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

 

[p--and--t]

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.

That's what I thought. The only other way would to have a defend-able in court 100% test to pick out an infected person or goods (from anywhere including a local) out of the incoming crowd and declare that individual or possessions as a health risk - which is not currently and will potentially never possible given they could carry the virus in on their person off the plane or get infected on, or just before going on, the plane and have zero symptoms.

 

[RooFlyer]

Just an idle query. Anyone know the status of serving ADF personnel in respect of their various deployments? For instance, the ones currently in Tas NW filling in for the isolated medical personnel or, say if some needed to go to WA. Wonder if they are somehow 'exempt' from state-based restrictions, being 'federal' and, you know, the Army? Maybe they are, and subject to the same 'essential worker' that drron is (but politicians aren't) - ie go to work, then straight to accommodation & no-where else.

I assume an anti-terrorist squad would be 'exempt' from virtually all quarantine 'rules' if they were called out interstate. If I'm right in that, I wonder how far down the chain 'exemption' would go?

 

[OZDUCK]

Just an idle query. Anyone know the status of serving ADF personnel in respect of their various deployments? For instance, the ones currently in Tas NW filling in for the isolated medical personnel or, say if some needed to go to WA. Wonder if they are somehow 'exempt' from state-based restrictions, being 'federal' and, you know, the Army? Maybe they are, and subject to the same 'essential worker' that drron is (but politicians aren't) - ie go to work, then straight to accommodation & no-where else.

I assume an anti-terrorist squad would be 'exempt' from virtually all quarantine 'rules' if they were called out interstate. If I'm right in that, I wonder how far down the chain 'exemption' would go?

For W.A. there are 'Directions' which list "Exempt Travellers". This includes at Sec 27(b) - "active military personnel (including members of the Australian Defence Force Reserve on active duty) required to be on duty in Western Australia while in Western Australia;"

https://www.wa.gov.au/sites/default/files/2020-04/Quarantine%20%28Closing%20the%20Border%29%20Directions_0.pdf

 

[drron]

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]

Basically as in QLD and WA Tasmania is closed to interstate visitors.Any allowed in come in as essential workers or on compassionate grounds and so not subject to Hotel Quarantine.

 

[RooFlyer]

For W.A. there are 'Directions' which list "Exempt Travellers". This includes at Sec 27(b) - "active military personnel (including members of the Australian Defence Force Reserve on active duty) required to be on duty in Western Australia while in Western Australia;"

Thanks. Interesting - the Army is in the same category as everyone else who is allowed to cross the state border - truck drivers, health workers, politicians, specialist skills etc. I see FIFO workers and families are also 'exempt' (can cross border) but have to do 14 day's 'strict quarantine' (discrimination!!).

Tasmania's 'essential traveller' list is a lot looser and doesn't specifically mention armed forces but there are 'specialist skills' and 'other approved' categories. These are their 'quarantine conditions'

Conditions for Essential Travellers | Coronavirus disease (COVID-19)

Essential Travellers may be eligible for a full or partial exemption from 14 days quarantine, but must comply with strict conditions.

www.coronavirus.tas.gov.au

So, on this and what OZDUCK posted, the Army gets no special treatment.

 

[drron]

Relax RooFlyer this post is not about Tasmania but it is about the pitfalls of mandatory hotel isolation.
many negative reports coming out and there obviously has been very little plannining and/or review of the situation.
first from a doctor doing health checks at SYD.NSW Health upholds it's reputation.
"Finlay said health workers could flag vulnerable people, such as the elderly or severely mentally unwell, with NSW Health for exemption from the enforced 14-day quarantine in city hotels.

“Until today the ministry of health had told me that everyone I’d flagged as vulnerable was given their exemption,” Finlay said on Saturday. “Today I learned this was a lie. It hadn’t actually been done.”

Hotel quarantine a ‘disaster’ and vulnerable people should be allowed home, doctor says

Doctor told authorities pregnant women and people with mental health issues should not be held in strict quarantine but advice was ignored

www.theguardian.com

And another NSW Health failure.

No Cookies | The Courier Mail

No Cookies

www.themorningbulletin.com.au

WA Health is no better
"An investigation has been launched into how a man in Perth hotel quarantine amid the coronavirus pandemic ended up in an induced coma in intensive care despite his wife allegedly calling for a doctor nearly nine hours before he was admitted to hospital."

Man in Perth hotel quarantine in a coma after nine-hour wait to go to hospital

Others in coronavirus quarantine across Australia say they are also struggling to access adequate medical care

www.theguardian.com

And in typical Health administration fashion they are going after the doctor.
"The GP said she was given one to two hours' notice by a recruitment agency to turn up at the Crown hotels last Monday.

