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

 

[MEL_Traveller]

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.

Do you have evidence to support that? To the casual observer, hotel quarantine seems a fairly good solution. Everyone in the one place. Can be monitored. Daily health checks. Immediate care if required.

I understand there are exemptions for compassionate grounds. Which also seems reasonable.

 

[drron]

Of course it is to prevent travel to Tasmania.Unless you are designated an essential worker it is the mandatory hotel quarantine for you.One person on my flight MEL-LST was a Tasmanian coming home.Had just finiished 2 weeks mandatory hotel quarantine in MEL.But still had to then do the 2 week mandatory hotel quarantine in Launceston.Now what public health measure does that serve?Sure may have been exposed on the plane but pretty easily contacted if someone became positive after the flight as only 13 others who all had to give address in Tasmania and phone numbers on arrival into LST.

Essential travellers still have to self isolate.I am only allowed out to go to and from work and must wear a mask all the time I am outside of the apartment.

Very few exemptions are granted for compassionate reasons.The great majority are for Tasmanians who have had to go interstate for medical reasons.The example given by the government of a compassionate reason is a terminally ill relative.However I know of one knocked back because the relative is in a hospital where visitors are not allowed.And they will still have to do strict self isolation.

And the irony is Tasmania has the second highest rate of infection by state-NSW is higher but considering the proportion of International arrivals compared to Tasmania that is not surprising.Tasmania also has the second lowest rate of testing by population- only SA does less even in total than Tassie.
So maybe other states should be banning visits by Tasmanians on those numbers or at least putting them into mandatory quarantine.

 

[RooFlyer]

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.

Righto thanks. I did put my own arguments a number of posts above, but Government health advisers, plus possibly giving hotel staff continued employment, made the case that monitored hotel stays for this class of person produced a better outcome. It was probably based on the fact that every case of COVID19 came from people travelling in from outside of Tasmania and for a long time, that continued to be the only vector of new cases. The point has been made a number of times in the current environment that 'you have to draw the line somewhere' and I guess that rigidly containing potential new sources of infection in Tasmania was a pretty obvious place to draw the line (several governments, not just Tasmania have adopted it). As for the NW Tas outbreak, there would definitely be a case to hotel-confine them. Health workers who want hotel confinement can have it, but I don't think there are enough hotel rooms for the 5,000 or do current confinees. As requested, I gave you my argument .

Now, I hear that you think the policy is inconsistent and I'm not actually arguing with that, but maybe now you might let us know why you think the Tasmanian government would want to 'punish' people simply for arriving back from interstate and not 'punish' others. For instance, do you think Premier Gutwein is anti-business? Is he saying 'This will show you, you should have done your stuff in Tasmania?' Is he jealous of those able to afford to travel interstate?

You might have heard of Occam's Razor. Given we can't divine the Premier's mind, I'm happy to adopt the obvious and simple reason for the hotel lockdown of returnees - it was for heath-guided reasons based on containing the source of all of the initial infections to Tasmania. What's the 'punishment' argument?

 

[RooFlyer]

Of course it is to prevent travel to Tasmania.

If the government wanted to prevent interstate arrivals, they would simply close the airspace (or equivalent action under their control) for passengers except for charters. Much easier and cheaper.

One person on my flight MEL-LST was a Tasmanian coming home.Had just finiished 2 weeks mandatory hotel quarantine in MEL.But still had to then do the 2 week mandatory hotel quarantine in Launceston.Now what public health measure does that serve?

Consistency. When dealing with complex situations, consistency is always helpful. And sure, it produces some outcomes that seem silly. But isn't that the case with all things in life?

So maybe other states should be banning visits by Tasmanians on those numbers or at least putting them into mandatory quarantine.

Considering Tasmania isn't banning visits by others now, nor when all other states had a much higher infection rate, I don't think that works And given infection isn't enhanced by any particular state-of-origin, but rather by exposure, there are visitors to Tasmania who might be caught by a ban on arrivals back from Tasmania, or mandatory quarantine. I'm not going anywhere, so I wouldn't mind - except I wouldn't want my friends inconvenienced

 

[drron]

Virtually all of Tasmania's first 80 cases were in people who had come from overseas or off cruise ships.Then there were the 2 from Devonport.As some staff work at both The Mersey and NWRH it is possible they were the first 2 cases of the NWRH cluster.
Of the other cases 3 were Tasmanian contacts of cases.Only 2 were from Interstate on a group tour but one of them had recently returned from overseas.
So the Commonwealth Government instituting mandatory quarantine already cuts off those cases. Since then virtually all cases have been from the NWRH cluster.

So mandatory quarantine in a hotel does seem overkill.Especially for those that have already done mandatory hotel quarantine interstate.

Now I still consider this a de facto ban on mainland Australians.People turning up to the Spirit Of Tasmania in Melbourne are denied boarding unless they have their essential worker or compassionate exemption letters.Just say interstate visitors are banned as QLD and WA do.

