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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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antycbr

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Clearly the PM is speaking gibberish....Qld CHO has been clear, maybe adding further criteria once in a while but clear on the health advice.

Waiting for 28 days with no mystery cases (which is technically called community transmission, but most use the term wrongly to mean locally acquired). Mystery cases can be undone if a direct link to existing cluster/case is found within 48 hours.

The only thing left is for the health advice to backflip because ‘we live in a fluid environment’
The Queensland CHO or the Queensland Government are not paying for Jobkeeper and Jobseeker. The PM is picking up the cost.
 

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N860CR

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It really looks like this will drag on forever as one giant political game. Just listening to the Queensland premier and deputy premier carry on during their intro clearly shows this is all about politics and nothing about health.

I don’t see how we’ll ever function as a single country again.
 

drron

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Yep, still doesn’t mean the PM isn’t talking gibberish and the Qld CHO isn’t clear
Except the QLD CHO is on the record as saying QLD is prepared for the inevitability of a Covid case arising and she knows exactly what to do including ramping up contact tracing.I have posted that link previously.If that is the case there is no medical reason to kjepp the borders closed.
Recently she has also made these statements.
"I don't know what's going to get us out of this," Dr Young said of the pandemic.


"We can't stay as we are, we just can't — this is not tenable to continue," she said.

"It's not good for mental health, let alone all the other issues and our economy."


During her speech, Dr Young said she was not surprised COVID-19 was impacting the mental health of young people the most.

"I think our young people as a generation are really going to struggle," she said.


All are reasons to open the border.
 

jakeseven7

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What. a. mess.

They are getting cruicified at the press conference and none of them are great public speakers so its pretty tragic to watch.... *reaches for popcorn*

----

Queensland remains shut to Greater Sydney

The reopening to the rest of NSW planned for November 1 will move to November 3, at 1:00am but Queensland remains closed to people who travel through 32 LGAs in Greater Sydney.

Queensland Chief Health Officer, Dr Jeanette Young is speaking to the media and has expressed concern that NSW does not have control of the virus and that Greater Sydney area therefore remains a hotspot.

She is defending questioning about her states ability to be able to manage any outbreak and the logic behind her decisions.

Victoria will remain closed to Queensland for now, but still targetting to open prior to Christmas

 
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N860CR

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What. a. mess.

They are getting cruicified at the press conference and neither of them are great public speakers so its pretty tragic to watch.... *reaches for popcorn*

The three of them are sounding like absolute blithering idiots. I should have grabbed a notepad to keep track of all the times the CMO has contradicted herself.

As a lifelong labor supporter, I really hope they lose tomorrow as Queensland needs new leadership.
 

HappyFlyerFamily

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What. a. mess.

They are getting cruicified at the press conference and neither of them are great public speakers so its pretty tragic to watch.... *reaches for popcorn*

----

Queensland remains shut to Greater Sydney

The reopening to the rest of NSW planned for November 1 will move to November 3, at 1:00am but Queensland remains closed to people who travel through 32 LGAs in Greater Sydney.

Queensland Chief Health Officer, Dr Jeanette Young is speaking to the media and has expressed concern that NSW does not have control of the virus and that Greater Sydney area therefore remains a hotspot.

She is defending questioning about her states ability to be able to manage any outbreak and the logic behind her decisions.

Victoria will remain closed to Queensland for now, but still targetting to open prior to Christmas


When was REgional vic’s Last mystery case?
REgional Vic must have been close to meeting the 28 day rule???
 

jakeseven7

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Yep, still doesn’t mean the PM isn’t talking gibberish and the Qld CHO isn’t clear

The QLD CHO needs to release all of her reasoning and rationale to be vetted and peer reviewed. This has been the issue in both WA and QLD.

It is very very interesting that the caretaker QLD Premier made it very clear it was all the QLD CHO and said she had nothing to do with the advice, it is QLD CHO has sole power and decision making....etc etc

It really looks like this will drag on forever as one giant political game. Just listening to the Queensland premier and deputy premier carry on during their intro clearly shows this is all about politics and nothing about health.

I don’t see how we’ll ever function as a single country again.

Oh I can: Australia (excluding WA and QLD) will be a single country ;)

Unfortunately it is becoming apparent QLD CHO has a pipe dream of eradication and WA has a date in March to care about.

"I don't know what's going to get us out of this," Dr Young said of the pandemic.

"We can't stay as we are, we just can't — this is not tenable to continue," she said.

"It's not good for mental health, let alone all the other issues and our economy."

During her speech, Dr Young said she was not surprised COVID-19 was impacting the mental health of young people the most.

"I think our young people as a generation are really going to struggle," she said.


All are reasons to open the border.

We are staying exactly where we are and slipping backwards unfortunately.
 
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Brissy1

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Except the QLD CHO is on the record as saying QLD is prepared for the inevitability of a Covid case arising and she knows exactly what to do including ramping up contact tracing.I have posted that link previously.If that is the case there is no medical reason to kjepp the borders closed.
Recently she has also made these statements.
"I don't know what's going to get us out of this," Dr Young said of the pandemic.


"We can't stay as we are, we just can't — this is not tenable to continue," she said.

"It's not good for mental health, let alone all the other issues and our economy."


