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

 

[ajd]

I'm not sure where that quote comes from but those words aren't in section 92.

The only burden or imposition that section 92 is relevant to is 'the imposition of uniform duties of customs'. It is to ensure duty-free trade between states. Nothing to do with people crossing borders.

Per the Twomey piece I posted, there is precedent for s92 being relevant to movement of people rather than just trade.

 

[MEL_Traveller]

This piece from the media's favourite constitutional scholar, Anne Twomey, which quotes some relevant High Court precedent, is useful: States are shutting their borders to stop coronavirus. Is that actually allowed?

Anyway, governments do have lots of lawyers who are actual qualified professionals rather than posters on internet forums, and I hope they've run their border restriction directives past them for advice...

Yeah, I posted an almost identical article in the first couple of days of this thread. As long as the grounds are for public health, the high court is likely to uphold the laws.

As with many of these things, some folk are focusing only on one piece of the jigsaw... not the whole puzzle, or the strategic drivers. They only see ’I’m not allowed to travel interstate’, without the the ‘to protect public health during a declared state of emergency’, which is the underlying driver.

 

[ajd]

Yeah, I posted an almost identical article in the first couple of days of this thread. As long as the grounds are for public health, the high court is likely to uphold the laws.

As with many of these things, some folk are focusing only on one piece of the jigsaw... not the whole puzzle, or the strategic drivers. They only see ’I’m not allowed to travel interstate’, without the the ‘to protect public health during a declared state of emergency’, which is the underlying driver.

Absolutely, and contrary to the views of many an internet bush lawyer, judges do actually think beyond just the most absolute plain reading of whatever legislation they're interpreting. Everything would come to a grinding halt otherwise.

 

[Anna]

Per the Twomey piece I posted, there is precedent for s92 being relevant to movement of people rather than just trade.

If you are talking about R v Smithers, its ratio is not based on s92 and the obiter was 2-2 on whether s92 applied to movement of people. Griffiths CJ and Barton J expressly left that alone and did not decide it. So a dubious precedent, at best.

 

[ajd]

If you are talking about R v Smithers, its ratio is not based on s92 and the obiter was 2-2 on whether s92 applied to movement of people. Griffiths CJ and Barton J expressly left that alone and did not decide it. So a dubious precedent, at best.

Yeah, I was just reading the judgement and came to that same view - but as a non-lawyer internet forum poster, I will take obiter from several High Court justices as sufficient evidence that you can at least make a decent argument that s92 is relevant, even though a s92 challenge would almost certainly fail.

 

[nutwood]

I'm not sure where that quote comes from but those words aren't in section 92.
The only burden or imposition that section 92 is relevant to is 'the imposition of uniform duties of customs'. It is to ensure duty-free trade between states. Nothing to do with people crossing borders.

The quote comes from Justice Brennan in the Nationwide News case referred to in the Anne Twomey article (point # 32).

In what way were you meaning 'punative and not for health reasons', then?

In that the intent is to discourage people from travelling interstate, rather than to provide a tangible health benefit

Yeah, I posted an almost identical article in the first couple of days of this thread. As long as the grounds are for public health, the high court is likely to uphold the laws.

As with many of these things, some folk are focusing only on one piece of the jigsaw... not the whole puzzle, or the strategic drivers. They only see ’I’m not allowed to travel interstate’, without the the ‘to protect public health during a declared state of emergency’, which is the underlying driver.

I'm not sure how much more carefully I can explain my point? I have no objections to the "protect public health" bit. I agree with self isolation when returning to Tasmania. I am questioning the benefit gained by hotel incarceration.
I am also questioning the justness of a situation where an essential worker can enter Tasmania and only be subject to self isolation, whereas an essential worker who lives in Tasmania will be shut up when re-entering the State.
I can't see that this will ever be tested in the High Court and I seriously doubt any State Government has concerned themselves much about that. Likewise the on the spot fine situation. They'll do what they want and worry about it, if and when, they are challenged.

 

[RooFlyer]

RooFlyer said:
In what way were you meaning 'punative and not for health reasons', then?

In that the intent is to discourage people from travelling interstate, rather than to provide a tangible health benefit

You think the 'discouragement' to people travelling interstate isn't linked to a tangible health benefit - such as limiting the spread of COVID19? You've of course seen almost every nation on earth implement travel restrictions and boarder closures, except in 'necessary' (for want of a better word) cases? Ditto in Australia - WA, QLD, etc?

