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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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oz_mark

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No change.It just means that people who previously had to do 14 days hotel quarantine can now do it at a private residence.but the hard border remains and to travel there we all need to get an exemption.just window dressing.

It's just going back to how it was before Victoria ran into issues.
 

p--and--t

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I’m not quite sure how to interpret this. Do they mean all State borders will be removed by December 1st but Victoria will remain closed to New Zealand. Or will Victoria remain closed until January for State and International borders?
I read it as all State border will be open by 1 December except Victoria. Victoria’s State borders might open in January.

Edit: Doubt it with WA holding out and the High Court case probably undecided.
I know it is very poorly written...

There is absolutely no way VIC state borders will remain closed until Jan/Feb on the current trajectory of virus containment, it won't be accepted - they are already having days of no community transmission and we have NSW already planning on opening them - so I'm assuming that reference is that VIC 'international borders' will not be open to the NZ arrangement until that point.

I'm not really sure how that practically works though...? So Sydney is open to NZ. Someone flies to Sydney then flies on domestically to Melbourne? Same effect? Or will incoming NZ's be banned from going to VIC altogether? How would that even work....

File Note: Victoria's borders have never been shut during covid AFAIK. NSW closed its border to Victoria. SA Closed its border to VIC.
 

drron

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File Note: Victoria's borders have never been shut during covid AFAIK. NSW closed its border to Victoria. SA Closed its border to VIC.
Sorry it was a 3 way decision announced by the Victorian premier.
" The border closure decision was made in consultation with Prime Minister Scott Morrison and NSW Premier Gladys Berejiklian, Mr Andrews said. "
 

DC3

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Sorry it was a 3 way decision announced by the Victorian premier ...
So, when did VIC close its borders to prevent entry from the other two states?

Edit: It’s my understanding that border closure with NSW and SA has never been enforced/controlled by VIC authorities.
 
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HappyFlyerFamily

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So, when did VIC close its borders to prevent entry from the other two states?

Edit: It’s my understanding that border closure with NSW and SA has never been enforced by VIC authorities.
Vic was deluged trying to enforce lockdown and curfews.
 
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OATEK

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So, when did VIC close its borders to prevent entry from the other two states?

Edit: It’s my understanding that border closure with NSW and SA has never been enforced/controlled by VIC authorities.
My understanding is that Vic requested that NSW enforce border closure so that Vic could concentrate resources internally.
 

BNEFlyer

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This covers many aspects of travel:

The NZ PM and Deputy have both said in the last couple of days that they'd like a bubble to be operating by Christmas with QLD, Tasmania and NSW the states that they would consider being involved.
 

trevella

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The NZ PM and Deputy have both said in the last couple of days that they'd like a bubble to be operating by Christmas with QLD, Tasmania and NSW the states that they would consider being involved.

When the PM says that she means she’d like those states to have zero cases. She hasn’t shown any sign of taking a more pragmatic approach.
 

HappyFlyerFamily

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From ABC Covid live blog


Hotspot definition at centre of trans-Tasman travel bubble delay

New Zealand Prime Minister Jacinda Ardern says the next step towards resuming trans-Tasman travel rests with Australia.

Prime Minister Scott Morrison has been unable to get agreement from all of the states and territories on a uniform definition of a hotspot.

Mr Morrison is hoping rapid containment of COVID-19 hotspots will be sufficient to ease both interstate and international borders.

Ms Ardern has told Channel 9 New Zealand is waiting on that before proceeding with trans-Tasman travel.

"We will just need to make sure that hotspot regime works on our side, too, but we're all quite dedicated to making it work in the future," she said this morning.
 

jakeseven7

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The NZ PM and Deputy have both said in the last couple of days that they'd like a bubble to be operating by Christmas with QLD, Tasmania and NSW the states that they would consider being involved.

I'm not sure if Dr Young can handle an international border clock!!! Best just to lock QLD out of everything because we will just hold things up and probably stuff things up when the inevitable community transmission occurs. We would just slam the international QLD border shut the very next day after 1 case.
 

Pushka

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Why should kiwis be allowed into QLD when Aussies arent?!
It’s these kinds of issues that rankle. Not to worry, SA people can’t either and we haven’t had community transmission since March. So logic got thrown out.
Post automatically merged:

Prediction: Scott Morrison will not allow states that don’t sign up to the federal hotspot management plan to have international travel.
It’s one power he has and can use.
So what happened with SA then?
 

antycbr

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It’s these kinds of issues that rankle. Not to worry, SA people can’t either and we haven’t had community transmission since March. So logic got thrown out.
Post automatically merged:


So what happened with SA then?
I think SA will be allowed travel but not QLD. Just that SA keeps getting forgotten by east coast media.
 

HappyFlyerFamily

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Prediction: Scott Morrison will not allow states that don’t sign up to the federal hotspot management plan to have international travel.
It’s one power he has and can use.
If say the States drop their borders but don’t agree to hotspot, how would the Federal Government stop a NZ person crossing into the ‘recalcitrant’ State?
 

muppet

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Sorry it was a 3 way decision announced by the Victorian premier.
" The border closure decision was made in consultation with Prime Minister Scott Morrison and NSW Premier Gladys Berejiklian, Mr Andrews said. "
I think that was more about saving face for the NSW Premier who was cracking it at QLD’s border.

I haven’t been to the border, but all the footage and photos show cars being stopped one-way and nothing the other direction. Ipso fatso, Vic doesn’t have border restrictions. Just if you come here you may not get out.🤣
 

HappyFlyerFamily

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I think that was more about saving face for the NSW Premier who was cracking it at QLD’s border.

I haven’t been to the border, but all the footage and photos show cars being stopped one-way and nothing the other direction. Ipso fatso, Vic doesn’t have border restrictions. Just if you come here you may not get out.🤣
Not sure which rule would apply - the returning resident would be permitted, all traffic through airport.....
 

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