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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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jakeseven7

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Good news for Tassie and NSW! HUGE tourisim boost for Tassie especially and great that families to reunite.

VIC likely to be December all going well, so Xmas reunions will be hopefully be on for VIC / TAS.

NB: Tasmania are not using the impossible '28 day no mystery case rule' so will be interesting to see what they will and won't accept....

----

Tasmanian Government announces coronavirus restrictions to NSW to be eased in November


Tasmania will reopen its borders to travellers to and from New South Wales in the first week of November, subject to that state's COVID-19-status remaining "positive", Premier Peter Gutwein has announced.

"We remain on track to open to South Australia, ACT, Queensland in seven days time on 26th of October," Mr Gutwein said.

All arrivals will undergo health screening, including temperature checks.

"In terms of travellers from New South Wales, we've been monitoring that situation," he said.

Mr Gutwein said the Tasmania Government plans to open to New South Wales as of Monday, November 2.

 

jakeseven7

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And the AMA has also turned on the WA Premier now as well..., if they continue down this path they are as NSW calls them 'sitting ducks'...

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AMA boss slams WA's 'risky' border closure strategy, calls for more covid safe restrictions to be kept in WA in preparation for border reopening

The Australian Medical Association says WA's "risky" strategy could cost them and has urged social distancing and covid restrictions to remain in place or face being cut off from the rest of the world for years.

Australian Medical Association President Dr Omar Khorshid says the WA government is too focused on returning life to normal in isolation which is a "risky" strategy, as pressure mounts for the state to open it's domestic borders.

Dr Khorshid warned states like WA were being far too complacent with coronavirus restrictions and relying on measures that were not sustainable, like keeping its border closed.

The AMA is calling for some social distancing restrictions to remain in place on the population and businesses in preparation for the WA border opening.

 
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jakeseven7

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NSW-Victoria border could reopen within a month


The border between Victoria and NSW could open within a month if case numbers in Victoria remained low, NSW Premier Gladys Berejiklian has said.

Her comments came as Victorian Premier Daniel Andrews said he hoped NSW and South Australia would reopen to regional Victoria as soon as this week.

Ms Berejiklian on Monday pointed to Melbourne's new 25-kilometre movement bubble as a good test of Victoria's contact tracing capacity under looser restrictions, raising hopes that the border – which has been shut since July 6 – could open to all Victorians as soon as early November.

"We are very keen to see what happens in Victoria once further restrictions are eased because that's the real test," the NSW Premier said on Monday.

 

jakeseven7

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SA relaxes hard border with Victoria


Until now, people from Victoria — including South Australian citizens — have been banned from travelling into SA unless they have essential traveller status.

Under changes announced today, people will be allowed to move to South Australia without an exemption, but they will have to self-isolate for 14 days on arrival.

Currently, people in South Australian and Victorian cross-border communities are able to travel up to 70 kilometres either side of the border, for essential purposes only.

That restriction will also be eased to allow people to travel between cross-border communities without a specific reason.

"If you live in a cross border community, you are able to travel freely within the 70 kilometres either side of the border, without any specific purpose being … identified."

The state's transition committee is yet to outline when the border changes will take effect.

 

jase05

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With the different restrictions on who can visit Tasmania what stops someone going from Sydney to Tasmania via Adelaide

View attachment 230956
I would guess on arrival you would be met by police and would be asked questions of your whereabouts for the previous 14 days similar to what is done now in other states
Post automatically merged:

The state's transition committee is yet to outline when the border changes will take effect.
This Saturday
 

Anna

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There is a directions hearing this afternoon in the High Court.

Skimming the High Court transcripts on and since 4 September, I don't see any formal confirmation that these matters are confirmed for the November sittings as opposed to be 'likely' to be in November (which was said on 4 September). Has anyone seen any court directions confirming a hearing date?
 

jakeseven7

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Found some official mention of hearing date 3 November - Case B26/2020 - High Court of Australia

Anyone with insomnia can read the written submissions at that link too.

Thank you!

On the radio a couple of days ago they had a constitutional lawyer saying it was interesting to see states like Tasmania now opening most of their borders ahead of the hearing.

He was drawing lines and discussing that perhaps their advice is that now the levels of transmission are so very low the reasonableness/proportionate excuse is evaporating by the day....

By the time we have resolution on this case it will probably only influence WA (original subject matter) and possibly QLD!

Although the WA population is starting to turn quickly against the hard border there as well actually from the events of the last week.... It will be interesting to see if this High Court case is even needed anymore.... though I wonder if people will sue states like WA and QLD if it turns out not to be legal (historically)....
 
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jakeseven7

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QLD border update, getting more ridiculous by the day...

Tasmania will be opened to NSW before QLD at this rate....!

