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

bigbadbyrnes

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Joined
Oct 24, 2011
Posts
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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The legal challenge is now crowd sourcing to cover legal costs in addition to the QC working Pro Bono. What a hilarious dystopia.
Interesting considering there is a discretionary scheme at the A-G's Dept especially for public interest/test cases - I wonder if they've thought of applying (or already applied and been knocked back).


Edit 1.1: Considering it's Clive Palmer pushing this case, I imagine it'd fall at the first hurdle of that to be granted funding you need to demonstrate financial difficulty. Clive Palmer takes WA border closure issue to the High Court
Edit 1.2: Who would honestly provide their own hard earned money in this economy to a case funded by a billionaire who had to be dragged into paying the fair entitlements of his employees? Clive Palmer settles Queensland Nickel lawsuit, agrees to pay sacked workers
 
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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.
To which I would say Al Kuwait.Wasn't stopped by WA's border closure.

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!
So the curve has been flattened even squashed flat. So what number of cases are you aiming for? We commenced the lockdown to flatten the curve so hospitals would not be overrun with severe cases.That objective has definitely been achieved.
The virus is not going to be eliminated and Victoria's CMO has said that .Victoria and NSW have not closed their borders yet they get the lion's share of OS arrivals.

Tasmania closed it's borders but that didn't stop their "second wave" in the North West which accounts for more than half of the states cases.
Western Australia closed border has not stopped their most recent 6 cases on the Al Kuwait.
Queensland's closed border has not stopped a new case of unkown contact in Rockhampton or the 2 new cases in Blackwater.
The new cases in NSW and Victoria have nearly all come by contact with previously known cases so all were isolated.

The cases will continue to occur whether the state borders are open or closed.The way to go is to immediately increase testing rates and contact tracing of any new case as Taiwan did from the start very successfully. A country with a population of 24 million with a total of 441 cases and only 7 deaths.They have shown us the way and the answer is not closing state borders.International borders are different as seen by the Taiwan graph.
1590554006275.png.

The spike in mid April were from OS arrivals.Prior to that they had only stopped people from China and Europe entering.As soon as this spike occurred they closed their International border but still didn't go into a true lockdown and the tracers and testers swung into action and stopped that wave dead in it's tracks.

Surely it is better for us to study the successful countries and how they achieved that not the countries that failed.
 
Edit 1.1: Considering it's Clive Palmer pushing this case, I imagine it'd fall at the first hurdle of that to be granted funding you need to demonstrate financial difficulty. Clive Palmer takes WA border closure issue to the High Court
Edit 1.2: Who would honestly provide their own hard earned money in this economy to a case funded by a billionaire who had to be dragged into paying the fair entitlements of his employees? Clive Palmer settles Queensland Nickel lawsuit, agrees to pay sacked workers

The crowd funding I have in mind is the Go Fund Me set up for the legal team Senator Hanson has been publicising, Not Palmer. It's got a bit of interest.
 
The crowd funding I have in mind is the Go Fund Me set up for the legal team Senator Hanson has been publicising, Not Palmer. It's got a bit of interest.
Ahh, fair enough - with so many constitutional challenges, it's hard to keep track (particularly as Dutton is calling for more as well).

Well I wonder then if they could obtain that funding under the scheme, particularly as it is discretionary and politics could be in play if Dutton (or Hanson) made representations to Porter.
 
I said the Federal Government never advocated interstate border control.

You said:

that isn’t the plan agreed to by Federal Government

It is their plan.

If they were so concerned about it, they would have made it part of step 1, not step 3.
Post automatically merged:

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.

I think the WA step 1 predated the agree three step plan.
 
To which I would say Al Kuwait.Wasn't stopped by WA's border closure.

As the crew were not allowed to disembark and all local personnel who boarded it were wearing PPE,or so we have been advised, it was stopped by the National border closures. I agree that this particular case has no bearing on the discussion about State border closures - in either a positive or negative way. What it does show is that liaison between Federal and State Authorities still needs to be improved on both sides.
 
