of the state's exemption regime after the two cases were aired.

"You can't have the rich going into first class and the rest of Queensland going into cattle class," she said.

Both the Premier and Deputy Premier were forced to reaffirm their support of Dr Young's authority and decision-making when it came to exemptions and the potential border reopening, despite a litany of inconsistent decisions and communication challenges with national counterparts.

NSW healthcare cases 'a real concern' for Qld Chief Health Officer

Prime Minister Scott Morrison also called for border exemptions to be applied compassionately and consistently.

www.brisbanetimes.com.au

 

[drron]

Premier Annastacia Palaszczuk said her state government was compassionate in the exemptions process and tried to dismiss claims about the lack of consistency applied.

Sorry but this is just BS.Compare the reports coming out of QLD with my now considerable experience of Tasmania's compassionate exemptions which are indeed compassionate.
This week 2 fellows from Melbourne have got exemptions to visit.One is in the home of his mother to look after his dying mother.The other is his son who has to be in hotel quarantine but allowed supervised visits to his grandmother.This was because his father and uncle are loooking after their mother in her home.

So Premier and Dr.Young your exemptions fail the test of compassion.

 

[DC3]

Sorry but this is just BS ...

Would you have a link to the quoted article, so as I may read it in it’s entirety?

 

[oz_mark]

Would you have a link to the quoted article, so as I may read it in it’s entirety?

See Jakesevens post immediately above

 

[DC3]

See Jakesevens post immediately above

May be hiding in plain sight. Should have gone to Specsavers.

Will check back again later.

 

[MEL_Traveller]

Sorry but this is just BS.Compare the reports coming out of QLD with my now considerable experience of Tasmania's compassionate exemptions which are indeed compassionate.

Agree. The reported cases of 'exemption failures' don't give the confidence that they system is transparent, fair, or compassionate.

On a different matter, I'm trying to understand the risk profiles in the argument that all state borders should be thrown open. People acknowledge the risks, but say 'they are small' and 'worth taking'. Compare that to the discussion on vaccine development where people say they won't accept/take any vaccine unless it is 100% safe, regardless of whether scientists say any potential risks are 'small' or 'worth taking'.

Why is there an anomality in the risk acceptance between border openings and vaccines?

 

[antycbr]

Once you have unrestricted movement are you able to do that without ending up with what is happening in Europe a few months later. Cases are increasing, restrictions & lockdowns are back. Now sadly deaths are just starting their climb up.

Covid: How is Europe lifting lockdown restrictions?

Europe is gradually easing lockdown measures ahead of the tourist season.

www.bbc.com

Your nephew is doing his part to help which is great. Being part of the defence force you may expect to miss the odd Xmas with the family. You wouldn't have ever expect it to be for having to keep Australians out of parts of Australia.

SA situation, very recently opened up to one of the 2 states that makes up nearly 50% of the population of Oz with the other which makes up over 20% still a fair way off due to their issues with covid.

Onto more info on polling. 932 WA residents polled by Painted Dog Research about whether to open the border by Xmas was in todays West.

Most want hard WA border to stay for Christmas

Support for the State’s hard border remains high with just one third of people in WA saying they want interstate travel to resume before Christmas, according to an exclusive new poll.

thewest.com.au

A bit of summary

- 36% in favour of opening the border by Xmas.
- 82% of 18-24 year olds against opening the border by Xmas. (Surprised me it was that high)
- Those groups that were worst affected by the shutdown such as hospitality & retail were most against borders being opened
- support for the closed border decreased as age increased with over 70's having 54% in favour of maintaining the border restrictions until Xmas

On 932 residents split demographically into ages you might have an outlier group

Agree. The reported cases of 'exemption failures' don't give the confidence that they system is transparent, fair, or compassionate.

On a different matter, I'm trying to understand the risk profiles in the argument that all state borders should be thrown open. People acknowledge the risks, but say 'they are small' and 'worth taking'. Compare that to the discussion on vaccine development where people say they won't accept/take any vaccine unless it is 100% safe, regardless of whether scientists say any potential risks are 'small' or 'worth taking'.

Why is there an anomality in the risk acceptance between border openings and vaccines?

"People" have different opinions across the spectrum.

 

[oz_mark]

Agree. The reported cases of 'exemption failures' don't give the confidence that they system is transparent, fair, or compassionate.

On a different matter, I'm trying to understand the risk profiles in the argument that all state borders should be thrown open. People acknowledge the risks, but say 'they are small' and 'worth taking'. Compare that to the discussion on vaccine development where people say they won't accept/take any vaccine unless it is 100% safe, regardless of whether scientists say any potential risks are 'small' or 'worth taking'.

Why is there an anomality in the risk acceptance between border openings and vaccines?

Border closures between two regions are really only effective when there is a significant difference in case numbers between the two regions (such as there was between Victoria and the rest of the country)
However, we have a situation where we have states with zero cases stopping people from travelling from other states with zero cases.
In cases where there are small differences, there is a lot of argument that other mitigation strategies would be better, and have less detrimental effect overall.

As for vaccines, my view is that like most things medical, there is no such thing as 100% safe. Whether vaccines have been too effective for the own good is a whole other subject, but I think the anti-vaccine debates play a part in it all.

But back to the borders, I hope the high court sorts some of this out. If not, perhaps consititutional change is required to stop a repeat of the current circus being played out across the country.

 

[MEL_Traveller]

Border closures between two regions are really only effective when there is a significant difference in case numbers between the two regions (such as there was between Victoria and the rest of the country)
However, we have a situation where we have states with zero cases stopping people from travelling from other states with zero cases.
In cases where there are small differences, there is a lot of argument that other mitigation strategies would be better, and have less detrimental effect overall.

As for vaccines, my view is that like most things medical, there is no such thing as 100% safe. Whether vaccines have been too effective for the own good is a whole other subject, but I think the anti-vaccine debates play a part in it all.

But back to the borders, I hope the high court sorts some of this out. If not, perhaps consititutional change is required to stop a repeat of the current circus being played out across the country.

I guess the 'zero-zero' thing is the bit in question? We know covid has been detected in sewage, despite no cases being alerted to authorities.

Even with a very small number of cases, just a dingle person can cripple an entire town, as we saw in regional Victoria last week. How do we combat that?

I doubt we will ever get constitutional change to modify or abolish state powers, or to give Canberra emergency powers for circumstances like this. Regions/states/ethnic groupings are looking for greater self determination, not less. Australia would be bucking the trend if this was to succeed.

 

[MEL_Traveller]

Watching the news tonight it is claimed risk management in aged care has not improved since the second wave in Victoria. Residents have been described as 'sitting ducks'.

I know many on AFF have advocated border opening, with appropriate protections for the vulnerable. Unfortunately it doesn't seem like this is happening.