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State border closures illegal under the highest law in the country?

p--and--t

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And the lower case numbers we have, the more likely that border closure will be illegal.
I would have thought a law is a law.

Whether there is 1 is infected or 1,000,000 infected should make no difference. The law is either broken or conflicts with the constitution or not and a ruling made either way.

The most that would happen is the court would rule the conflicting legislation or associated processes be null & void.

I would expect argument may segue as to whether the established state legislation conflicts with the constitution, whether the correct processes were followed and whether the correct advice was received before the restrictions were imposed/extended.

Given the very deliberate way the restrictions were constructed by WA and comments made, I am pretty sure WA received legal advice before they wrote the temporary regulations. Not so sure about QLD.
 
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Pushka

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I would have thought a law is a law.

Whether there is 1 is infected or 1,000,000 infected should make no difference. The law is either broken or conflicts with the constitution or not and a ruling made either way.

The most that would happen is the court would rule the conflicting legislation or associated processes be null & void.

I would expect argument may segue as to whether the established state legislation conflicts with the constitution, whether the correct processes were followed and whether the correct advice was received before the restrictions were imposed/extended.

Given the very deliberate way the restrictions were constructed by WA and comments made, I am pretty sure WA received legal advice before they wrote the temporary regulations. Not so sure about QLD.
I heard a Constitutional lawyer from Sydney University who explained that in order to protect the health of the State then there are provisions to shut the borders. At some stage, as pointed out earlier, if that cause or threat no longer exists, then a challenge to the High Court would likely be successful. It could also be successful at the time the borders were closed, but that would be a long drawn out legal battle where 'due process' could be demonstrated
 
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jakeseven7

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I heard a Constitutional lawyer from Sydney University who explained that in order to protect the health of the State then there are provisions to shut the borders. At some stage, as pointed out earlier, if that cause or threat no longer exists, then a challenge to the High Court would likely be successful. It could also be successful at the time the borders were closed, but that would be a long drawn out legal battle where 'due process' could be demonstrated
Its not about winning, its about making the Premiers look like idiots with the media, and that is what will happen if someone takes it to the High Courts.
So I wonder who will take it up.... Is Palmer still flabbing about somewhere?
 

jase05

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Its not about winning, its about making the Premiers look like idiots with the media, and that is what will happen if someone takes it to the High Courts.
So I wonder who will take it up.... Is Palmer still flabbing about somewhere?
No one is taking it to Court, just bluster.
I would be surprised if WA and SA aren’t open by the end of June, QLD who knows
 
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drron

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In that SMH article is a piece from George Williams who is regarded as the pre eminent expert on Australian Constitutional law.He is impressive when giving a lecture.So the fact he says the cases have a good chance of success should make the Premiers a little worried.He says it will depend on the Medical evidence.if you have a world respected epidemiologist against some of the State medical officers then the case must be a very good chance of succeeding.
Now if the border closures are ruled unconstitutional hence illegal would it be possible businesses forced to bankruptcy by the closures be able to sue the State Governments?

As an aside George Williams at least was a member of the ALP and has stood for Federal Parliament twice as well as saying he was available for either of the 2 High Court vacancies when Nicola Roxon was AG.I have always been a little amazed he lost all 4 chances.

PS.Palmer has lodged a case with the High Court against the WA border closure and Pauline has a barrister to run the case against the QLD border closure.
 

Pushka

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Its not about winning, its about making the Premiers look like idiots with the media, and that is what will happen if someone takes it to the High Courts.
So I wonder who will take it up.... Is Palmer still flabbing about somewhere?
He needed to get into WA for his business and was refused entry. Yes, he's hot on it.
 