And there is no consistency. Tasmania unless exempt-essential or compassionate-all have to undertake forced quarantine.Exempt and compassionate self isolation.

NSW,Victoria and ACT.If arriving from OS 14 days mandatory quarantine.All other travellers no requirements.

South Australia-all visitors from interstate 14 day self isolation.

Western Australia all non residents banned unless exempt.All other arrivals from interstate 14 day self isolation.

QLD-same as WA.

Northern Territory gets the gold.Every arrival unless exempt-14 day mandatory isolation which you must pay fo yourself and you are responsible for arranging delivery of meals.

So again why do Tasmanians returning from interstate have to do mandatory quarantine rather than self isolation as every other stat and the ACT with only the NT being similiar to Tasmania?

 

[Steady]

So again why do Tasmanians returning from interstate have to do mandatory quarantine rather than self isolation as every other stat and the ACT with only the NT being similiar to Tasmania?

because that’s what our state Gov has decided. Quite simple really? Don’t like them, fair enough - lucky it’s a free country.
I have a fifo crew that has been inconvenienced, we would rather this wasn’t happening, I also have a mother in-law / wife that just lost her husband/ father and a mother in-law who couldn’t attend her husband’s funeral, and a wife who could not console her, children who couldn’t attend their pops funeral. MIL was not allowed to attend her husband’s funeral- something I couldn’t comprehend 6 weeks ago but it is what it is. federal and state governments are trying to fight this and some will not like their choices but I’m glad I dont have to be making them. (Not aimed at Drron or anyone in particular, just a rant) Feel free to focus on your own inconvenience but fair go, it’s not just about you, we are all suffering.

 

[mannej]

Looks like someone has tried to test the legality of the NZ Lockdown - Covid 19 coronavirus: 'All for her political gain' - Jacinda Ardern sued over lockdown

 

[RooFlyer]

@drron - we are so very grateful for your coming down to Tas to help out. Its not a great environment for you to work in and there are sacrifices - much more than me, for instance. Blood is worth bottling etc.

But as for inconsistency, difference from other states, inconvenience etc etc. Can I say, in the politest possible way - for goodness sake, so what. Its a government decision and I haven't heard any objection to the policy (including by Labor and the Greens) except on social media - here on AFF, to be exact. Sorry you feel this way and I hope you'll be back after we get over this, but as steady said, there are some worse outcomes from government policy than a 2 week hotel stay on arrival and inconsistency between states.

 

[drron]

Yes it is the law and it is a free country but Tasmania is the only state where residents returning from interstate are compelled to undergo mandatory quarantine.
I have no problem with it for interstate visitors but they have been banned apart from essential travellers and those with a compassionate exemption who undergo self isolation.
To be honest I am a little surprised the authorities as far as I am aware haven't checked up on me.I don't think as a medico it should be assumed I would be compliant-although I have.
Better with another delivery today from the Harvest Market on line.

And Steady I really sympathise with your situation but that is the same whether mandatory or self isolation.We are at risk of loosing some of our humanity.And as I said above this is really not about me.

 

[flydoc]

Tasmania is the only state where residents returning from interstate are compelled to undergo mandatory quarantine.

Other than the NT (OK not a state), where returning residents also get mandatory hotel quarantine - but at their own expense (c. $2k)

 

[Spongbob]

What happened to all the fancy-lawyer talk?
I was enjoying this thread ...

 

[Max Samuels]

Yes it is the law and it is a free country but Tasmania is the only state where residents returning from interstate are compelled to undergo mandatory quarantine.

Not true. QLD has declared all of Sydney as a "hot zone" so QLD residents returning from the filthy disease-ridden city of Sydney must self quarantine (can you believe that they haven't nuked it yet? From space? Just to be sure?)..... obviously being sarcastic here but silly times call for silly comments.

Reading all the comments on this thread is very amusing... it seems people have now decided to stick with a particular view on this matter and intend to stay with it to the end.... and only time will tell who was right and who was wrong.

With regard to legality of states closing their borders there is precedence but nothing quite like this. It will be interesting if/when someone sues a state what the High Court says on the matter. Regardless, section 109 of the Australian Constitution (I think it is 109) says that if it (the Fed Govt) makes a law and a state has a contradictory law, then the Federal law prevails.... so if for example the state of WA, the premier drunk with power and the control he has over his pretend country, if he continues to lock out the rest of the country, the Fed Govt just passes a law that makes that kind of action illegal and WHAM! We are back in business.

But this whole thing is so stupid in my humble opinion. Families being kept apart, falling into arguments, lines being drawn about who is "right" and who is wrong.... police setting up hotlines to "dob" in a neighbour..... not a good sign people. Really sad. And the next person to say "you are being so selfish not believing and doing everything the government says" should really just take an IQ test

 

[drron]

Though self quarantine is not the same as mandatory quarantine in a hotel of the Government's choosing.I am not arguing against self quarantine/isolation.

