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

 

[Pushka]

Queensland folded as predicted on Sunday

JULY 10 is QLD's opening date and we are OPEN FOR BUSINESS!

That means the 3 big powerhouse states will be good to go in a few weeks.

SA, TAS to nominate opening dates soon

WA is the only state now left out in the cold refusing to even nominate a date - but at least the ESB is happening!

SA is the 20th July.

Post automatically merged: Jun 12, 2020

Good lord, a month notice! I thought we had it bad in NZ being made to wait a few days after the decision was made before it was effective.

We have gone better. 6 weeks for SA. But in reality for us, we can go, just have to return within say a weeks prior to 20th as I'm thinking they won't bother checking that last week.

 

[oz_mark]

I imagine WA will be after the school.holidays.

 

[Pushka]

And at last SA has dropped the word - Elimination from the dialogue and saying there will be outbreaks from time to time but they can now be managed.

 

[jakeseven7]

And at last SA has dropped the word - Elimination from the dialogue and saying there will be outbreaks from time to time but they can now be managed.

Scomo and Brendan knocked some second tier state heads together this morning, its very very clear!

I imagine WA will be after the school.holidays.

Tasmania announced yet??!!

 

[jakeseven7]

I wonder if QF got an early heads up, I'm sure they are scrambling now to look at adding more flights up and down the ESB.

I'm looking to book now, get down to Melbourne!

 

[CityRail]

So perhaps most States open from July and WA from August? Then we have Trans-Tasman from late August and Asia from September/October?

 

[MEL_Traveller]

Will be a nice solution if the borders open and avoid the High Court having to decide the matter.

 

[Pushka]

Scomo and Brendan knocked some second tier state heads together this morning, its very very clear!
Tasmania announced yet??!!

Apparently he told them that if they don't open borders to other states then there won't be any international students. Nor Kiwis.

 

[p--and--t]

I wonder if QF got an early heads up, I'm sure they are scrambling now to look at adding more flights up and down the ESB.

I'm looking to book now, get down to Melbourne!

There are some great July specials on JQ

 

[DC3]

Apparently he told them that if they don't open borders to other states then there won't be any international students. Nor Kiwis.

I bet that they are really scared.

 

[Pushka]

I bet that they are really scared.

Seems to have done the trick though! Maybe they thought they could have an exclusive NZ bubble.

 

[DC3]

Seems to have done the trick though! Maybe they thought they could have an exclusive NZ bubble.

I don’t really keep track of what the other states are doing, but QLD has always had 10th July for Stage 3, which includes interstate travel. That may be ahead of some others.

These things are subject to review of course.

Will be a nice solution if the borders open and avoid the High Court having to decide the matter.

I’m not placing much hope on High Court intervention.

Edit: May be seen as a States rights issue

 

[Melburnian1]

I don't know about anyone else but I am not spending money right now either personally or through the business, I have nothing to spend it on. Just as well as Business is disappearing. Ergo, there is no GST being collected.

This matches what others in business to whom I speak are saying. The real adverse effect will become 'out there' in September or October, because it's not tenable for the Federal Government to keep on extending the six months that JobKeeper was designed for.

I think the Catholic Church has more or less abolished 'Limbo' but that's the state many businesses (and employees) are in.

The oddity is that some workers are better off on JobKeeper than they were (financially) in their previous job so they need to be given a 'push' to get back to work (should a job still be available).

At state level, payroll tax, property stamp duty and some other taxes will also have declined so it's not just the GST or our (Federal) income tax that feels the heat. Plus (until recently) lower amounts of fuel excise being collected.

 

[HappyFlyerFamily]

So perhaps most States open from July and WA from August? Then we have Trans-Tasman from late August and Asia from September/October?

Will be a nice solution if the borders open and avoid the High Court having to decide the matter.

With WA looking like an August hold out, the High Court should be able to hear this matter.

 

[Gremlin]

Plus (until recently) lower amounts of fuel excise being collected.

Just making the observation that fuel excise being collected is still lower. Whilst petrol prices have increased again, the km being travelled are still well below "normal". Less miles on the road, fewer tanks of petrol consumed, less fuel excise collected.

 

[DC3]

... Clive Palmer's case has had a directions hearing already and the QLD and WA governments have until June 26th to file their defence case ...

Poor Clive. Must be feeling very un-loved.

 

[DC3]

Honestly its probably just the bad PR and bad media that the 'court case' will generate, that will pressure the QLD government to fold ...

But the QLD border is planned to reopen on 10th July, anyway.

Subject to review (including any COVID effect from mass rallies. )

 

[Anna]

Yes Clive Palmer's case has had a directions hearing already and the QLD and WA governments have until June 26th to file their defence case.

Clive Palmer adds Queensland to High Court challenge of border closures

www.9news.com.au

I have no idea where Channel 9 got 26 June from, unless someone is confused about the difference between filing a defence and filing written submissions. The most recent available transcript from Palmer v WA suggests the defences were to be filed last week, with the parties working towards a hearing in the week commencing 29 June but probably 1-3 July. See the links below and Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 62 (28 May 2020)

The Chief Justice seems sceptical about the section 92 argument, less so about the section 117 argument, but it's hard to read the judicial mood from directions hearings.

Meanwhile Clive Palmer's company Mineralogy is now suing Qld as well as his separate proceedings against WA - see Mineralogy Pty Ltd & Anor v State of Queensland [2020] HCATrans 71 (4 June 2020)

And there are also other proceedings against Qld - see Travel Essence Pty Ltd & Ors v Young & Anor [2020] HCATrans 79 (10 June 2020)

There was another directions hearing/s on 12 June but the transcript does not seem to be available yet. The Canberra Times thinks the hearing in the week of 29 June may not happen - Qld border challenges likely to be delayed

 

[Simo]

Let's just hope we don't get a second wave and it is all put on hold again!!!!

 

[eastwest101]

I have no idea where Channel 9 got 26 June from, unless someone is confused about the difference between filing a defence and filing written submissions. The most recent available transcript from Palmer v WA suggests the defences were to be filed last week, with the parties working towards a hearing in the week commencing 29 June but probably 1-3 July. See the links below and Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 62 (28 May 2020)

The Chief Justice seems sceptical about the section 92 argument, less so about the section 117 argument, but it's hard to read the judicial mood from directions hearings.

Meanwhile Clive Palmer's company Mineralogy is now suing Qld as well as his separate proceedings against WA - see Mineralogy Pty Ltd & Anor v State of Queensland [2020] HCATrans 71 (4 June 2020)

And there are also other proceedings against Qld - see Travel Essence Pty Ltd & Ors v Young & Anor [2020] HCATrans 79 (10 June 2020)

There was another directions hearing/s on 12 June but the transcript does not seem to be available yet. The Canberra Times thinks the hearing in the week of 29 June may not happen - Qld border challenges likely to be delayed

Actually I wouldn't mind if some of these cases went all the way to the high court and everyone gets an answer on this states rights and movement of goods and people question. Would probably bring about more certainty if something like this happens again in the future.