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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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CityRail

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Ummm they do realise no matter what they do they will be dead donkey last....

Unless they literally open on Saturday to VIC to get a jump start on QLD? Is that what they mean?

-----------

WA border to Victoria must not be last to open after coronavirus pain, tourism industry warns


As other states and territories reopen their borders to Victoria, the Tourism Council has warned WA must not be the last state to open to Victorians as it could affect local tourism operators well into next year.

Victoria is WA's biggest interstate tourism market and there are concerns the state's ongoing border with VIC will hurt tourism with the Tourism Council says people will simply choose to holiday elsewhere.

Both New South Wales and the ACT allowed quarantine-free travel with Victoria on Monday, while other jurisdictions are set to do the same within days.

The WA Government says it will not be "rushed" to reopen the borders and will seek further health advice once Victoria reaches 28 days of no community spread, which could be as early as this Friday.

Tourism Council chief executive Evan Hall said if WA did not open soon, Victorians would book their summer holidays and 2021 trips elsewhere, if they had not already done so.

"If we are the last to open our borders to Victoria, we will lose visitors and working holiday-makers to other states because we could not take bookings while they could," Mr Hall said.

"34 per cent of Western Australia's interstate visitors come from Victoria, significantly more than any other state," he said.



Victoria has reached 30 days with no local Coronavirus cases. Why is WA not opening the borders?

I think if they refuse to defy their own rules and keep the borders closed, we should launch a legal action against WA first thing Monday to ensure borders are open as soon as possible.
 

james4321

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Victoria has reached 30 days with no local Coronavirus cases. Why is WA not opening the borders?

I think if they refuse to defy their own rules and keep the borders closed, we should launch a legal action against WA first thing Monday to ensure borders are open as soon as possible

Maybe check with Clive Palmer first?? 🤣
 
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OZDUCK

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Victoria has reached 30 days with no local Coronavirus cases. Why is WA not opening the borders?

I think if they refuse to defy their own rules and keep the borders closed, we should launch a legal action against WA first thing Monday to ensure borders are open as soon as possible

Maybe check with Clive Palmer first?? 🤣
Also check with others who started down that path and then realised their political party could lose many of the elected seats they held in WA and so did a quick volte-face.
 
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drron

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Victoria has reached 30 days with no local Coronavirus cases. Why is WA not opening the borders?

I think if they refuse to defy their own rules and keep the borders closed, we should launch a legal action against WA first thing Monday to ensure borders are open as soon as possible

Maybe check with Clive Palmer first?? 🤣
Clive Palmer argued that the way he was treated was illegal.So doesn't necessarily apply to others.
 

TheRealTMA

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Clive Palmer argued that the way he was treated was illegal.So doesn't necessarily apply to others.
Treating Clive an an illegal entry to WA seems quite fair to me! After all he voted himself through poxies as a National Living Treasure.:mad::D
 

OZDUCK

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Treating Clive an an illegal entry to WA seems quite fair to me! After all he voted himself through poxies as a National Living Treasure.:mad::D
You might have meant proxies, or were making a good pun, but I do think I prefer your use of the appropriate word "poxies" to cover his 'hangers-on'.
 

MEL_Traveller

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Victoria has reached 30 days with no local Coronavirus cases. Why is WA not opening the borders?

I think if they refuse to defy their own rules and keep the borders closed, we should launch a legal action against WA first thing Monday to ensure borders are open as soon as possible.

Already been tested at the HC. I think as long as there is an internationally declared pandemic and as long as there is the risk of a covid outbreak, restricting borders may well be held 'legal'.
 
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oz_mark

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Already been tested at the HC. I think as long as there is an internationally declared pandemic. As long as there is the risk of a covid outbreak, restricting borders may well be held 'legal'.
Although we haven't seen the reasons for the decision, and we don't know whether there were any dissenting opinions.
 

drron

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Already been tested at the HC. I think as long as there is an internationally declared pandemic and as long as there is the risk of a covid outbreak, restricting borders may well be held 'legal'.
No it hasn't.The CP case was re the particular facts of his case not the General Application of Section 92.
 

MEL_Traveller

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No it hasn't.The CP case was re the particular facts of his case not the General Application of Section 92.
The court considered whether WA's Emergency Management Act and the directions to close the border in response to covid breached s92 of the constitution.

The court found there was no constitutional issue.

CityRail proposed taking legal action against WA to challenge the border closure. I'm not sure how that argument would differ from Clive Palmer's?
 

jakeseven7

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Who cares WA are making it up as they go along because of a day in March.

They had a very ‘malleable’ CHO who has recently grown a spine and stuck to his own advice and the AMA have finally back flipped as well to support him and all are calling for WA to drop their borders with VIC immediately. Not providing anymore cover to the WA government.

