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

[bigbadbyrnes]

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

 

[bigbadbyrnes]

Forcing the borders open through a High Court challenge doesn't give us what NZ has. Unilateral declarations by individual states to keep borders closed doesn't give us what NZ has. Only a national strategy for controlling outbreaks will do that.

Bang on. There was always necessarily going to be some disparity between state performances - what were the odds on each state having around the same number of cases around the same time? Today it's Vic. It used to be NSW. Tomorrow, who knows?

The federal govt sat on it's hands while the states put up borders, which allowed this separatism to take root. Stevie Wonder could have seen it coming. How could anyone in WA who's been told to fear COVID now be persuaded that 'letting people from Vic' is a good idea? The Federal govt's got a job to do now restoring federation. Now is the time for a clear nationwide strategy. If the 'outbreak' in Vic can be used as a justification to keep borders closed, I can't see them opening again for years so long as we don't commit the entire nation to elimination. And if it's not elimination, it needs to be much clearer what the expectations are and what the objective is. Less than 10 cases per 100,000 people? Less than 100? At what point are restrictions re-imposed?
(edit - words)

 

[MEL_Traveller]

Get the AHPPC together to knock some heads together? Hopefully a better outcome than the mess of 3 stages of easing restrictions at different times that we currently have.

But it's not really a mess, is it? All people have to focus on is what is happening in their state. What other states are doing regarding distancing, maximum numbers, etc, aren't really relevant. So many times we see on the news 'Victoria has imposed limits of 20 people, but in NSW they can allow 50'.

So what?

 

[HappyFlyerFamily]

Bang on. There was always necessarily going to be some disparity between state performances - what were the odds on each state having around the same number of cases around the same time? Today it's Vic. It used to be NSW. Tomorrow, who knows?

The federal govt sat on it's hands while the states put up borders, which allowed this separatism to take root. Stevie Wonder could have seen it coming. How could anyone in WA who's been told to fear COVID now be persuaded that 'letting people from Vic' is a good idea? The Federal govt's got a job to do now restoring federation. Now is the time for a clear nationwide strategy. If the 'outbreak' in Vic can be used as a justification to keep borders closed, I can't see them opening again for years so long as we don't commit the entire nation to elimination. And if it's not elimination, it needs to be much clearer what the expectations are and what the objective is. Less than 10 cases per 100,000 people? Less than 100? At what point are restrictions re-imposed?
(edit - words)

I think I recall the Federal CMO saying something about 25 cases( a month?) or so ago at a media conference or something. Not sure whether new case or local transmission From unknown source.

 

[DC3]

Some of the above advice seems to have been taken from the US government COVID playbook.

 

[bigbadbyrnes]

I think I recall the Federal CMO saying something about 25 cases( a month?) or so ago at a media conference or something. Not sure whether new case or local transmission From unknown source.

So the aim would be periods like 4 June to 11 June - but in perpetuity. Fine, sounds good.

But meaningless without a national strategy.

I don't see why states which have it eliminated don't just totally de-restrict now ah la NZ on the basis the borders can be kept up with impunity.

 

[HappyFlyerFamily]

But it's not really a mess, is it? All people have to focus on is what is happening in their state. What other states are doing regarding distancing, maximum numbers, etc, aren't really relevant. So many times we see on the news 'Victoria has imposed limits of 20 people, but in NSW they can allow 50'.

So what?

It is a mess, when I feel the impression given by the PM was an agreed plan for 3 stages for easing restriction and different staged implementation (yes perhaps ill-defined stage 2 and 3) But now we have All different sets of numbers that weren’t even contemplated.

if it felt like a similar thing like eg different technical murder rules, different traffic rules technically, then I think most of us could probably live with it. But right now they don’t feel similar enough.

additionally we would know where to go for different technical rules, but with covid rules they are littered in a large number of determinations that may roll on or off (yes I actually did try to read a couple of states rules on a lazy day).

 

[Pushka]

A business owner’s mental health on economic grounds is not more important than those looking to protect family.

I’m not even thinking of business owners. Just people.

 

[mannej]

By the same token, there are mental health issues with people concerned about their immediate family (parents) dying.

