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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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drron

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The Spirit has been sailing every day.Mainly freight but there has been some passenger traffic.One Queenslander who was granted an exemption came by car.Was OK as long as he had no stops in Victoria.Fortunately the Spirit leaves at night so was fine to traverse Victoria on the day he boarded.Said that they did look at his phone.
 

CityRail

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It could be a pretty decisive week for NSW as Qld and Tas are announcing whether they will reopen the borders with NSW from November. I really hope they do so on time as the tourism sector is definitely dying if there're no New South Walsh come into Queensland for holiday!
 

antycbr

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It could be a pretty decisive week for NSW as Qld and Tas are announcing whether they will reopen the borders with NSW from November. I really hope they do so on time as the tourism sector is definitely dying if there're no New South Walsh come into Queensland for holiday!
Too little too late, a lot of people have made their plans already and they don’t involve Queensland.
 

jase05

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Yep, we realised QLD was unlikely to welcome us so we now have a booking for NSW instead.
Yeah, we leave tonight to drive up to FNQ from ADL for 3 weeks but it’s worked out fine for us being not allowed to drive through NSW as it’s been nearly 20 years since I’ve driven through inland FNQ and we can spend a couple days in the NT on the way over and come back via NSW
 

nutwood

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Friends and family that we are in touch with in WA all seem quite supportive of the closed border policy. Thinking back to when we lived there, the other side of the Nullarbor was another world. Unless you want to ski, there's not much that you can't find within WA.
I suspect some people are hurting a lot, but they are not the majority.
 

jakeseven7

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Friends and family that we are in touch with in WA all seem quite supportive of the closed border policy. Thinking back to when we lived there, the other side of the Nullarbor was another world. Unless you want to ski, there's not much that you can't find within WA.
I suspect some people are hurting a lot, but they are not the majority.

+80% of WA residents are now asking for border restrictions to be relaxed and the hard border requirements to be removed in favour of smart borders open to most states with track and trace in place.
*Source: Fairfax poll / n=7000

This support has clearly increased significantly over the last two weeks and is to be expected as the cases in other states dribble down to single digits everywhere and as other states like Tasmania open up.

And yes you are right some people are hurting alot in WA but they are being drowned out still by people not wanting any restrictions and still be able stand up and drink in a pub and such.... :(
 

jakeseven7

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Regional Victoria to be open to SA and NSW 'within weeks', Melbourne to follow

Premier Daniel Andrews has hinted that regional Victoria will be opened up to residents of New South Wales and South Australia before metropolitan Melbourne.

Mr Andrews said the state government had signed up to the PM's national cabinet plan to have state borders open by Christmas and that discussions with both the SA and NSW government would be held this week regarding border openings within weeks to regional Victoria, with metro Melbourne expected to follow in early December.

It follows as Victoria recorded zero cases of coronavirus today and announced the metro Melbourne lockdown would end on Wednesday.

 

nutwood

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+80% of WA residents are now asking for border restrictions to be relaxed and the hard border requirements to be removed in favour of smart borders open to most states with track and trace in place.
*Source: Fairfax poll / n=7000

This support has clearly increased significantly over the last two weeks and is to be expected as the cases in other states dribble down to single digits everywhere and as other states like Tasmania open up.

And yes you are right some people are hurting alot in WA but they are being drowned out still by people not wanting any restrictions and still be able stand up and drink in a pub and such.... :(
The 80% is an interesting figure because it's so wildly different from the feedback we've been receiving. Obviously, we've only got exposure to a small sample, and a sample that suffers cross contamination from others in the sample, but I would have to say that "we're alright Jack" is the predominant sentiment we've received from WA.
I'd be interested to know what other people are getting from contacts in the West.
 

oz_mark

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The 80% is an interesting figure because it's so wildly different from the feedback we've been receiving. Obviously, we've only got exposure to a small sample, and a sample that suffers cross contamination from others in the sample, but I would have to say that "we're alright Jack" is the predominant sentiment we've received from WA.
I'd be interested to know what other people are getting from contacts in the West.

You need to consider the statistics in the context of the questions. While there is a high degree of support for border controls, when asked for a preference hard or smart borders, the survey I saw gave over 80 pct support for smart borders.
 

antycbr

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Apparently AP will be announcing on Friday what’s happening with the borders. Just in time for the election. In my view this decision should be made and announced by the CHO, Jeanette Young, only, as it isn’t a political decision (apparently).

