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

 

[Must...Fly!]

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

Not sure on your theory, but is it wrong?

 

[desafinado74]

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

This pandemic has really highlighted how mediocre re the quality of Australian politicians today (Looking at you smug and parochial QLD and WA premiers , Dan Andrews and Scomo with regards to the Aged care debacle and making it near impossible for Aussies to depart and expats returning) Some of these premiers have shut the state borders just to appear tough and increase their chances to win elections, at the great expense of the economy and society in general (I feel sorry for the farmers , workers and students at the border towns, and people who need medical treatments in the neighbouring state etc)

 

[MEL_Traveller]

Not sure on your theory, but is it wrong?

We know that one family, one person, can start an outbreak. So closing borders and restricting movement seems - in principle - a good option. What would be the alternative? Every single border crossing requiring quarantine... something we probably don't have the resources for.

If the Feds are confident enough that movement should be free, why are we restricting international arrivals?

 

[antycbr]

The Federal Government has told National Cabinet that states that close borders will now have to pay a proportion of the DANS and RANS subsidies to keep airlines operating.

The first step to ensuring the cost of border closures is assigned to those making the decisions.
The Australian

Post automatically merged: Aug 22, 2020

We know that one family, one person, can start an outbreak. So closing borders and restricting movement seems - in principle - a good option. What would be the alternative? Every single border crossing requiring quarantine... something we probably don't have the resources for.

If the Feds are confident enough that movement should be free, why are we restricting international arrivals?

So states with zero cases should keep their borders closed permanently just in case?

These lines were set in London in the 19th century.

 

[MEL_Traveller]

So states with zero cases should keep their borders closed permanently just in case?

These lines were set in London in the 19th century.

Australian states are no different to any other country in the world... lines on a map. Same for local government areas, that some have suggested should be used instead of borders.

It doesn’t matter where you draw the line, there will *always* be people complaining.

We are in the middle of a pandemic. Actually, just a few months in, and people are complaining. Yes, borders are closed. That’s not unreasonable for a once-in-a-century pandemic.

Hospitals are stretched but a coping. Medical staff are stretched to the limit, but just hanging in. The workforce is either working from home, or getting jobseeker/jobkeeper. The people complaining? Business. And it seems businesses are seeking profits at whatever the cost? They won’t have customers if we’re all dead, or can’t work because of the long term effects of the virus, even if we ‘recover’ now.

Sure, the border closures have highlighted some of the issues around providing medical attention to those living in border communities. Those issues need to be fixed. But surely a blanket border ban is easier to administer than hundreds of mini enclaves which may or may not be subject of restrictions on any given day?

 

[jakeseven7]

The tipping point is approaching.... a building wave of people and industries are starting to question the logic (or lack of) of certain states....

Also with QLD getting used to a few cases here and there, perhaps this means they will be less knee jerk in their approach (after the election of course )

—-

As the Coronavirus crisis subsides, border games rise as primary pain point causing chaos nationally

The story of a Victorian farmer trying to get feed to his stock on a property in NSW being told he would have to fly it, and himself, to Sydney and quarantine for two weeks summed up the more ridiculous aspects of the various border regimes being put in place.

But beyond that, the borders question has become a seething mix of need and politics which is difficult to disentangle, particularly with several states and territories going to elections in the not-too-distant future.

And there were the increasing rumblings about both the 18,000 Australians who can't get home, because of outrageously expensive airfares and tightly constrained quarantine slots, and about Australia being the only place in the world that refuses to let its citizens leave the country if they need to.

An increasingly desperate airline and powerful accommodation sector is now badgering the Government to come up with a scheme, a protocol, both domestically and internationally.The Department of Home Affairs gave a briefing to the sector this week which indicated it is accelerating its thinking about this.

There are perplexing holes in the way governments are dealing with the pandemic

Even after a week in which there were finally clear signals the numbers of new infections and deaths in Victoria seemed to be on the decline, there is one issue still causing chaos, writes Laura Tingle.

mobile.abc.net.au

 

[DC3]

QLD is one of the top-performing states in managing the COVID situation.

 

[trevella]

Hospitals are stretched but a coping. Medical staff are stretched to the limit, but just hanging in. The workforce is either working from home, or getting jobseeker/jobkeeper. The people complaining? Business. And it seems businesses are seeking profits at whatever the cost? They won’t have customers if we’re all dead, or can’t work because of the long term effects of the virus, even if we ‘recover’ now.

You've got your narrative and apparently you're entitled to keep harping on about it no matter how blinkered and lacking in objective support it may be.

I'm sure you'll be equally vocal in complaining about worsening economic inequality and diminished public safety over the many years ahead.

 

[MEL_Traveller]

The story of a Victorian farmer trying to get feed to his stock on a property in NSW being told he would have to fly it, and himself, to Sydney and quarantine for two weeks summed up the more ridiculous aspects of the various border regimes being put in place.

Agree this is silly and needs to be sorted out ASAP together with medical care arrangements. These are essential services that need to be handled better.

 

[jase05]

Sounded like some positive chats between Andrews and Marshall yesterday in loosening up restrictions for border communities. Just need to sort through the final details but it appears a bubble will be created and the SA border moved into Victoria

 

[DC3]

... it appears a bubble will be created and the SA border moved into Victoria

But then we won’t be able read about this sort of thing:

SA Police looking for man who sped through Bordertown coronavirus checkpoint - ABC News

amp.abc.net.au

 

[james4321]

You've got your narrative and apparently you're entitled to keep harping on about it no matter how blinkered and lacking in objective support it may be.