"I basically realised only when I arrived on site that I was one doctor, with one nurse, and had been put in charge of 600 guests — 300 at the Crown Prom and 300 at the Crown Metropol," she said.

"I wasn't given any guidelines, or protocols, procedures — there was no PPE, there was actually nothing.

"I just turned up to the hotel and it was sort of like 'well what do I do next?' and they said 'well you go and figure it out'."

Doctor says she was 'thrown under a bus' by Health Department after man rushed from hotel to ICU

The doctor charged with looking after 70-year-old Kenny Watson, who is in intensive care in Perth with COVID-19, says she has been made a "scapegoat" by WA health authorities

www.abc.net.au

Then the Swissotel in Sydney has ~ 100 permanent residents who were only told of the quarantine arrivals after they had arrived.
"A permanent resident at the Swissotel, Brooke Pendlebury, said she was only informed the building was being used as a quarantine facility on Friday - a day after the cruise ship passengers checked-in.

"We were never told until 9.50am this morning by way of an email that was circulated to the residents. [It] advised us that there are already people here," she told SBS News. "

Australians in quarantine at Sydney hotel describe 'prison-like' conditions

Australians who have returned from overseas and have been forced into quarantine at a Sydney hotel say they are living in "prison-like" conditions.

www.sbs.com.au

As I keep saying we are losing our humanity.Common sense isn't common but I am afraid it has disappeared completely.

 

[MEL_Traveller]

I wonder to what extent this is confirmation bias?

Together they seem to indicate a complete shambles, but some of them were isolated, and some happened 11 or more days ago. And some are subjective. Others have reasons. Are these actually reflective of the program as a while?

 

[drron]

I wonder to what extent this is confirmation bias?

Together they seem to indicate a complete shambles, but some of them were isolated, and some happened 11 or more days ago. And some are subjective. Others have reasons. Are these actually reflective of the program as a while?

Well there is the Melbourne suicide,and google vet with PTSD breaks down in quarantine-a bit confronting so I didn't post it.
And the examples listed by the doctor at SYD are pretty terrible.

 

[RooFlyer]

Relax RooFlyer this post is not about Tasmania but it is about the pitfalls of mandatory hotel isolation.
many negative reports coming out and there obviously has been very little plannining and/or review of the situation.
first from a doctor doing health checks at SYD.NSW Health upholds it's reputation.

Fair enough, drron, but I think if you took any random 1-2 week period in the past few years, you could gather up a similar number of horror stories about the Australian, or indeed any state hospital system, working 'normally'. I don't think nursing homes are without regular awful things either. Not to say any are OK, but I'm more likely to tolerate the issues in a time of nation-wide medical emergency compared to what we hear all too regularly from 'business as usual'.

More particularly in your post: Perm residents not told about quarantine use. How would it affect them? The other guests are quarantined! People in the 'luxury Swissotel' complaining about 'prison-like' conditions (BTW: a 3 week old story - she would have been out a week ago). I doubt they have been in a prison Water under the bridge for me, sorry.

 

[drron]

But with the Swissotel I did point out my concern that the 100 or so permanent residents not being notified before the event and many of them in the high risk group being over 70.Probably wasn't the best hotel to pick with as many elderly residents as nursing homes.
As to how it would afect them it is easy to understand-a couple of hundred quarantined that were at higher risk of infection.They all initially come in through the lobby,use the lifts and walk in the corridors.And as the link I posted before of the Metropole hotel in Hong Kong in the SARS epidemic those were the places the virus was found and none in the individual rooms apart from the one infected guest who stayed 1 night.So sorry it is just as bad as having a health care worker working in nursing homes after working in a hospital known to be a focus of Covid infections.

More than 100 people in hotel quarantine have tested positive whilst in the hotel and quite a few after release without being tested.

Basically it points to the problems with the Health Bureaucracy in our States.One would have thought that they should have had some idea of a plan for an epidemic or pandemic which should include what forms of quarantine should be considered.

 

[Max Samuels]

Relax RooFlyer this post is not about Tasmania but it is about the pitfalls of mandatory hotel isolation.
many negative reports coming out and there obviously has been very little plannining and/or review of the situation.
first from a doctor doing health checks at SYD.NSW Health upholds it's reputation.
"Finlay said health workers could flag vulnerable people, such as the elderly or severely mentally unwell, with NSW Health for exemption from the enforced 14-day quarantine in city hotels.

“Until today the ministry of health had told me that everyone I’d flagged as vulnerable was given their exemption,” Finlay said on Saturday. “Today I learned this was a lie. It hadn’t actually been done.”

