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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Following today’s National Cabinet meeting it was agreed that everyone agreed in May to the detailed and specific three phase plan of reopening Australia, including ‘all interstate travel’ to be allowed in ‘phase three’.

As agreed, each state started each phase at different times, and each phase had variations for each state.
During ‘phase three’, it was unanimously agreed that the states will de-restrict the borders. Or announce when they will de-restrict the borders. At any point during phase three. Or before, or after, depending on the state.
So everyone was in total unity to act as a team, and do their own thing in their own way. The plan agreed to in May makes it very clear exactly what will be happening and when, providing Australian families and businesses certainty that there will be certainty at some point in the future when certainty can be announced. (subject to change and High Court decisions).

The PM said "Speaking on behalf of all the states and the federal government, but also only for myself personally, together, we'll continue to work in isolation from one another, accepting that outbreaks will occur, striving for elimination, except when we’re not, and continuing to restrict while re-opening and suppressing. I've been perfectly consistent on this - why do the media and average joes keep misunderstanding the clear and simple message?"

The Premiers were heard complaining of being "bullied into letting people exercise their constitutional right to travel into their state from plague overrun areas like Ballarat and Dubbo". And "how dare the Federal Government continue to prevent full fee paying international students from returning to universities from China, Hong Kong and Taiwan. But I repeat myself".


In other news, China continues to prove how good a friend they are to Australia by providing direct assistance to elected MPs, relieving them of the work of developing their own opinions.
 
Update:

Travel Essence and others, and Palmer/Mineralogy vs. QLD have suspended their action as the border is set to open next Friday. They will recommence if the border doesn't open.

Mineralogy vs. WA continues, before the Federal Court July 8.
 
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I wonder if the PM will eventually say to WA that if they re doing so well on their own they won't be needing any of the jobkeeper etc support.


I'd be more impressed if the WA Premier actually refused money from the federal government.
 
From afar it seems like Anna is a bit of a flip flopper but those closer to QLD will probably disagree

She had one presser with a rambling about September, but otherwise has been fairly consistent on July 10. Journo's seem to be able to trip her up in pressers quite well with ultimatums.

Lot of egg on face from Gladys/Scotty/Skynews/Murdoch however about singling out QLD, when NSW has implemented the same strategy now and QLD is managing its numbers well (<10 cases in the last 30 days). Deb and the LNP are fast losing their point of difference.
 
She had one presser with a rambling about September, but otherwise has been fairly consistent on July 10. Journo's seem to be able to trip her up in pressers quite well with ultimatums.

Lot of egg on face from Gladys/Scotty/Skynews/Murdoch however about singling out QLD, when NSW has implemented the same strategy now and QLD is managing its numbers well (<10 cases in the last 30 days). Deb and the LNP are fast losing their point of difference.
Ummm.....The current position re Vic/NSW border closure is that Vic asked for border closures and asked for NSW cooperation to enforce it.

Today Gladys indicates she is considering restrictions on NSW border towns to not leave or enter that area from other parts of the State.

But don’t let stated facts from politicians get in the way of a good headline.
 
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Ummm.....The current position re Vic/NSW border closure is that Vic asked for border closures and asked for NSW cooperation to enforce it.

Today Gladys indicates she is considering restrictions on NSW border towns to not leave or enter that area from other parts of the State.

But don’t let stated facts from politicians get in the way of a good headline.


Bit like (not really news) news.com reporting repeatedly that NSW had unilaterally decided to close the border with VIC when it had already been stated clearly there was a three way between the two premiers and Scomo.

Unfortunately the information being released by the media generally is becoming less and less trustworthy as the months go by. SBS is generally Ok but not perfect but currently my go to for more accurate than any of the others.

I try to listen to the live interviews now to hear what was actually said
 
Ummm.....The current position re Vic/NSW border closure is that Vic asked for border closures and asked for NSW cooperation to enforce it.

Today Gladys indicates she is considering restrictions on NSW border towns to not leave or enter that area from other parts of the State.

But don’t let stated facts from politicians get in the way of a good headline.

At the end of the day, the media release for reasoning for the closure from the NSW gov is:
- NSW residents health
- Protect jobs in NSW

Basically the 2 reasons the QLD gov. did those actions 3 months ago.

Quite frankly, after the Ruby Princess debacle I don't think anyone from the NSW government is fit to lecture another state on managing a pandemic. It was political points scoring pure and simple.
 
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ScoMo today when asked about the state border closures, given he's consistently banged on about state borders remaining open...

"What we have effectively done is Victoria has self-isolated... This is about Victoria isolating itself not other states shutting itself off to Victoria."

Que?

Probably not his finest response.
 
Bit like (not really news) news.com reporting repeatedly that NSW had unilaterally decided to close the border with VIC when it had already been stated clearly there was a three way between the two premiers and Scomo.

Unfortunately the information being released by the media generally is becoming less and less trustworthy as the months go by. SBS is generally Ok but not perfect but currently my go to for more accurate than any of the others.

I try to listen to the live interviews now to hear what was actually said
Agree, you at least get info unfiltered by the media if you hear the presser, although everything coming out of governments is filtered to some extent. For example the Vic Premier made a point of saying they were very close to the limit of being able to track & trace effectively, hence why they wanted to lock down not only the high risk areas but the state generally.
 
ScoMo today when asked about the state border closures, given he's consistently banged on about state borders remaining open...

"What we have effectively done is Victoria has self-isolated... This is about Victoria isolating itself not other states shutting itself off to Victoria."

Que?

Probably not his finest response.
But in effect the truth.
Vic asked for the border closure so this was the complete opposite to the QLD border closure.Premier Dan did so so that they could respond better to the crisis and try to prevent the rest of Australia being involved.
I have criticised the Vic Premier on a few things but I have great respect for this decision.
 
ScoMo today when asked about the state border closures, given he's consistently banged on about state borders remaining open...

"What we have effectively done is Victoria has self-isolated... This is about Victoria isolating itself not other states shutting itself off to Victoria."

Que?

Probably not his finest response.

Hmmm ... yes. Tas Premier just announced that from tonight, Victorians, or anyone who has been in Victoria except Tasmanian and exempt workers will not be allowed to enter Tasmania; MEL transit OK. They will be advised at melbourne departure points and turned around if they arrive by air or on the Spirit of Tasmania car ferry.
 
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I think Victoria has shown the volatility in covid numbers, and the ease of spreading.

In light of this, and going back to the origins of the thread, it looks like border closures are justified, and probably not unconstitutional.

While some experts might have looked at the raw numbers, others taking a more strategic view might have identified the potential for outbreaks, and rapid transmission. Hence borders remaining closed for a couple weeks longer at the time.
 
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