 

[drron]

To be fair nutwood lives in Tasmania but his business clients are interstate.
Unfortunately this means he is regarded as a non essential worker in Tasmania so if he returns from a business trip interstate he will be forced into mandatory quarantine in a hotel rather than self isolation at home which from previous [posts he is quite happy to do and has in fact done so on his last return before the mandatory laws came into place.He even described the police checking up on him.
So I think he is being treated poorly for no extra health benefit.In fact he is probably more likely to pick up the virus in the mandatory hotel quarantine.I say that because of a cluster at the Metropole hotel in Hong Kong during the SARs epidemic.
" Indeed, environmental contamination with SARS CoV RNA was identified on the carpet in front of the index case-patient's room and 3 nearby rooms (and on their door frames but not inside the rooms) and in the air intake vents near the centrally located elevators.[17] Guest rooms had positive air pressure relative to the corridor, and there was no direct flow of air between rooms. The lack of air flow between rooms and the absence of SARS CoV RNA detected inside guest rooms suggest that secondary infections occurred not in guest rooms but in the common areas of the ninth floor, such as the corridor or elevator hall."

Global Surveillance and Response 10 Years After SARS

What lessons were learned from the SARS outbreak 10 years ago? Has our global capacity to address the next pandemic improved?

www.medscape.com

 

[odysseus]

My feeling is that the current hotel detention is in place to discourage interstate travel, not to limit the virus spread, as that is adequately covered by home self isolation.

I agree with most you have said, and said similar elsewhere. However, my assumption on their motivation and sudden switch to hotels was lobbying/support for the hospitality industry with single digit occupancy rates.

This was around the same time and I think hotels approached them saying we have an issue, and here's a good proposal to deal with quarantine, that you place people there instead. My suspicion is it was pushed upwards on that basis.

Given the reduction in air travel once any quarantines were introduced ((and distance of the capital cities from other means of border crossing), I don't think there was a lot of interstate travel that was discretionary that needed to be discouraged.

 

[MEL_Traveller]

For the economy of scale, having those in isolation in a single place, where daily health checks can be performed, seems to make sense? Otherwise you have to have medical staff going to one hundred homes instead of 100 rooms.

What was the rate of self-isolation breach in Tasmania? In other states it was quite high. People simply didn't believe the rules applied to them.

 

[RooFlyer]

However, my assumption on their motivation and sudden switch to hotels was lobbying/support for the hospitality industry with single digit occupancy rates.

This was around the same time and I think hotels approached them saying we have an issue, and here's a good proposal to deal with quarantine, that you place people there instead. My suspicion is it was pushed upwards on that basis.

For the economy of scale, having those in isolation in a single place, where daily health checks can be performed, seems to make sense? Otherwise you have to have medical staff going to one hundred homes instead of 100 rooms.
What was the rate of self-isolation breach in Tasmania? In other states it was quite high.

Agree with both of these. I'm not sure who came up with the hotel quarantine idea - the industry of the govt, but it certainly has a great many advantages from a 'containment and monitoring' point of view. I haven't heard high-level figures on Tas breaches, but I expect its no better than elsewhere. But the police I think have been more sensible .

I respect @drron 's commentary on this always, but

So I think he is being treated poorly for no extra health benefit.In fact he is probably more likely to pick up the virus in the mandatory hotel quarantine.I say that because of a cluster at the Metropole hotel in Hong Kong during the SARs epidemic.

.. I think is a bit of a long bow to draw (one example from an earlier epidemic) to nay-say the current policy. If nutwood was the only one at risk of being stuck in a hotel room, I'd have a lot more sympathy. But its a broad rule, across a number of states and for me it passes the pub test as being a worthwhile, if very inconvenient, measure for containment.

 

[MEL_Traveller]

I'm not sure who came up with the hotel quarantine idea - the industry of the govt, but it certainly has a great many advantages from a 'containment and monitoring' point of view.

They were doing it in China ages ago (ok, what *seems* like ages ago). The Chinese hotels fumigated hallways every day. had an intensive cleaning crew that came into each room each day, and provided buckets with powerful disinfectants to flush down the WC (to kill anything that might be transmitted via that route).

It doesn't sound like we did the same level here.

 

[nutwood]

RooFlyer said:
In what way were you meaning 'punative and not for health reasons', then?



You think the 'discouragement' to people travelling interstate isn't linked to a tangible health benefit - such as limiting the spread of COVID19? You've of course seen almost every nation on earth implement travel restrictions and boarder closures, except in 'necessary' (for want of a better word) cases? Ditto in Australia - WA, QLD, etc?

Hi RooFlyer, I'm unsure if I've in some way offended you in some earlier discussion but I'd really appreciate it if you'd drop the sarcastic responses to my posts. I may err sometimes but I try very hard to respond politely to people.
Once I remove the sarcasm from your post, I'm finding little to actually respond to but to clarify, I'm questioning what actual benefit flows from compulsory detention as opposed to voluntary self isolation? 98% compliance by persons not particularly likely to be infectious. Basic maths shows this isn't an issue.

