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:
It's very easy to see why Federation was needed. Really doesn't take long before the country divides along State boundaries. Unfortunately, Federation was based on there being a functional Federal Government to administer. The current situation is that the various State governments are doing what they see as best for their States. Nothing wrong with that, in the absence of central leadership, it's obviously their job.
Unfortunately, for the country as a whole, it's a mess. I've spent most of July travelling domestically and it's crazy. If you transit through Melbourne airport, have you been in Victoria? Well, depends which direction you were travelling...! Some places look at NSW hot spots, others condemn the entire State. WA are quietly minding their own business and who could blame them? Half the country with two sealed roads in; time to chill and eat your own crayfish!

Most of the power, and getting things done, resides with the states. The main power the federal government has comes from it holding the chequbook.
 
11 is up. Wow. So restrictive. Even ADF and federal politicians will have to quarantine just coming from Canberra.

Looks like the federation is no more. I guess we can give Queensland its share of the national debt and cut off Jobseeker / Jobkeeper to Queensland citizens now.
 
Most of the power, and getting things done, resides with the states. The main power the federal government has comes from it holding the chequbook.

Totally agree and the way it evolved made sense in the early days. However Covid has now been with us for six months and we still do not have a coherent national conversation occurring. The lack of this means that there is no basic strategy. A simple question would be are we suppressing or eliminating? Until that one is answered, there's no hope of opening the country up again.
 
It should be patently clear to almost everyone that elimination cannot happen.
The achievable level of suppression -v- the cost is arguable ; however the pollsters clearly believe there is overwhelming political support for the current actions.
 
A simple question would be are we suppressing or eliminating? Until that one is answered, there's no hope of opening the country up again.

I thought that had been made clear? We are going for elimination. Early on it was to flatten the curve, but that's changed.

The Federal Government has said that this is a health crisis. You have to fix that before the economy.
 
  • Like
Reactions: DC3
Mmm. And no road travel into Qld from a hotspot, other than a NSW border resident travelling across the border into the Qld zone. And if said border resident travels outside the border zone, no cross border travel for 14 days. There is a construction site extension in Qld but no equivalent in NSW. So if Joe Builder from Pottsville (border zone) goes to visit a site in Tugun (Qld), no worries, visits a site in Yatala, no worries if they only visit the site etc, but then visits a site in Byron (hotspot), no travelling back to either Tugun or Yatala. They didn’t think that one right through.

No more exemptions for transits through MEL it seems. Can only travel via air if coming from or through a hotspot, so looks like the Birdsville track will be busy.

this one is interesting among those who must quarantine.
A Consular Official or Diplomat passport of a foreign country

Cheers skip
 
Totally agree and the way it evolved made sense in the early days. However Covid has now been with us for six months and we still do not have a coherent national conversation occurring. The lack of this means that there is no basic strategy. A simple question would be are we suppressing or eliminating? Until that one is answered, there's no hope of opening the country up again.
I thought that had been made clear? We are going for elimination. Early on it was to flatten the curve, but that's changed.

The Federal Government has said that this is a health crisis. You have to fix that before the economy.
The PM stated recently the goal is zero community transmission (ie zero transmissions where there is no known source). This does not necessarily elimination. It would be ok for there to be transmissions that can be traced (ie known actual source/link). For the pendant, no saying they all come from the breach in Melbourne quarantine is not enough to be classed as local known transmission. It’s a tracking of from who specifically a person got Covid.
 
Totally agree and the way it evolved made sense in the early days. However Covid has now been with us for six months and we still do not have a coherent national conversation occurring. The lack of this means that there is no basic strategy. A simple question would be are we suppressing or eliminating? Until that one is answered, there's no hope of opening the country up again.

I agree - this is past the point of firefighting now, state and federal governments need to pull their finger out, sit down and agree and clearly articulate what the long term health and economic strategy is, define areas of responsibilities and where they should co-operate, gets states to agree to a plan (otherwise the firehose of money should be switched off to those who don't want to agree and they are welcome to secede). There is a growing body of evidence of what has worked and not worked in overseas jurisdictions, so no need to re-invent the wheel, Covid-19 dosen't care about which jurisdiction its in, its transmitted and propagated by known pathways with known degrees of success and failure throughout the world. No point doing a live experiment on the australian population and economy with 7 different states doing 7 different things because only one of them will be the most effective solution and by definition the other 6 will be less effective and wasteful.

When this is over, we all knew the federation didn't work pre-Covid, and it definitely is not working during Covid so no reason to think its going to work in any other future military/economic/health crisis, so good time to think about how many levels of government we need and which level does what, and then begin a discussion with the public about amending or completely rewriting the constitution as required.
 
The PM stated recently the goal is zero community transmission (ie zero transmissions where there is no known source). This does not necessarily elimination. It would be ok for there to be transmissions that can be traced (ie known actual source/link). For the pendant, no saying they all come from the breach in Melbourne quarantine is not enough to be classed as local known transmission. It’s a tracking of from who specifically a person got Covid.

I dunno. I think zero community transmission is pretty much similar to outright elimination? No point being able to trace the source if you have already infected half a dozen people and they start spreading it to aged care, people at work, etc?

We have seen how quickly this can get out of control.

I could see us accepting new cases, returning from overseas, but in terms of the community at large... doesn’t zero community transmission = total elimination?
 
I could see us accepting new cases, returning from overseas, but in terms of the community at large... doesn’t zero community transmission = total elimination?
I would have to agree. Zero community transmission would be effective elimination. Community transmission where the source is known is suppression and community transmission where the source is not known is out of control.
 
