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

 

[RooFlyer]

I'll respond accordingly by questioning exactly what lives are being saved?

Human lives?

SA has cut Broken Hill loose.

Broken Hill is in NSW. Maybe Melbourne should adopt Burnie?

 

[Anna]

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

Just a hypothesis - the actual fancy lawyers may give up due to becoming exasperated by the bush lawyers who are confident their firmly held opinions and google searching are at least equivalent if not superior to 2 law degrees and 30 years experience in legal practice?

 

[flyingfan]

This might cover some of the issues raised in this thread:

We asked constitutional law experts if state border restrictions are illegal. Here's what they said

As some states imposed border restrictions to curb the spread of coronavirus, former Liberal cabinet minister Alexander Downer took to Twitter to claim that closing state borders would be illegal under the constitution. RMIT ABC Fact Check investigates

www.abc.net.au

 

[nutwood]

This might cover some of the issues raised in this thread:

We asked constitutional law experts if state border restrictions are illegal. Here's what they said

As some states imposed border restrictions to curb the spread of coronavirus, former Liberal cabinet minister Alexander Downer took to Twitter to claim that closing state borders would be illegal under the constitution. RMIT ABC Fact Check investigates

www.abc.net.au

Interesting read. I took specific note of :
"Professor Stellios said it's likely that preventing the spread of COVID-19 would count as a legitimate reason "for regulating the free movement of people and, depending on the science of how it spreads, perhaps interstate trade and commerce".

However, he cautioned that states can only take measures that are reasonably necessary to achieve that objective.

"The fact that the states are taking different measures might create some difficulties for the states that take more stringent approaches."

This ties in with my question as whether hotel detention, as opposed to self isolation at home, is reasonably necessary for people who have simply travelled into Tasmania from interstate? If it is not, we revert back to the original question this thread is based on.

 

[Pushka]

This ties in with my question as whether hotel detention, as opposed to self isolation at home, is reasonably necessary for people who have simply travelled into Tasmania from interstate? If it is not, we revert back to the original question this thread is based on.

It was probably necessary a couple of weeks ago when it seemed like a couple of the Eastern States were experiencing higher rates of infection. The idea of closing down some parts of the country/state was always mentioned as an option. It's likely that as various states release restrictions at different rates then maintaining those closures until outcomes are known is also reasonable. Self isolation hasn't worked in many cases. It only takes one!
I think that is what a reasonable person would think.

 

[p--and--t]

If it did ever come to court, the different restrictions imposed by different states would be obvious and probably a basis for complaint by those who feel affronted.

Also what would be obvious is the differing medical advice (a subjective opinion for which they are appointed to provide) provided to each of the states by each of the states medical officers which would be tailored to that states infection rate, perceived risk levels and that states individual capacity to cope with a major outbreak in the areas of geographic dispersion of citizens, hospitals, staffing, security forces, logistics, budgetary constraints, etc.

Perfectly reasonable logical arguments could be presented for each state to act slightly differently to other states actions.

(Let alone the existing precedent set during the previous pandemic)

 

[nutwood]

It was probably necessary a couple of weeks ago when it seemed like a couple of the Eastern States were experiencing higher rates of infection. The idea of closing down some parts of the country/state was always mentioned as an option. It's likely that as various states release restrictions at different rates then maintaining those closures until outcomes are known is also reasonable. Self isolation hasn't worked in many cases. It only takes one!
I think that is what a reasonable person would think.

I'm inclined to agree that this would have been a reasonable position. Several weeks ago there was a definite risk that community transmission could become serious, especially in the States than had a large influx of cruise ship passengers. At that stage, I believe a valid case could have been made for hotel confinement. If there's a significant percentage of incoming travellers being positive, then the 2 % not self isolating, combined with the likely infection of the travellers immediate family, would result in unnecessary infections.
Given that community transmission rates are not dramatically different across the country, although there are obvious hotspots, it seems more difficult to justify extreme measures now. It appears that Covid-19 is likely to be with us for quite a while, we should be looking to refine restrictions. Ease off in the areas of minimal justification and possibly tighten up where it is most effective.
Really good public education on how viruses spread would be a good start. There's still some strange ideas out there!

 

[p--and--t]

The difficulty the gov's are going to have for the next 2-3 weeks is the impatience/pressure to lift restrictions now when we haven't had two full clear infection cycles.

To take the foot off the pedal now would be a huge mistake. We don't know what we don't know about the spread in the community.

If the figures keep on going they way they at present, then questions should rightly be asked in the latter 2 weeks of May if no changes to some restrictions are not at least forecast, if not implemented.

Hopefully (maybe in vain) the media will resist the temptation to start giving undue prominence to those champing at the bit without regard to anyone but themselves.

 

[moa999]

Agree we need to keep at it.

The focus also needs to shift to Unknown Community transmissions reporting.
- it doesn't really matter if 10 people flying in from overseas and quarantined in hotels get I'll during the 14-days
- or you get another case in a nursing home where residents and staff are already under quarantine.