Hotel quarantine a ‘disaster’ and vulnerable people should be allowed home, doctor says

Doctor told authorities pregnant women and people with mental health issues should not be held in strict quarantine but advice was ignored

www.theguardian.com

And another NSW Health failure.

No Cookies | The Courier Mail

No Cookies

www.themorningbulletin.com.au

WA Health is no better
"An investigation has been launched into how a man in Perth hotel quarantine amid the coronavirus pandemic ended up in an induced coma in intensive care despite his wife allegedly calling for a doctor nearly nine hours before he was admitted to hospital."

Man in Perth hotel quarantine in a coma after nine-hour wait to go to hospital

Others in coronavirus quarantine across Australia say they are also struggling to access adequate medical care

www.theguardian.com

And in typical Health administration fashion they are going after the doctor.
"The GP said she was given one to two hours' notice by a recruitment agency to turn up at the Crown hotels last Monday.

"I basically realised only when I arrived on site that I was one doctor, with one nurse, and had been put in charge of 600 guests — 300 at the Crown Prom and 300 at the Crown Metropol," she said.

"I wasn't given any guidelines, or protocols, procedures — there was no PPE, there was actually nothing.

"I just turned up to the hotel and it was sort of like 'well what do I do next?' and they said 'well you go and figure it out'."

Doctor says she was 'thrown under a bus' by Health Department after man rushed from hotel to ICU

The doctor charged with looking after 70-year-old Kenny Watson, who is in intensive care in Perth with COVID-19, says she has been made a "scapegoat" by WA health authorities

www.abc.net.au

Then the Swissotel in Sydney has ~ 100 permanent residents who were only told of the quarantine arrivals after they had arrived.
"A permanent resident at the Swissotel, Brooke Pendlebury, said she was only informed the building was being used as a quarantine facility on Friday - a day after the cruise ship passengers checked-in.

"We were never told until 9.50am this morning by way of an email that was circulated to the residents. [It] advised us that there are already people here," she told SBS News. "

Australians in quarantine at Sydney hotel describe 'prison-like' conditions

Australians who have returned from overseas and have been forced into quarantine at a Sydney hotel say they are living in "prison-like" conditions.

www.sbs.com.au

As I keep saying we are losing our humanity.Common sense isn't common but I am afraid it has disappeared completely.

I am afraid your common sense approach is lost on many here.... obviously, everyone here keyboard warriors and hiding behind fake names etc, it is hard to tell what kind of people they really are...

When it comes to discussing totally pointless things about how to use points and which seats are better in F (especially now when there is no F flying anymore), mostly the discussion is interesting and funny. But when it actually comes to something that will literally mean the end of many people's lives as they know it (and literally for those who die), the end of aviation as we know it, the end of our country as we know it... it stuns and amazes me the total lack of insight, critical thinking, and just basic intelligence we are getting from this forum.

 

[Max Samuels]

More particularly in your post: Perm residents not told about quarantine use. How would it affect them? The other guests are quarantined! People in the 'luxury Swissotel' complaining about 'prison-like' conditions (BTW: a 3 week old story - she would have been out a week ago). I doubt they have been in a prison Water under the bridge for me, sorry.

I challenged you weeks ago to put your money where your mouth is - to volunteer to be imprisoned in "luxury 5 star accommodation" to prove to everyone how right you are and how wrong they are for even complaining... but of course you just continue to slam anyone that has the nerve to question your authority on the matter.

I will say it again - I think you are on the wrong side of history. Happy to be proved wrong.
I would be keen to see a poll - to get the demos on who is "terrified" into believing everything the gov't says, and who questions it with the right amount of "is this the right thing to do"?

I imagine those that follow the gov't line are older, retired, terrified of their super disappearing into nothing, and are quite happy to mortgage the future of young Australians so that they can live and extra 5 years or so....

If we were to be truly scientific about this, and if COVID19 is here to "reclaim" the elderly from the earth, than who are we to stop it? In every other "emergency" it is women and children first.... why so different now?

If you're scared - stay at home. Let the rest of us live in peace.

 

[Max Samuels]

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?

Probably not legal. We will need to wait until the dust settles and we mourn the dead and then look at what is left behind.... as I mentioned in posts previous, history will show you that the Australian Government has done many things that didn't turn out to be legal.....

 

[eastwest101]

How predictable is this:

NoCookies | The Australian

www.theaustralian.com.au

The Australian
RACHEL BAXENDALE 2 HOURS AGO | 7.09PM

Broken Hill cut off from medical specialists

The NSW outback town of Broken Hill has been left without proper access to medical specialists, with urgent cancer surgery and consultations delayed following a South Australian government decision to overturn border closure exemptions for health professionals.