A business owner’s mental health on economic grounds is not more important than those looking to protect family.

These two situations are not mutually exclusive - the business owner can also be a concerned family member. I also think that it is dangerous the discount the mental health concerns of one subset of the population over another.

 

[Gremlin]

I don't see why states which have it eliminated don't just totally de-restrict now ah la NZ on the basis the borders can be kept up with impunity.

Because, ironically, the ongoing threat of a High Court challenge is playing a significant part in keeping those restrictions in place. If they de-restrict and the High Court challenge is upheld then they will have to reimplement a whole heap of things that they would otherwise be contemplating ditching.

If the High Court challenge is dismissed then almost certainly they will do so...

 

[HappyFlyerFamily]

These two situations are not mutually exclusive - the business owner can also be a concerned family member. I also think that it is dangerous the discount the mental health concerns of one subset of the population over another.

I agree with what you are saying but the post you are replying to probably thinks 2 lives (mental health of child + physical health of parent) > 1 life (business owner).

We live in a society where every life matters (not intending to denigrate the Black lives matter, which as I understand right leaning people saying all lives matter). Business have employees, many people have vulnerable immediate family to protect from this pandemic.

 

[Pushka]

I have auto immune issues. So in Vulnerable group. And I have young- adult children and baby grandson. I see mental health issues as a greater concern than COVID related issues right now even with a relative working as a GP.

 

[HappyFlyerFamily]

Not sure if this got picked up elsewhere

Now NSW gives recommendation to not travel to Melbourne. But this is not a border closure.

NSW Premier: ‘Do not travel to Melbourne’

As Victorian COVID-19 cases continue to spike, NSW Premier Gladys Berejiklian has urged residents to not travel to Melbourne and surrounding hotspots as both states head into the school holiday period.

www.news.com.au

 

[Gremlin]

Not sure if this got picked up elsewhere

Now NSW gives recommendation to not travel to Melbourne. But this is not a border closure.

NSW Premier: ‘Do not travel to Melbourne’

As Victorian COVID-19 cases continue to spike, NSW Premier Gladys Berejiklian has urged residents to not travel to Melbourne and surrounding hotspots as both states head into the school holiday period.

www.news.com.au

Also the Federal CMO ACT CHO is "strongly discouraging" travel to or from Melbourne. But also not recommending a border closure.

EDIT: Wrongly attributed on my behalf. Apologies

 

[nutwood]

I've just finished fourteen days quarantine in Tasmania so am trying to tidy up about the State before heading to NSW next Monday. Was lining up a meeting to look at some equipment tomorrow and they casually mention that they are in Melbourne now but coming over on the Spirit tonight. No quarantine due to essential traveller exemption, something I haven't bothered to pursue, although I probably could.
It's ironic that I quarantine for fourteen days after my own, very careful, travels and by far my riskiest encounter will be with someone who's just travelled on the Spirit from Melbourne and whom I'm meeting as part of my Tasmanian business.

 

[PineappleSkip]

You submit an application, make your case, and hopefully receive a pass that allows you to travel across borders. They're sort of doing that now for "essential" workers but it's not really risk based and it's not open to everyone.

That’s exactly what Qld is currently doing for everyone. Noone gets in without completing an application for an entry pass, including residents. And the same arrangement in WA. No pass, no entry, for everyone.

Unfortunately, [social distancing] has a much higher economic cost than what NZ has implemented.

We didn’t lock down as heavily as NZ did, and the OECD June forecasts, just out, show Australia taking one of the smallest hits to GDP of OECD countries, while NZ is forecast to be taking a much larger hit to GDP. The nature of the two economies would of course create variances, but, I don’t think the presence or absence of social distancing on its own would have a material effect. Australia has taken, and is taking, a more nuanced approach than New Zealand, which screeched to a halt and then took off again.

 

[HappyFlyerFamily]

I've just finished fourteen days quarantine in Tasmania so am trying to tidy up about the State before heading to NSW next Monday. Was lining up a meeting to look at some equipment tomorrow and they casually mention that they are in Melbourne now but coming over on the Spirit tonight. No quarantine due to essential traveller exemption, something I haven't bothered to pursue, although I probably could.
It's ironic that I quarantine for fourteen days after my own, very careful, travels and by far my riskiest encounter will be with someone who's just travelled on the Spirit from Melbourne and whom I'm meeting as part of my Tasmanian business.

