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

bigbadbyrnes

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Joined
Oct 24, 2011
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273
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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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.
We would be there in August if we could. Instead of Italy. They must be so frustrated. And going broke.
 
That appears to be the American model. And that of Sweden. But I'm not sure those are showing great results :(
I don't get your point. Australia has smashed the curve by isolation. That time has passed. Now it's time to smash the other curve and get Australia back up and running. Safely. Interstate movement at this time isn't going to create a US/Sweden situation now. Australia's CMO never recommended it.
 
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.
But if the state borders are opened up then We are all put at risk by those States who have let’s say ”indiscretions” (Ruby Princess debacle) . So the state with the least ability to control their own borders become the default for all of us.
 
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.

Generally? Try all industries directly up or down stream linked to tourism movement are in dire straits.

No international tourists, no domestic tourists - it is a catastrophic disaster for us (QLD) - we aren't like the other states with lots of other industries to support us and stronger intra state business drivers.

But hey we have one case - DEFCON 10 we have to hang on and wait.

Our CHO in QLD is quite out of step with her federal superiors and seems a little out of her depth now unfortunately.
 
It's hard to find genuine quality discussion about this issue in the press.

The grown up discussion is that this is unfortunately not a choice between disaster vs. inconvenience, or health problem vs. economic problem. It's cataclysm vs. cataclysm. A virus which makes your lungs dissolve is more scary and visually alarming, and therefore drives decisions and behavior (as it should).

As we reflect on doing so well, time will come to consider the other health crisis we've created. Destroying the economy isn't just putting Virgin Australia to the sword - that's a piece of trivia. The affect of reduced tax receipts and the economic downturn we have guaranteed by massive action will have consequences for many years.

You will never see the hospitals that don't get built, nor roads that go un-upgraded or school programs which are never funded as a direct result of the actions taken since March. This will cost lives. People deferring or setting aside elective surgery, making different decisions when faced with unemployment or loss of business, and so on.

And this is to say nothing of the mental health toll resulting from the interventions and disruptions, or the impact on social fabric. We were led into this on the proviso these were short term measures to 'flatten the curve', protect healthcare workers while we stockpile PPE and ventilators. We've now done that in spades. There doesn't now seem to be a clear strategy or set of goal posts. Are we going for elimination (which is impossible)? What qualifies as a second wave? Under what circumstances would we relax restrictions? How many cases per day? And how is any of this being weighed up against the above mentioned health impacts of a depressed economy?
 
But if the state borders are opened up then We are all put at risk by those States who have let’s say ”indiscretions” (Ruby Princess debacle) . So the state with the least ability to control their own borders become the default for all of us.

But other than Ruby, that doesnt seem to have caused any issues for Victoria which has an open border.

It's hard to find genuine quality discussion about this issue in the press.

The grown up discussion is that this is unfortunately not a choice between disaster vs. inconvenience, or health problem vs. economic problem. It's cataclysm vs. cataclysm. A virus which makes your lungs dissolve is more scary and visually alarming, and therefore drives decisions and behavior (as it should).

As we reflect on doing so well, time will come to consider the other health crisis we've created. Destroying the economy isn't just putting Virgin Australia to the sword - that's a piece of trivia. The affect of reduced tax receipts and the economic downturn we have guaranteed by massive action will have consequences for many years.

You will never see the hospitals that don't get built, nor roads that go un-upgraded or school programs which are never funded as a direct result of the actions taken since March. This will cost lives. People deferring or setting aside elective surgery, making different decisions when faced with unemployment or loss of business, and so on.

And this is to say nothing of the mental health toll resulting from the interventions and disruptions, or the impact on social fabric. We were led into this on the proviso these were short term measures to 'flatten the curve', protect healthcare workers while we stockpile PPE and ventilators. We've now done that in spades. There doesn't now seem to be a clear strategy or set of goal posts. Are we going for elimination (which is impossible)? What qualifies as a second wave? Under what circumstances would we relax restrictions? How many cases per day? And how is any of this being weighed up against the above mentioned health impacts of a depressed economy?

Absolutely agree. We were perhaps, too successful with elimination. In SA we have three hospitals prepped and ready just for COvid - they were closed a few months ago and now fully re - provisioned. They have never been used and I think at most, just about 30 people needing hospital care.

We might need them to manage the Mental Health Care patients we will likely get now. And patients who didnt attend GP clinics and who have now developed complications as a result. Hidden Covid patients.
 
Absolutely agree. We were perhaps, too successful with elimination. In SA we have three hospitals prepped and ready just for COvid - they were closed a few months ago and now fully re - provisioned. They have never been used and I think at most, just about 30 people needing hospital care.

We might need them to manage the Mental Health Care patients we will likely get now. And patients who didnt attend GP clinics and who have now developed complications as a result. Hidden Covid patients.

Need to be careful on language, we have not been too / or successful at all with elimination ;)

The virus exists, is circulating everywhere and has not been eliminated, anywhere. Nor will it.

We have perhaps been more successful flattening the curve than anticipated.

Which has lead some people to think the virus can be eliminated, which it simply cannot.

People need to wrap their heads around this very very quickly now we can't wait much longer for them to catch up so we can have 'grown up discussions' about how we live with this thing - without destroying our livelihoods and protecting the vulnerable - until a treatment/vaccine is found (or perhaps forever).
 
Need to be careful on language, we have not been too / or successful at all with elimination ;)

The virus exists, is circulating everywhere and has not been eliminated, anywhere. Nor will it.

