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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...runs back to the "should they close the beach" thread... Where it's safer


Qld had a hard close. Non resident and no exemption no entry. Quarantine not an option you get turned back.
 
From your direct experience, do you feel they are over doing it, or do you agree with the requirements placed on you?
A little of both.Driver's licences are a photo ID.I am going to need that so why a passport?
The visa application seems a farce.Only allowed to submit it 24-72 hours before hand.Told the answer will be given the day it is lodged.It hasn't come back and i doubt it will on the weekend.
I also need to take a copy of my medical registration and a letter from the hospital confirming my appointment with approval from the regional director.
Why go through this whole visa thing.
Just typical bureaucracy.
Seeing I have been basically in self Isolation for 3 weeks possibly a little harsh the constrictions for 14 days but that is what it is.They would have to trust my word and their experience is trust is often misplaced.
 
A little of both.Driver's licences are a photo ID.I am going to need that so why a passport?
The visa application seems a farce.Only allowed to submit it 24-72 hours before hand.Told the answer will be given the day it is lodged.It hasn't come back and i doubt it will on the weekend.
I also need to take a copy of my medical registration and a letter from the hospital confirming my appointment with approval from the regional director.
Why go through this whole visa thing.
Just typical bureaucracy.
Seeing I have been basically in self Isolation for 3 weeks possibly a little harsh the constrictions for 14 days but that is what it is.They would have to trust my word and their experience is trust is often misplaced.
Thanks for the information. It's been a help to me as I've been asked if I can help out on another interstate job. Given I'm in isolation now, would be travelling to the job in a remote area, then returning, I lodged a request for an exemption to the "locked in a hotel room" bit. Happy to isolate at home, just not prepared to lose two weeks. I haven't even had a reply. Your experience tells me the position with the bureaucracy.
In your situation, you should be able to submit your application, your name goes on a list and you're checked against the list as you enter. ID confirmed via drivers licence. Hire companies pass over the keys to $50k worth of vehicle on the strength of a drivers licence. I seriously doubt there's a queue of COVID positive people on the mainland, all desperate to come to Tasmania and frantically forging drivers licences!
 
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But even though I am an "essential"worker I am told I need to present my passport with my Tassie visa when I arrive.
Hasn’t that always been the case. Overseas. 😀
 
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Interested to know if anyone has dug any further into the constitutional argument? I'm getting a bit impatient with the responses I'm not getting from "Essential Travel" in Tasmania. My beef is that I believe the hotel confinement requirements are excessive and are based on punitive grounds, rather than health requirements. As such, they would be in breach of S92.
 
Sure it may be illegal to do the border closures into WA and QLD but we feel safer in WA from having it.
The cruIse ships and international flights have been the biggest source of new infections rather than person to person transmission.
I remain amazed just how many people are still wanting to book cruises.
 
Interested to know if anyone has dug any further into the constitutional argument? I'm getting a bit impatient with the responses I'm not getting from "Essential Travel" in Tasmania. My beef is that I believe the hotel confinement requirements are excessive and are based on punitive grounds, rather than health requirements. As such, they would be in breach of S92.

One way to find out. Challenge them in the High Court.
 
By its opening words, section 92 applies to 'the imposition of uniform duties of customs'.

Its section heading is 92 Trade within the Commonwealth to be free

The chapter it is in is Chapter IV—Finance and Trade

It's nothing to do with travel or quarantine. But good luck in the High Court. There's always 'the vibe' to rely on :p
 
My beef is that I believe the hotel confinement requirements are excessive and are based on punitive grounds, rather than health requirements.

You think that are putting interstate arrivals in hotels for two weeks because they don't like them, or out of spite? And not to help stop the spread of a potentially deadly virus?
 
You think that are putting interstate arrivals in hotels for two weeks because they don't like them, or out of spite? And not to help stop the spread of a potentially deadly virus?
Restrictions seem to have worked a treat for SA.
 
You think that are putting interstate arrivals in hotels for two weeks because they don't like them, or out of spite? And not to help stop the spread of a potentially deadly virus?
That's an interesting way of interpreting what I wrote.

Tasmania was the first to introduce border restrictions, with anyone coming in from interstate required to self isolate at home for fourteen days. I felt that was a sensible precaution to take. From what I could gather from the reports and from discussion with the odd person I know who was involved in enforcement, the compliance rate was around 98%.

