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

 

[drron]

Well you can leave OOL without going through a checkpoint.

Man sparks police chase after allegedly fleeing coronavirus airport screening

He allegedly ran through numerous housing blocks through the Gold Coast, and even stopped for a change of clothes.

7news.com.au

 

[DC3]

Well you can leave OOL without going through a checkpoint.

Man sparks police chase after allegedly fleeing coronavirus airport screening

He allegedly ran through numerous housing blocks through the Gold Coast, and even stopped for a change of clothes.

7news.com.au

Nice try, but a big fail. Some real no- hopers out there.

 

[Jmrocky]

WA border challenge: why states, not courts, need to make the hard calls during health emergencies

It would be extremely controversial for the High Court to invalidate border closures imposed by a state government if there’s a reasonable health justification for the measure.

theconversation.com

To quote the summary

"While there is a legitimate role for judicial scrutiny, the judgement calls required in a public health emergency are more appropriately left to the executive and parliamentary branches of government.'
This democratic mandate granted to elected officials should be respected by the courts when considering the current challenge to the WA border closures, particularly given the importance of what is at stake."

Watching the Federal government pile in with Clive Palmer *shudder*

 

[jakeseven7]

The problem is WA's blanket approach and this may be why they lose.

If the WA Premier wasn't so 'all or nothing' in his approach they would probably get away with it. But they are closed to the NT, SA, Tas which is pretty indefensible (right now) - and the WA's own CHO is not backing the Premier on this either with medical advice, he in fact wrote to the WA Gov advising border restrictions could be lifted to some other states. So they have nothing to back them up.

So I actually think from pure stubbornness (and trying to appear tough to win votes.... sadly) they will probably lose.

 

[TheRealTMA]

WA border challenge: why states, not courts, need to make the hard calls during health emergencies

It would be extremely controversial for the High Court to invalidate border closures imposed by a state government if there’s a reasonable health justification for the measure.

theconversation.com

To quote the summary

"While there is a legitimate role for judicial scrutiny, the judgement calls required in a public health emergency are more appropriately left to the executive and parliamentary branches of government.'
This democratic mandate granted to elected officials should be respected by the courts when considering the current challenge to the WA border closures, particularly given the importance of what is at stake."

Watching the Federal government pile in with Clive Palmer *shudder*

Here's a sensible suggestion from AMA WA.

Clive Palmer told to 'read the room' over legal challenge to WA's hard border

Doctors tell billionaire Clive Palmer it is time to "pack up the tent" and abandon his legal challenge to WA's hard border policy, and concentrate instead on helping Victoria through its COVID-19 crisis.

www.abc.net.au

 

[DC3]

WA border challenge: why states, not courts, need to make the hard calls during health emergencies

It would be extremely controversial for the High Court to invalidate border closures imposed by a state government if there’s a reasonable health justification for the measure.

theconversation.com

.... more appropriately left to the executive and parliamentary branches of government.'
This democratic mandate granted to elected officials ...

Yes. Best left to elected officials, who are answerable to their constituents.

 

[drron]

Yes. Best left to elected officials, who are answerable to their constituents.

But it is the High Court that has,is and will be the Authority that decides matters that arise from the Constitution.

 

[DC3]

But it is the High Court that has,is and will be the Authority that decides matters that arise from the Constitution.

Yes, running it to the High Court. Unhappy campers?

Anyway, the decision may be some way off apparently. Then what, if States are directed to reopen borders? (rhetorical question by the way).

Perhaps ringfence city/town areas/zones. Would still allow intercourse between the States, I guess, just not in populated areas.

 

[OATEK]

The real trouble with the border closures is that it is a blunt instrument. We need a solution for the long term!

 

[Spongbob]

The real trouble with the border closures is that it is a blunt instrument. We need a solution for the long term!

The changes in personal and organisational behaviour needed are not appreciated by many as it too inconvenient to implement.

 

[DC3]

But it is the High Court that has,is and will be the Authority that decides matters that arise from the Constitution.

Well, can the High Court decide not to wade further into this issue, effectively leaving border closures to elected officials (who are answerable to their constituents)? Presumably the Court cannot be forced into an interpretation?

 

[jakeseven7]

Well, can the High Court decide not to wade further into this issue, effectively leaving border closures to elected officials (who are answerable to their constituents)? Presumably the Court cannot be forced into an interpretation?