The SA government had earlier this month granted exemptions to specialists treating patients in Broken Hill, Mildura and Alice Springs, but Broken Hill’s exemption was last week overturned, following two positive cases of coronavirus in the town.

The community of 25,000 people 40km from the SA border has traditionally been serviced by Adelaide-based surgeons and specialists, with the drive to Sydney taking 13 hours, compared with 5.5 hours to the SA capital.


Luckily Rex twisted some arms a few weeks ago, and its still possible to fly from Sydney to Broken Hill but at an astronomical cost to the NSW taxpayers.

 

[drron]

How predictable is this:

NoCookies | The Australian

www.theaustralian.com.au

The Australian
RACHEL BAXENDALE 2 HOURS AGO | 7.09PM

Broken Hill cut off from medical specialists

The NSW outback town of Broken Hill has been left without proper access to medical specialists, with urgent cancer surgery and consultations delayed following a South Australian government decision to overturn border closure exemptions for health professionals.

The SA government had earlier this month granted exemptions to specialists treating patients in Broken Hill, Mildura and Alice Springs, but Broken Hill’s exemption was last week overturned, following two positive cases of coronavirus in the town.

The community of 25,000 people 40km from the SA border has traditionally been serviced by Adelaide-based surgeons and specialists, with the drive to Sydney taking 13 hours, compared with 5.5 hours to the SA capital.


Luckily Rex twisted some arms a few weeks ago, and its still possible to fly from Sydney to Broken Hill but at an astronomical cost to the NSW taxpayers.

Explains why I got an email about taking a job in Broken Hill.i have worked there several times.

 

[MEL_Traveller]

I imagine those that follow the gov't line are older, retired, terrified of their super disappearing into nothing, and are quite happy to mortgage the future of young Australians so that they can live and extra 5 years or so....

If we were to be truly scientific about this, and if COVID19 is here to "reclaim" the elderly from the earth, than who are we to stop it? In every other "emergency" it is women and children first.... why so different now?

Yup, our retired school teachers, nurses, ambulance workers, fire fighters. Our returned veterans. Some pretty hardy folk that deserve our respect, and payback for their contribution to society.

Eight weeks of partial lockdown seems a pretty small price to me. Happy to pay that

 

[RooFlyer]

obviously, everyone here keyboard warriors and hiding behind fake names etc, it is hard to tell what kind of people they really are...

Oh, I dunno. Some cases are easier to tell than others

 

[nutwood]

But with the Swissotel I did point out my concern that the 100 or so permanent residents not being notified before the event and many of them in the high risk group being over 70.Probably wasn't the best hotel to pick with as many elderly residents as nursing homes.
As to how it would afect them it is easy to understand-a couple of hundred quarantined that were at higher risk of infection.They all initially come in through the lobby,use the lifts and walk in the corridors.And as the link I posted before of the Metropole hotel in Hong Kong in the SARS epidemic those were the places the virus was found and none in the individual rooms apart from the one infected guest who stayed 1 night.So sorry it is just as bad as having a health care worker working in nursing homes after working in a hospital known to be a focus of Covid infections.

More than 100 people in hotel quarantine have tested positive whilst in the hotel and quite a few after release without being tested.

Basically it points to the problems with the Health Bureaucracy in our States.One would have thought that they should have had some idea of a plan for an epidemic or pandemic which should include what forms of quarantine should be considered.

Slightly OT, but this thread is roaming about a bit, are there statistically sensible figures available that compare home isolation with hotel isolation?
Personally, I'm far more secure with home isolation but I'm on a farm with total control of who comes within cooee. Even for the average suburban home though, I would think the risk is far less than for a hotel. Basic hierarchy of control logic puts an engineered solution (ie, detached building) well ahead of administrative control (ie, procedures in a hotel).
There must be numbers available for people from equivalent risk levels, some who have isolated at home and others who have been hoteled. The resulting infection rates, and the timing of these, could be interesting if there are sufficient numbers.

 

[cove]

As long as it saves lives I am happy with it.

 

[nutwood]

As long as it saves lives I am happy with it.

Unsure if this in response to my query posted slightly previously, but given that it's following a common theme, I'll respond accordingly by questioning exactly what lives are being saved?
To jump back to the original topic, the only constitutionally valid argument for imposing restrictions on borders is public health. No sensible person would object to this but it's reasonable to question whether the outcome is being achieved. As discussed above, SA has cut Broken Hill loose. It's difficult to view this as anything other than parochial opportunism, the very thing the constitution is intended to restrict.