Our poor tourism industry :( Now Tas, NT, and SA will have the jump on us for summer holiday bookings.... :(

----

Palaszczuk revels in border closure at campaign launch

Queensland Premier Annastacia Palaszczuk played up fears about COVID-19 and talked up her government's closed border policy as her main pitch to win the October 31 state election.

Despite Queensland having the highest unemployment rate in the country and a tourism sector decimated by closed borders, Ms Palaszczuk again defended the draconian border regime at the ALP campaign launch on Sunday.

Ms Palaszczuk's speech to Labor supporters failed to mention that NSW has been able to control the coronavirus while keeping its borders open to all states and territories, except Victoria.



QLD bumbles border communications, floats possibility of a 'bigger bubble' rather than opening borders to NSW

Queensland Health Minister Steven Miles says a series of factors will come into the decision on when the state reopens its border to NSW. Mr Miles says before reopening completely, the border bubble may expand.

He said 'It's not black and white, it's not yes or no, multiple factors will come into play'.

Queensland tourism industry leaders say 'Enough is enough' and fear a horror summer holiday period as other states open to New South Wales ahead of Queensland. Tasmania announced their borders would open to NSW in less than two weeks and South Australia and the Northern Territory are already taking advantage of NSW residents' spending power with huge increases in travel recorded.

 

jakeseven7

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NSW Premier launches fresh criticism on QLD border closures, QLD Chief Health Officer may open border regardless of mystery case rule


The state-of-origin-style spat over the NSW/Queensland border has heated up again, with Queensland Premier Annastacia Palaszczuk sensationally telling her NSW counterpart to 'focus on her own problems before throwing stones'.

NSW Premier Gladys Berejiklian this morning accused Queensland of shirking up to $35 million dollars worth of hotel quarantine fees because NSW has been "doing the heavy lifting" for international arrivals.

"We've welcomed Australians back from all the other states. It's about time Queensland coughed up," Ms Berejiklian said.

"I want them to pay their bill, especially given they keep their border shut when they really don't need to," she said.

Deb Frecklington, the state's opposition leader, has been receiving daily briefings from Chief Health Officer Jeannette Young during Queensland’s caretaker period ahead of the October 31 election, who has not ruled out opening the state border to NSW despite several mystery cases being recorded in the last few weeks.

"I have always said that the borders should not be closed a day longer than they need to be," Ms Frecklington said.

 

HappyFlyerFamily

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NSW Premier launches fresh criticism on QLD border closures, QLD Chief Health Officer may open border regardless of mystery case rule


The state-of-origin-style spat over the NSW/Queensland border has heated up again, with Queensland Premier Annastacia Palaszczuk sensationally telling her NSW counterpart to 'focus on her own problems before throwing stones'.

NSW Premier Gladys Berejiklian this morning accused Queensland of shirking up to $35 million dollars worth of hotel quarantine fees because NSW has been "doing the heavy lifting" for international arrivals.

"We've welcomed Australians back from all the other states. It's about time Queensland coughed up," Ms Berejiklian said.

"I want them to pay their bill, especially given they keep their border shut when they really don't need to," she said.

Deb Frecklington, the state's opposition leader, has been receiving daily briefings from Chief Health Officer Jeannette Young during Queensland’s caretaker period ahead of the October 31 election, who has not ruled out opening the state border to NSW despite several mystery cases being recorded in the last few weeks.

"I have always said that the borders should not be closed a day longer than they need to be," Ms Frecklington said.

That paragraph reads weirdly. Not sure if CHO will open or whether Opp Leader will open if they are in government.
 

jakeseven7

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That paragraph reads weirdly. Not sure if CHO will open or whether Opp Leader will open if they are in government.

Reflective of the nature of who is in control up here....which is murky and depending on the day of the week :)

After a deep dive by the ABC, technically it is our CHO - but they should be consulting.... whether they are doing this or not is not known....
 

jakeseven7

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Let’s not get too excited but hopefully after ‘Halloween’ we may see some sense float to the surface!

WA probably still reading through it ;) Their CHO agrees but the Premier has a date in March to consider still :(

——-

Queensland agrees to open all borders by Christmas


Premier Annastacia Palaszczuk says Queensland is working towards a full reopening of the states borders before Christmas, marking a significant change in approach to border management from the sunshine state.

After a national cabinet meeting on Friday, Prime Minister Scott Morrison said all states except Western Australia had agreed to the plan, with Ms Palaszczuk confirming that Queensland would work to make that happen.

It comes with the decision on whether to open the state to NSW due next week.

 

dk4

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Posting for posterity, and also for those of you who are unsure how these new domestic border restrictions translate into practice at airports - here's a look at how BNE is functioning.

