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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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NSW continues to pressure for full reopening on Friday....

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Berejiklian increases pressure on QLD and WA border restrictions, begins charging them for quarantine processing


NSW Premier Gladys Berejiklian has continued her criticism of state border closures in media appearances this morning, telling Today she has been discussing the reopening of the border with Queensland Premier Annastacia Palaszczuk's LNP challenger at Saturday's state election.

"Deb [Frecklington] and I have a great working relationship – I was in touch with her yesterday and she feels strongly about keeping jobs in our state and getting tourism up and running," Ms Berejiklian said of her Liberal colleague.

"NSW has managed to have a thriving economy, we're getting jobs back. We're allowing our citizen as much freedom as possible in a COVID-safe way, that's why the Queensland government completely lacks rationality."

Queensland has said it will reopen to NSW or Victoria from November 1 if either state has recorded 28 days without a mystery coronavirus case, a metric it will not achieve.

With Tasmania announcing it will reopen to NSW residents next month, the Premier said she suspected Western Australian Premier Mark McGowan was also waiting for his own state election.

"The WA Premier doesn't have an election until March next year and is clearly holding out for that but it is not fair for citizens in Australia to suffer as a consequence," she said.

"Political expediency should not overrule what is good for citizens."

"I say to Queensland: I appreciate you making an announcement on the eve of the election; I hope it's a positive announcement because residents in your state and NSW and across the nation are suffering as a consequence," the Premier told reporters on Wednesday.

"And I also urge the West Australian Premier to do likewise because there is no reason why NSW residents shouldn't be welcome to other states."

The Premier said she felt an "acute sense of frustration" about the closure of state borders particularly as 45 per cent of the returned Australians being processed in Sydney hotels are from out of state – and now form the bulk of her state's cases.

She added that plans were in place for Treasurer Dominic Perrottet to issue invoices to his interstate counterparts at a meeting next week to cover NSW's costs, noting: "it's not so much the dollars, it's the principle".

"I get really frustrated and annoyed when WA and Queensland expect us to process all of their citizens, which we do gladly, but then just think of all these excuses as to why NSW residents can't move freely: I say to the states, you can't have it both ways."


 
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antycbr

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Now human rights organisations are getting involved in WA's hard border:


In one particularly heartbreaking case, a father from WA, who was temporarily living in Queensland for work, had not seen his children aged two, six and eight who live in Perth with his ex-wife for 10 months. His application to re-enter WA had been rejected twice.

"My little three-year-old cries sometimes and the other two [children] are always asking me when I will go back. Being able to talk to someone or get help is near impossible," he told Human Rights Watch.
 

antycbr

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She added that plans were in place for Treasurer Dominic Perrottet to issue invoices to his interstate counterparts at a meeting next week to cover NSW's costs, noting: "it's not so much the dollars, it's the principle".
About time, NSW is taking on the risk and the extended cost of hotel quarantine.
 

HappyFlyerFamily

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Ummm, has NSW opened its border to Victoria?
No. NSW is waiting on Vic to prove it’s track and trace abilities without the support of a lockdown. Apparently there have been some discussions, so perhaps NSW might accept Regional Vic residents freely moving first soon, even though though Vic will be whole soon.
 

jakeseven7

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WA's hard border may soften, as McGowan gives ground

West Australian Premier Mark McGowan appears set to give some ground on the state’s hard border closure, based on new advice from the state's chief health officer and amid mounting pressure to join the rest of the country in easing movement restrictions.

A growing number of West Australians, businesses and political leaders want Mr McGowan to at least provide a road map to reconnecting with the rest of the country.

Chris Rodwell said the only reason local businesses should continue to be cut off from the national economy was on the bases of clear and transparant public health advice.

Previous public health advice given to the WA government indicated the state could be opened safely to 'low risk' states such as South Australia, the Northern Territory, Queensland, Tasmania and the Australian Capital Territory. However this advice was not acted on by the WA government and the public are asking why.

 
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N860CR

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OK, but it seems odd for NSW to then complain about the QLD closed border.

Victoria had an uncontrolled breakout and proved they did not have the capability of tracing. NSW has proven time and time again that they are capeable of managing a virus that cannot be eradicated. Victoria unfortunatley fell into a position out of step with the remained of the country.

Queensland opened its borders to NSW in July when NSW was in a worse position than it is now. The premier (who I’m not generally a fan of) is quite right to call the Queensland government out for the political behavior.
 

drron

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But AP admits it is not her who has closed the borders it is the CHO Dr.Young.
 

jb747

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But AP admits it is not her who has closed the borders it is the CHO Dr.Young.
Of course. Same as the SA premier can say that he isn't asking the impossible of Victoria, it's actually the police.

But, if there's any good news, you can be assured that it will be claimed by the politicians.
 

Pushka

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Of course. Same as the SA premier can say that he isn't asking the impossible of Victoria, it's actually the police.

Don't get me started on our Premier right now who is having a very pleasant holiday from his day job and simply announcing the good news stories and leaving it up to the Police Commissioner to be Mr Grumpy Pants.
 

nutwood

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Of course. Same as the SA premier can say that he isn't asking the impossible of Victoria, it's actually the police.

But, if there's any good news, you can be assured that it will be claimed by the politicians.
Socialise the risk, privatise the profit. It's a variation on a tried and tested formula.
 

TheRealTMA

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It’s interesting that Gladys is sending bills to QLD, SA, Vic etc for quarantine costs of non NSW residents. How is this legal under the constitution?
 

TheRealTMA

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How is it not legal? Fee for service.
Because all Australians have to be treated equally irrespective of what state they are residents. Just like the unfortunate statement that QLD hospitals are for Queenslanders, just silly.
 

drron

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Because all Australians have to be treated equally irrespective of what state they are residents. Just like the unfortunate statement that QLD hospitals are for Queenslanders, just silly.
How are the people not treated equally?
Same hotels,same price no matter what State you come from.
So why should the NSW Government continually pay extra for other States residents.Those other States also have the right to charge NSW for NSW residents they quarantine that have arrived from overseas.
 

jakeseven7

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NSW Premier criticises other states for not ‘building up COVID-safe capability’ during border closures


Gladys Berejiklian has reinforced calls for other states to open their borders to NSW residents, commending her state for being the "only state along with Victoria that has such intense COVID-safe plans for business, for community events and for community gatherings" which dwindled the state's numbers.

"We would have hoped that other states would have built their resilience during periods of borders being up or during lockdowns," she said.

She said she found the Queensland Government's benchmark for reopening the border — 28 days without a mystery coronavirus case — too high for NSW to meet.

"I don't feel during the pandemic that we're going to reach the target of 28 days without having all cases known," she said.

"It might take [NSW] Health just a few hours to identify the source of the case, other times it takes days and weeks.

"I think the benchmark Queensland has set is unrealistic."

 

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