  • Like
Reactions: ja1
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

One of the things I find most fascinating about all this is the blame being pointed toward the Commonwealth government - for many things, most of which they are not at all responsible for. It's like people believe the state government is there to represent their interests, and nothing else like policy or service delivery.

Can't wait for the self-imposed boundaries to be torn down again. I miss traveling and I miss my family...if it's 100 years until the next pandemic (hopefully...), my wish is that responses are more unified across the nation instead of (for want of a better term) protectionist.

There's plenty of blame to go around and it seems fair the Commonwealth should have its appropriate share.

Self-imposed implies there is some other way of it being put into place (natural weather phenomenon ?). So it wasn't self-imposed so much as imposed by lack of any other tool to try to achieve a desired outcome.

I'm pretty sure there was some kind of auto detecting force field that only kept out infected people the premiers would have no problems at all with the free movement of people across borders..

Agree with the point about better coordination and communication but don't think it is possible to see things 'more unified' as the whole reality is that we have different states which will handle things differently.

It would be easier to think of the UN as a 'world government' (it's not) and that it could direct countries to do things (it can't) than to assume the Commonwealth can tell states what to do..

When you're in Australia you live in a state and your choices are about living within the framework of what happens in that state. When you leave Australia (travel, migration etc) you could then refer to Australia as a single entity but except for big picture things it doesn't work (e.g. we all drive on the same side of the road but we certainly don't have uniform road laws.. )
 
When is the Palmer case coming back to court? It appears the situation with state borders has escalated this week with patently ridiculous actions from QLD (denying medical access to people and claiming their hospitals are only for Queenslanders). This is NOT a competition to see how tough you are and how much misery you can inflict on other Australians using Federal government money.

The idea of proportional risk assessment has gone right out the window. If all you ever listen to is health advice, you'd lock yourself away permanently.

I never thought I'd agree with Clive, but here we are.
 
There are some ludicrous border decisions still in place. Don't get me wrong I think some are justified, but others.... (like why aren't WA, TAS etc open to the zero community transfer states?)

----------
'I feel hopeless': Coronavirus border ban stops visits to dying relatives





You think Alan?
------

Qantas boss Alan Joyce says some border closures 'make no medical sense'

Qantas boss Alan Joyce has pleaded for a set of national rules to guide when state borders are closed and reopened based on COVID-19 case numbers, saying current decisions appeared to be driven more by politics than medical evidence.

Qantas' domestic flying this month is at 20 per cent of pre-COVID levels due to most state borders remaining shut. Mr Joyce said the decision to block travel between states and territories outside of Victoria and NSW despite them being COVID-19 free or having very few active cases "doesn’t seem to make any medical sense".

 
Last edited:
When is the Palmer case coming back to court? It appears the situation with state borders has escalated this week with patently ridiculous actions from QLD (denying medical access to people and claiming their hospitals are only for Queenslanders) ...
I thought that the case was all about Clive. 🤭 I read something about September, but this will probably go on forever.
 
There are some ludicrous border decisions still in place. Don't get me wrong I think some are justified, but others.... (like why aren't WA, TAS, SA open to the zero community transfer states?)
SA is open to people coming from Tasmania, WA and the NT (We are heading to Darwin for the footy this weekend)
Unfortunately WA and Tasmania aren’t reciprocating our offer
 
  • Agree
Reactions: VPS
Qantas thinks border closures make no sense? Crew wouldn’t even turn on an oven because it was too unsafe. A single person flying in can start an outbreak, overrunning our hospitals and staff.

Sorry... but private enterprise doesn’t come at the expense of breaking the healthcare system... and more importantly, breaking the people that staff it :(
 
  • Like
Reactions: DC3
Farmers express frustration about unjustified border closures


The National Farmers Federation has written to Prime Minister Scott Morrison as well as state and territory leaders about border closures across the country, expressing concern about food supply.

Federation president Fiona Simson told Deborah Knight on 2GB this afternoon that the ongoing border closures were "frustrating", particularly with different states having different rules.

“The rules [are] almost ad hoc, arbitrary rules coming in that have no common sense, no risk management about the real risk that is being faced here," she said.
Ms Simson said agriculture in Australia does not operate on a state by state basis. "We are a national industry," she stressed, adding that, although she knows individual agriculture ministers have been working hard for a solution, it "needs to come from the top".

She said some of the suggestions provided by government officials to individual farmers – such as that farmers put sheep, beehives or hay on planes to get them interstate – were "ludicrous", adding that the industry was in "uncharted territory" by being forced to operate with unpredictable individual states.

 
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.

David Littleproud says states must find solutions to COVID-19 border issues at National Cabinet


Federal Agriculture Minister David Littleproud says state and territory leaders have to consult with one another and with their regional communities to find workable solutions to border issues.

In a tweeted statement, Mr Littleproud said ongoing border restrictions in large parts of Queensland, NSW, Victoria and SA, where there are no COVID-19 cases, are unfounded and a "major challenges on agricultural supply chains" as well as on the mental health of residents.

"Unless Premiers commit to work with one another to find workable solutions to state border issues for regional Australians then they risk states becoming irrelevant to modern Australia.

"Announcements made in recent days to fix cross-border issues have not been developed in proper partnership with regional communities or don't seem to be genuine in rectifying the serious impacts on many families, communities, workers and industries.

"What these city centric decisions fail to acknowledge is that modern regional Australia has outgrown state lines, and that many regions share strong economic, social and community links across borders."

 
The problem is that the Nats are pretty much lightweights in the coalition government. They never seem to really be able to make much headway, even with all the well-intentioned talk. They never get to call the shots.
 

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..

Recent Posts

Back
Top