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]

More calls for non-political, scientific and consistent approach to border controls

--

QANTAS PILOTS’ ASSOCIATION BACKS JOYCE BORDER CALLS

The head of Qantas’ pilots’ association has echoed chief executive Alan Joyce’s calls for a national consensus on state border closures.

Mark Sedgwick, the executive director of the Australian and International Pilots Association (AIPA), also told this week’s Australian Aviation podcast he thinks border closures can’t eradicate COVID-19 altogether.

“The more you shut borders, the more people become complacent and don’t socially distance, don’t wash hands, don’t stay home on their own, and when it gets into the community it runs away,” Sedgwick said. “We need a national approach.”

Qantas pilots’ association backs Joyce border calls

The head of Qantas’ pilots’ association, the AIPA, has echoed chief executive Alan Joyce’s calls for a national consensus on state border closures.

australianaviation.com.au

Good grief! A senior pilot, economist, doctor, and psychologist!

 

[trevella]

Good grief! A senior pilot, economist, doctor, and psychologist!

When has lack of qualifications ever stopped you?

 

[MEL_Traveller]

When has lack of qualifications ever stopped you?

If i was on a national stage? It would stop me right in my tracks!

 

[Seat0B]

Good grief! A senior pilot, economist, doctor, and psychologist!

.. walk into a bar...

 

[nutwood]

It's not the virus which is legislating unconstitutional border closures, nor is it a failing National Cabinet. Anyone who chucks dog poop at a car because of it's number plate is a goose and is responsible for their actions, but there is some blame to be laid on the spectacular failure of statecraft from our 'leadership'.

You need to remember that geese, just like sheep, follow the leader.
This is a time where those leading should be pushing the "all in this together" line. They're paid the big dollars, with benefits, to lead. Basic dog whistling is cheap and easy but it's a path that leads to some dark places.
If nothing else, this pandemic is showing just how close beneath the surface basic tribalism is simmering.

 

[jakeseven7]

You need to remember that geese, just like sheep, follow the leader.
This is a time where those leading should be pushing the "all in this together" line. They're paid the big dollars, with benefits, to lead. Basic dog whistling is cheap and easy but it's a path that leads to some dark places.
If nothing else, this pandemic is showing just how close beneath the surface basic tribalism is simmering.

I think something is bubbling, some interesting comments from Scomo today reported by the Guardian, and he said more to come tomorrow... Baby steps with these little premiers!

 

[antycbr]

I think something is bubbling, some interesting comments from Scomo today reported by the Guardian, and he said more to come tomorrow... Baby steps with these little premiers!

I think the foreign treaties legislation to override states was a firm reminder of the power of the Federal Government over the states.

 

[MEL_Traveller]

I think something is bubbling, some interesting comments from Scomo today reported by the Guardian, and he said more to come tomorrow... Baby steps with these little premiers!

It's interesting to read the comments on some of the online news services such as news.com.au... many support the actions of the premiers, certainly in Victoria. The restaurateur complaining about his business suffering didn't go down well.

 

[jakeseven7]

I think the foreign treaties legislation to override states was a firm reminder of the power of the Federal Government over the states.

There was a question put to him if he would legislate to stop border closures where they are deemed not to be necessary....

Clearly some of the border closures are not. And there needs to be a way to close and open them that makes sense.

 

[MEL_Traveller]

I think the foreign treaties legislation to override states was a firm reminder of the power of the Federal Government over the states.

Me thinks it was a dig at China rather than telling off the premiers! If Victoria had entered into an agreement with say Switzerland or the UK I can't see a similar reaction. (Not that I disagree with a close examination of the deal with China.)

 

[MEL_Traveller]

There was a question put to him if he would legislate to stop border closures where they are deemed not to be necessary....

Clearly some of the border closures are not. And there needs to be a way to close and open them that makes sense.

i don't know if the Cth has power under the Constitution to legislate to keep borders open?

 

[HappyFlyerFamily]

i don't know if the Cth has power under the Constitution to legislate to keep borders open?

Wouldn’t the process be, pass a law and the someone challenges its constitutionality? There are a number of powers including Quarantine....lol

 

[PineappleSkip]

I don’t fancy Clive Palmer’s chances in light of the decision on the issues that were put to the Federal Court, but it seems that he is pushing on with his challenge

cheers skip

 

[nutwood]

I can't see any challenge to the border closures being successful, unless there is an alternative plan in place.
The Federal Government can moan all it likes about the economic cost but until they put the hard yards in and show that they have a plan that would provide the same or better health security, public health and the precautionary principle will win every time.

 

[jakeseven7]

Lovely compassionate words from the QLD Premier and CHO

-----
Unborn baby dies after heavily pregnant mum was forced to wait 16 hours for emergency surgery in Sydney after being turned away at the Queensland border


A heavily pregnant mother who was forced to wait 16 hours for emergency surgery in Sydney after being turned away at the Queensland border has lost one of her unborn twin babies.

Queensland Premier Annastacia Palaszczuk was slammed for saying the state's hospitals were 'for our people only' - and did not grant the seriously ill mum-to-be's exemption despite her needing emergency surgery for the unborn twins.

The mother, from Ballina in New South Wales which is 30km from the Queensland border, had twins who were just 24 weeks along and needed urgent care.


Ms Palaszczuk said the death was an “absolute tragedy” but she stood by the decision of her health authorities.

Queensland Chief Health Officer Dr Jeannette Young said they did not comment on individual cases, but said generally that people should seek medical care in the state where they live.

As the day unfolded: Victoria records 113 new COVID-19 cases as hotel quarantine inquiry resumes; two Sydney schools close as Australian death toll jumps to 584

The COVID-19 pandemic continues to challenge Australia as Victoria moves towards the end of the fourth week of stage four lockdown.

www.smh.com.au

 

[Must...Fly!]

I can't see any challenge to the border closures being successful, unless there is an alternative plan in place.
The Federal Government can moan all it likes about the economic cost but until they put the hard yards in and show that they have a plan that would provide the same or better health security, public health and the precautionary principle will win every time.

Will it? A closer look at the constitution might sway you.

 

[jakeseven7]

A very interesting press conference happening right now.... Scomo turning the temperature up ever so slightly. Good.

 

[nutwood]

Will it? A closer look at the constitution might sway you.

I understand your point and indeed I have argued that case. It'll be interesting to see what the High Court makes of it. I don't believe they can ignore the public health side of the argument, otherwise every other State quarantine measure would be in doubt. Basically, if a State can stop you bringing in your bag of apples, they can stop you bringing in a virus.
I would think Queensland's border closure could easily be portrayed as protectionist. "Queensland hospitals for Queenslanders" was possibly not the smartest of statements! Hence my point that if it could be shown that the public health outcomes were being achieved by an alternative process, border closures would be that much harder to defend.
As it stands at the moment, if all States dropped their border restrictions, how long would it be before the whole country was having to lock down again?

 

[p--and--t]

Basically, if a State can stop you bringing in your bag of apples, they can stop you bringing in a virus.

Yes, some clear precedents

"Queensland hospitals for Queenslanders" was possibly not the smartest of statements!

Classic case of shooting yourself in the foot (or foot in mouth disease)

 

[drron]

Well I have just got my Tassie visa.