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

 

[woodborer]

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.

Mostly, it would appear, that our success is attributable to stopping people travelling around.....

 

[bigbadbyrnes]

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)?

COVID-19 reporting

This page provides update on national COVID-19 spread, vaccination and treatment metrics.

www.health.gov.au

Total test 1.6 million, positive test rate, 0.4%.

Note - there's no reason to assume that rate would 'replicate outside of sample'. It's a rough guide, providing some sense of probabilities. The tested would include both symptomatic and asymptomatic - and I would assume very few with symptoms would have attended the protests.

 

[bigbadbyrnes]

Mostly, it would appear, that our success is attributable to stopping people travelling around.....

The hard science is proving difficult to obtain - despite a biological Manhattan Project run for the last few months with an unprecedented amount of scientific attention, we know surprisingly little for certain about the virus. Any explanation will be 'post hoc ergo propter hoc'. During times of community transmission, I would agree with that opinion. Its unclear which combination of factors were the most attributing - but its something.

 

[woodborer]

The hard science will come, but the statistics seem to support the notion that countries that closed their borders early did better than those that didn't. The strength (or level of draconian) of the lockdowns seems to have had some, but weaker effects.

 

[drron]

Whilst there is an argument for keeping our external border closed at least for those from North and South America,the UK and probably still Europe there is no way we should have our interstate borders closed off.There are so few cases being reported now and most of those are from International arrivals all of whom are being quarantined.
NSW for example who some here are portraying as dangerous has had only 1 case of community transmission in the last 2 weeks.That means an extremely low risk going forward as confirmed cases quarantined and contacts isolated.Now I will agree that it would be wiser to make as sure as possible that those quarantined remained quarantined and those isolated remain isolated until a negative result.I would also like to see that positive cases are required to download the Covid Safe app and have the positive result put onto that app-how else could it really work?

There certainly could/should be measures taken to protect those in Nursing homes such as taking temperatures,recording respiratory symptoms and making visitors wear masks to protect the residents.

The rest of us should be allowed to make up our own minds whether or not we travel.Unfortunately a lot of people have been scared by the initial modelling of this pandemic which has been shown to be wrong in a big way.Saying we have prevented 100000 deaths is bunkum.62.1% of Australian cases were imported from overseas and another 27.8% of cases contacts of known cases-many of those from an overseas acquired patient before quarantine introduced.So only 10.1% locally acquired.

COVID-19 reporting

This page provides update on national COVID-19 spread, vaccination and treatment metrics.

www.health.gov.au

And as to the QLD Government's claim that interstate tourism being blocked is not having a major impact on QLD Tourism businesses I call BS.
BNE arrivals in May 2019-International-477000,domestic-1.435 million.
On the Sunshine Coast in 2018 at MCY ( Latest figures I found on a quick search) were interstate 98%,2% from NZ.

 

[Pushka]

The hard science will come, but the statistics seem to support the notion that countries that closed their borders early did better than those that didn't. The strength (or level of draconian) of the lockdowns seems to have had some, but weaker effects.

I had no problems whatsoever with the International border closure. That was a perfect thing to do. The state borders made sense until a month ago. Now it's a belligerent power trip for them.

 

[bigbadbyrnes]

Whilst there is an argument for keeping our external border closed at least for those from North and South America,the UK and probably still Europe there is no way we should have our interstate borders closed off.There are so few cases being reported now and most of those are from International arrivals all of whom are being quarantined.

From a purely political point of view, this is a strong point. There has to be some sort of level that each person would agree is a small enough risk to re-open the borders (and for that matter, each other specific restriction).

The risk would be a number - number of current cases, number of days since last case, current calculated R-0, a combination of these and other quantitative markers.

What no one is doing (premiers and federal pollys) is putting on their Decision Trousers, and coming out and saying what that number is.

If it's zero, that's fine. We know what we're aiming at then, and when we can start to think about border de-restrictions. And we can have a different interesting conversation about the pros and cons of the policy.

If it's 1,000 cases, fine. We know, and we can start looking at the daily numbers. If it's a 100, that's also fine. We'll judge and discuss, and run media stories, post on forums and so on.

But no one is stating what they would be happy with. If the decisions are ultimately driven by "cold hard data - we're just listening to the science", then they should be able to take a position with respect to the data. No matter what, there will be reasonable arguments on both sides - but I suspect it might just be political suicide to do so.

Imagine the headlines;
"But 9 cases can become 10,000 in 6 days!"
"But elimination is simply impossible!"

My number is 'no more than 700 cases nation wide, an less than 10 new cases of community transmission per day for the last 14 days'.

 

[HappyFlyerFamily]

COVID-19 reporting

This page provides update on national COVID-19 spread, vaccination and treatment metrics.

www.health.gov.au

Total test 1.6 million, positive test rate, 0.4%.

Note - there's no reason to assume that rate would 'replicate outside of sample'. It's a rough guide, providing some sense of probabilities. The tested would include both symptomatic and asymptomatic - and I would assume very few with symptoms would have attended the protests.

I doubt all the estimated 80,000 protesters would test. Perhaps only 6.4% get test (1.6 m out of 25 m), so perhaps 5,120. of those, .4% get positive, so 20 local transmission case?!?!

 

[bigbadbyrnes]

I doubt all the estimated 80,000 protesters would test. Perhaps only 6.4% get test (1.6 m out of 25 m), so perhaps 5,120. of those, .4% get positive, so 20 local transmission case?!?!

The 0.4% positive would apply to everyone who did get tested assuming it would replicate out of sample. Until we tested everyone in the country, we don't know what the actual number of cases is given how many asymptomatic cases there are - up to 40% in some studies (source: abc article last week).

