State border closures illegal under the highest law in the country?

[bigbadbyrnes]

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

 

[MEL_Traveller]

I’d hope we can progress a bit quicker than assessing whether we would consider any intention...

This situation is untenable economically and may see VA liquidate as a result. The state premiers are able to close the borders and transfer the economic cost to the federal government. The states cannot be allowed to do this indefinitely.

There's no guarantee that borders opening will save any business.

 

[antycbr]

There's no guarantee that borders opening will save any business.

No, but at least they will have a fair chance. Currently it is arguable that the closures are out of proportion to the risk and are not based on science. That’s why one of the high court challenges is seeking the info used to make the decision to keep the borders closed.

 

[Pushka]

I’d hope we can progress a bit quicker than assessing whether we would consider any intention...

This situation is untenable economically and may see VA liquidate as a result. The state premiers are able to close the borders and transfer the economic cost to the federal government. The states cannot be allowed to do this indefinitely.

I read that the VA sale would likely not proceed if the borders dont open. Qld would not want to lose that.

 

[jakeseven7]

There's no guarantee that borders opening will save any business.

There is however a guarantee that keeping them closed will finish off many businesses. And jobs.

 

[MEL_Traveller]

No, but at least they will have a fair chance. Currently it is arguable that the closures are out of proportion to the risk and are not based on science. That’s why one of the high court challenges is seeking the info used to make the decision to keep the borders closed.

But I'm not sure you need to open the borders in order to get an idea of whether businesses will 'have a chance'? You could survey 5000 people and ask if they are willing to travel. If the majority said 'no', would there be any point opening up? If they said 'yes', maybe that's something to consider.

There are quite a lot of people who, even if they were allowed to fly, would not do so. Some don't like the risks, some don't want to be stranded in another state in case of a second wave or second lockdown. Would I want to be stuck in Brisbane, or NZ, if I got coronavirus? Some person decided to fly when they have the virus and the whole plane then has to go into 14 day isolation... potential major disruption.

 

[antycbr]

But I'm not sure you need to open the borders in order to get an idea of whether businesses will 'have a chance'? You could survey 5000 people and ask if they are willing to travel. If the majority said 'no', would there be any point opening up? If they said 'yes', maybe that's something to consider.

There are quite a lot of people who, even if they were allowed to fly, would not do so. Some don't like the risks, some don't want to be stranded in another state in case of a second wave or second lockdown. Would I want to be stuck in Brisbane, or NZ, if I got coronavirus? Some person decided to fly when they have the virus and the whole plane then has to go into 14 day isolation... potential major disruption.

All fair points but I don’t think we make government policy through surveys. That’s what elections are for. If people choose not to fly that is their decision but currently there are people who would choose to fly if they could. Not as many as before, but the number is not zero either. It’s also not just for tourism there are FIFOs, people visiting aged parents, essential business that are disrupted.

It may take us a long time to get back to hourly Sydney to Brisbane for example, but we could have at least four or five flights a day and build up.

Individuals are capable of making their own risk assessments and also remember that the CMO committee never recommended border restrictions.

 

[MEL_Traveller]

All fair points but I don’t think we make government policy through surveys. That’s what elections are for.

Lots of governments do consultation. In fact many governments demand it - for example regulatory impact statements, the granting of licences, building permits, etc. By the same token, if we are saying an election determines the direction we should follow... is that not where we are now? State governments are doing what they were elected to do? To the best they can manage on the information they are given.

If people choose not to fly that is their decision but currently there are people who would choose to fly if they could. Not as many as before, but the number is not zero either. It’s also not just for tourism there are FIFOs, people visiting aged parents, essential business that are disrupted.

It may take us a long time to get back to hourly Sydney to Brisbane for example, but we could have at least four or five flights a day and build up.

Individuals are capable of making their own risk assessments and also remember that the CMO committee never recommended border restrictions.

Four flights a day filled with FIFO workers to mines, and business travellers going to meetings... is that going to fill caravan parks and boats out to the reef? And holiday apartments? I think there could be a piece of work to determine if there is demand, the risks involved, and the potential costs to health services if an outbreak occurred. And weight that up against the potential benefits to tourism.