Brisbane airport has terminal maps but here is a good overview of the three piers and main concourse layout.
bne1.jpg
source: https://www.onestopadventures.com.au/blog/how-to-get-to-and-from-major-australian-airports/

What they have done is segregate each of the 3 terminal piers' gates, from the main concourse gates. So all the gates out on those circular parts are now interstate arrivals (and departures in most cases too). And all the gates along the internal rim of the main concourse are intrastate arrivals (and departures in most cases too).

The authorities have then set up international immigration style border control check desks in the narrow walkways out to each pier, where they check every incoming passenger's credentials.

bne2-qf.jpg
The pier leading out to the Qantas gates circle - departing passengers are free to walk up the left hand side of this walkway, but like an international terminal, they can not return once they go past the "incoming border desks".

bne3-jq.jpg
Here is a look at the central pier (used by Jetstar and others) same concept but the desks are situated on the left, with departing passengers moving up the right of the pier. Also note the roped off seating area on the right, for those who arrive and require "further processing" like quarantine or rejection from Queensland.

People meeting arriving passengers at the airport, can go air-side as usual, but they can not go out to the interstate gate piers, so have to wait on the main concourse for passengers to come out from the pier processing points.

bne4-va.jpg
The Virgin gates pier shows the passenger free set up, with desks and roped off holing area on the right. It can be quite an eerie experience in some airport terminals these days, with many resembling (well cleaned) ghost towns. Here is a look at the empty main concourse Virgin gates.
bne5-va.jpg
Just one person, a cleaner, can be spotted in the whole area at 5pm on a weekday afternoon.
 

jb747

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Living on the border, and in a part of regional Victoria in which there has been pretty well zero incidence of CV-19, I can tell you that we're all well and truly over the politicians' (of all ilks) behaviour. By keeping regions locked down when it was not necessary, huge financial damage has been inflicted for no particular reason whatsoever.

The bubble behaviour is quite strange too. We can go a little way into NSW, but not far enough to actually get anywhere. If I wanted to go to Eden, for instance, I'd have to embark on a huge trek through Victoria, as the sealed road route within NSW is outside of the bubble. It's basically been drawn simply by applying a distance to the border line, with no regard to where the roads actually go.

The authorities on the border continue to upset people by the way that they manage the checkpoints too. This morning (Saturday), you'd have expected three lanes to be open across the causeway. But, no, they had only one for most of the morning, with the queue literally stretching for miles. I doubt that rain makes the police shrink...that's not a good enough excuse.

I do wonder if the travel boom that some people expect will be real. After being locked at home for so long, simply going out is now unusual, and perhaps not even desirable.
 

jakeseven7

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Living on the border, and in a part of regional Victoria in which there has been pretty well zero incidence of CV-19, I can tell you that we're all well and truly over the politicians' (of all ilks) behaviour. By keeping regions locked down when it was not necessary, huge financial damage has been inflicted for no particular reason whatsoever.

The bubble behaviour is quite strange too. We can go a little way into NSW, but not far enough to actually get anywhere. If I wanted to go to Eden, for instance, I'd have to embark on a huge trek through Victoria, as the sealed road route within NSW is outside of the bubble. It's basically been drawn simply by applying a distance to the border line, with no regard to where the roads actually go.

The authorities on the border continue to upset people by the way that they manage the checkpoints too. This morning (Saturday), you'd have expected three lanes to be open across the causeway. But, no, they had only one for most of the morning, with the queue literally stretching for miles. I doubt that rain makes the police shrink...that's not a good enough excuse.

I do wonder if the travel boom that some people expect will be real. After being locked at home for so long, simply going out is now unusual, and perhaps not even desirable.

Well Tasmania is reporting significant bookings ahead of their imminent border opening with many hotels and tourist operators saying they are already booked out, which is great for them given the states reliance on tourism....

MONA still remains closed though!
 

jase05

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Well Tasmania is reporting significant bookings ahead of their imminent border opening with many hotels and tourist operators saying they are already booked out, which is great for them given the states reliance on tourism....

MONA still remains closed though!
SA bookings really strong too currently.
We are heading to the NT and FNQ next week and some places are booked out or close to it.
I think most states will see a decent boom in the coming months.
Regional Victoria will see good numbers but think people won’t flock back to Melbourne for a long time yet
 
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jakeseven7

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SA bookings really strong too currently.
We are heading to the NT and FNQ next week and some places are booked out or close to it.
I think most states will see a decent boom in the coming months.
Regional Victoria will see good numbers but think people won’t flock back to Melbourne for a long time yet

That’s great for SA too :)

Once QLD sorts itself out, Ill be one of the first people flying down to Melbourne :) There will be a tonne of family travel at the very least.

From a work perspective Melbourne is our second biggest market and our distribution hub like many Australian companies and we will have work travel down there as soon as it’s allowed.

I am getting a little worried that we are going to miss out on a lot of school holiday / summer / Christmas bookings because we are so far behind the other states though....
 

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