This also totally skews how we would know what the true transmission and death rates are. There are *some* asymptomatic cases wondering around the community - and some stay asymptomatic permanently.

We have no idea how many.

 

[equus]

The overall rate of positive tests is meaningless. At one stage, when testing was restricted to symptomatic patients,, it was relatively high. Later, when there were more active cases, but more testing, it was lower. Now, with lots of testing, and few active cases, it will be quite low. Trying to extrapolate using an average taken from the different and varied regimes is pointless and misleading.

The rate of positive tests depends too much on the number of tests as well as the number of actual cases. The only important thing is the number of active cases - detected and undetected. An overall low average percentage of detection could indicate a low number of active cases, or it could indicate an extreme amount of testing.

In any event, what is trying to be determined? The number of infected people at the protest, or the number of people infected at the protest? The latter will depend on the former, and both simply lead to a number of active cases.

 

[bigbadbyrnes]

Trying to extrapolate using an average taken from the different and varied regimes is pointless and misleading.

The only important thing is the number of active cases - detected and undetected.

In any event, what is trying to be determined?

Agree, which is why I qualified the use of the test positive rate, but in having to make an estimate, it's as good a guide as any, given that any guide will not replicate out of sample.

Active cases is all that matters. And we have only really rough guesses at asymptomatic case rate - so undetected is unknowable, unless we test everyone.

I was simply using the test positive rate to argue it would have been very unusual if there were zero cases of covid - out of 80,000 people if it replicated (and it wouldn't) there would be 320 cases. It would be weird if we tested 80k and had zero positives, even if everyone was asymptomatic (and I assume only a handful of symptomatic people would have attended).

 

[drron]

The other problem is that when you test a population that has a very low probability of having the disease the more likely it becomes that a positive test is a false positive as demonstrated in Blackwater recently.So when testing in such populations anyone testing positive should have a second test.
The reverse happened here in Tassie.Before workers at the NWRH,NWPH and the Mersey were allowed to start they had to have had 2 negative tests usually 24 hours apart in case of a false negative.

 

[Pushka]

From a purely political point of view, this is a strong point. There has to be some sort of level that each person would agree is a small enough risk to re-open the borders (and for that matter, each other specific restriction).

The risk would be a number - number of current cases, number of days since last case, current calculated R-0, a combination of these and other quantitative markers.

What no one is doing (premiers and federal pollys) is putting on their Decision Trousers, and coming out and saying what that number is.

If it's zero, that's fine. We know what we're aiming at then, and when we can start to think about border de-restrictions. And we can have a different interesting conversation about the pros and cons of the policy.

If it's 1,000 cases, fine. We know, and we can start looking at the daily numbers. If it's a 100, that's also fine. We'll judge and discuss, and run media stories, post on forums and so on.

But no one is stating what they would be happy with. If the decisions are ultimately driven by "cold hard data - we're just listening to the science", then they should be able to take a position with respect to the data. No matter what, there will be reasonable arguments on both sides - but I suspect it might just be political suicide to do so.

Imagine the headlines;
"But 9 cases can become 10,000 in 6 days!"
"But elimination is simply impossible!"

My number is 'no more than 700 cases nation wide, an less than 10 new cases of community transmission per day for the last 14 days'.

I did hear the Federal Govt, maybe the CMO, state weeks ago that the desired number was less than 10 new infections Australia wide, not including immigration results. That milestone was passed days ago and still no progress.

South Australia - I think Marshall has been reading Crichton's State of Fear and thinks it will be his new strategy.

 

[DC3]

Borders best left closed until after the mass rallies are finished and authorities can assess their COVID impact. Tens of thousands, congregating.

I have no objection to the rallies, but it’s clear that many are not distancing.

I had no problems whatsoever with the International border closure. That was a perfect thing to do. The state borders made sense until a month ago. Now it's a belligerent power trip for them.

Well, until last weekend, I would probably have agreed.

Are the States meant to ignore the recent mass rallies? COVID impact yet to be assessed.

Edit: Further massed rallies are possible it seems

 

[DC3]

From your direct experience, do you feel they are over doing it, or do you agree with the requirements placed on you?

Not to forget the strawberry pickers

 

[TheRealTMA]

Not to forget the strawberry pickers

They are essential! Someone has to put the needles in the strawberries!

 

[Pushka]

Borders best left closed until after the mass rallies are finished and authorities can assess their COVID impact. Tens of thousands, congregating.

I have no objection to the rallies, but it’s clear that many are not distancing.




Well, until last weekend, I would probably have agreed.

Are the States meant to ignore the recent mass rallies? COVID impact yet to be assessed.

Edit: Further massed rallies are possible it seems

The one planned for SA has been called off by the organisers. Much respect.

 

[Anna]

To go back to the constitutional issues, it seems the applicants are relying on section 117 as well as section 92.

 

[OATEK]

Borders best left closed until after the mass rallies are finished and authorities can assess their COVID impact. Tens of thousands, congregating.

I have no objection to the rallies, but it’s clear that many are not distancing.




Well, until last weekend, I would probably have agreed.

Are the States meant to ignore the recent mass rallies? COVID impact yet to be assessed.

Edit: Further massed rallies are possible it seems

This could go on for ever, borders closed, people in hiding. I am in the vulnerable cohort, by age, co-morbidities and blood type, but see the effort to eradicate as against the agreement to flatten the curve. The target can't keep changing or we will go down the gurgler.

 

[Pushka]

This could go on for ever, borders closed, people in hiding. I am in the vulnerable cohort, by age, co-morbidities and blood type, but see the effort to eradicate as against the agreement to flatten the curve. The target can't keep changing or we will go down the gurgler.

I think it's pretty arrogant of SA when they will expect a larger than proportional GST handout yet their restrictions are ensuring GST collection will be way down.