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

 

[antycbr]

off topic, but

Mayor ‘Tractor’ Ferguson awarded OAM for services to LG - Australian Local Government Association

John (“Tractor”) Ferguson, who began his career as a grader driver for the Bulloo Shire and later became its mayor, has been awarded a Medal of the Order of Australia (OAM). Mr Ferguson was one of 12 serving or retired councillors who were recognised in the 2020 Queen’s Birthday Honours for...

alga.asn.au

Thank you for posting this - a great story.

 

[MEL_Traveller]

But we don't keep them safe even staying on the couch for 5 months.
How many of the Victorian dead are elderly.So your solution is also a failure.

in Victoria the virus spread from the hotel quarantine. If everyone involved had stayed at home. No going out. No restaurants or large family gatherings. Possibly we could have saved lives.

We didn't stay on the couch.

 

[PineappleSkip]

Annastacia says she is keeping the borders closed on heath advice.

Yeah, she says that, but suspect she is taking a lot of police advice as well. Hence the closure of ACT border because of the guy that came from Western Sydney via Canberra. etc. etc.

Incidentally, there are harder closures on the roads into NSW, with the local cross border roads out west that were accessible by coded padlock now absolutely closed to drivers from the south.

Cheers skip

 

[JohnM]

And yes tgh it means you and I and even the sprightly JohnM being locked down.

WTF, Doc? I want a second opinion.

Errr, hang on - I'm in God's St Marko's own country. None of that cough here, puh-leeze!

I've had my new fourbie 4 months to the date on Monday when it goes in for its first (15K) km service, after this weekend down south amongst the tall timber at Pemberton (https://www.westernaustralia.com/en/Destination/Pemberton/56b266c4aeeeaaf773cf965f, Pemberton Visitor Centre - Things to See & Do)

Tuesday I shoot through to northern parts of WA for about three weeks and to put another heap of kays on the clock.

Lock me down?

Catch me if you can!

Hyuk, hyuk.

 

[ethernet]

My thought is to focus on the word 'Burden'. What is reasonable - what is not. In Clive's case WA just said 'No', perhaps without true hand on heart consideration and transperancy - thus an issue. The second is Morrison can overrule the states - or do a treaty with some other country to give the power back to the states. This could become an ISDS issue

 

[Rembrandt]

But we don't keep them safe even staying on the couch for 5 months.
How many of the Victorian dead are elderly.So your solution is also a failure.

I keep going back to Taiwan.No complete lockdown.restaurants,schools and many businesses still opening with some distancing and with a population virtually the same as Australia's - 486 cases with 7 deaths.If we had the same death rate as Taiwan per 100000 population we would have had just 8 Covid deaths.

I don't think many people in the developed world are wired for hardship, we've had it far too easy now for multiple generations. If heaven forbid a world war occurred and conditions were to degrade even worse than what we have now I'd hate to imagine what society would look like. Our brains have been wired for instant rewards and not to go through a long road of hard conditions.

The funny thing is Taiwan isn't nearly mentioned as much as NZ when it comes to Covid-19 success. When the fact is Taiwan has dealt with the pandemic the best out of anyone from what I can tell. Is it that NZ is run by a young woman? Or that news agencies etc are too scared to upset China over Taiwan? I also get frustrated over the gender card some people play in regards to female leaders being better managers of the pandemic. Per capita from a western standpoint Belgium is the worst hit nation and their prime minister is a youngish woman.

I also agree if everybody behaved and did everything correctly from the government down we would be in a simialr situation to Taiwan and the national economy would be slowly but surly recovering. It just frustrates me immensly when people complain over trivial things like having to wear a face mask. Heck try being stuck in a cold muddy trench with dead bodies surrounding you for months whilst being bombed all hours of the day and night. We have it easy.

 

[drron]

in Victoria the virus spread from the hotel quarantine. If everyone involved had stayed at home. No going out. No restaurants or large family gatherings. Possibly we could have saved lives.

We didn't stay on the couch.

But we have done a lot worse than Taiwan who have shown you don't need a severe lockdown to control Covid.You can go out to restaurants and travel around your own country,even now being able to cruise around your own country whilst Covid is under control.
They still have their International borders closed though.

 

[MEL_Traveller]

But we have done a lot worse than Taiwan who have shown you don't need a severe lockdown to control Covid.You can go out to restaurants and travel around your own country,even now being able to cruise around your own country whilst Covid is under control.
They still have their International borders closed though.

Mask wearing is common in Asia. Not so in Australia.

How similar are the cultures otherwise? Do Taiwanese actively look for loopholes and believe lock-down measures don't apply to them? Do they have a natural inclination to 'be confused' because they don't like rules? (I dunno - which is why I'm asking.)

 

[james4321]

...I also agree if everybody behaved and did everything correctly ...

Absolutely right - and maybe take a chill pill or two as well. We expect our elected leaders to make the tough decisions, they have all the information and they have the responsibility. Let them get on with it, and get off their backs while they do.

 

[PineappleSkip]

The second is Morrison can overrule the states - or do a treaty with some other country to give the power back to the states. This could become an ISDS issue

Huh? Overrule in relation to what? Treaty about what? ISDS - what foreign investor(s)?

 

[Pushka]

I am about done with our SA Premier. At mignight last night there is a ban on all movements in the rural communities near Victoria coming to SA for work, health and education. Yet he has the hide, or is it stupidity, to be in the headlines today, presumably to escape Sco Mo's fury about the border closures, telling Tas and WA they must open up to safe states because they are splitting families. We have concluded he is stupid.

