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]

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.

Depending upon whether the High Court wants to get involved, or not.

 

[HappyFlyerFamily]

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.

Borders closures /quanratine requirements are coming down, just not for all residents from all States, and of course still some holdouts - almost definitely WA will be last to let go. (WA indicated recently if they lose at High Court, then other restrictions will resume).

In my opinion, the problem is States not willing to try a new system to control active cases/spread (eg don’t let people in from hotspot) and open border/lift quarantine requirements.

But agree with you at least for WA its the High Court. The only other “holdouts” Qld Tas (I think, but I’m not really keeping track) might be willing to do something if Melbourne gets fixed.

 

[nutwood]

I'm not against border restrictions. I was strongly opposed to Tasmania's mandatory detention for residents but I can see the general sense of quarantine for those who move about.
That said, I view the State based border restrictions as a really clumsy approach. Should someone in Mildura be restricted from entering SA because there's an outbreak in a Melbourne suburb? What connection does someone in Mt Isa have to the Gold Coast?
I've made the point before, but this really should be viewed as a national problem and handled accordingly. Uniform containment plans would not be hard to develop and should be applied to areas, irrespective of State borders. Imagine an outbreak in Wodonga and NSW rushing to distance themselves. We've already seen SA cutting Broken Hill adrift.

 

[Pushka]

That said, I view the State based border restrictions as a really clumsy approach. Should someone in Mildura be restricted from entering SA because there's an outbreak in a Melbourne suburb? What connection does someone in Mt Isa have to the Gold Coast?

Yes of course but as soon as there is interpretation involved, eg, does the suburb next to Mildura likewise not pose a risk, then it gets messy.

 

[drron]

Then Wesstern QLD has not had a case.Why should the local pubs in Birdsville, Thargomindah or Toompine close down.have been to the last 2 and want to visit the first.
Here is the QLD map.More than half the area with no cases.
.

Queensland COVID-19 statistics

COVID-19 statistics for Queensland

www.qld.gov.au

 

[MEL_Traveller]

Then Wesstern QLD has not had a case.Why should the local pubs in Birdsville, Thargomindah or Toompine close down.have been to the last 2 and want to visit the first.

Because people from Brisbane can travel to Birdsville and go to the local pub.

 

[drron]

No active cases in Brisbane now.
And in the initial stages of lockdown you were only drive 50 km from home.Those 3 places have no other settlement within 50Km.

 

[MEL_Traveller]

No active cases in Brisbane now.
And in the initial stages of lockdown you were only drive 50 km from home.Those 3 places have no other settlement within 50Km.

Is not the answer as per your post in the general corona virus thread?

Because people may be positive but without symptoms.The index case of the extended family cluster in Melbourne was asymptomatic.The numbers of asymptomatic cases may be very large.although they may not be as infective as symptomatic cases they only need to infect one person to possibly set up a cluster.
Interesting figures out of Italy from their contact tracing.As you may suspect that is a large number of people.So of contacts that tested positive nearly 75% of those under 60 did not develop symptoms.They definitely could still be infective after 14 days

[2006.08471] Probability of symptoms and critical disease after SARS-CoV-2 infection

People can be asymptomatic. Therefore you need to close venues.

 

[Pushka]

Is not the answer as per your post in the general corona virus thread?



People can be asymptomatic. Therefore you need to close venues.

If people were asymptomatic and transmitting the virus then we in SA would have had community spread as the virus finds its way to vulnerable people getting ill.

We have not had community spread in SA for 3 months as of today. So, conclusion from that - 1. there are no asymptomatic people, or 2. That asymptomatic people do not infect others or 3. People in SA aren't getting sick from either scenario.

 

[MEL_Traveller]

If people were asymptomatic and transmitting the virus then we in SA would have had community spread as the virus finds its way to vulnerable people getting ill.

We have not had community spread in SA for 3 months as of today. So, conclusion from that - 1. there are no asymptomatic people, or 2. That asymptomatic people do not infect others or 3. People in SA aren't getting sick from either scenario.

And option 4, asymptomatic person visits a nursing home and elderly resident is not so lucky. Cluster starts.

 

[Pushka]

And option 4, asymptomatic person visits a nursing home and elderly resident is not so lucky. Cluster starts.