Nine days later, Tasmania introduced mandatory hotel detention for anyone coming in from interstate, based on "all those people not doing the right thing". I believe this to be excessive and not based on any logical health basis. People coming in from interstate are not automatically walking disease distributors. Obviously, depending on where they have been, they may be a higher risk, they may also be a lower risk. This is an unknown quantity and adequately covered by fourteen days self isolation. Yes, some people may not comply and those people may have to be hotel detained.

My feeling is that the current hotel detention is in place to discourage interstate travel, not to limit the virus spread, as that is adequately covered by home self isolation.

The relevance to S92 is: "where a law imposes a burden by reason of the crossing of the border, or it has the effect of preventing or impeding the crossing of the border, it will be held invalid if that is its only or chief purpose. ". Obviously, a restriction on interstate travel based on preventing the spread of a virus is reasonable but I'm not sure the current detention policy could be justified.

From a Tasmanian perspective, as far as I can ascertain, all the people involved in the current NW outbreak are self isolating at home. These people are arguably a higher risk than someone who has simply crossed a State border and yet are treated differently.

The reason for my gripe is that Tasmania's essential travel exemptions apply only to that which is essential to Tasmania. Anyone who lives in Tasmania and provides an essential service outside of Tasmania cannot claim exemption when coming home. On the other hand, someone engaged in a similar essential business but based in Victoria, can apply to come to Tasmania. This is not a problem in the short term but if these border closures stay in place for any amount of time, it certainly will be, as it's preventing Tasmanian based businesses competing outside of Tasmania, whilst interstate businesses can compete here.
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Restrictions seem to have worked a treat for SA.
I don't believe SA are locking up interstate travellers, or have they also introduced this?
 
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That's an interesting way of interpreting what I wrote. Tasmania was the first to introduce border restrictions, with anyone coming in from interstate required to self isolate at home for fourteen days. I felt that was a sensible precaution to take. From what I could gather from the reports and from discussion with the odd person I know who was involved in enforcement, the compliance rate was around 98%.
Nine days later, Tasmania introduced mandatory hotel detention for anyone coming in from interstate, based on "all those people not doing the right thing". I believe this to be excessive and not based on any logical health basis. People coming in from interstate are not automatically walking disease distributors. Obviously, depending on where they have been, they may be a higher risk, they may also be a lower risk. This is an unknown quantity and adequately covered by fourteen days self isolation. Yes, some people may not comply and those people may have to be hotel detained.
My feeling is that the current hotel detention is in place to discourage interstate travel, not to limit the virus spread, as that is adequately covered by home self isolation. The relevance to S92 is: "where a law imposes a burden by reason of the crossing of the border, or it has the effect of preventing or impeding the crossing of the border, it will be held invalid if that is its only or chief purpose. ". Obviously, a restriction on interstate travel based on preventing the spread of a virus is reasonable but I'm not sure the current detention policy could be justified.
From a Tasmanian perspective, as far as I can ascertain, all the people involved in the current NW outbreak are self isolating at home. These people are arguably a higher risk than someone who has simply crossed a State border and yet are treated differently.
The reason for my gripe is that Tasmania's essential travel exemptions apply only to that which is essential to Tasmania. Anyone who lives in Tasmania and provides an essential service outside of Tasmania cannot claim exemption when coming home. On the other hand, someone engaged in a similar essential business but based in Victoria, can apply to come to Tasmania. This is not a problem in the short term but if these border closures stay in place for any amount of time, it certainly will be, as it's preventing Tasmanian based businesses competing outside of Tasmania, whilst interstate businesses can compete here.
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I don't believe SA are locking up interstate travellers, or have they also introduced this?

We require anyone crossing the border to self isolate for 14 days. And have been doing this for 3 weeks or so. So those who have come from overseas and spend the 14 days in a hotel then have to come to SA and isolate for another 14 days and have to sign the paperwork at the border in order to do so. And they are being checked up on.
 
