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

bigbadbyrnes

Member
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
 
Last edited:
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.
I’d disagree on your point of border closure being probably not unconstitutional.

NSW is considering an exclusion zone of the border towns, no one enters or leaves. So it might show a different way of dealing with a health issue without resorting to border closures.

Today, PM made the statement that Victoria is isolating, rather than other States not letting anyone from Victoria in. Though it’s partially a political point, I’m guessing the lawyer representing the Federal AG will make a similar point in the case against WA, which I understood is still progressing.

I think it was yesterday the Vic Premier said he asked for the border to close and sought NSW cooperation in enforcing it. I’m aware the decision to close the Vic/NSW border occurred during a meeting between the leaders of Australia, NSW and Victoria.

It will be interesting to get a High Court decision.
 
I think it was yesterday the Vic Premier said he asked for the border to close and sought NSW cooperation in enforcing it. I’m aware the decision to close the Vic/NSW border occurred during a meeting between the leaders of Australia, NSW and Victoria.

It will be interesting to get a High Court decision.

Certainly. It shouldn't need saying, but there's a difference between a state acting unilaterally, shutting everyone out vs. acting in ongoing discussion and co-operation with bordering state and federal govt. The more directed 'ring fencing' (to use a term) is a more suited strategy to dealing with localised outbreaks.

Put another way, locking down border towns and metro areas because of community transmission is better policy than preventing people travelling from Yulara to Meekatharra, or Mt Isa to Coober Pedy.

WA, for their part, aren't budging and given they have set an impossible bar (elimination of community transmission for an unbroken 6 weeks throughout the whole country) before they'll take down the border - so it looks like we'll get this at least heard in the High Court, although the decision may take a long time to be arrived at (in Cole v Whitfield, the most historically significant Section 92 decision, it was 11 months before a decision was handed down).
 
WA, for their part, aren't budging and given they have set an impossible bar (elimination of community transmission for an unbroken 6 weeks throughout the whole country) before they'll take down the border

What on earth is wrong with the WA Government (I'm not saying WA as a whole because I know the people don't necessarily believe this)
 
Sponsored Post

Struggling to use your Frequent Flyer Points?

Frequent Flyer Concierge takes the hard work out of finding award availability and redeeming your frequent flyer or credit card points for flights.

Using their expert knowledge and specialised tools, the Frequent Flyer Concierge team at Frequent Flyer Concierge will help you book a great trip that maximises the value for your points.

WA, for their part, aren't budging and given they have set an impossible bar (elimination of community transmission for an unbroken 6 weeks throughout the whole country) before they'll take down the border - so it looks like we'll get this at least heard in the High Court, although the decision may take a long time to be arrived at (in Cole v Whitfield, the most historically significant Section 92 decision, it was 11 months before a decision was handed down).
One can only hope it is an open and shut case, so we get a decision well before 11 months. Hopefully lol
 
One can only hope it is an open and shut case, so we get a decision well before 11 months. Hopefully lol
Nah. The lawyers want to spread it out further for the fees so they can buy more offshore islands before it's over so they can retire corvid free.
 
Nah. The lawyers want to spread it out further for the fees so they can buy more offshore islands before it's over so they can retire corvid free.
How would stringing it out help? Lol. Lawyers don’t get paid waiting on a decision (do they?) and the High Court is the final court - there are no appeals.
 
HFF said: "Today, PM made the statement that Victoria is isolating, rather than other States not letting anyone from Victoria in."

So there is a difference between going into isolation and a lockdown?
 
  • Haha
Reactions: DC3
Qld have announced today that all Victorians and those who have been in Vic in the past 14 days will be refused entry. This is a step up from the position taken last week due, in part, to larger numbers of Victorians than expected choosing to quarantine at their own expense before entering Qld. They are needing to preserve that capacity for returning Qlders and international arrivals, particularly in light of other states asking for capacity to be capped.
 
The Frequent Flyer Concierge team takes the hard work out of finding reward seat availability. Using their expert knowledge and specialised tools, they'll help you book a great trip that maximises the value for your points.

AFF Supporters can remove this and all advertisements

Qld have announced today that all Victorians and those who have been in Vic in the past 14 days will be refused entry. This is a step up from the position taken last week due, in part, to larger numbers of Victorians than expected choosing to quarantine at their own expense before entering Qld. They are needing to preserve that capacity for returning Qlders and international arrivals, particularly in light of other states asking for capacity to be capped.

I wonder where the log jam is because its certainly not hotel capacity....

It must be our public health workers / police - people that have to process which is where we can't cope - if capacity has already been reached that is a bit depressing.
 