Then of course Bob Katter has declared Brisbane a hot zone and wants those from SE QLD banned from FNQ.

 

[Max Samuels]

Though self quarantine is not the same as mandatory quarantine in a hotel of the Government's choosing.I am not arguing against self quarantine/isolation.

Then of course Bob Katter has declared Brisbane a hot zone and wants those from SE QLD banned from FNQ.

We truly are a country being ruled by a bunch of idiots. And now we cannot even escape :-(

We have come full circle!! Back to the prison colony we were in 1788!

 

[MEL_Traveller]

With regard to legality of states closing their borders there is precedence but nothing quite like this. It will be interesting if/when someone sues a state what the High Court says on the matter. Regardless, section 109 of the Australian Constitution (I think it is 109) says that if it (the Fed Govt) makes a law and a state has a contradictory law, then the Federal law prevails.... so if for example the state of WA, the premier drunk with power and the control he has over his pretend country, if he continues to lock out the rest of the country, the Fed Govt just passes a law that makes that kind of action illegal and WHAM! We are back in business.

However, the Federal government's power to make laws are limited by the constitution. It can't just 'make' a law to open the borders unless a power to do so exists in the constitution. Therefore, the sate law will prevail.

 

[nutwood]

Looking back over this thread, I note some suggestions regarding selfish persons who are aggrieved at limitations to their travel. I possibly should clarify my position.
Personally, I'm quite comfortable with current restrictions to travel. My concern comes from a lack of certainty as to where this is going. The Tasmanian hotel lock-up requirements are way over the top but unfortunately feed right into the Tasmanian ethos of everything nasty comes from outside. As a business operator, I need to be looking ahead. I take on a contract now, I may need to travel interstate in two months time. I can take that risk, based on self isolation. Anything that takes me interstate generally involves plenty of paper-work so no big deal.
Mandatory detention is a different story. That's straight penalisation for no offence , except travelling interstate. Hence the reason why I query whether this is actually legal?

 

[MEL_Traveller]

Mandatory detention is a different story. That's straight penalisation for no offence , except travelling interstate. Hence the reason why I query whether this is actually legal?

Would mandatory detention for no other reason than travelling interstate be legal? Almost certainly not! .... in ordinary circumstances.

But this is a declared state of (health) emergency. Instead of this being detention, it is quarantine, related to the health emergency. And instead of being a penalty, this is a health measure designed to protect to community and residents of Tasmania, related to the health emergency.

There doesn't seem to be much legal discussion on this, which might have been expected if it was potentially unlawful. The state has not 'closed', its borders are open. Trade is allowed. Human movement is allowed. Just if you want to move, you need to go into quarantine on your return.

 

[drron]

But the danger to Tasmanians came first from people coming back from OS or Cruises.Now the major threat is internal from the NWRH cluster.
There were 2 cases in Interstate visitors-but one of those had just come back from OS.The second was travelling with the first case and her symptoms began a week after the first.
Now I and I presume nutwood are not arguing about the Quarantine of travellers from interstate.
What I am sure both of us feel is overreach is insisting on mandatory hotel quarantine rather than self isolation at home for Tasmanians returning from interstate.

 

[p--and--t]

But the danger to Tasmanians came first from people coming back from OS or Cruises.Now the major threat is internal from the NWRH cluster.
There were 2 cases in Interstate visitors-but one of those had just come back from OS.The second was travelling with the first case and her symptoms began a week after the first.
Now I and I presume nutwood are not arguing about the Quarantine of travellers from interstate.
What I am sure both of us feel is overreach is insisting on mandatory hotel quarantine rather than self isolation at home for Tasmanians returning from interstate.

Aha! but would requiring mandatory quarantine of people from other states and not Taswegians mean they were discriminating against people from other states and therefore that IS unlawful in the eyes of the constitution. e.g. The barriers to trade put up in SA to fruit coming over the border on the highway from Mildura (Vic) to Renmark (SA) do not discriminate on which state the fruit came from. Its all fruit that do not meet the quarantine criteria, therefore it is not a restraint of trade between states in the eyes of the constitution. [just stirring the pot for you]

 

[OZDUCK]

Aha! but would requiring mandatory quarantine of people from other states and not Taswegians mean they were discriminating against people from other states and therefore that IS unlawful in the eyes of the constitution. e.g. The barriers to trade put up in SA to fruit coming over the border on the highway from Mildura (Vic) to Renmark (SA) do not discriminate on which state the fruit came from. Its all fruit that do not meet the quarantine criteria, therefore it is not a restraint of trade between states in the eyes of the constitution. [just stirring the pot for you]

When our borders were closed in Western Australia the Premier made the point that the legal advice he had received was that the prohibition on entry of non-exempt people had to apply to all travelers not just non-West Australians. Otherwise, it was considered that the restrictions would have breached the Constitution.