The Covidlive site seems to provide best reporting on this but data seems somewhat delayed (eg SA 3 cases on 23rd seem to relate to infections on 21st and 22nd)

4,290 Coronavirus Cases of Community Transition in Australia - COVID LIVE

Total Community Transmission Coronavirus (COVID-19) Cases in Australia and its States and Territories

www.covidlive.com.au

 

[RooFlyer]

The Covidlive site seems to provide best reporting on this but data seems somewhat delayed (eg SA 3 cases on 23rd seem to relate to infections on 21st and 22nd)

I bookmarked that site after you referenced it before, but noticed today that their figures are sometimes very different from, say, the ABC compilation. I don't know which is correct. The COVID 19 Live site at least gives daily point data sources.

Look at test figures for 19 April for Tasmania. The ABC, about 360 cases. EDIT: This line is the 5 day moving average. The raw data agrees with the COVID 19 Live site. Apologies for my confusion.



COVID 19 Live site, 944.

 

[Max Samuels]

Interesting that Tassie was the "brave" and "first" state to lockdown and yet has the biggest single outbreak... shows a real lack of intelligence on someone's part? Or does it show that once the virus is out, it is out? Or is Tassie trying to compete with WA at being the dumbest state in the country? Or is it irony?

And people who say "even if one life is saved then it is all worth it"...... are actually very dumb.

Speed limits dropped to 10kph - definitely a reduction in road deaths - anyone interested?

I feel really really sad for those at home, locked away, terrified, lapping up every bit of cough the govt tells you... use you brains. Understand that being alive at all is a risk - just walking leaving your house is a risk. If you are too scared - stay at home. And let the rest of us get on with our lives.

Humans have been living with the risk of death at the hands of nature since day zero.

Also notice the interactions on this forum have really dropped?? There are hardly any posts. I wonder if it is because everyone is busy at work (joke), or is it because the level of discourse has become so partisan that most people cannot be bothered to interact?

 

[jase05]

There are hardly any posts. I wonder if it is because everyone is busy at work (joke),

Definitely true on my behalf.
Just finished my 14th straight day of work and still have tomorrow to go before having a well earned 2 day break.
Im one of the lucky ones where I still have not only a job but one that is far busier than pre Coronavirus.
Have notice the traffic has increased drama at in the last week so I think things are slowly returning to normal

 

[MEL_Traveller]

Interesting that Tassie was the "brave" and "first" state to lockdown and yet has the biggest single outbreak... shows a real lack of intelligence on someone's part? Or does it show that once the virus is out, it is out? Or is Tassie trying to compete with WA at being the dumbest state in the country? Or is it irony?

And people who say "even if one life is saved then it is all worth it"...... are actually very dumb.

Speed limits dropped to 10kph - definitely a reduction in road deaths - anyone interested?

I feel really really sad for those at home, locked away, terrified, lapping up every bit of cough the govt tells you... use you brains. Understand that being alive at all is a risk - just walking leaving your house is a risk. If you are too scared - stay at home. And let the rest of us get on with our lives.

Humans have been living with the risk of death at the hands of nature since day zero.

Also notice the interactions on this forum have really dropped?? There are hardly any posts. I wonder if it is because everyone is busy at work (joke), or is it because the level of discourse has become so partisan that most people cannot be bothered to interact?

It seems like you are conflating two issues here - state border 'closures' and 'lockdowns'.

No one, any where, is advocating against lockdowns. Well, except for a few in the USA.

In the UK it seems people are asking why the government didn't go further.

It would be nice if we could have a system where those who wanted to stay at home could, and those that wanted to take the risk, to do so.

But the hospitals belong to all of us. We have finite medical resources, finite nurses and doctors. We don't want to end up like the USA, UK, Italy or Spain where medical staff are dying, and hospitals are overwhelmed. That costs me, staying at home, money.

Yes, life is a risk. But I can also try and insure against those risks. I can have an annual flu vaccine. I can't with Covid.

None of these debates about economics vs freedom vs covid are ever led by the elderly, the infirm, disabled. Only by the young.

 

[RooFlyer]

Interesting that Tassie was the "brave" and "first" state to lockdown and yet has the biggest single outbreak... shows a real lack of intelligence on someone's part? Or does it show that once the virus is out, it is out? Or is Tassie trying to compete with WA at being the dumbest state in the country? Or is it irony?

One things for sure, your remarks at other people's misfortune and misery is pretty poor. Same as your comments about suicide, above.

And people who say "even if one life is saved then it is all worth it"...... are actually very dumb.

I feel really really sad for those at home, locked away, terrified, lapping up every bit of cough the govt tells you... use you brains.

You seem very sure about your intelligence .

Also notice the interactions on this forum have really dropped?? There are hardly any posts. I wonder if it is because everyone is busy at work (joke)

Gosh a 'frequent flyer'Forum has fewer posts when no one is flying! Who'd a thunk it!! .

