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

bigbadbyrnes

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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
 
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Pushka

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Negotiations still ongoing with CA in regards to moving the test but aiming for capacity to be at least 35k at Adelaide Oval by then so should be plenty of general public seats available
I think there are close to 30,000 members. Those who have paid membership in good faith must get access.
 
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jase05

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I think there are close to 30,000 members. Those who have paid membership in good faith must get access.
I’m one of them.
A lot don’t go or only attend day 1 but yes we should absolutely get first dibs. By December we might nearly be at 100% capacity so who knows
 

antycbr

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I’m one of them.
A lot don’t go or only attend day 1 but yes we should absolutely get first dibs. By December we might nearly be at 100% capacity so who knows
I didnt think that membership gave you a guaranteed seat - at the SCG I don't think it does?
 

bigbadbyrnes

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Wow. Over 1700 posts on the question “ State border closures illegal under the highest law in the country?” And still no answer to the OPs question from April, just a lot of conjecture. 😉

Yes, I know about the High Court matter. Glacial speed. 😀

I live in hope.

State of play; Case is due before the High Court on November 3 and 4. Decision will take some time to arrive at, but I'm guessing before Christmas.

Federal Court established agreed upon facts included the closures were intended to protect health. Stevie Wonder could have seen that, it was never in doubt. What the court must rule on is if the restrictions are inconsistent with the parts of the constitution which protect free interstate commerce and travel, and guarantee citizens of different states are treated equally.

Weighing up current health vs. future health concerns (ie economic concerns), freedom etc is a job for elected politicians. Weighing up competing legal arguments and interpreting how consistent each is with the highest law in the country is a job for the best seven judges in the country. So long as they aren't too busy posting on AFF. Which reminds me, back to work.
 

Pushka

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It's ok though because capacity is boosted by AO #2 - 30k members of which you'll find half on the #2 on the Pimms 😂
I reckon the place where the real action is happening will be shut. Anyways, no transferable tickets this year so likely ladies won’t be able to go unless a member themselves. I’m not. 😔.
 

OZDUCK

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And both WA and TAS have weaker healthcare systems and ability to manage anything themselves so I wonder if they will use that to argue their border restrictions? (not in court, in general). I'm actually a little surprised they haven't pulled that card out yet to defend going against their CHO's advice.

TAS in particular has been in the news alot talking about how they are 'investing to get ready to open' but there seems to be some severe doubts about their health departments ability to manage even a small amount of community transmission that will pop up once borders do open, to anywhere.... Its a funny little state!

Why do you believe that WA has a "weaker healthcare system(s) and ability to manage anything "?

The latest "Life Expectancy at Birth" rates I can find from the ABS are for 2014 -2016. In that period WA has an average life expectancy (male and female combined) of 82.55 years compared to the national average of 82.5. The average amount that the WA state Government spent on health per person in WA for 2017-18 was $7,602 compared to the national average of $7,485. These sort of figures make me believe that WA has a perfectly average healthcare system for Australia.
 

jakeseven7

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Why do you believe that WA has a "weaker healthcare system(s) and ability to manage anything "?

The latest "Life Expectancy at Birth" rates I can find from the ABS are for 2014 -2016. In that period WA has an average life expectancy (male and female combined) of 82.55 years compared to the national average of 82.5. The average amount that the WA state Government spent on health per person in WA for 2017-18 was $7,602 compared to the national average of $7,485. These sort of figures make me believe that WA has a perfectly average healthcare system for Australia.

Its not what I believe (I don't know what to believe, especially when its coming from these state premiers!), its what WA has said - their ability to respond and operate outside of Perth is very challenging apparently, they don't have much infrastructure. Its buried in an article on this thread somewhere.
 

OZDUCK

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Its not what I believe (I don't know what to believe, especially when its coming from these state premiers!), its what WA has said - their ability to respond and operate outside of Perth is very challenging apparently, they don't have much infrastructure. Its buried in an article on this thread somewhere.

I don't recall that article you are talking about but I do recall drron pointing out that WA had the most effective Flying Doctor system he has encountered. What the WA Govt. has been saying is that the Aboriginal communities in the North West are at a great risk if Covid-19 became entrenched and thus strict controls are going to be necessary for a long while.

For the current problem with the ship in Port Hedland specially trained and equipped medical and 'quarantine' staff have been flown up from Perth to help handle the situation and I assume that is what has been proposed previously. Port Hedland has a population of around 14,000 and is just over 1,6000 km from Perth by road. So it, and other places in the bush, could not be expected to handle such an outbreak with their own resources. It would be apparent that if numerous outbreaks had occurred in such remote places then state resources would be seriously stretched.
 

antycbr

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I don't recall that article you are talking about but I do recall drron pointing out that WA had the most effective Flying Doctor system he has encountered. What the WA Govt. has been saying is that the Aboriginal communities in the North West are at a great risk if Covid-19 became entrenched and thus strict controls are going to be necessary for a long while.
Doesn't seem to affect NT communities though as the NT is opening to other states?
 

OZDUCK

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Doesn't seem to affect NT communities though as the NT is opening to other states?

Well the NT has done, as far as I am aware, better than any other state or territory in controlling the pandemic so that is a choice they feel free to make.
 

jakeseven7

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A reasonable point....!

But because a bunch of them are celebrities we are fine with it here in QLD :) Love a celebrity free pass 😂

-----

IF QLD CAN OPEN TO ALL THE ANTI-VAXXERS, WHY NOT MAKE IT ALL OF NSW?

The safeguarding of Queensland’s COVID-19 protection has been placed in the unsanitized hands of Australia’s anti-vaxxer capital once borders open to northern NSW. What could possibly go wrong, asks Lucy Carne.

 

VPS

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Not a seat but I reckon SACA will have to provide one. Plenty of room to do that if they don’t have general admission tickets.

SACA also offered for you not to renew your membership this year and hold it over until next year without any penalty. It would be interesting to know how many people did that. I know a couple who did
 

Pushka

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SACA also offered for you not to renew your membership this year and hold it over until next year without any penalty. It would be interesting to know how many people did that. I know a couple who did
Yes, that is indeed likely that many did so. Trouble is that it is India here and the best batsmen so I don't know how many might do that when it comes to the crunch.
 

drron

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And just why is it ridiculous that Grandparents want to see their grandkids?
What justification is there for grandparents in WA being denied the right to see their grandkids in Tasmania or vice versa?This is happening.
And even for those approaching the end of their life that I see often say they couldn't care if their grandkids gave them Covid as that is preferable to never seeing them again.
 

MEL_Traveller

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And just why is it ridiculous that Grandparents want to see their grandkids?
What justification is there for grandparents in WA being denied the right to see their grandkids in Tasmania or vice versa?This is happening.
And even for those approaching the end of their life that I see often say they couldn't care if their grandkids gave them Covid as that is preferable to never seeing them again.

At the moment I don't think there are non-stop flights between Tasmania and WA. A flight would involve a transit, and the potential risk of transmission along the way. The Federal Court discussed the options of 'bubbles' and hotspots and determined border closure was the most effective.

For those approaching the end of life, if they get covid, it will be a slow and uncomfortable death, in isolation, separated from their family. Not only does this put enormous strain on the families involved, it also affects our hardworking front-line staff... the paramedics taking the elderly person to hospital, the nurses, and the ICU nurses.

We are in a pandemic. Everyone is making sacrifices. Not seeing your grandkids for a few months is understandably frustrating, but there are many other factors at play.
 

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