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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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p--and--t

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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?

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.

But GB is not sending bills to those citizens. Surely as @antycbr says, she is merely billing the other government's for fee for service.
 
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HappyFlyerFamily

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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...
I know reasons can sometimes give insights, but it’s not like this ‘decision’ can be judicially or administratively reviewed. So even if it’s revealed, I don’t see much coming from it, except more of the same from all the same places, just probably more louder and/or fervent.
 

jakeseven7

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I know reasons can sometimes give insights, but it’s not like this ‘decision’ can be judicially or administratively reviewed. So even if it’s revealed, I don’t see much coming from it, except more of the same from all the same places, just probably more louder and/or fervent.

I would think it would be appropriate that the federal chief health officer and their team would be able to review something as critically important like this... and not left in hands of one human.

I know it is not legally (clearly!) required....
 

HappyFlyerFamily

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I would think it would be appropriate that the federal chief health officer and their team would be able to review something as critically important like this... and not left in hands of one human.

I know it is not legally (clearly!) required....
That strategy clearly worked with Vic’s recent roadmap..........Not.
 

drron

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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.
Though the vast majority of State and Commonwealth CHO/CMOs and their deputies ar in favour of open borders.Most with superior qualifications in the management of viral pandemics/epidemics.So it is incumbent on the QLD CHO to release her opinions on why on medical grounds the border should remain closed.Otherwise I can only assume that it is being done for political purposes.
 

jakeseven7

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Furious reaction in SE QLD after QLD border remains shut, Christmas at risk

Queensland residents in Brisbane and the Gold Coast have reacted angrily to the Premier's decision to keep the states borders closed to Sydney, claiming the government was 'completely out of touch', 'living on another planet' and demanding to understand the rationale for the decision.

Destination Gold Coast chairman Paul Donovan told the ABC local hotels were only at 40 to 50 per cent capacity, with Christmas now at risk.

“We were hoping that the Premier was announcing that she would open up the border, particularly from Sydney,” he said.

“We desperately need that market, we need to get the industry going again. “Please Premier, press the button. We need the borders open now."

The boss of one of Queensland’s largest employers, Village Roadshow Theme Parks, fired off an extraordinary message after Health Minister Steven Miles said the state’s hospitality sector was doing well.

“Which world is this man living in,” the company’s chief operating officer Bikash Randhawa said. “We are bleeding away in the Gold Coast” “The people in smaller establishments have been really hurt."

Queensland Airports chief executive officer Chris Mills warned the future of 3000 tourism businesses and 41,000 jobs on the Gold Coast would be affected with the decision to reopen the border cancelled.

“We have seen good bookings for the flights from Sydney scheduled next week, and the first flight on Sunday is almost full – so now to turn them all away at short notice is a real blow to the Gold Coast’s recovery,” Mr Mills told the Courier Mail.

"The airport is really haemorrhaging, we've got virtually no flights and about 97 per cent down."

 

antycbr

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Furious reaction in SE QLD after QLD border remains shut, Christmas at risk

Queensland residents in Brisbane and the Gold Coast have reacted angrily to the Premier's decision to keep the states borders closed to Sydney, claiming the government was 'completely out of touch', 'living on another planet' and demanding to understand the rationale for the decision.

Destination Gold Coast chairman Paul Donovan told the ABC local hotels were only at 40 to 50 per cent capacity, with Christmas now at risk.

“We were hoping that the Premier was announcing that she would open up the border, particularly from Sydney,” he said.

“We desperately need that market, we need to get the industry going again. “Please Premier, press the button. We need the borders open now."

The boss of one of Queensland’s largest employers, Village Roadshow Theme Parks, fired off an extraordinary message after Health Minister Steven Miles said the state’s hospitality sector was doing well.

“Which world is this man living in,” the company’s chief operating officer Bikash Randhawa said. “We are bleeding away in the Gold Coast” “The people in smaller establishments have been really hurt."