MEL_Traveller

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In that SMH article is a piece from George Williams who is regarded as the pre eminent expert on Australian Constitutional law.He is impressive when giving a lecture.So the fact he says the cases have a good chance of success should make the Premiers a little worried.He says it will depend on the Medical evidence.
Professor Williams himself said only one month or so ago that the border closures were probably legitimate. Other experts also link the validity of the closures not just to a single epidemiologist, but rather, to the existence of a state of emergency. As long as a state has one of those in effect, the border closure may be fine.
 

drron

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But his position yesterday had changed as the number of cases has come down.From that SMH article-
"Professor George Williams, a constitutional law expert and Dean of UNSW Law School, said section 92 was "emphatic" but the High Court had recognised some "limited exceptions".
"I think a clear one is protecting the community from a pandemic, but even then it's got to be reasonably done. Very likely it was valid at the height of the pandemic, but at some point a line will be crossed," he said.
The case will turn on whether the restrictions remain reasonable and necessary, according to medical evidence, and Professor Williams said "we are in a grey area".

"Obviously it's getting harder and harder [to justify] but it's not just a function of how many infections there are, it's about the risk," Professor Williams said."
 

oz_mark

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"Professor George Williams, a constitutional law expert and Dean of UNSW Law School, said section 92 was "emphatic" but the High Court had recognised some "limited exceptions".
"I think a clear one is protecting the community from a pandemic, but even then it's got to be reasonably done. Very likely it was valid at the height of the pandemic, but at some point a line will be crossed," he said.
It would certainly be interesting to see how the courts would rule on where that line is. While epidemiologists might not be in agreement, the judges of the high court don't always agree with each other either.

Personally, I can't see the states being able to make a case that they will need them for 'many months' yet.
 

MEL_Traveller

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But his position yesterday had changed as the number of cases has come down.From that SMH article-
"Professor George Williams, a constitutional law expert and Dean of UNSW Law School, said section 92 was "emphatic" but the High Court had recognised some "limited exceptions".
"I think a clear one is protecting the community from a pandemic, but even then it's got to be reasonably done. Very likely it was valid at the height of the pandemic, but at some point a line will be crossed," he said.
The case will turn on whether the restrictions remain reasonable and necessary, according to medical evidence, and Professor Williams said "we are in a grey area".

"Obviously it's getting harder and harder [to justify] but it's not just a function of how many infections there are, it's about the risk," Professor Williams said."
So where does that leave us? If there is no medical evidence to support border closures, there can equally be no evidence to support declared states of emergency. So lockdowns all end, all restrictions on social gatherings are lifted. mass gatherings are fine. No compulsory quarantine on arrival, etc.
 

Pushka

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So where does that leave us? If there is no medical evidence to support border closures, there can equally be no evidence to support declared states of emergency. So lockdowns all end, all restrictions on social gatherings are lifted. mass gatherings are fine. No compulsory quarantine on arrival, etc.
No, it's more about one state not being at any more risk than another state as opposed to opening up all the restrictions that are in place across the country.
 

drron

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So where does that leave us? If there is no medical evidence to support border closures, there can equally be no evidence to support declared states of emergency. So lockdowns all end, all restrictions on social gatherings are lifted. mass gatherings are fine. No compulsory quarantine on arrival, etc.
Because those other issues don't fall foul of Section 92 of our Constitution.
 

MEL_Traveller

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Because those other issues don't fall foul of Section 92 of our Constitution.
it would seem interrelated. If states of emergency in response to a public health emergency are legal, then state border closures must also be legal, because of the same public health emergency.

Is it it possible to separate the two? if the high Court says there is no public health emergency then everything else also falls apart.
 

bigbadbyrnes

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It's certainly arguable either way. And in terms of medical professional advice, there are experts on both sides, and there have been since the start of the pandemic. It seems more split now for sure.

So each side has well informed experts - so how would the High Court decide? On which side does the doubt fall? Is strong disagreement among the medical experts (including among those in govt advisory positions) enough to favour the rights enshrined in Sec 92? Or does the mere present threat of the pandemic allow states to pass laws protecting their citizens?