During her speech, Dr Young said she was not surprised COVID-19 was impacting the mental health of young people the most.

"I think our young people as a generation are really going to struggle," she said.


All are reasons to open the border.

All are reasons to open the border... and yet she doesn't! Obviously CHO consults with AP, not the other way around
 

jakeseven7

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All are reasons to open the border... and yet she doesn't! Obviously CHO consults with AP, not the other way around

In a legal sense, the QLD CHO controls all of this - the ABC did an investigation and that is the black and white.

But whether that is a reality is highly questionable and the ABC reached that conclusion too.

And the fact is that the 'evidence based approach' the QLD CHO uses is never released despite the Prime Minister of the country directly asking for it.
 
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jakeseven7

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The three of them are sounding like absolute blithering idiots. I should have grabbed a notepad to keep track of all the times the CMO has contradicted herself.

I have never seen anything like this in my life. I can't wait for the memes....

This exchange was the best:

'We aren't going for eradication'
- so you think NSW cases are too high?
'No I dont, they are doing the best they possibly can but they are still seeing cases unfortunately and a real problem in SW Sydney'
- so are you going for eradication then?
'No we are going for supression'
- so are you concerned that QLD Health cannot manage a few cases?
'No I'm very confident in our ability to manage small outbreaks and we've demonstrated that....'
- so do you think that NSW aren't testing enough, what is the problem?
'No I think NSW are doing a superb job with their testing'
- so what exactly is the plan then, when will we open our borders?
'I don't have a crystal ball'

Are you SERIOUS?! 😂
 
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dajop

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When was REgional vic’s Last mystery case?
REgional Vic must have been close to meeting the 28 day rule???

Regional Vic's last cases were in Shepparton and Kilmore, from known source (these were picked up Oct 14 and 4-10 Oct respectively). The cases in regional Vic before those two outbreaks were on 16 Sep - not sure if they were mystery cases or not, but even if they were, that was 44 days ago. Hence I guess the NT decision to allow travellers from Regional Vic without quarantine..
 

jakeseven7

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Minister Littleproud calls for full transparency over QLD border decision, accuses QLD Premier of using the QLD CHO as a 'political pawn'

David Littleproud was talking about the Bushfire report, but has been asked about whether Annastacia Palaszczuk's refusal to open borders to Greater Sydney.

"I think that the science has been cherry picked from the get go by the Queensland government," Mr Littleproud said.

"The problem we have is that the science is not transparent. The Chief medical officer is being used as a political pawn in Queensland. The science has not been put out there.

"Governments should be transparent.

"When I saw those harrowing cases of people just across the border who were not allowed to get medical attention because their closest medical attention is in Queensland and had been getting that for decades, was stripped away from them.

"That is not what Australians do to one another. We are better than that, bigger than that and that is why I say to the premier, this is above politics, this is people.

"We are all Australian and you have got to work with your fellow Australians to get this right. Be open and transparent with it."

 

HappyFlyerFamily

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At this point in time the Qld CHO is doing what she think is best to keep Qld safe. The fact that the Qld CHO’s demonstrated risk appetite is very low (or ultra low) is not really relevant. The Qld CHO has the sole power to determine the measure/markers.

I think I heard the Qld CHO is a statutory position (does it mean appointed by QLD parliament?)

So unless the Qld CHO finds a different way to measure this required ultra low risk, the options for change are limited:
- Qld CHO resigns or retires, etc to create a vacancy
- Qld CHO backflips
- Qld Parliament changes the laws so that Public Health powers under this emergency are exercised differently.
 

Bundy Bear

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Most people who work in medical fields are happy for the borders to be kept closed.
Dr Young is being ultra cautious with Greater Sydney.

I am hoping they can come to some agreement and suggest something like 1 December as long as case numbers stay low.

Gives the airlines something to plan for.
 

antycbr

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Most people who work in medical fields are happy for the borders to be kept closed.
Dr Young is being ultra cautious with Greater Sydney.

I am hoping they can come to some agreement and suggest something like 1 December as long as case numbers stay low.

Gives the airlines something to plan for.
I fail to see why anyone in Sydney will ever book anything for Queensland ever again.

Why should we wait for some “agreement”?
 

jakeseven7

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At this point in time the Qld CHO is doing what she think is best to keep Qld safe. The fact that the Qld CHO’s demonstrated risk appetite is very low (or ultra low) is not really relevant. The Qld CHO has the sole power to determine the measure/markers.

I think I heard the Qld CHO is a statutory position (does it mean appointed by QLD parliament?)

So unless the Qld CHO finds a different way to measure this required ultra low risk, the options for change are limited:
- Qld CHO resigns or retires, etc to create a vacancy
- Qld CHO backflips
- Qld Parliament changes the laws so that Public Health powers under this emergency are exercised differently.

Yes essentially this is the black and white... the buck stops with the QLD CHO. And the caretaker Premier made that VERY clear in the press conference, that this was all the QLD CHO and nothing to do with her...

The major problem is from a transperancy point of view for anyone to try and understand the 'risk appetitie' that the CHO is using to make these decisions - is that none of the reasoning, the 'evidence based approach' the CHO is using is being made public or shared so people can understand how they are reaching these conclusions.... all we are getting is the 28 day / 48 hour rules...
 
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