I wonder where the log jam is because its certainly not hotel capacity....

It must be our public health workers / police - people that have to process which is where we can't cope - if capacity has already been reached that is a bit depressing.
Capacity is not the only driver of hotel supply. There is a reduced enthusiasm from the hotels to be involved in quarantining. For quite obvious reasons, you can't have a fraction of the hotel rooms at a particular venue available for quarantine. You can sell the room, but there is very little upsell or higher margin services that come with quarantined passengers - they don't hire the boardrooms/function centres, order high margin catering or expensive coughtails at the bar. It's now proving difficult for those hotels involved to extricate themselves from the quarantine program.

As a result, there isn't a long list of hotels clambering to sign up to provide more quarantine capacity. As domestic tourism and domestic business travel starts to emerge, the promise of selling rooms at a higher margin with more upsell potential is starting to trump the 'certainty' of quarantine business. Their cost side also scales with domestic demand much faster than the revenue side scales with quarantine. So right now, it is hotel capacity that is causing the issue.
 
HFF said: "Today, PM made the statement that Victoria is isolating, rather than other States not letting anyone from Victoria in."

So there is a difference between going into isolation and a lockdown?
No, but the PM used the word self-isolate or isolate in relation to the borders. There is always a danger if I was to substitute a similar word.

Also I believe Melbourne is in lockdown (ie cannot go out except for 4 reasons), not regional Victoria.

The only other restriction is regional Victorian residents crossing the border and as I said earlier it seems the Victorian Premier asked for it to occur (all three participants seem to have stated the same recollection).
 
Thanks HFF; my question was rhetorical.

The PM's logic about the difference between going into isolation and a lockdown seems confused.

The practical effects of both are similar.
 
Capacity is not the only driver of hotel supply. There is a reduced enthusiasm from the hotels to be involved in quarantining. For quite obvious reasons, you can't have a fraction of the hotel rooms at a particular venue available for quarantine. You can sell the room, but there is very little upsell or higher margin services that come with quarantined passengers - they don't hire the boardrooms/function centres, order high margin catering or expensive coughtails at the bar. It's now proving difficult for those hotels involved to extricate themselves from the quarantine program.

As a result, there isn't a long list of hotels clambering to sign up to provide more quarantine capacity. As domestic tourism and domestic business travel starts to emerge, the promise of selling rooms at a higher margin with more upsell potential is starting to trump the 'certainty' of quarantine business. Their cost side also scales with domestic demand much faster than the revenue side scales with quarantine. So right now, it is hotel capacity that is causing the issue.
Spoke to someone far more knowledgeable than me on this. In addition to above, if a hotel signed up to quarantine capacity, they'd have to cancel any public booking they have. They can't then take public bookings until after the last quarantined pax has left the hotel and a full deep clean is done. Most think it would then take a fair bit of time to build up occupancy to some 'normal' level, the cost of which they'd have to wear. Quarantined pax are unlikely to be repeat customers for the hotel, so there's no loyalty element at play. In fact, you're probably inconveniencing loyal customers by relocating them or cancelling bookings, so it's lose-lose. Nor is it likely to be a positive customer experience for those that are staying.

Furthermore, the criteria for a suitable facility is reasonably strict. Too many points of entry/exit to the hotel becomes unmanageable and difficult to control. Ability to monitor and control (if necessary) the movement of quarantined guests is important - eg you can't have people staying in "Villa" like accommodation. You need to be able to distribute meals without too great a risk of exposure. You need sufficient access to both airport and suitable hospital and trained health services.
 
Spoke to someone far more knowledgeable than me on this. In addition to above, if a hotel signed up to quarantine capacity, they'd have to cancel any public booking they have. They can't then take public bookings until after the last quarantined pax has left the hotel and a full deep clean is done.

It was reported by a journalist in quarantine that her hotel was - allegedly - still accepting walk-up bookings!
 
  • Haha
Reactions: DC3
... The PM's logic about the difference between going into isolation and a lockdown seems confused ....

Yes, isolation. 🤣

Humpty Dumpty smiled contemptuously. ... "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
 
Interesting no-ones mentioned Tassie. A state basically surviving by tourism,
Tasmania opening up July 24 still which is good

Not anymore, deferred for a few weeks.

Now that's a state defined by its tourism industry.
 

Enhance your AFF viewing experience!!

From just $6 we'll remove all advertisements so that you can enjoy a cleaner and uninterupted viewing experience.

And you'll be supporting us so that we can continue to provide this valuable resource :)


Sample AFF with no advertisements? More..
Back
Top