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State border closures illegal under the highest law in the country?

Must...Fly!

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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.
I was going to post something very similar.

The WA Emergency Management Act grants many and varied powers to the State Emergency Coordinator, who can then appoint authorised officers to undertake any of the permitted actions that the act enables. Curiously, this person is actually the Police Commissioner. So the Police seem to have defacto & complete authority through the act as a result.

I have read parts of the act and my very amateur take away is that it enables the state to manage emergencies as they arise including access & egress from declared areas. But how can the whole state of WA be declared under emergency when there is no given emergency within the state? Similarly I would say the act does not provide the state with the powers to control entry to or from the state - just areas within it. Controlling the borders in the way they are doing appears to be infringing on the free movement provision within the constitution.

Section 117 of the Constitution states

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
Therefore I personally believe that asking Clive Palmer, an otherwise law abiding subject of the Queen for his intended movements while in the state to be against the constitution, given that others (including those within WA) have no obligation to provide such information. This is not to say that the WA government couldn't find ways to implement their desired policy in other ways - but it is incumbent on all governments to abide the constitution while achieving their policy goals. If the current method is found to be against the constitution, then they need to find a way that complies with it.
 

DC3

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Yes. I read where poor old Clive was asked where he was travelling. But got all huffy. 😀

Edit: Isn’t there a saying about there being two ways of doing things? One is the easy way.
 
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HappyFlyerFamily

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I was going to post something very similar.

The WA Emergency Management Act grants many and varied powers to the State Emergency Coordinator, who can then appoint authorised officers to undertake any of the permitted actions that the act enables. Curiously, this person is actually the Police Commissioner. So the Police seem to have defacto & complete authority through the act as a result.

I have read parts of the act and my very amateur take away is that it enables the state to manage emergencies as they arise including access & egress from declared areas. But how can the whole state of WA be declared under emergency when there is no given emergency within the state? Similarly I would say the act does not provide the state with the powers to control entry to or from the state - just areas within it. Controlling the borders in the way they are doing appears to be infringing on the free movement provision within the constitution.

Section 117 of the Constitution states



Therefore I personally believe that asking Clive Palmer, an otherwise law abiding subject of the Queen for his intended movements while in the state to be against the constitution, given that others (including those within WA) have no obligation to provide such information. This is not to say that the WA government couldn't find ways to implement their desired policy in other ways - but it is incumbent on all governments to abide the constitution while achieving their policy goals. If the current method is found to be against the constitution, then they need to find a way that complies with it.
That’s the interesting point.

Perhaps SA borders closed to all (regardless of residency) would be constitutional???

The differential distinction is how the Emergency Power treat different residents.

In WA, is it true that it looks like they allow WA residents to return/enter/travel within the State differently to all other residents?

That is starting to look like the question of law perhaps.
 

OZDUCK

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That’s the interesting point.

Perhaps SA borders closed to all (regardless of residency) would be constitutional???

The differential distinction is how the Emergency Power treat different residents.

In WA, is it true that it looks like they allow WA residents to return/enter/travel within the State differently to all other residents?

That is starting to look like the question of law perhaps.
No, W.A residents have to meet the same rules as everyone else to cross the W.A. border.
 

MEL_Traveller

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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.
We know that state borders can be closed for emergency reasons.

On what basis is the court going to rule against the border closure? It would have to be on the basis that the 'emergency' isn't sufficient to warrant the closure.

Now, if they rule the emergency isn't sufficient, that calls into question every state's declared state of emergency. If the HC says the state declared emergencies aren't solid, what grounds would state courts have to uphold the states of emergency and all the measures taken under them?

If the HC rules Australia is not in a sufficient state of emergency to warrant border closures, on what basis can Australians be prevented free movement into and out of Australia? All the measures we have in Australia are all based off the one declared pandemic.
 

oz_mark

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If the HC rules Australia is not in a sufficient state of emergency to warrant border closures, on what basis can Australians be prevented free movement into and out of Australia? All the measures we have in Australia are all based off the one declared pandemic.
It will certainly be a ruling to be read with interest by many. I hope the High Court addresses the issue of whether it needs to be an all or nothing closure. Some states seem to be fine with only closing movements to certain states, where WA doesn't think that is valid.
Outside that, I suspect that anything invalid, might be able to be recast in a way that makes it valid again.

But we'll see.
 

love_the_life

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I was going to post something very similar.

The WA Emergency Management Act grants many and varied powers to the State Emergency Coordinator, who can then appoint authorised officers to undertake any of the permitted actions that the act enables. Curiously, this person is actually the Police Commissioner. So the Police seem to have defacto & complete authority through the act as a result.