Even looking over the history of jurisprudence relating to Section 92 is fascinating - the state govts certainly have a duty to pass laws protecting citizens (including those that prevent border crossings), but that doesn't mean they can do it willy nilly (Smithers vs. Crown 1912 is probably a good example). It's not speculative.
 

trippin_the_rift

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"Obviously it's getting harder and harder [to justify] but it's not just a function of how many infections there are, it's about the risk," Professor Williams said."
Seems kind of strange to restrict the freedoms of people when the risk is 0.01% no?
 

drron

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it would seem interrelated. If states of emergency in response to a public health emergency are legal, then state border closures must also be legal, because of the same public health emergency.

Is it it possible to separate the two? if the high Court says there is no public health emergency then everything else also falls apart.
Yes because the States can basically do what they want inside their states.Section 92 of the Constitution specifically concerns State borders.A state of emergency doesn't mean that the pandemic necessarily is severe enough for the border closures to be maintained.As nearly all of the constitutional lawyers stated at the beginning the closures almost certainly were legal.

As to the expert opinions the majority of specialist opinion is on the side of the borders now being open.
The CMO/CHOs of the states have yet to publicly state why they believe it is scientifically correct to keep borders closed.
Remember the QLD CHO has publicly stated that schools should be closed to scare the public.The Victorian CMO in response to a question of banning golf replied that in his opinion golf was not exercise yet a walk was regarded as exercise.




Chief Health Officer, Victoria

@VictorianCHO


My view on golf? You can’t play it. There are only four reasons to leave home: food and supplies, medical care and caregiving, basic exercise, and work or education. There are limits on sport and certain recreational activities to protect us all.

But in this article the Victorian CMO argues why it is unrealistic to try and eliminate the virus completely.

He did identify the reason WA might consider -
"You'd have to be really clear and confident in your surveillance and you'd have to be absolutely sure that it's not reintroduced into the country through any mechanism — on a cargo ship with a crew member or a deliberate release or any other mechanism because it would take off again."
 

MEL_Traveller

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Yes because the States can basically do what they want inside their states.Section 92 of the Constitution specifically concerns State borders.A state of emergency doesn't mean that the pandemic necessarily is severe enough for the border closures to be maintained.As nearly all of the constitutional lawyers stated at the beginning the closures almost certainly were legal.
So the borders could be forced to open, but states could impose a 14 day quarantine for anyone immediately on stepping foot inside the state? What's the purpose of the victory in declaring borders open?

That seems unworkable.

A neater solution would be that if there are sufficient grounds for a state to declare a state of emergency, there are sufficient health grounds to close borders. Is the high Court going to look at the medical evidence of each state? Is the High Court going to give weight to the health officer advising Sweden? or the USA? I would hope not.

I don't understand the push to open borders?
 

Pushka

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So the borders could be forced to open, but states could impose a 14 day quarantine for anyone immediately on stepping foot inside the state? What's the purpose of the victory in declaring borders open?

That seems unworkable.

A neater solution would be that if there are sufficient grounds for a state to declare a state of emergency, there are sufficient health grounds to close borders. Is the high Court going to look at the medical evidence of each state? Is the High Court going to give weight to the health officer advising Sweden? or the USA? I would hope not.

I don't understand the push to open borders?
Ah, our business head is in Adelaide and our clients are interstate because Adelaide business for us died a few years ago? And everyone is totally over zoom. MrP is supposed to be there tomorrow for a 2 day session - even as late as yesterday the client was hoping that just maybe he'd popped into the car for the drive to it. But a 14 day isolation on return just isn't going to work.
 

MEL_Traveller

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Ah, our business head is in Adelaide and our clients are interstate because Adelaide business for us died a few years ago? And everyone is totally over zoom. MrP is supposed to be there tomorrow for a 2 day session - even as late as yesterday the client was hoping that just maybe he'd popped into the car for the drive to it. But a 14 day isolation on return just isn't going to work.
That appears to be the American model. And that of Sweden. But I'm not sure those are showing great results :(
 

serfty

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I don't understand the push to open borders?
Tourist operators in in FNQ (or any other with a postcode starting with 4) are generally experiencing severe financial difficulty..

They are hoping us Southerners can come up and provide a revenue fix.
 

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