We are still under Police State conditions in SA. I did not and would never vote to be in a Police State.

 

[Rembrandt]

Mask wearing is common in Asia. Not so in Australia.

How similar are the cultures otherwise? Do Taiwanese actively look for loopholes and believe lock-down measures don't apply to them? Do they have a natural inclination to 'be confused' because they don't like rules? (I dunno - which is why I'm asking.)

The interesting thing about East Asia is their social cohesion. In the west we have so many different groups and ideologies these days that it's just exhausting to the point where I want the world to stop so I can get off.

When you have good social cohesion is generally means the people will adhere to government guidelines and advise. We once had great social cohesin in the west but it started to decay since the end of the second world war.

 

[tgh]

Communities with a strong sense of social cohesion and discipline may successfully manage a pandemic without penning.

Clearly Au guvm'nt understands that their entitled clients will not succumb to freedom limiting disciplines 100% and so adopt penning as an alternative.
This method also works well for sheep ..

I am still waiting for the freedom tribe to tell me how many deaths they propose as the price of commercial freedom.
It seems a simple enough calc.

 

[jakeseven7]

NSW's $73 million weekly hit to economy from Victoria border closure pressures government rethink

Coalition minister urges Australia to fight the coronavirus “as one country”

NSW is losing more than $73 million a week as a result of the Victorian border closure, with interstate tourism grinding to a halt after already being significantly impacted by the summer bushfires.

With border closures set to dominate national cabinet on Friday, NSW Deputy Premier, John Barilaro called for the Victorian border to open by Christmas.

"If Victoria's numbers continue to decline and we can get them under 100 in the next few weeks I would argue that the border should be lifted and you could almost lift the restrictions this side of Christmas," Mr Barilaro said.

"I don't believe we should be having the border closed anywhere beyond this side of Christmas."

NSW's $73 million weekly hit to economy from Victoria border closure

NSW is losing $73 million a week because of the Victorian border closure.

www.smh.com.au

 

[MEL_Traveller]

Clearly Au guvm'nt understands that their entitled clients will not succumb to freedom limiting disciplines 100% and so adopt penning as an alternative.
This method also works well for sheep ..

The media is to blame here. Headline on ABC news this morning says 'Victorian restrictions unlikely to be eased soon'. C'mon. We were told six weeks. We have a week of lower numbers and people are already demanding an easing to restrictions. What's so hard to understand about '6 weeks'?

 

[jakeseven7]

Travel and coronavirus border closures on the agenda at National Cabinet


COVID-19's enormous impact on Australia's aviation, tourism and agriculture industries has been brought back into focus with a long list of issues in the spotlight and accusations that some states border closures have been made against medical advice.

The Federal Government is also stepping up pressure on premiers over problems caused by state border closures, an issue that will be on the agenda at today's National Cabinet meeting.

https://www.abc.net.au/article/12580580

 

[nutwood]

AFAIK only Vic is considered a hotspot by Tas - not NSW, as a Tassie resident you will be able to quarantine at your place of residence.

I have an employee returning from a job in Parkes next week. The others are heading home to QLD and that will now cost $2,700.00 for gov lodgings and 80h Wages each. Not the case when they went on the job 5 weeks ago

(assuming I have understood what you are saying in your post correctly)

Ouch! Your example demonstrates the problem perfectly. You make a business decision based on current rules and the goal posts shift. Fair enough if there's a genuine risk identified but not when it's based on an arbitrary, State wide decision. $2700/ head and 80 hours wages could send a small business to the wall.
You are broadly correct with regard to NSW and Tasmania but that could change at any time. I've done a lot of travelling throughout this time and I've had several close shaves, getting somewhere hours before the rules changed. It makes it very stressful. Interestingly, I realised I wasn't being as meticulous with my Covid prevention as I was in March and I realised that my focus has shifted from avoiding Covid to avoiding getting caught by Covid rule changes!

 

[drron]

Mask wearing is common in Asia. Not so in Australia.

How similar are the cultures otherwise? Do Taiwanese actively look for loopholes and believe lock-down measures don't apply to them? Do they have a natural inclination to 'be confused' because they don't like rules? (I dunno - which is why I'm asking.)

Well break quarantine and you could be up for a fine up to $US50000 and 6 months in the slammer.funny that after an initial couple of escapes the Taiwanese are pretty good at obeying the rules.Frankly Victoria's current lockdown is far worse in it's effects on citizen rights than Taiwans use of monitoring and effective punishment.

 

[jakeseven7]

Maybe it’s true... maybe WA and QLD are just being lazy?
—-

'Sledgehammer squashing an ant': COVID recovery boss calls on states to rethink border policies

The man tasked with Australia’s economic recovery post-pandemic has called on states to reconsider their approach to coronavirus suppression, describing hard border policies as a "sledgehammer squashing an ant".

Speaking at a WA Business News breakfast in Perth on Friday, the chair of the National COVID-19 Commission Nev Power said states such as WA needed to develop protocols and processes to stamp out virus outbreaks when they cropped up instead of relying on border closures and complete business lockdowns

“I think the key here is we’re seeing border closures used because there are no other protocols and processes in place,” he said

As the day unfolded: Victoria records 179 new COVID-19 cases as hotel quarantine inquiry continues; border talks intensify between states as Australian death toll jumps to 472

National cabinet will meet today to discuss Victoria's aged care crisis and international and interstate travel, after Victoria and NSW recorded their lowest daily case totals in recent weeks.

www.smh.com.au

 

[MEL_Traveller]

Does the chair of the national commission adds any weight or credibility? Seems to just be repeating the 'official' message of his employers?