You said:



It is their plan.

If they were so concerned about it, they would have made it part of step 1, not step 3.
Post automatically merged:



I think the WA step 1 predated the agree three step plan.
WA steps aren’t consistent with the national steps. For example restaurants can host 20 currently (National step 2), playgrounds aren’t currently open (National step 1), and places like beauty salons have been told they are step 3/4 whereas Nationally it is part of step 2.

The inconsistencies are driving people nuts, and hence the questions are being asked.
 
As an observer, human nature is funny.

On any given day there are thousands of differences between the states. e.g. try going to a supermarket in SA after 6pm whereas I can go to KMart at 3 am in Melbourne. In ACT that have a suburb full of businesses that specialise in selling xx_ goods that you can't buy in most states. Some states you can buy liquor at the supermarket, others you can't. Some states have U turns are traffic lights and most don't, some have daylight saving, some don't, I can go to an adult store 2 minutes walking from QLD but can't in QLD, speed limits on highways, and on and on and on. Nearly all of these difference are for petty non-nonsensical reasons and could easily be rationalised. Many are more serious like land tax, building regulations and other provisions that penalise investors and significantly raise the cost of doing business.

Aside from business travellers more than 80% of Aussies would not cross a state border in any one given year.

However, if the media play an item up and are told they can't x for a couple of months in a pandemic situation, lets rush to the high court and lose sleep every night because this playground is open and that one is not, even if I don't have kids

It would be hilarious if not so disappointing
 
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WA steps aren’t consistent with the national steps. For example restaurants can host 20 currently (National step 2), playgrounds aren’t currently open (National step 1), and places like beauty salons have been told they are step 3/4 whereas Nationally it is part of step 2.

The inconsistencies are driving people nuts, and hence the questions are being asked.

Certainly, the pacing through the steps is a mess. But generally, they are moving faster than the original plans contemplated.

I would prefer they got things open - bars, restuarants, etc, before they got travel going.

People that travel seem quite overrepresented in the case statistics....
 
The problem is 20% of the population is 5 million people.

Very true, but how many non-business travellers would travel in a two month period outside school holidays to another state (other than to and between Vic and NSW who don't have closed borders during this time).

Interestingly, I had a think back over the last year. I am well aware I am in a specific demographic due to age, income and location etc and no longer a typical working age nuclear family member. But thinking back over the last year (prior covid) amongst my relatives and friends/ acquaintances. Two were a grey nomad wandering around in a caravan to multiple states, two went to Sydney (no border closure at present), one went to QLD, 80-90% went overseas, I went to SA on one of my regular trips to relatives, several had time away within the state or just stayed home. If I was to carefully pick a period outside of school holidays, I could find a two month period where only one person, possibly two I knew had crossed a state border (not in transit to overseas) for recreational purposes during that specific time.
 
WA steps aren’t consistent with the national steps. For example restaurants can host 20 currently (National step 2), playgrounds aren’t currently open (National step 1), and places like beauty salons have been told they are step 3/4 whereas Nationally it is part of step 2.

The inconsistencies are driving people nuts, and hence the questions are being asked.

I wonder how much is driven by an electoral support balancing act. WA generally seems behind what the govt is doing (fortunately WA is a big place). However, I think things will be more problematic for them as other parts of Australia get more freedoms.

Personally, I think they will be under pressure by July to relax the rules.

I have seen an argument they just want to get past the AFL season!
 
I wonder how much is driven by an electoral support balancing act. WA generally seems behind what the govt is doing (fortunately WA is a big place). However, I think things will be more problematic for them as other parts of Australia get more freedoms.

Personally, I think they will be under pressure by July to relax the rules.

I have seen an argument they just want to get past the AFL season!

That won’t be until October!!!
 
That won’t be until October!!!