LOL plead the 5th? (Which doesn’t exist here anyway). I assume you are joking btw

 

[MEL_Traveller]

Well, can the High Court decide not to wade further into this issue, effectively leaving border closures to elected officials (who are answerable to their constituents)? Presumably the Court cannot be forced into an interpretation?

If the HC accepts there is a constitutional issue, they will make a decision.

But I'm not convinced the decision will be what people think it is going to be.

They may not go into the level of detail - examining all the medical evidence. They could for example simply look to see if there is a valid state of emergency. And if so, that border closures lawfully fall under that state of emergency (ie not for the HC to look further than the state of emergency). That would be simplest way to protect the states' rights to determine their health policy.

I think it would be inappropriate for the HC to look at hundreds of medical opinions to determine which one it picks.

 

[drron]

The problem with leaving it to elected officials,and I presume you are talking State borders,is that there is no unified State position.The NSW Premier wants an open border with QLD which the QLD Premier doesn't want.Even SA wants an open border with WA but WA insists it is an island.So no the High Court having accepted the case will make a decision.

 

[MEL_Traveller]

The problem with leaving it to elected officials,and I presume you are talking State borders,is that there is no unified State position.The NSW Premier wants an open border with QLD which the QLD Premier doesn't want.Even SA wants an open border with WA but WA insists it is an island.So no the High Court having accepted the case will make a decision.

I don't see lack of unity as a problem. If one state wants to close their border, it can do so. For example, does QLD have a declared state of emergency? If so, the HC won't overrule that. While it will be interesting to see the path the HC takes, I can't see them wanting to be responsible for the death of citizens.

 

[DC3]

.... While it will be interesting to see the path the HC takes, I can't see them wanting to be responsible for the death of citizens.

If the decision was televised, placing the black cloth over his head, while handing down the decision may provide a clue.

 

[OATEK]

I don't see lack of unity as a problem. If one state wants to close their border, it can do so. For example, does QLD have a declared state of emergency? If so, the HC won't overrule that. While it will be interesting to see the path the HC takes, I can't see them wanting to be responsible for the death of citizens.

That is ludicrous - decisions are being made by people every day that lead to the death of citizens. The number of times doctors have said something glib as they came to a workshop on ICT (in my presence) about killing people every day is not insignificant. Perhaps it is a form of gallows humour as we were exploring the impact of electronic medications management or ICU systems and what happens if things go wrong.

People in very high office similarly cannot avoid a decision by saying that they don't want to kill someone. It is a matter of balance, between those who might be killed by Covid and those that might die from related causes including say suicide from the loss of their business, job, home, family etc.

What the court would decide is whether there is a limit to the powers of the states under the constitution to close the borders.

 

[drron]

I don't see lack of unity as a problem. If one state wants to close their border, it can do so. For example, does QLD have a declared state of emergency? If so, the HC won't overrule that. While it will be interesting to see the path the HC takes, I can't see them wanting to be responsible for the death of citizens.

Except that the Constitution places limits on State border closures hence why it is important that there is a decision.The High Court isn't hearing all the medical evidence.They have sent the case to the Federal court to do that.
They certainly may decide that it is legal to close the borders at this time because of the pandemic.If both NSW and Victoria rack up say 1000 new cases a day at the time of the hearing that is probably a certainty.Though if numbers plummet in the next 2 weeks it may go the other way.
We just have to wait and see.

 

[MEL_Traveller]

It is a matter of balance, between those who might be killed by Covid and those that might die from related causes including say suicide from the loss of their business, job, home, family etc.

This is exactly what i can't see the HC wanting to get involved in. Rather than challenge the border closure, maybe the interested parties should have been challenging the states of emergency?

Would the HC not have to overrule the states of emergency in order to declare border closures illegal? And if you do that, mask wearing, 'stay at home' orders, quarantine... everything goes out the window.

Or do we end up in the position that the states of emergency are legal, but borders have to be open? That doesn't seem to make sense.

 

[drron]

The State declarations of emergency apply to that states affairs and won't be affected by any high court decision.
The cases are about the constitution and If the borders can be closed.The letter of the law is no but exceptions can be made in certain situations and that can include a pandemic.
If any Emergency declaration applied to the whole country it would be the one declared by the Commonwealth government and we have heard from the CMO that closure of state borders weren't necessary.