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

 

[DC3]

... People lying and failing to quarantine isnt a state issue, that's just people being selfish a-holes.

However, it’s the States that need to deal with this, so I would say that it is a State issue.

 

[jakeseven7]

I’m not sure what happened to the ‘common good’ that was floating around in these threads a couple of months ago. It seems to have morphed a bit into something approaching ‘me, me, me’.

It is pretty disappointing I agree, we are one country not the United States of Australia and should be tackling it like this... - as one, open and together, instead of sniping and politics

 

[blackcat20]

However, it’s the States that need to deal with this, so I would say that it is a State issue.

A similar spike could just as easily pop up in another state. Look at NZ, from no cases in weeks to three in a matter of days.

 

[antycbr]

A similar spike could just as easily pop up in another state. Look at NZ, from no cases in weeks to three in a matter of days.

Quarantine hotels are going to have cases - particularly as a lot of the rest of the world is out of control it seems.

The two people who got compassionate leave for a road trip to Wellington have led to the Army running NZs quarantine program. If it happens again Jacinda will lose the election so she will be making sure that it doesnt happen again.

Infection control at quarantine hotels is critical though just look at the Rydges cluster in Melbourne...

 

[jakeseven7]

A similar spike could just as easily pop up in another state. Look at NZ, from no cases in weeks to three in a matter of days.

Agree and returning travelers will continue to come home, quarantine is not infallible - never will be as per the NZ example where they had infected returned travelers roaming around the country unchecked.

Unfortunately the big international ports have to handle a majority of these cases and therefor bear most of the risks as the smaller ports are just sitting back pointing fingers instead of helping.

 

[p--and--t]

I don't think there is more than one or two currently in Australia on a respirator

There were 2 on ventilators in Victoria yesterday and 3 in ICU in Victoria according to the table published in another thread on AFF.

 

[antycbr]

Agree and returning travelers will continue to come home, quarantine is not infallible - never will be as per the NZ example where they had infected returned travelers roaming around the country unchecked.

Unfortunately the big international ports have to handle a majority of these cases and therefor bear most of the risks as the smaller ports are just sitting back pointing fingers instead of helping.

To be fair do we have a breakdown of end destination for the pax in Quarantine? Given that Victoria and NSW have 12.9 of Australia's 25m people, and have a much more diverse and multicultural population, I would expect that a large number of those people in SYD and MEL are destined for those cities/states.

ADL has taken a significant number of AI flights based on their population makeup.

 

[blackcat20]

Agree and returning travelers will continue to come home, quarantine is not infallible - never will be as per the NZ example where they had infected returned travelers roaming around the country unchecked.

Unfortunately the big international ports have to handle a majority of these cases and therefor bear most of the risks as the smaller ports are just sitting back pointing fingers instead of helping.

Exactly, NSW and VIC take the brunt of arriving travellers, so will always have those cases counted in their numbers.

As for the idiots that went to family gatherings after testing positive, well....every state has idiots

 

[bigbadbyrnes]

Elimination was never the strategy.

 

[Pushka]

I think there are legitimate concerns at the highest levels of NSW/QLD/WA/SA state governments about the effectiveness of Victoria's medical track/trace/quarantine program.

• We've had large numbers of contractors at TWO quarantine hotels spike, pointing to lax process or poor control regimes.
• The Cedar Meats employee claims of not being at work while infectious were lies and this was not checked due to "privacy" with the employer.
• People directed to home quarantine seem to not be being checked randomly to make sure they are home and not hosting extended family members/friends yet people on a pier fishing are fined.

The Victorians may need to get an intervention to sort their s*** out - like what happened in northwest Tasmania.

SA is sending over some of their tracking team today. That team was expanded to over 440 people.

 

[woodborer]

Elimination was never the strategy.

It's never been the stated strategy.
However, some states are acting as though it was the strategy.

 

[Pushka]

There were 2 on ventilators in Victoria yesterday and 3 in ICU in Victoria according to the table published in another thread on AFF.

I think we were expecting thousands in each state.

 

[Gremlin]

Learning to manage the outbreaks is a far better outcome for everyone.

I don't think anyone disagrees with this. The problem is that there are different ways of managing outbreaks and each come with a different economic cost. At the moment, the Federal CMO and team keep telling us that the way to manage future outbreaks includes maintaining 4 sqm per person and minimising large gatherings.

This is blatantly wrong. NZ don't do this and are managing outbreaks as they arise. It is, however, ONE of the MANY possible ways to manage this. Unfortunately, it's one that has a much higher economic cost than what NZ has implemented.