For 3 months? That is 6 complete infection cycles. And as Anna pointed out, in SA many homes have allowed visitation anyway. Restricted of course.

 

[nutwood]

I would doubt that many people in Brisbane slip down to the Birdsville pub for a quickie. If anyone fancied a drive to give them a thirst, they'd most likely come from Adelaide.
The country should be viewed as a whole and the areas that are obviously clear should be able to get back to normal life with the efforts currently going into border protection, being re-focused to limit transmission from infected areas to clear areas.

 

[OATEK]

The constant doom saying is starting to sound a bit like Pvte Frazer (we're doomed, doomed I say). At some point we have to start moving out of this half-life and back towards a more normal existence. Staying cocooned for ever is not practical, especially given the low likelihood of a vaccine any time soon. At the moment it is a bit like Day of the Triffids - you can almost picture them swarming at certain internal borders.

 

[nutwood]

The constant doom saying is starting to sound a bit like Pvte Frazer (we're doomed, doomed I say). At some point we have to start moving out of this half-life and back towards a more normal existence. Staying cocooned for ever is not practical, especially given the low likelihood of a vaccine any time soon. At the moment it is a bit like Day of the Triffids - you can almost picture them swarming at certain internal borders.

At least you could see a Triffid coming!

 

[drron]

Is not the answer as per your post in the general corona virus thread?



People can be asymptomatic. Therefore you need to close venues.

You missed the point.The 3 places I mentioned were in fact closed off by the 50km restriction on travel.no one could go there and any visitor would stick out like a sore thumb.Almost certainly dobbed in and not served as otherwise the locals might lose their relative freedom.
Thargomindah-pop -270.
Birdsville-140.
Toompine-2 but when we visited told about 30 on properties used it as their local pub.It is 78 Km to Quilpie and just short of 200Km to Thargomindah the 2 closest towns.

 

[Pushka]

The constant doom saying is starting to sound a bit like Pvte Frazer (we're doomed, doomed I say). At some point we have to start moving out of this half-life and back towards a more normal existence. Staying cocooned for ever is not practical, especially given the low likelihood of a vaccine any time soon. At the moment it is a bit like Day of the Triffids - you can almost picture them swarming at certain internal borders.

That's pretty much what is happening in SA as of next week. The only caveat being that we can't travel to Victoria without self iso. I think the NsW restrictions May lift.

But watch our infection rate soar when we are getting three flights from overseas (Sth America, India) and a group of Defence personnel from Indonesia. Maybe we shouldnt test them if no symptoms and just keep them for 14 days then let them go.

 

[OATEK]

At least you could see a Triffid coming!

You mustn't have read the book! (Clue: the eyes).

 

[antycbr]

That's pretty much what is happening in SA as of next week. The only caveat being that we can't travel to Victoria without self iso. I think the NsW restrictions May lift.

But watch our infection rate soar when we are getting three flights from overseas (Sth America, India) and a group of Defence personnel from Indonesia. Maybe we shouldnt test them if no symptoms and just keep them for 14 days then let them go.

Sounds a bit Trumpian... too much testing tells us things we don’t like, so don’t test.

Hotel quarantine is going to have positive tests, we need to count these separately from community transmission, provided that the guards don’t get infected like they have in Melbourne.

 

[jakeseven7]

If people were asymptomatic and transmitting the virus then we in SA would have had community spread as the virus finds its way to vulnerable people getting ill.

We have not had community spread in SA for 3 months as of today. So, conclusion from that - 1. there are no asymptomatic people, or 2. That asymptomatic people do not infect others or 3. People in SA aren't getting sick from either scenario.

To be clear SA haven’t had clinically detected community spread. One must be clear communicating...

 

[MEL_Traveller]

You missed the point.The 3 places I mentioned were in fact closed off by the 50km restriction on travel.no one could go there and any visitor would stick out like a sore thumb.Almost certainly dobbed in and not served as otherwise the locals might lose their relative freedom.
Thargomindah-pop -270.
Birdsville-140.
Toompine-2 but when we visited told about 30 on properties used it as their local pub.It is 78 Km to Quilpie and just short of 200Km to Thargomindah the 2 closest towns.

I don't think I did miss the point. I thought you were saying in the other thread that people can be asymptomatic. Was every person in those towns tested?