 

[MEL_Traveller]

98% compliance by persons not particularly likely to be infectious. Basic maths shows this isn't an issue.

Hotel quarantine means 100% compliance - except for that dude in Perth

All it takes is that one person to be out and start a cluster spread.

 

[RooFlyer]

Hi there nutwood I'm not being sarcastic, just querying and re-framing the arguments to test them, a common debating technique. It seems your argument is that hotel Vs home isolation in Tas is unreasonable, and was introduced on for some 'punitive' reason, not a 'health' one. That inter-staters are being 'punished' for some reason, unrelated to the current pandemic. I'm genuinely interested in what 'punative' reason you think is on foot, unrelated to the pandemic.
Punishing people who dare to visit or do business outside our state?

I'd have to disagree with you also about 'basic maths shows this isn't an issue'. No method is perfect, but I dare say patrolled hotel confinement will have fewer 'escapees' than home isolation. Just ONE infected escapee can cause havoc with community spread.

 

[drron]

And even in Tassie there are escapees from mandatory hotel quarantine.

 

[nutwood]

Hotel quarantine means 100% compliance - except for that dude in Perth

All it takes is that one person to be out and start a cluster spread.

On that logic, we'd better lock the entire populace into hotel rooms!
Interstate travellers introduce greater variability, but not necessarily greater risk. Self isolation, even with <100% compliance, more than compensates for the variability.

 

[nutwood]

To be fair nutwood lives in Tasmania but his business clients are interstate.
Unfortunately this means he is regarded as a non essential worker in Tasmania so if he returns from a business trip interstate he will be forced into mandatory quarantine in a hotel rather than self isolation at home which from previous [posts he is quite happy to do and has in fact done so on his last return before the mandatory laws came into place.He even described the police checking up on him.
So I think he is being treated poorly for no extra health benefit.In fact he is probably more likely to pick up the virus in the mandatory hotel quarantine.I say that because of a cluster at the Metropole hotel in Hong Kong during the SARs epidemic.
" Indeed, environmental contamination with SARS CoV RNA was identified on the carpet in front of the index case-patient's room and 3 nearby rooms (and on their door frames but not inside the rooms) and in the air intake vents near the centrally located elevators.[17] Guest rooms had positive air pressure relative to the corridor, and there was no direct flow of air between rooms. The lack of air flow between rooms and the absence of SARS CoV RNA detected inside guest rooms suggest that secondary infections occurred not in guest rooms but in the common areas of the ninth floor, such as the corridor or elevator hall."

Global Surveillance and Response 10 Years After SARS

What lessons were learned from the SARS outbreak 10 years ago? Has our global capacity to address the next pandemic improved?

www.medscape.com

Thank you for the kind words and support. I've come to the conclusion that my best option is to stop arguing for common sense and instead re-focus on compensation; the $'s are on offer. 30% drop in turnover? Try 100%?!
Myself, and others like me, bring/brought serious $'s into the Tasmanian economy. We earn it elsewhere, spend it locally. Likewise the FIFO workers. More basic maths!

 

[RooFlyer]

Myself, and others like me, bring/brought serious $'s into the Tasmanian economy. We earn it elsewhere, spend it locally. Likewise the FIFO workers. More basic maths!

Just like me, when I was working until 2 years ago . I never actually worked physically in Tasmania at any time in my working life. Although I am still happily bringing some returns into the state from investments, (but probably not the 'serious $' that you are), I wouldn't want to claim any special status in the current pandemic because of it.

But I'm still I'm genuinely interested in what 'punitive' reason you think is on foot for the hotel quarantines, unrelated to the pandemic, given you are bringing 'serious $' into the state. That's a really interesting point of view.

 

[nutwood]

Just like me, when I was working until 2 years ago . I never actually worked physically in Tasmania at any time in my working life. Although I am still happily bringing some returns into the state from investments, (but probably not the 'serious $' that you are), I wouldn't want to claim any special status in the current pandemic because of it.

But I'm still I'm genuinely interested in what 'punitive' reason you think is on foot for the hotel quarantines, unrelated to the pandemic, given you are bringing 'serious $' into the state. That's a really interesting point of view.

I'm struggling a little bit here as I'm unsure how to explain my point more clearly. My contention is that the hotel quarantine is being used to deter people from travelling interstate. It is being used as a punishment, rather than because it provides solid health benefits. Therefore it is punative. I appreciate that it can be argued that it is necessary on public health grounds. I am questioning this. Please feel free to disagree but it would be nice to see some quality argument showing why hotel detention is necessary for interstate travellers, but no-one else.