Australia, on the other hand, are doing this backwards. We don't have a coherent and nationally agreed approach for the localised management of outbreaks. This, in turn, forces the recommendation for the continuation of the 4 sqm rule as state borders open. And so, "learning to manage the outbreaks" the Australian way, rather than the Kiwi way, will cost our economy far, far more. Whether the borders are opened or closed makes far less difference economically than the maintenance of social distancing. Opening borders is not a panacea for economic recovery in a society that is still beholden to strict social distancing.

From a personal perspective, we should be following NZ's direction. No restrictions on internal movement AND removal of social distancing requirements. They have shown us that it can be done. And so, the onus should be back on the Federal CMO and team to present a medical framework consistent with that outcome. Almost certainly that's then going to lead back to the lack of a nationally agreed approach for the localised control of outbreaks.

Forcing the borders open through a High Court challenge doesn't give us what NZ has. Unilateral declarations by individual states to keep borders closed doesn't give us what NZ has. Only a national strategy for controlling outbreaks will do that.

 

[blackcat20]

I don't think anyone disagrees with this. The problem is that there are different ways of managing outbreaks and each come with a different economic cost. At the moment, the Federal CMO and team keep telling us that the way to manage future outbreaks includes maintaining 4 sqm per person and minimising large gatherings.

This is blatantly wrong. NZ don't do this and are managing outbreaks as they arise. It is, however, ONE of the MANY possible ways to manage this. Unfortunately, it's one that has a much higher economic cost than what NZ has implemented.

Australia, on the other hand, are doing this backwards. We don't have a coherent and nationally agreed approach for the localised management of outbreaks. This, in turn, forces the recommendation for the continuation of the 4 sqm rule as state borders open. And so, "learning to manage the outbreaks" the Australian way, rather than the Kiwi way, will cost our economy far, far more. Whether the borders are opened or closed makes far less difference economically than the maintenance of social distancing. Opening borders is not a panacea for economic recovery in a society that is still beholden to strict social distancing.

From a personal perspective, we should be following NZ's direction. No restrictions on internal movement AND removal of social distancing requirements. They have shown us that it can be done. And so, the onus should be back on the Federal CMO and team to present a medical framework consistent with that outcome. Almost certainly that's then going to lead back to the lack of a nationally agreed approach for the localised control of outbreaks.

Forcing the borders open through a High Court challenge doesn't give us what NZ has. Unilateral declarations by individual states to keep borders closed doesn't give us what NZ has. Only a national strategy for controlling outbreaks will do that.

This is the problem with each state doing their own thing perhaps. If we got on with life and managed each outbreak in an agreed manner, we'd probably all be better off.

 

[MEL_Traveller]

And please remember the hidden cost of significant mental health issues being experienced now.

By the same token, there are mental health issues with people concerned about their immediate family (parents) dying.

A business owner’s mental health on economic grounds is not more important than those looking to protect family.

 

[HappyFlyerFamily]

I don't think we have any issues with contact tracing, my understanding is that the origins of every current case is known.

People lying and failing to quarantine isnt a state issue, that's just people being selfish a-holes.

It’s a State’s issue to enforce.

Perhaps Australia should move to a one strike, then into mandatory quarantine away from your home at your cost.

 

[blackcat20]

It’s a State’s issue to enforce.

Perhaps Australia should move to a one strike, then into mandatory quarantine away from your home at your cost.

I agree there should be a penalty.

 

[Gremlin]

This is the problem with each state doing their own thing perhaps. If we got on with life and managed each outbreak in an agreed manner, we'd probably all be better off.

Case in point. Mikakos in Vic is speaking now and saying that there isn't a need at this stage to issue 'stay at home directions' for those in Victoria's hotspots. And so we all continue the dance...

 

[HappyFlyerFamily]

Case in point. Mikakos in Vic is speaking now and saying that there isn't a need at this stage to issue 'stay at home directions' for those in Victoria's hotspots. And so we all continue the dance...

That’s fair enough for people who have not already been specifically directed to home isolate/quarantine.

If they are not a Suspected case and under a test or a close (or even casual) contact of a confirmed case, then why would they need to stay at home due to being a local government neighbour Of a handful of cases.

 

[HappyFlyerFamily]

This is the problem with each state doing their own thing perhaps. If we got on with life and managed each outbreak in an agreed manner, we'd probably all be better off.

Get the AHPPC together to knock some heads together? Hopefully a better outcome than the mess of 3 stages of easing restrictions at different times that we currently have.