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

 

[bigbadbyrnes]

I had a hunch this was going to tug at the fabric of federation about 2 months ago, but dismissed it as silly. Now I'm not so sure. I don't see why anyone in WA should accept anyone entering from interstate (except for those directly affected by the issue, which are surely a minority). If the target remains countrywide elimination of community transmission for "two cycles of 14 days" (as the WA CMO has said), I can't see that being a possibility for six months or more.

"We're all in this together".

 

[Pushka]

Is SA regarded as Eastern State then? Coz we are doing better than WA.

 

[MEL_Traveller]

SA branch of the AMA backs border closure for SA: AMA backs push to keep SA border closed after Victoria 'dropped the ball'

 

[nutwood]

Is SA regarded as Eastern State then? Coz we are doing better than WA.

As an ex WA resident, I can say that anywhere east of the Nullarbor is an "Eastern State"and and a location of some suspicion.
That said, it is recognised that whilst SA residents are part of the Eastern State's sub species, they are more normal than those further East.

 

[Pushka]

As an ex WA resident, I can say that anywhere east of the Nullarbor is an "Eastern State"and and a location of some suspicion.
That said, it is recognised that whilst SA residents are part of the Eastern State's sub species, they are more normal than those further East.

That's unfortunate for us then. My SIL would like to go visit her son and family. It's kinda karma though. When I was saying that borders were hampering our recovery (before Vic looked like it didn't know how to control it), She was saying SA should not open their borders to the Eastern States. Except she is Eastern State to the place she most wants to go to.

 

[nutwood]

To be frank, I’d postpone/cancel the meeting. I’m guessing they are Melbourne resident.

No, they are Tasmanian based. I'm very tempted to just cancel. It's not a financially rewarding meeting, more a case of helping someone out and the ramifications of me picking up COVID would be serious. On the other hand, I have to be rational and consider the numbers, even with the current Victorian explosion.
With COVID, I have to confess to a certain inshallah attitude. Take all sensible precautions and get on with life.

 

[jakeseven7]

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

That’s not what the Brendan Murphy said, in fact he said today that basically it could have happened anywhere.

SA branch of the AMA backs border closure for SA: AMA backs push to keep SA border closed after Victoria 'dropped the ball'

What an unhelpful comment from someone who should know better.

 

[p--and--t]

What an unhelpful comment from someone who should know better.

That's not unhelpful, its deceitful and mischievous. How can the state gov be accused of dropping the ball because a dozen or so POS decided to break the declared restrictions and be totally irresponsible.

Next he will blame the government for dropping the ball for somebody getting killed from a drink-driving accident.

 

[PineappleSkip]

Key difference - a resident of QLD may leave and return unhindered (unless returning from a 'hotspot', like Melb was just declared this morning).

And the hindrance is the requirement to quarantine, not the ability to reenter. In practice I‘d guess there is a lot more waving-through at Coolangatta and Tugun than there is in Eucla or Birdsville! Queenslanders can return from hotspots, which in Vic were first declared in three LGAs on 15 May (when Sydney and Newcastle were un-hotspotted) and have been progressively extended since. But they have to self quarantine. In WA all returnees need to quarantine.

BTW agree with you re the relative positions of Qld and WA. Don’t fancy Qld‘s chances, although with the time this is taking any victory is likely to be nugatory.

The way our stimulus is structured, those businesses get to hang on until October/November and then collapse. Hence the 2020 forecast looking comparatively rosier for Australia. We've deferred the bulk of the economic pain into next year.

You quote the RBA May economic outlook. Where is it saying that? I am reading a lot in there about the pace and timing of the economic recovery, which is of course uncertain. Their own forecast is for economic recovery continuing into 2021 and 2022, with plenty of qualification about its pace and timing.

Similarly, the RBA had in their latest Statement on Monetary Policy, the following:
[Beyond the first half of 2020, the outlook for the domestic economy depends on how long social distancing remains in place]
Interestingly, they didn't comment at all on the impact of state border closures on the domestic economy. Maybe it's a drag, but it's not called out by the RBA as such in comparison to social distancing.