Queensland Airports chief executive officer Chris Mills warned the future of 3000 tourism businesses and 41,000 jobs on the Gold Coast would be affected with the decision to reopen the border cancelled.

“We have seen good bookings for the flights from Sydney scheduled next week, and the first flight on Sunday is almost full – so now to turn them all away at short notice is a real blow to the Gold Coast’s recovery,” Mr Mills told the Courier Mail.

"The airport is really haemorrhaging, we've got virtually no flights and about 97 per cent down."

Meanwhile, south of the border booms...
 

N860CR

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That is a good start. Still this crazy “28 day” rule which seems to have pulled out of nowhere. I really cannot fathom how we can say in one breath “the strategy is suppression” yet these two states have clearly targeted elimination.

As the country reopens, the hypocrisy is becoming more apparent. To WAs credit, at least there was merit in their hard border giving the mixing of people. We’ll now have dirty people from Sydney in Adelaide, Hobart, Canberra, Darwin etc infecting all those clean Queenslanders and WA-folk who will take it back to Perth and Brisbane.
 

oznflfan

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That is a good start. Still this crazy “28 day” rule which seems to have pulled out of nowhere. I really cannot fathom how we can say in one breath “the strategy is suppression” yet these two states have clearly targeted elimination.

As the country reopens, the hypocrisy is becoming more apparent. To WAs credit, at least there was merit in their hard border giving the mixing of people. We’ll now have dirty people from Sydney in Adelaide, Hobart, Canberra, Darwin etc infecting all those clean Queenslanders and WA-folk who will take it back to Perth and Brisbane.
Test of this will be in for example SA have one 'mystery case'. Does WA shut border to SA immediately and set timer for 28 days?
 

jakeseven7

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Test of this will be in for example SA have one 'mystery case'. Does WA shut border to SA immediately and set timer for 28 days?

Great point - because it is ABSOLUTELY going to happen, cases are going to pop up everywhere now and then....

Oh dear can't wait to see how this plays out....
 
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jakeseven7

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That is a good start. Still this crazy “28 day” rule which seems to have pulled out of nowhere. I really cannot fathom how we can say in one breath “the strategy is suppression” yet these two states have clearly targeted elimination.

As the country reopens, the hypocrisy is becoming more apparent. To WAs credit, at least there was merit in their hard border giving the mixing of people. We’ll now have dirty people from Sydney in Adelaide, Hobart, Canberra, Darwin etc infecting all those clean Queenslanders and WA-folk who will take it back to Perth and Brisbane.

So....NSW and VIC are never going to be cleared to go to WA without quarantine with their rules.

Ever. Even with a vaccine....

So whats the plan....? MEL especially has very strong commercial and family ties with PER.
 

Bundy Bear

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So....NSW and VIC are never going to be cleared to go to WA without quarantine with their rules.

Ever. Even with a vaccine....

So whats the plan....? MEL especially has very strong commercial and family ties with PER.

The requirements to enter WA will now be a lot easier.

For people traveling from Vic and NSW will need to quarantine for 14 days and be tested on arrival and day 11.
 
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jakeseven7

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"a lot easier" - seriously! 14 days in quarantine is a lot easier?

When you go from 'nothing' to 'something' apparently it is alot 'easier'. 😂

Look clearly it is baby steps for WA.

I'm more concerned that their critera is far far to high and probably in a few weeks we will see a test case and will be interesting to see how quickly for example SA or TAS goes from free entry to 14 day quarantine overnight.....
 
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HappyFlyerFamily

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Apparently a quarantine breach in NSW

A NSW police officer went to visit a quarantining traveller in hotel quarantine. The traveller was a famous ethnic actor. The police officer was of the same ethnicity and a fan. The police officer is now in quarantine- I’m guessing another hotel. There is also an internal investigation.
 

TheRealTMA

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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...
Interesting that in the ”debate” today, the alternative premier said AP as being political in keeping borders closed. AP said she wasn’t and was taking the advice of the CHO. When the alternative was put on the spot, she admitted she would do the same and take the advice of the CHO. So much for politics.
 
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