 

[antycbr]

Lots of governments do consultation. In fact many governments demand it - for example regulatory impact statements, the granting of licences, building permits, etc. By the same token, if we are saying an election determines the direction we should follow... is that not where we are now? State governments are doing what they were elected to do? To the best they can manage on the information they are given.



Four flights a day filled with FIFO workers to mines, and business travellers going to meetings... is that going to fill caravan parks and boats out to the reef? And holiday apartments? I think there could be a piece of work to determine if there is demand, the risks involved, and the potential costs to health services if an outbreak occurred. And weight that up against the potential benefits to tourism.

Governments didn’t consult about closing the economy down. Why are we inventing consultation right now ?

 

[Pushka]

Our business certainly needs to get back to face to face contact in Melbourne (based in SA) and would be fine with flying. Even when there has been positive Covid cases onboard (the recent SA arrival; the cherry picker into Qld) there hasn't been any transmission to anyone else. I can't wait to get on a plane and fly to FNQ.

I think you will find that private business has taken risks from day dot or else they wouldn't even exist.

Our state Government (Liberal, supposed to be supportive of private business) handed over authority to the Police Commissioner who now seems reluctant to give up that power. Seriously, 55 days without any transmissions and the only two positives in over five weeks were from their errors!

 

[antycbr]

Our business certainly needs to get back to face to face contact in Melbourne (based in SA) and would be fine with flying. Even when there has been positive Covid cases onboard (the recent SA arrival; the cherry picker into Qld) there hasn't been any transmission to anyone else. I can't wait to get on a plane and fly to FNQ.

I think you will find that private business has taken risks from day dot or else they wouldn't even exist.

Exactly. We are at the point where individuals need to be able to make decisions again based on their own risk assessment.
Arguably the border that should be shut is Victoria to everywhere else!

 

[MEL_Traveller]

Exactly. We are at the point where individuals need to be able to make decisions again based on their own risk assessment.
Arguably the border that should be shut is Victoria to everywhere else!

We have seen, absolutely, that individuals should NOT, and cannot, make those decisions. From day one people claimed they were ‘confused’ about the rules... even when those rules were crystal clear. Then there were those who thought the rules didn’t apply to them. Then we have those who attend protest rallies. And those who break mandatory quarantine. Or fly when they are infected.

If so many people think the rules are confusing, how can they be trusted to make risk-based decisions?

The people willing to take risks aren’t just affecting themselves... it’s the vulnerable we need to be protecting.

 

[woodborer]

Our state Government (Liberal, supposed to be supportive of private business) handed over authority to the Police Commissioner who now seems reluctant to give up that power. Seriously, 55 days without any transmissions and the only two positives in over five weeks were from their errors!

Not up to the police commissioner to give it up. The government should be able to just remove the authority.

 

[bigbadbyrnes]

We have seen, absolutely, that individuals should NOT, and cannot, make those decisions. From day one people claimed they were ‘confused’ about the rules... even when those rules were crystal clear. Then there were those who thought the rules didn’t apply to them. Then we have those who attend protest rallies. And those who break mandatory quarantine. Or fly when they are infected.

If so many people think the rules are confusing, how can they be trusted to make risk-based decisions?

The people willing to take risks aren’t just affecting themselves... it’s the vulnerable we need to be protecting.

Agree - the elderly, immuno compromised, and those with pre-existing conditions certainly should be protected. And they should be fairly informed about the risks they're subject to, and make their own decisions as best they can. We should make it easy for them to self isolate and provide community services as they require.

The risk based decisions are being taken by individuals - either in the govt, or community. They may be right or wrong, confused or informed, lucky or unlucky. But it's fallible individuals who make decisions about those risks.

There are reasonable arguments on both sides about how much 'freedom' an individual should have to make those decisions for themselves vs. another individual from within a govt. or other external entity. Because sometimes it's reasonable (I should be able to risk my life and the lives of others driving down the highway), and sometimes unreasonable (I should not be able to build an experimental nuclear reactor in my backyard next to a school).

But what's clear is that the border restrictions certainly make some businesses non viable, and this damaging not just to the businesses, but broader society. It doesn't mean they'll be 'saved' by relaxing the borders, but it will give them a chance they would not otherwise have.