I have read parts of the act and my very amateur take away is that it enables the state to manage emergencies as they arise including access & egress from declared areas. But how can the whole state of WA be declared under emergency when there is no given emergency within the state? Similarly I would say the act does not provide the state with the powers to control entry to or from the state - just areas within it. Controlling the borders in the way they are doing appears to be infringing on the free movement provision within the constitution.

Section 117 of the Constitution states



Therefore I personally believe that asking Clive Palmer, an otherwise law abiding subject of the Queen for his intended movements while in the state to be against the constitution, given that others (including those within WA) have no obligation to provide such information. This is not to say that the WA government couldn't find ways to implement their desired policy in other ways - but it is incumbent on all governments to abide the constitution while achieving their policy goals. If the current method is found to be against the constitution, then they need to find a way that complies with it.
Though I thought that at the time when Clive wanted to enter WA, citizens of WA were not able to travel freely within the state either.
 

HappyFlyerFamily

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The Australian is reporting that the commonwealth will withdraw from Palmers high court case.Behind paywall but try googling-

Commonweath pulls out of High Court challenge against WA ..
Snap, you beat me to it.....

PM's peace offer on borders

One last thing before I hand over to the morning crew.
The West Australian reports Prime Minister Scott Morrison has written a letter to Premier Mark McGowan.
That letter says the federal government will withdraw its in-principle support for a High Court challenge Clive Palmer has launched against the state's border closures.
Mr Palmer claims the border policy contravenes Section 92 of the constitution, which is about freedom of movement between the states.

...from news.com.au blog.

The West Australian is also paywalled


edit: to add ABC blog

Commonwealth pulls out of a legal challenge against the Western Australian hard state border
Prime Minister Scott Morrison has written to the WA Premier Mark McGowan informing him the Commonwealth will no longer participate in the court action that was initiated by Clive Palmer.

The mining billionaire was refused entry to WA earlier this year andargues the border restriction is unconstitutional.

The Commonwealth has been participating in the proceedings, withAttorney-General Christian Porter previously saying the WA Government's position was likely unconstitutional and it would be unusual if the Commonwealth did not intervene.

Mr Morrison reportedly maintains that position but says the Federal Government no longer wishes to participate.
 
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MEL_Traveller

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Mr Morrison reportedly maintains that position but says the Federal Government no longer wishes to participate.
Which should perhaps read:

Mr Morrison reportedly maintains that position privately but says the Federal Government no longer wishes to participate because legal advice suggests the case will not be successful.
 

HappyFlyerFamily

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I just happened to find time this morning to read s92 in Wikipedia.

There are a whole range of consideration. What struck me was, the effect is an important consideration (how does the rubber hit the road), means is effectively disregarded (eg emergency power being used) and whether what is being done is proportionate.

......

I haven’t followed closely the details of WA border closure (what actions are required), but I do wonder how exemptions are granted, does a higher proportion of applications from WA resident get approved for exemption, surely if a WA person can quarantine at home, an interstater can quarantine at their chosen temporary accommodation?

If the High Court drags on until the end of the year, PM May choose to re-enter the case lol.
 

jakeseven7

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Which should perhaps read:

Mr Morrison reportedly maintains that position privately but says the Federal Government no longer wishes to participate because legal advice suggests the case will not be successful.
Or the exact opposite actually..... they know it will be successful and don’t want to be party to the ruling because.... well we all know what happens next.....:oops::(
 

MEL_Traveller

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Or the exact opposite actually..... they know it will be successful and don’t want to be party to the ruling because.... well we all know what happens next.....:oops::(
True! But i have to admit that wasn’t the first thing that came to my mind. I think given Victoria is about to enter stage 4, and we’ve seen that even one person can start a second wave in a state, that border closures seem 100% necessary. This is a health emergency. We are protecting our hospitals and resources... nurses, doctors, paramedics. This is not an ‘economic’ state of emergency where everything is being done to protect the economy. many AFFers seem to think the economy should be first and foremost... but that’s not what this declared emergency is about.
 

OZDUCK

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I just happened to find time this morning to read s92 in Wikipedia.

There are a whole range of consideration. What struck me was, the effect is an important consideration (how does the rubber hit the road), means is effectively disregarded (eg emergency power being used) and whether what is being done is proportionate.

......

I haven’t followed closely the details of WA border closure (what actions are required), but I do wonder how exemptions are granted, does a higher proportion of applications from WA resident get approved for exemption, surely if a WA person can quarantine at home, an interstater can quarantine at their chosen temporary accommodation?