 

[OZDUCK]

Interesting that Tassie was the "brave" and "first" state to lockdown and yet has the biggest single outbreak... shows a real lack of intelligence on someone's part? Or does it show that once the virus is out, it is out? Or is Tassie trying to compete with WA at being the dumbest state in the country? Or is it irony?

And people who say "even if one life is saved then it is all worth it"...... are actually very dumb.

Speed limits dropped to 10kph - definitely a reduction in road deaths - anyone interested?

I feel really really sad for those at home, locked away, terrified, lapping up every bit of cough the govt tells you... use you brains. Understand that being alive at all is a risk - just walking leaving your house is a risk. If you are too scared - stay at home. And let the rest of us get on with our lives.

Humans have been living with the risk of death at the hands of nature since day zero.

Also notice the interactions on this forum have really dropped?? There are hardly any posts. I wonder if it is because everyone is busy at work (joke), or is it because the level of discourse has become so partisan that most people cannot be bothered to interact?

I am sorry but I find myself in serious disagreement with pretty much everything that you have said. Especially, as I am someone who believes that measures that may save hundreds if not thousands of lives and not just one life are worth taking.

Lets compare the infection rate and death rate of this country with that of Sweden which has seemingly adopted your ideas. To date, we see Australia with 6,694 infections and 80 deaths from a population of 26 Million compared to 18,177 infections and 2,192 deaths in Sweden from a population of 10.23 Million. Extrapolating the Swedish results to Australia, on the basis of population, we would have had 45,806 infections and 5,567 deaths to date. I know which country's methods I prefer. And as you are probably aware there is, as yet, no firm evidence that having once been infected with Covid-19 provides immunity from another infection.

Then lets compare our rates to the U.K, which seems to have swung from one approach to the other without a firm purpose. With a population of 66.65 Million the UK has had 143,464 infections and 19,506 deaths. If those results were translated to Australia, again based on population, we would have had 56,040 infections and 7,619 deaths. Once again I much prefer our approach.

Even if you compare Tasmania with a population of 515,000 with the U.S State of Vermont and a population of 623,000 they have had 827 infections and 44 deaths in Vermont compared to 208 cases and 10 deaths in Tasmania.

As regards dropping the speed limit by 10 kph that has already happened when suburban speed limits were dropped by exactly that amount some years ago to save lives. I also assume that you believe that the school zone reduced speed limits should not be in place, just to save a life or two, as they slow traffic down ?

I do not believe that I, or most people, are "lapping up every bit of cough the govt tells you". I just have to look at the angst that the proposed introduction of a 'tracking' app on peoples phone is causing. If people were just rolling over to every suggestion from the Govt. that would not be happening. What I believe most people are taking notice of is the advice from Medical Personnel, Epidemiological experts etc who are advising the various Govts. And these people are saying that what we are doing is the appropriate course of action. I am of course therefore trusting experts whose knowledge and expertise I don't have the training to contradict. However we do have to occasionally put our trust in experts. I don't have the training to know for certain that exposing myself to radiation or asbestos is dangerous but I trust experts who tell me that it is indeed dangerous.

Humans have been living with "the risk of death at the hands of nature since day zero" certainly. But they have also learnt to trust experts who tell them that it is not a good idea to walk up to a lion, drink contaminated water, mate with your siblings or smoke cigarettes. Until I see proof that the methods adopted in Australia have not been incredibly effective I will trust the advice of these experts.

 

[CityRail]

It appears that Pauline Handson is planning to launch a lawsuit against Qld Government based on breach on Article 92 of constitution.
We will soon find out.

 

[p--and--t]

It appears that Pauline Handson is planning to launch a lawsuit against Qld Government based on breach on Article 92 of constitution.
We will soon find out.

Correction: Pauline is doing a dance in front of the media to get attention because she hasn't had many headlines recently and losing relevance during the pandemic. (it won't happen)

 

[bigbadbyrnes]

Legal challenges to border closures 'have legs', experts say

Border restrictions in Queensland and Western Australia are becoming "harder and harder" to justify as COVID-19 cases continue to fall, legal experts argue.

www.smh.com.au

The point will come where the 'appropriateness' or 'suitability' of the blanket bans on border crossings will breach of Section 92 of the constitution.

A source near Senator Hanson's case tells me it's partially to force this conversation into the mainstream, which has been successful.

 

[Pushka]

Legal challenges to border closures 'have legs', experts say

Border restrictions in Queensland and Western Australia are becoming "harder and harder" to justify as COVID-19 cases continue to fall, legal experts argue.

www.smh.com.au

The point will come where the 'appropriateness' or 'suitability' of the blanket bans on border crossings will breach of Section 92 of the constitution.

A source near Senator Hanson's case tells me it's partially to force this conversation into the mainstream, which has been successful.

Once the threat of the pandemic has resolved then any border closures will likely be deemed illegal.

 

[CityRail]

Once the threat of the pandemic has resolved then any border closures will likely be deemed illegal.

And the lower case numbers we have, the more likely that border closure will be illegal.