There are dire consequences to this that some believe are fine to ignore. We're all going to be hurt by the huge economic damage resulting from the restrictions. We didn't just shut down the local cafe - we shut down entire industries.

Edit: and with reference to the original topic - there's a strong argument that by now, the border restrictions would not rise to the threshold of being 'appropriate and adapted to purpose' of protecting health, and would be unconstitutional. This wasn't the case in March, but is strongly arguable now.

 

[MEL_Traveller]

I don’t disagree. But there are broader strategic issues the government might be aware of, and have to consider, compared to those in the general population that may not care. We’re keeping hospital wards on standby. How much longer do you want to keep those on standby in case there’s a second wave from community transmission if you open the borders too early? That potentially impacts on those waiting for elective surgery.

It will be interesting to see how the High Court looks at the issue. Will they, for example, interfere with the internal workings of the state? Or simply accept that if a state has determined there are medical grounds - any medical grounds - that that is sufficient in itself.

 

[Pushka]

Not up to the police commissioner to give it up. The government should be able to just remove the authority.

Yep. But he’s more into the AFL announcement. Leaving the hard stuff alone.

 

[p--and--t]

Yep. But he’s more into the AFL announcement. Leaving the hard stuff alone.

Bloody football fans

 

[bigbadbyrnes]

That will be fascinating. The history of jurisprudence around Section 92 is littered with decisions falling on 'both sides'. There are instances where border restrictions are held as being consistent with state duties to pass laws in the interests of it's citizens (in areas where the states specifically have duties), and also instances where the laws were assessed to be unconstitutional.

Historically, the High Court would need to assess the suitability and appropriateness of the law, and determine if the purpose of the law could be achieved in such a way which does not impinge on the freedom enshrined in Section 92.

Interesting cases: Smithers v. Crown 1912 where NSW passed a law preventing criminals coming in from out of state. HC found that it was certainly in the interests of citizens of NSW, and tailored to protecting health and safety, but it was still inconsistent with Sec 92.

in Gratwick v Johnson, merely requiring a permit to travel interstate by train during WW2 border restrictions was found unconstitutional.


It's never been tested in circumstances like these - so what law which restricts Sec 92 freedoms is 'reasonably necessary' to achieve a purpose, or what it means for a law to be 'suited and appropriate' to it's purpose, would be clarified. Would be bloody fascinating.

 

[MEL_Traveller]

As reported on another thread, it appears an attendee at one of last week’s protest rallies has tested positive for CV19. So we have potential for a mass outbreak. If borders were open, that could be around the entire country by now.

 

[bigbadbyrnes]

As reported on another thread, it appears an attendee at one of last week’s protest rallies has tested positive for CV19. So we have potential for a mass outbreak. If borders were open, that could be around the entire country by now.

Indeed, but that will remain so if there is any one case in the whole country.

If we're going down the elimination route, there will be advantages and disadvantages, but we're not having that conversation. The approach is rather harm management, or "flattening the curve". The conversation and policy would be very different under different approaches.

Given there was some 80,000 people at the protests, and our current test rate is 0.4%, there should have been around 320 people who would test positive in that group - assuming (big assumption) that the test rate would perfectly replicate in that sample. The affect of having one or more infected individuals moving around the country would still be wholly managed by social distancing restrictions - so it seems. Our success must be attributable to something.

 

[HappyFlyerFamily]

Indeed, but that will remain so if there is any one case in the whole country.

If we're going down the elimination route, there will be advantages and disadvantages, but we're not having that conversation. The approach is rather harm management, or "flattening the curve". The conversation and policy would be very different under different approaches.

Given there was some 80,000 people at the protests, and our current test rate is 0.4%, there should have been around 320 people who would test positive in that group - assuming (big assumption) that the test rate would perfectly replicate in that sample. The affect of having one or more infected individuals moving around the country would still be wholly managed by social distancing restrictions - so it seems. Our success must be attributable to something.

I’m confused....what is the testing rate (proportion of people getting tested) and positive test rate (Of those getting tested, how many are positive)?