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

 

[HappyFlyerFamily]

Interesting no-ones mentioned Tassie. A state basically surviving by tourism,


Not anymore, deferred for a few weeks.

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

Well it would be interesting if Tas wasn’t added but they are not a named party in the HC case.

Maybe they might intervene like the Federal AG

 

[Anna]

Well it would be interesting if Tas wasn’t added but they are not a named party in the HC case.

Maybe they might intervene like the Federal AG

There are 3 HC cases but assuming you mean the WA one that is not currently on hold like the 2 Qld ones are, NT SA Tas and Vic have all intervened already as well as the Commonwealth.

 

[bigbadbyrnes]

WA's beer-drinking, pro-mullet Premier's border policy is so popular this t-shirt has sold out. But can it last?

Some West Australians believe if their state was a nation, it would be one of the most successful countries in the world. But how long can it remain sealed off from the rest of Australia before the economic and social cost becomes too high?

www.abc.net.au

"I think there's this underlying view that Western Australians have that we've had a raw deal from the other parts of Australia for such a long time that maybe we should do it alone," he said
"We are a long way from the eastern states, we're often ignored by federal governments of both persuasions.

"The Premier, to give him his due, has tapped into that sentiment."

The drama continues.

 

[Rembrandt]

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.

This is what I've been thinking. The longer these smaller population states keep on holding out opening to the larger states, the more their tourism industries suffer. There is a good argument in saying that we can't keep the JokKeeper rolling on for years to prop up their state economies.

Hypothetically, if Morrison were to cut JobKeeper tomorrow, the popularity of leaders in Tas, SA, WA, NT and QLD would dive as people realize their states need to open. JobKeeper is masking the true economic disaster.

Frankly, I hope I'm wrong but elimination in Vic and NSW will take very long time, if at all. Suppression may have to be the strategy whether other states like it or not. NSW and Vic make up roughly 60% of the national economy and population.

 

[drron]

But what if Australia produced a miracle and eliminated the virus?To keep it that way we would have to keep our external border shut for a very long time.I think that would make all governments unpopular.
Possibly Taiwan and NZ may have done so but their borders are closed too.

 

[MEL_Traveller]

Hypothetically, if Morrison were to cut JobKeeper tomorrow, the popularity of leaders in Tas, SA, WA, NT and QLD would dive as people realize their states need to open. JobKeeper is masking the true economic disaster.

I don't know where the evidence for this statement (bold text) is?

Just because the borders open doesn't mean people will flock to hotels, or seaworld, or to some cafe on the Gold Coast. Many people don't want to get on planes or trains to travel right now. Personally I wouldn't be ultra keen staying in a hotel room either, or riding the lifts. Eating out? Hmmm... I don't think so.

Trucks, goods and services can move between states. Is the option to travel really enough, without proof people will actually travel, to save QLD's economy?

 

[Rembrandt]

But what if Australia produced a miracle and eliminated the virus?To keep it that way we would have to keep our external border shut for a very long time.I think that would make all governments unpopular.
Possibly Taiwan and NZ may have done so but their borders are closed too.

I don't think too many have thought about this too far ahead of half way through next year. There is potential Covid-19 could cause havoc for many years until a vaccine that works.

All the work to eliminate the virus could easily become undone.

 

[Gremlin]

This is what I've been thinking. The longer these smaller population states keep on holding out opening to the larger states, the more their tourism industries suffer. There is a good argument in saying that we can't keep the JokKeeper rolling on for years to prop up their state economies.

Hypothetically, if Morrison were to cut JobKeeper tomorrow, the popularity of leaders in Tas, SA, WA, NT and QLD would dive as people realize their states need to open. JobKeeper is masking the true economic disaster.

Frankly, I hope I'm wrong but elimination in Vic and NSW will take very long time, if at all. Suppression may have to be the strategy whether other states like it or not. NSW and Vic make up roughly 60% of the national economy and population.

Tourism is only one industry. There are several industries far better off under an elimination strategy than suppression. As an example, I've spoken to several cafe and restaurant owners here in Brisbane who have told me that if Qld were to reintroduce restrictions such as have just been announced in NSW (following the Crossroads cluster), they will have no choice but to close their doors once JobKeeper is cut. Those restrictions placed on their capacity mean that their business model is no longer viable - they simply wouldn't do enough covers to meet their costs and the only thing keeping them above water is JobKeeper right now. They are absolutely terrified of a similar outbreak in Qld as their livelihoods are on the line.

And yet, as posted in the other thread, there was an infectious diseases expert on the radio the other day that said that those restrictions are not sufficient to ensure suppression of the disease in hotel/pub/club/cafe/restaurant environments. In other words, if we genuinely want suppression, then we need to implement much harsher long-term restrictions on these industries than what NSW is prepared to do, which will only economically devastate them further. Otherwise, if we accept some level of community transmission is acceptable, then its only a matter of time before a Vic-style second lockdown is inevitable in Sydney.

So the idea that it's only a decision between 'lives and livelihoods' is complete fallacy. Livelihoods are devastated with either strategy. The economy is smashed with either strategy. Right back at the start of this ScoMo said that the worst economic outcome would be if the economy is sawtoothed - open, closed, open, closed, open... That's exactly what Victoria now has. Without stronger action NSW is now simply waiting its turn. The rest of the country is hoping they can protect their borders sufficiently to avoid it.

 

[Pushka]

Just because the borders open doesn't mean people will flock to hotels, or seaworld, or to some cafe on the Gold Coast. Many people don't want to get on planes or trains to travel right now. Personally I wouldn't be ultra keen staying in a hotel room either, or riding the lifts. Eating out? Hmmm... I don't think so.