I know - I was in a, err, 'frank and forthright' discussion earlier today with some friends about when we thought WAs borders would open. The football came up.

I still tip July ;)
 
As an observer, human nature is funny.


Aside from business travellers more than 80% of Aussies would not cross a state border in any one given year.

However, if the media play an item up and are told they can't x for a couple of months in a pandemic situation, lets rush to the high court and lose sleep every night because this playground is open and that one is not, even if I don't have kids

It would be hilarious if not so disappointing

The states are indeed different. And yes, not everyone is interested on travelling across state borders.

I was concerned and deeply impacted by the border restrictions from the outset, but I was happy to set aside interests for the good protecting the health care system. But from the moment the border restrictions were brought in, I wanted them tested in the high court - just to get clarity on where the lines are because it was an action taken so brazenly with such potentially significant consequences. I don't expect you to care about my, or anyone's, personal circumstances, or care about those who's jobs/businesses/lives have been affected by the restrictions.

But I do think it's unwise for anyone to think they're immune from the effects this will have on the economy, which will in turn cost lives. Hospitals going unbuilt, roads going unmaintained, schools and police going underfunded, and so on.

The health and economic impact the restrictions will have has been widely ignored - as if it's in our interests to pretend the decisions are easy or that it's"just an inconvenience", "whats so hard about staying home or not holidaying interstate?". If I ignored the reality of the long term impact and was happy to chill at home, I'd probably be bemused at people for getting upset over things that don't affect me.

And that would be disappointing, if not so hilarious.
 
High Court challenge to Queensland border closures will be filed

A High Court challenge to Queensland's border restrictions will be filed after the state government failed to meet a "deadline" of Thursday imposed by Queensland Senator and One Nation leader Pauline Hanson to re-open the state.
"Following the Queensland Premier’s refusal to re-open the state's border by 4pm yesterday, lawyers acting on behalf of several Queensland businesses expect to file a [constitutional] ... challenge in the High Court, either today or early next week," Senator Hanson said.
Senator Hanson is not a party to the case but has fielded calls from interested plaintiffs and attempted to raise funds for the cause.
NSW barrister Guy Reynolds, SC, will lead the case, instructed by a Queensland law firm.
"I am disappointed in the Queensland tourism body, the state mayors, and those industry leaders who have failed to take up this fight and challenge Annastacia Palaszczuk over the border closure," Senator Hanson said.
"I do however want to congratulate the plaintiffs in this case, who have very strong prospects and have stepped forward to take on this rogue state government."
A GoFundMe page has been set up for donations for the legal team other than Mr Reynolds, who is expected to appear pro bono.
On Sunday, the state government is expected to make an announcement on travel changes under stage two restriction changes, though has flagged the border may not be reopened until July at the earliest.
Businessman and former federal MP Clive Palmer has also joined the legal fray yesterday over the state’s border closure, adding Queensland to his High Court challenge involving the Western Australia restrictions.
In the lead-up to the senator's imposed deadline, Deputy Premier Steven Miles noted Senator Hanson had only recently called for a border in north Queensland which has recorded few cases of COVID-19.
“I think she’s more desperate to seek headlines than she is concerned about this virus and its impact on Queenslanders,” he said.
with Matt Dennien

I sincerely hope High Court can deal with this matter as a first urgency, so that we will be able to open Queensland's border as soon as possible and bring normality into Australia.
 
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I sincerely hope High Court can deal with this matter as a first urgency, so that we will be able to open Queensland's border as soon as possible and bring normality into Australia.

Honestly its probably just the bad PR and bad media that the 'court case' will generate, that will pressure the QLD government to fold.

It gives the story oxygen and even more people will come out to whack them.
 
I sincerely hope High Court can deal with this matter as a first urgency, so that we will be able to open Queensland's border as soon as possible and bring normality into Australia.

Hearings in Clive Palmers case against WA look like being in about 6 weeks.
 

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