 
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nutwood

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You need to consider the statistics in the context of the questions. While there is a high degree of support for border controls, when asked for a preference hard or smart borders, the survey I saw gave over 80 pct support for smart borders.
Point taken. Define "smart".
 

jakeseven7

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Apparently AP will be announcing on Friday what’s happening with the borders. Just in time for the election. In my view this decision should be made and announced by the CHO, Jeanette Young, only, as it isn’t a political decision (apparently).


There have been massive full page ads this week in papers attacking both the caretaker Premier and the QLD CHO questioning who is making the calls (per that ABC investigation).

So it will be really interesting what the CHO, through the caretaker Premier has to say on Friday on our border restrictions.

What has leaked already is that it will be an easing of border restrictions, to what extent is unknown. There were rumours it would just be a ‘bigger bubble’ but the CHO has been shunted into the background to stop commenting so much and has been very very quiet of late so we haven’t got more of a hint than that....

The border clock is certainly ticking in the background but much quieter....
 

jakeseven7

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Point taken. Define "smart".

Smart = border bubbles with other states (the WA CHO has given the advice weeks ago that WA should already be open to SA, ACT, TAS, NT and QLD) and home/self quarantine with smart apps monitoring visitors from other states.
 
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jeza

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+80% of WA residents are now asking for border restrictions to be relaxed and the hard border requirements to be removed in favour of smart borders open to most states with track and trace in place.
*Source: Fairfax poll / n=7000

This support has clearly increased significantly over the last two weeks and is to be expected as the cases in other states dribble down to single digits everywhere and as other states like Tasmania open up.

And yes you are right some people are hurting alot in WA but they are being drowned out still by people not wanting any restrictions and still be able stand up and drink in a pub and such.... :(

Very interesting numbers, do you have a link to the poll?

Coincidentally...

 

antycbr

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Peter Beattie softening up the Queensland community for what's coming (and giving cover to AP to make the change):


"Mr Beattie told the ABC he was "not being critical of what's happened in the past, but we're now at a junction where we've got to be Australians".

"Frankly, if we don't open up, then Australia is going to go broke. It's a fact. It's not a political comment."

Asked whether a former Labor leader telling a current one to follow the lead of a Liberal government could ever not be political, Mr Beattie doubled down saying "whoever wins the Queensland election" will be "faced with an economic tsunami".

"The reality is that the method adopted by the NSW government, and I couldn't care about the political persuasion, that contact tracing works."


 

Gremlin

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Very interesting numbers, do you have a link to the poll?

Coincidentally...

Yes. Would be very interested to see a link to that poll. Have googled and can't find anything. On the other hand, have found plenty of links to recent (last month or two) polls suggesting overwhelming support within WA for the border closures. Figures between 77% and 92% in support of the closures, depending on the methodologies and timing.
 

jeza

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Yes. Would be very interested to see a link to that poll. Have googled and can't find anything. On the other hand, have found plenty of links to recent (last month or two) polls suggesting overwhelming support within WA for the border closures. Figures between 77% and 92% in support of the closures, depending on the methodologies and timing.

@Gremlin below is a link to what I think may be an article which refers to the poll results. If you are in WA it is in todays West.


A few points from the article

- commissioned by the Tourism Council of WA
- question asked. Whether the state government should set a tentative date to open the border, subject to health advice at the time.
- 72% supported that statement
- 70% in favour of a travel bubble between states low or zero community transmission. How the question was put forward is not contained in the article.
- 7% support for maintaining the border permanently if Covid19 was not eliminated in every state.

For some reason this springs to mind

 

OZDUCK

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@Gremlin below is a link to what I think may be an article which refers to the poll results. If you are in WA it is in todays West.


A few points from the article

- commissioned by the Tourism Council of WA
- question asked. Whether the state government should set a tentative date to open the border, subject to health advice at the time.
- 72% supported that statement
- 70% in favour of a travel bubble between states low or zero community transmission. How the question was put forward is not contained in the article.
- 7% support for maintaining the border permanently if Covid19 was not eliminated in every state.

For some reason this springs to mind


As it often did, that "Yes Prime Minister/Minister" clip precisely hits the mark.
 
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jb747

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I wonder how much effect the sudden imposition of these borders, and the lingering threat of them suddenly coming back, will affect peoples' plans. I certainly wouldn't want to be touring with the van, only to find a checkpoint in front of me (or behind me for that matter). Even if you fly, you'd have no guarantee of a return journey.
 

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