That's an interesting way of interpreting what I wrote. Tasmania was the first to introduce border restrictions, with anyone coming in from interstate required to self isolate at home for fourteen days. I felt that was a sensible precaution to take. From what I could gather from the reports and from discussion with the odd person I know who was involved in enforcement, the compliance rate was around 98%.
Nine days later, Tasmania introduced mandatory hotel detention for anyone coming in from interstate, based on "all those people not doing the right thing". I believe this to be excessive and not based on any logical health basis. People coming in from interstate are not automatically walking disease distributors. Obviously, depending on where they have been, they may be a higher risk, they may also be a lower risk. This is an unknown quantity and adequately covered by fourteen days self isolation. Yes, some people may not comply and those people may have to be hotel detained.
My feeling is that the current hotel detention is in place to discourage interstate travel, not to limit the virus spread, as that is adequately covered by home self isolation. The relevance to S92 is: "where a law imposes a burden by reason of the crossing of the border, or it has the effect of preventing or impeding the crossing of the border, it will be held invalid if that is its only or chief purpose. ". Obviously, a restriction on interstate travel based on preventing the spread of a virus is reasonable but I'm not sure the current detention policy could be justified.
From a Tasmanian perspective, as far as I can ascertain, all the people involved in the current NW outbreak are self isolating at home. These people are arguably a higher risk than someone who has simply crossed a State border and yet are treated differently.
The reason for my gripe is that Tasmania's essential travel exemptions apply only to that which is essential to Tasmania. Anyone who lives in Tasmania and provides an essential service outside of Tasmania cannot claim exemption when coming home. On the other hand, someone engaged in a similar essential business but based in Victoria, can apply to come to Tasmania. This is not a problem in the short term but if these border closures stay in place for any amount of time, it certainly will be, as it's preventing Tasmanian based businesses competing outside of Tasmania, whilst interstate businesses can compete here.
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I don't believe SA are locking up interstate travellers, or have they also introduced this?

Yeah - the self isolating at home for the NW cluster and for people coming from interstate might be defensible in the context of a pandemic, but imposing the mandatory hotel stay on people entering Tasmania (whether Tasmanian residents or not) but not on people known to be exposed to COVID-19 is so illogical that it would seem that anyone armed with a simple risk matrix would seem to have a good case if they ever went to court, until you realise that we are talking about the law here, and courts care not for what is logical or reasonable, they only care about what is lawful or not.

I'd say the few people that didn't comply with home based self isolation provided the Tasmanian state government with an excellent excuse to line the pockets of the hotel industry in Tasmania, that would otherwise be decimated by domestic and international travel restrictions, and the fact that numerous other states haven't imposed this restriction would possibly help any argument against this part of the restrictions.

Anyone arguing any of these cases would obviously have to offer to submit themselves and totally co-operate with any on the spot testing, and monitoring that would be seen to be reasonable to control the spread of the pandemic across interstate boundaries.

Although it won't win any popularity competitions, legally, by going after the exemptions and challenging the idea of essential personnel being exempt from these restrictions (i.e. police, defence, medical and other essential services) on the basis of fairness would legally be an easier hurdle to overcome in a court, even better, if you could successfully restrict the travel of politicians and their staff, then I bet that would focus the minds of the people who imposed these restrictions pretty quickly. The obvious goal would be to see if the courts are foolish enough to start to define or interpret who or what are "essential workers" whom are no longer subject to the laws of the land, and then start to test what other laws "essential workers" are exempt from?
 
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It actually is worse than people think for Tasmania.The 14 day hotel quarantine is basically for returning Tasmanians.
Essential workers get 14 days of self isolation.Basically interstate non essential travellers are banned.There are exemptions for compassionate reasons but you must apply online and have your application approved before you leave for Tasmania.It is said very few are approved.

If you turn up for the Princess Of Tasmania in Melbourne and are not a Tasmanian or essential worker you will not be allowed to board.
 
The relevance to S92 is: "where a law imposes a burden by reason of the crossing of the border, or it has the effect of preventing or impeding the crossing of the border, it will be held invalid if that is its only or chief purpose. "

I'm not sure where that quote comes from but those words aren't in section 92.

The only burden or imposition that section 92 is relevant to is 'the imposition of uniform duties of customs'. It is to ensure duty-free trade between states. Nothing to do with people crossing borders.
 
This piece from the media's favourite constitutional scholar, Anne Twomey, which quotes some relevant High Court precedent, is useful: States are shutting their borders to stop coronavirus. Is that actually allowed?

Anyway, governments do have lots of lawyers who are actual qualified professionals rather than posters on internet forums, and I hope they've run their border restriction directives past them for advice...
 
You think that are putting interstate arrivals in hotels for two weeks because they don't like them, or out of spite? And not to help stop the spread of a potentially deadly virus?
That's an interesting way of interpreting what I wrote.

In what way were you meaning 'punative and not for health reasons', then?
 
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