To be frank, I’d postpone/cancel the meeting. I’m guessing they are Melbourne resident.

 

[bigbadbyrnes]

That’s exactly what Qld is currently doing for everyone. Noone gets in without completing an application for an entry pass, including residents. And the same arrangement in WA No pass, no entry, for everyone.

Key difference - a resident of QLD may leave and return unhindered (unless returning from a 'hotspot', like Melb was just declared this morning). A resident of WA may not return without exemption, and they're actually pretty stingy with them.

The reason WA does not offer similar treatment to WA residents is it would be unconstitutional. Same reason as they will not open to some states, and not others.

Currently SA, WA and QLD are running on inconsistent constitutional advice with regard to the borders - in addition to the Federal govt asserting the borders are unconstitutional.

 

[Gremlin]

We didn’t lock down as heavily as NZ did, and the OECD June forecasts, just out, show Australia taking one of the smallest hits to GDP of OECD countries, while NZ is forecast to be taking a much larger hit to GDP. The nature of the two economies would of course create variances, but, I don’t think the presence or absence of social distancing on its own would have a material effect. Australia has taken, and is taking, a more nuanced approach than New Zealand, which screeched to a halt and then took off again.

There is an issue here with timeframe. NZ have chosen to take all their medicine up front. Their stimulus was roughly half ours on a per capita basis and is almost completely paid out. As you described, they shut down harder and have taken off faster than us. Their economic recovery is expected to be faster as a result.

In comparison, we are not yet half-way through the payment of our economic stimulus. The Australian economy actually saw a reduction in businesses going into administration in April/May than you'd expect on a seasonal basis. The way our stimulus is structured, those businesses get to hang on until October/November and then collapse. Hence the 2020 forecast looking comparatively rosier for Australia. We've deferred the bulk of the economic pain into next year.

The Reserve Bank of NZ released a study that I'd previously linked to showing the impact of social distancing measures in their economy to be worth 5.0% of GDP. Some of this is the capacity to operate businesses such as cafes, restaurants, pubs and clubs as normal, but the bigger proportion is the ability to undertake large-scale events within the community. Events such as concerts, plays, festivals, sporting events, fetes, exhibitions all add directly and indirectly to the economy. Additionally, it’s social distancing that’s limiting the effectiveness of mass transit in the major cities to deliver workers into CBDs and the ability of many businesses to return their workers to the office - when you think in those terms, that 5% estimate seems pretty reasonable to me. As you said, our economies are not identical but it does give an indication of possible magnitude. Similarly, the RBA had in their latest Statement on Monetary Policy, the following:

Beyond the first half of 2020, the outlook for the domestic economy depends on how long social distancing remains in place

Interestingly, they didn't comment at all on the impact of state border closures on the domestic economy. Maybe it's a drag, but it's not called out by the RBA as such in comparison to social distancing.

 

[bigbadbyrnes]

The WA premier has answered my question;

Today we've also outlined Phase 5 of easing restrictions - which is expected to take effect on Saturday 18 July.

Phase 5 will include removing ALL State restrictions except for the hard border with the eastern states and travel restrictions for remote Aboriginal communities.

That will include the removal of the 2sqm rule and the 50% capacity rule for our major venues.

This will be a significant moment for our State.

Total de-restriction in WA from 18 July. Why should anyone there be persuaded that opening the border is a good idea before COVID is eliminated in every other state in the country?

 

[Gremlin]

The WA premier has answered my question;



Total de-restriction in WA from 18 July. Why should anyone there be persuaded that opening the border is a good idea before COVID is eliminated in every other state in the country?

Doubling down.

McGowan also said that in the absence of outbreaks in the east, the hard border would have been opened on the 8th of August. But that now is off the table. He said

The WA hard border will only be removed when the chief health officer of Western Australia is confident the spread of the infection is controlled in the Eastern States