If the High Court drags on until the end of the year, PM May choose to re-enter the case lol.
All persons arriving from, or transiting through, Victoria would normally be required to be quarantined at hotel with no special exemptions for returning West Australians. From NSW you do not have to be quarantined in a hotel unless you do not have suitable accommodation - again applies to all persons. Compulsory tests for Covid -19 will be done on arrival and at 11 days into the quarantine period. As far as I can remember the W.A government has consistently applied the same rules to all Australians who wish to enter W.A. since the border restrictions came into force.

 

oz_mark

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I haven’t followed closely the details of WA border closure (what actions are required), but I do wonder how exemptions are granted, does a higher proportion of applications from WA resident get approved for exemption, surely if a WA person can quarantine at home, an interstater can quarantine at their chosen temporary accommodation?
How someone proposes to isolate is part of the assessment. For example, a WA resident that proposes to isolate in house, say with family members, but has to share infrastructure (for example, a bathroom) with those members will probably get knocked back.
 

Must...Fly!

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Or the exact opposite actually..... they know it will be successful and don’t want to be party to the ruling because.... well we all know what happens next.....:oops::(
McGowan said the below

"Our number one priority is to win the case, we'll worry about these matters … but obviously, if we're unsuccessful we'll need to work with the Commonwealth Government to put in place rules to protect Western Australia as best we can."

He is foreshadowing defeat, and as I said upthread - it is an absolute necessity that our governments create and legislate laws which abide by the constitution. If they have policy goals that cannot be achieved through method A due to falling foul of the constitution, then they must find a method B or C.

The constitution should never be subverted, ignored, circumvented. It is the law of the land and what defines the nation. Sometimes there is a cost that must be met in order to live in our great country.
 

HappyFlyerFamily

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Expert says Commonwealth's decision won't make 'one iota of difference'
Constitutional law expert Anne Twomey said the Commonwealth withdrawal at this stage of the process was a political development, but would do little to change the outcome of the case.

"It's probably not going to have a huge effect on the case and, from the Commonwealth's point of view, it's probably a good way of easing itself out of the political dilemma that it had got itself into," Professor Twomey said.
The outcome of the case would depend upon whether the decision to close the state border could be considered "reasonably necessary", she added.

Professor Twomey said the most pivotal role the Commonwealth could have in the case was with the evidence it already provided at the Federal Court level where the facts of the case are decided.

"The Commonwealth already had, effectively, its say in relation to what is 'reasonably necessary'," she said.

"It's done that at the Federal Court level. That will feed into the High Court level — withdrawing from the case doesn't stop that at all.

"All that's happening here is the Commonwealth is going to be less visible in the case."

 

jeza

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*cynic in me* They probably just worked out how many potential votes it's going to cost them in WA. Withdrawal is too late for the Federal Government, it's tied to the case.

McGowan can't lose whichever way the decision goes. WA State Government win then it's we stuck it up the interfering interstaters. If Palmer & Federal Government win, it's interfering Eastern Staters. If Palmer & the Federal Government win & COVID is imported into WA from the Eastern States, well then, hell hath no fury like a scorned sandgroper.

We are a weird bunch over here.
 

Gremlin

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*cynic in me* They probably just worked out how many potential votes it's going to cost them in WA. Withdrawal is too late for the Federal Government, it's tied to the case.

McGowan can't lose whichever way the decision goes. WA State Government win then it's we stuck it up the interfering interstaters. If Palmer & Federal Government win, it's interfering Eastern Staters. If Palmer & the Federal Government win & COVID is imported into WA from the Eastern States, well then, hell hath no fury like a scorned sandgroper.

We are a weird bunch over here.
Not just in WA. There are a couple of key marginal state electorates here in Qld where Clive Palmer is persona non grata for a very long list of reasons. The portrayal of the Libs/LNP cosying up to Palmer is a political attack ad that practically writes itself and will have a lot of cut through in the electorates that may very well decide the Qld state election. I've heard some very definite whispers that Deb Frecklington's team have been pretty unhappy with the Federal Govt's support of Palmer's case for this very reason.
 

OZDUCK

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Todays 'The West Australian' has reported that Palmer never lodged a valid application for an exemption to enter W.A. The only application that was lodged was by his pilot who listed Palmer as being his husband. The police claim that they assumed it was a hoax and rejected it. After Palmer started complaining he was asked to lodge a valid application but never did so.

This will not affect the High Court case but does show how his normal way of 'doing business' has not changed over the years.
 

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