I agree in principle but likely those who fear travelling are not those who display risk behaviours in spreading the disease. In reality those are the people we would prefer to travel because they wont become part of the problem.

In SA we have pretty much returned to normal. Met a group of friends last night for dinner and it was business as usual for us. We are a group of travellers but I know we are the only ones who are already booked to fly on a plane. The others - a couple wont fly internationally again until there is a vaccine. And these people love to travel. They dont have family overseas anyway. Likely a contributing factor. The other couples have children in the US and we in the UK.

 

[jakeseven7]

WA's beer-drinking, pro-mullet Premier's border policy is so popular this t-shirt has sold out. But can it last?

Some West Australians believe if their state was a nation, it would be one of the most successful countries in the world. But how long can it remain sealed off from the rest of Australia before the economic and social cost becomes too high?

www.abc.net.au

"I think there's this underlying view that Western Australians have that we've had a raw deal from the other parts of Australia for such a long time that maybe we should do it alone," he said
"We are a long way from the eastern states, we're often ignored by federal governments of both persuasions.

"The Premier, to give him his due, has tapped into that sentiment."

The drama continues.

I agree he is playing into some low brow populist sentiment, like some other dubious leaders around the world but unfortunately the general public do not have a grasp on how intralinked all the ‘state’ economies are - we are one country it’s really a national economy and if the big two states catch a cold the rest of us will pay too. Including the smaller states.

They just haven’t felt it yet because a huge portion of the economy is literally on life support right now.

 

[drron]

I don't know where the evidence for this statement (bold text) is?

Just because the borders open doesn't mean people will flock to hotels, or seaworld, or to some cafe on the Gold Coast. Many people don't want to get on planes or trains to travel right now. Personally I wouldn't be ultra keen staying in a hotel room either, or riding the lifts. Eating out? Hmmm... I don't think so.

Trucks, goods and services can move between states. Is the option to travel really enough, without proof people will actually travel, to save QLD's economy?

You should watch a QLD news story.Accommodation in Tweed Heads is packed with Victorian grey nomads waiting until their 14 days are up since leaving Victoria so they can cross into QLD.Northern NSW has been doing well for a while now.

Gold Coast tourism 'on its knees' as southern tourists thwarted by border closure

Glitter Strip accommodation remains empty as tourists spend money just south of border, with some Tweed resorts receiving hundreds of bookings since the easing of NSW's travel restrictions was announced.

www.abc.net.au

In the 2 weeks from July 3 there were 600000 border entry applications received.One Victorian was so desperate that he tried 3 times to cross the border.On the third attempt he was fined $4003.The QLD police do check up on you.

Sacred practice enshrined in new Qld bill

Sacred child-rearing customs practised by Torres Strait Islander families for generations would be legally recognised under a Queensland government bill.

au.news.yahoo.com

 

[MEL_Traveller]

I agree in principle but likely those who fear travelling are not those who display risk behaviours in spreading the disease. In reality those are the people we would prefer to travel because they wont become part of the problem.

In SA we have pretty much returned to normal. Met a group of friends last night for dinner and it was business as usual for us. We are a group of travellers but I know we are the only ones who are already booked to fly on a plane. The others - a couple wont fly internationally again until there is a vaccine. And these people love to travel. They dont have family overseas anyway. Likely a contributing factor. The other couples have children in the US and we in the UK.

Overseas is perhaps a different issue? I think anyone should be allowed to travel overseas as long as they are willing to pay for quarantine on returning to Australia (none of this 'business people are so important they deserve special exemptions' rubbish!!)

I guess the same for interstate... but realistically, how many are going to travel to QLD if they have to spend 14 days in quarantine, and another 14 days returning to their home state?

I don't think borders open = totally free from all restrictions?

 

[cove]

Fat Fs High Court challenge has been deferred. He has just been charged with company misdeeds but ASICs record is poor at gaining convictions. Having huge money supply tends to keep misdeeds at bay.

 

[Pushka]

Overseas is perhaps a different issue? I think anyone should be allowed to travel overseas as long as they are willing to pay for quarantine on returning to Australia (none of this 'business people are so important they deserve special exemptions' rubbish!!)

I guess the same for interstate... but realistically, how many are going to travel to QLD if they have to spend 14 days in quarantine, and another 14 days returning to their home state?

I don't think borders open = totally free from all restrictions?

Thankfully in SA and from SA there is no issue travelling to Qld. Interestingly SA govt calls a transit at NSW/Mel airport the same as staying there. Qld doesnt. For that reason Im happy to fly JQ direct to Cairns which even if rerouted, allows us (as of today anyway) quarantine free period in QLD. On return Ive rebooked onto Qantas flying Cairns - Brisbane - Adelaide.

 

[MEL_Traveller]

Ok, that's SA. But for folk in other states it is not so easy

 

[Pushka]

Ok, that's SA. But for folk in other states it is not so easy

And it can change in a heartbeat as well.

 

[drron]

Ok, that's SA. But for folk in other states it is not so easy

Though before Peter Gutwein backflipped on opening the Tassie border both JQ and VA scheduled HBA-BNE flights.
QF have always had PER-BNE flights.

 

[DC3]

Thankfully in SA and from SA there is no issue travelling to Qld. Interestingly SA govt calls a transit at NSW/Mel airport the same as staying there. Qld doesnt. For that reason Im happy to fly JQ direct to Cairns which even if rerouted, allows us (as of today anyway) quarantine free period in QLD. On return Ive rebooked onto Qantas flying Cairns - Brisbane - Adelaide.

You know that Rows 1-3 on JQ are nothing like on QF.

 

[Pushka]

You know that Rows 1-3 on JQ are nothing like on QF.

In row 8!

 

[p--and--t]

In row 8!

From experience, I guarantee you will survive (just haha)