They created almost impossible hurdles and rules that VIC has miraculously passed so it’s time to just do it and put families stuck across both borders out of their misery and plan a semi normal summer break.
 

drron

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The court considered whether WA's Emergency Management Act and the directions to close the border in response to covid breached s92 of the constitution.

The court found there was no constitutional issue.

CityRail proposed taking legal action against WA to challenge the border closure. I'm not sure how that argument would differ from Clive Palmer's?
No they found that in regard to Mr.Palmer's situation the WA Government's actions were legal.
His refusal for exemption was in late May.The North west Tasmania cluster was winding down but not over.
In the directions hearing the Chief Justice noted that Mr.Palmers claim ‘would have to take account of the fact that we are living in somewhat of a digital age’.

Then the Federal court case to determine the facts began on July 27 when Victoria's second wave was ramping up and on 2/8 a State of disaster was declared.They were already in a State of Emergency.WA also still had active cases.That decision was handed down i believe on 25/8.

The facts now are totally different with only the SA cluster which is not in the same league.Therefore it is not a given that the Court would now rule State borders.As has been famously stated by John Maynard Keynes - “When my information changes, I alter my conclusions. What do you do, sir?”
 

MEL_Traveller

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No they found that in regard to Mr.Palmer's situation the WA Government's actions were legal.
His refusal for exemption was in late May.The North west Tasmania cluster was winding down but not over.
In the directions hearing the Chief Justice noted that Mr.Palmers claim ‘would have to take account of the fact that we are living in somewhat of a digital age’.

Then the Federal court case to determine the facts began on July 27 when Victoria's second wave was ramping up and on 2/8 a State of disaster was declared.They were already in a State of Emergency.WA also still had active cases.That decision was handed down i believe on 25/8.

The facts now are totally different with only the SA cluster which is not in the same league.Therefore it is not a given that the Court would now rule State borders.As has been famously stated by John Maynard Keynes - “When my information changes, I alter my conclusions. What do you do, sir?”

The question put to the HC for consideration was this:

Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?​

Not an issue around being refused an exemption, but a question as to whether WA's Act or directions infringe the Constitution.

The answer to that was as follows:

On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.​
The exercise of the power given by those provisions to make cll 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.​
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court.​
reference: Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 180 (6 November 2020)

The State of Emergency in WA has been extended a number of times, and remains in place. The directions only remain in place provided there is a state of emergency.
 

Must...Fly!

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Premier McGowan has said no announcement will be made until later in the week due to Victoria maintaining an open border with NSW.

If I recall correctly, when the border with SA was opened travel was freely allowed between NSW and SA.

Why is this rubbish allowed to go on.
 

nutwood

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Premier McGowan has said no announcement will be made until later in the week due to Victoria maintaining an open border with NSW.

If I recall correctly, when the border with SA was opened travel was freely allowed between NSW and SA.

Why is this rubbish allowed to go on.
Possibly the question should be; how long can a state of emergency be maintained? I don't think anyone could take exception to state of emergency powers. They are obviously required to deal with extraordinary circumstances. The concern is when our revered leaders start to develop an addiction to untrammeled power, even though the circumstances have ceased to be extraordinary.
Realistically, COVID has been with us long enough for proper legislated responses to have been drawn up. In the long run, this would be useful when the next pandemic pops up.
 

drron

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The question put to the HC for consideration was this:

Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?​

Not an issue around being refused an exemption, but a question as to whether WA's Act or directions infringe the Constitution.

The answer to that was as follows:

On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.​
The exercise of the power given by those provisions to make cll 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.​
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court.​
reference: Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 180 (6 November 2020)

The State of Emergency in WA has been extended a number of times, and remains in place. The directions only remain in place provided there is a state of emergency.
But obviously if the situation changes with the pandemic the answer may very well change.Remember the Federal court hearing to determine the facts was at the time of the second wave in Victoria.The epidemiologists all said the State of emergency was valid then.
Now that apart from SA there are no cases of Community transmission it is unlikely the same epidemiologists would come to the same conclusion IMHO.
And High court cases are decided on the facts put forward by the complainant.Someone different taking the same actions re the constitution but with an entirely different set of facts may get a different results.
But importantly it is the fact that the situation with Covid at the end of November is entirely different to that in July and August.

On top of that it now is the situation that residents of TAS,QLD,ACT and NT can enter WA without Quarantine so again already different to the situation when Palmer made his complaint.He would now be able to enter WA without quarantine.
 

CityRail

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The court considered whether WA's Emergency Management Act and the directions to close the border in response to covid breached s92 of the constitution.

The court found there was no constitutional issue.

CityRail proposed taking legal action against WA to challenge the border closure. I'm not sure how that argument would differ from Clive Palmer's?

Finally we have successfully achieved to have WA borders reopened!

So no legal action is required!
 

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