Harsh. I agree with Mel-Traveller, and I dont regard myself as "blinkered" or "lacking in objective support" (whatever that is) Perhaps your opinion might be savaged as well, but you are entitled to it.

 

[drron]

The problem is that winter is normally the busy times for hospitals.There are hospitals that put on extra medical staff for winter because of that.
This year is different.With social distancing not nearly as much respiratory admissions including to ICU.As well in Victoria which is the only State with significant corona virus cases Elective surgery has again been cancelled so hospitals have not been stretched or medical staff stretched to the limit apart from those who normally would be stretched at this time of year.
2 days ago there were 51 Covid patienrs in ICU.43 in Victoria,8 in NSW.
There were 642 in hospital.622 in Victoria,16 in NSW,3 in QLD and 1 in Tasmania.

No where near capacity.So the nay sayers have it wrong.

 

[jakeseven7]

The problem is that winter is normally the busy times for hospitals.There are hospitals that put on extra medical staff for winter because of that.
This year is different.With social distancing not nearly as much respiratory admissions including to ICU.As well in Victoria which is the only State with significant corona virus cases Elective surgery has again been cancelled so hospitals have not been stretched or medical staff stretched to the limit apart from those who normally would be stretched at this time of year.
2 days ago there were 51 Covid patienrs in ICU.43 in Victoria,8 in NSW.
There were 642 in hospital.622 in Victoria,16 in NSW,3 in QLD and 1 in Tasmania.

No where near capacity.So the nay sayers have it wrong.

Even VIC ED’s are showing green, one even had zero waiting yesterday which is unheard of. Zero.

Regardless of the opinions, inconvenient facts (to the narrative of certain people trying to get elected) are starting to surface and this is going to continue to stimulate a lot of questions from the public.

 

[p--and--t]

Hospitals are stretched but a coping. Medical staff are stretched to the limit, but just hanging in

False news. Nursing home staff who didn't bother to follow the instructions they were given months ago, yes. Hospitals, no.

 

[antycbr]

False news. Nursing home staff who didn't bother to follow the instructions they were given months ago, yes. Hospitals, no.

Also any statement seems to ignore the facts outside Victoria where the systems are absolutely not stretched.

 

[MEL_Traveller]

The problem is that winter is normally the busy times for hospitals.There are hospitals that put on extra medical staff for winter because of that.
This year is different.With social distancing not nearly as much respiratory admissions including to ICU.As well in Victoria which is the only State with significant corona virus cases Elective surgery has again been cancelled so hospitals have not been stretched or medical staff stretched to the limit apart from those who normally would be stretched at this time of year.
2 days ago there were 51 Covid patienrs in ICU.43 in Victoria,8 in NSW.
There were 642 in hospital.622 in Victoria,16 in NSW,3 in QLD and 1 in Tasmania.

No where near capacity.So the nay sayers have it wrong.

It's not the beds... it's the staff.

in the flu season, do 1000+ nursing staff become infected and have to stay out of work, placing strain on those remaining?

During flu, is full PPE worn then entire day, limiting bathroom breaks, coffee breaks, and increasing dehydration?

During flu season, do we need to call in the armed forces to drive ambulances?

Or do hospital staff vaccinate against the flu to reduce the chances of them getting it?

If it were true that border closures were simply to 'get votes' then either (a) the majority of people will agree and re-elect the current governments, or (b) the majority will disagree and change government.

 

[antycbr]

It's not the beds... it's the staff.

in the flu season, do 1000+ nursing staff become infected and have to stay out of work, placing strain on those remaining?

During flu, is full PPE worn then entire day, limiting bathroom breaks, coffee breaks, and increasing dehydration?

During flu season, do we need to call in the armed forces to drive ambulances?

Or do hospital staff vaccinate against the flu to reduce the chances of them getting it?

If it were true that border closures were simply to 'get votes' then either (a) the majority of people will agree and re-elect the current governments, or (b) the majority will disagree and change government.

No one is arguing that the Victorian border needs to stay closed. What you keep pointing out does NOT apply in other, arguably better managed jurisdictions.

On the second point, there are many factors that people vote on. However the current situation with border closures is leading to economic impacts which are being borne by others. If you are able to close borders with a low cost to your own citizens because NSW and VIC are paying for your Jobkeeper and Jobseeker, that’s not fair. The states need to be accountable for the decision and bear the COST of that decision rather than transferring it to others.

 

[DC3]

I see that the odd personal attack is creeping in on this thread. Not the sort of thing that we need.

 

[Must...Fly!]

West Australian Premier Mark McGowan has signalled the state's hard border could be in place until March next year, as he responds to fresh legal action from mining magnate Clive Palmer, claiming the litigation is a "nuclear attack" on the state.

Mr McGowan once again said the WA border would remain until health advice said otherwise, but he expected it would be in place for months to come.

"If it goes beyond March, well it'll go beyond March," he said.

That would mean the hard border — which has been fiercely debated by both the state Labor Government and the Liberal Opposition throughout the COVID-19 pandemic — could be in place until the 2021 state election.

'This is a nuclear attack': McGowan slams latest legal challenge by Clive Palmer

WA Premier Mark McGowan signals the state's hard border could remain in place until March 2021, while responding to mounting litigation from mining billionaire Clive Palmer, likening the numerous legal challenges as a "nuclear attack" on the state.

www.abc.net.au

It would be funny if it were not so sad.