You’ve quoted a sentence fragment from a 100 page report. The references I’m finding in the report use various terms to refer to the totality of the restrictions. If you look at each of the 29 references to social distancing in the RBA report, you’ll see they are being used as shorthand for the totality of restrictions. They don’t have long to put together these voluminous documents, and do a great job, so one can excuse what a purist would regard as sloppy drafting. And they’re not the Health Authorities and don’t make pronouncements on what measures are most or least effective. Not their job.

cheers skip

 

[Pushka]

That’s not what the Brendan Murphy said, in fact he said today that basically it could have happened anywhere.



What an unhelpful comment from someone who should know better.

We were just commenting today that he is Mr Grumpy Pessimist on every issue he has a thought about. Trouble is that now he has a national stage.

 

[jakeseven7]

We were just commenting today that he is Mr Grumpy Pessimist on every issue he has a thought about. Trouble is that now he has a national stage.

Not for much longer, his 5 minutes will be up soon enough

 

[trevella]

currently to June 16 2021

Your favoured approach to containment is entirely incompatible with flying to Europe by next June.

 

[drron]

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.

But the studies on Suicide the loss of employment,a business and bankruptcy are major factors.The highest suicide rates in Australia were in the 1930s and the Great Depression.

 

[MEL_Traveller]

But the studies on Suicide the loss of employment,a business and bankruptcy are major factors.The highest suicide rates in Australia were in the 1930s and the Great Depression.

We are all in this together when it comes to physical distancing and following the rules. But I guess each of has different priorites in terms of outcomes. For me, keeping my family safe, and alive, is the #1 concern.

 

[OATEK]

We are all in this together when it comes to physical distancing and following the rules. But I guess each of has different priorites in terms of outcomes. For me, keeping my family safe, and alive, is the #1 concern.

Not easy to do if you are acting as a locum in a public hospital, or where the people you want to keep safe are on the other side of the world, which might just as well be the other side of the moon at present.

 

[Pushka]

We are all in this together when it comes to physical distancing and following the rules. But I guess each of has different priorites in terms of outcomes. For me, keeping my family safe, and alive, is the #1 concern.

Perfectly fine response where loved ones are in the immediate vicinity. And where reliance on any kind of economic funding from any source whatsoever is not required. But if neither are applicable to you then it has to be a matter of balancing risks. And that has to include having the funds to feed and house family.

As I said earlier, if you are that concerned with keeping the family perfectly safe then don’t let them in a car on the road, mix with other kids or people less they contract any number of illnesses that abound. Don’t go visit elderly relatives. But don’t let them enter residential care in case their staff carries any number of illnesses, well, life carries risks. We have to learn to manage and balance risks but hiding away for ever might prevent COVID but will create many other significant issues that aren’t getting the headlines. Yet.

 

[MEL_Traveller]

Perfectly fine response where loved ones are in the immediate vicinity. And where reliance on any kind of economic funding from any source whatsoever is not required. But if neither are applicable to you then it has to be a matter of balancing risks. And that has to include having the funds to feed and house family.

As I said earlier, if you are that concerned with keeping the family perfectly safe then don’t let them in a car on the road, mix with other kids or people less they contract any number of illnesses that abound. Don’t go visit elderly relatives. But don’t let them enter residential care in case their staff carries any number of illnesses, well, life carries risks. We have to learn to manage and balance risks but hiding away for ever might prevent COVID but will create many other significant issues that aren’t getting the headlines. Yet.

I don’t disagree! It highlights that we all have different priorities.

Some are concerned about mental health impacts. Others about separation from their family. Or the economy. My priority is family so health advice, which currently includes restrictions on travel, are of primary importance.

 

[Pushka]

I don’t disagree! It highlights that we all have different priorities.

Some are concerned about mental health impacts. Others about separation from their family. Or the economy. My priority is family so health advice, which currently includes restrictions on travel, are of primary importance.

Everyone’s priorities here are family. Not just yours!

But it is a complex issue at play here and not a simplistic ‘shut everything down and keep mine safe’

The trouble is that COVID is grabbing the headlines and other factors are at risk of being even more significant.

 

[drron]

We are all in this together when it comes to physical distancing and following the rules. But I guess each of has different priorites in terms of outcomes. For me, keeping my family safe, and alive, is the #1 concern.

Though NZ has abolished social distancing and only new cases are OS arrivals.WA about to abolish it after already reducing distancing to 1 per 2 sq m.

 

[bigbadbyrnes]

Does anyone want to guess what factor it is that leads to the borders coming down?

I can't see how we get there from here with everything now aligned the way it is.

I suspect it could be the High Court.