We have perhaps been more successful flattening the curve than anticipated.

Which has lead some people to think the virus can be eliminated, which it simply cannot.

People need to wrap their heads around this very very quickly now we can't wait much longer for them to catch up so we can have 'grown up discussions' about how we live with this thing - without destroying our livelihoods and protecting the vulnerable - until a treatment/vaccine is found (or perhaps forever).

Yes, you are right. Perfectly worded. Now, can we just convince the decision makers to get on with it?
 
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.

Sure, there's the health vs economic model. We have chosen the health model. Borders are closed for good reason during a public health emergency. I'd like to keep them that way!
 
We were led into this on the proviso these were short term measures to 'flatten the curve', protect healthcare workers while we stockpile PPE and ventilators. We've now done that in spades.

i know it feels like a lot longer, but it's been about 8 weeks!! I don't consider that a long time.
 
People need to wrap their heads around this very very quickly now we can't wait much longer for them to catch up so we can have 'grown up discussions' about how we live with this thing - without destroying our livelihoods and protecting the vulnerable - until a treatment/vaccine is found (or perhaps forever).

Well given the federal government (and the states) have agreed on a 3 stage plane to open things up, perhaps we should just keep working through that.

For travel, the plan is

DOMESTIC TRAVEL

STEP 1: The important first small steps — connect with friends and family — allowing groups of people to be together in homes and in the community. Businesses reopen, and more people return to work.

  • Allow local and regional travel for recreation
  • Refer to state and territory governments for border restrictions and biosecurity conditions
STEP 2: Building on slightly larger gatherings and more businesses reopening. Higher risk activities may have tighter restrictions.

  • Allow local and regional travel for recreation
  • Consider allowing interstate recreational travel depending on the situation in each state and territory
  • Refer to state and territory governments for biosecurity conditions
STEP 3: A commitment to reopening of business and the community with minimal restrictions, but underpinned by COVIDSafe ways of living.
  • Allow interstate travel
  • Refer to state and territory governments for biosecurity conditions

Sure, the states are moving at different pace, but if that is the agreed plan, why not just keep working through it.

https://www.health.gov.au/resources/publications/3-step-framework-for-a-covidsafe-australia


 
i know it feels like a lot longer, but it's been about 8 weeks!! I don't consider that a long time.
Try being in business that employs people. Who pay taxes.
Post automatically merged:

Well given the federal government (and the states) have agreed on a 3 stage plane to open things up, perhaps we should just keep working through that.

For travel, the plan is



Sure, the states are moving at different pace, but if that is the agreed plan, why not just keep working through it.

https://www.health.gov.au/resources/publications/3-step-framework-for-a-covidsafe-australia



that isn’t the plan agreed to by Federal Government and which did not advocate border closures.
 
i know it feels like a lot longer, but it's been about 8 weeks!! I don't consider that a long time.

It's not primarily about how much time, but rather the impact. Even if all restrictions were totally abolished this moment, the economic recovery would take years. Every day that passes does more damage to the economy which will cost lives. Hospitals go unbuilt, roads go unmaintained, people forced to make decisions which compromise their health.

I don't own a jet boat business in Cairns, or a pub in Surfers Paradise so I'm not primarily going through what those business owners and employees are right now. But I do rely indirectly on those people to contribute to the economy I totally rely on - that we all rely on. If they can't make a living, they won't buy the stuff I sell. Or shop at my favorite places to shop which risks them falling out of business. And they won't raise tax revenue which would go towards building hospitals and maintaining roads (I keep repeating the point because I keep seeing the mistake that this is health vs. economy when it's health vs. health).

We all have skin in this game.

Interesting aside, a sibling of mine works as a nurse in QLD on a casual basis. Because of the disruption/temporary cessation of "elective surgery", almost all the work required is being filled by permanent nurses. My sibling has been working between zero and three shifts a week the last month. Yes, the pandemic is so bad and health care stretched so thin that a nurse cannot get work, Boggles the mind.
 
Well given the federal government (and the states) have agreed on a 3 stage plane to open things up, perhaps we should just keep working through that.

For travel, the plan is



Sure, the states are moving at different pace, but if that is the agreed plan, why not just keep working through it.

https://www.health.gov.au/resources/publications/3-step-framework-for-a-covidsafe-australia



If it is the agreed plan, why does WA have a 4-phase road map?

COVID-19 coronavirus: WA Roadmap


I must confess my vested interest as my partner has been affected by the extra phase and her ability to return to work.
 
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I must confess my vested interest as my partner has been affected by the extra phase and her ability to return to work.

I'll repeat my declared interest- my partner and family live interstate, and I live alone. I also have an interest in the ongoing preservation of Federation and functioning economy. :) We're all in this together (groan)
 
I'll repeat my declared interest- my partner and family live interstate, and I live alone. I also have an interest in the ongoing preservation of Federation and functioning economy. :) We're all in this together (groan)
Some are more together than others. And it seems many can’t see the inter relatedness of every business to the economy. Which fuels - well - everything.
 
Well given the federal government (and the states) have agreed on a 3 stage plane to open things up, perhaps we should just keep working through that.

Perhaps it is because some states have backtracked from their agreements when respect to the state borders.

I think the State borders should be opened by July, but so far when respect to open their economy, they have no plans to open their state borders at all.

That's where get PM frustrated and required to force the States to open their borders.
 
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