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

 

[antycbr]

Or the high court, depending on your point of view in regards to the constitution.

Would also be useful if the State Governments published their medical advice and rules for imposing and opening borders. If I was a large business owner I'd be doing a FOI on all of it given the cost to their business.

I suspect such advice does not exist in a format that is actually defensible, therefore there is no basis for some of the border closures.

 

[MEL_Traveller]

Or the high court, depending on your point of view in regards to the constitution.

From my reading of the fact finding at the Federal court, it appears s92 is safe in this case? Border closures were found to be the best way to manage the risk.

 

[antycbr]

From my reading of the fact finding at the Federal court, it appears s92 is safe in this case? Border closures were found to be the best way to manage the risk.

The High Court has not ruled about the constitutionality of the matter at this stage.

 

[Must...Fly!]

From my reading of the fact finding at the Federal court, it appears s92 is safe in this case? Border closures were found to be the best way to manage the risk.

If we kept everyone at home for 24 hours a day 7 days a week, we would have almost no crime and zero car accidents. It would be the best way to reduce the risk of those events.

Somehow I doubt we would agree to it. And that's why we have police, traffic lights, seatbelts, air bags, ambulances, etc. To mitigate the risk - because even if there is a solution to the problem, said solution creates many times more problems to solve.

 

[MEL_Traveller]

The High Court has not ruled about the constitutionality of the matter at this stage.

It would be surprising if the HC takes the facts - that border closures are the best response - but then says, 'no' you can't close them.

If we kept everyone at home for 24 hours a day 7 days a week, we would have almost no crime and zero car accidents. It would be the best way to reduce the risk of those events.

Somehow I doubt we would agree to it. And that's why we have police, traffic lights, seatbelts, air bags, ambulances, etc. To mitigate the risk - because even if there is a solution to the problem, said solution creates many times more problems to solve.

True. But we are in the middle of a state of emergency/disaster. And a world-wide pandemic. This isn't ordinary times.

Without a vaccine or treatment, other options will need to be looked at. But that's not the case today.

 

[antycbr]

Long format article in The Australian today highlighting the borders by seasoned journalist Paul Kelly.

When Paul Kelly writes, politicians listen.

"The iconic statement of the times was the remark last week by Queensland Premier Annastacia Palaszczuk: “People living in NSW have NSW hospitals. In Queensland we have Queensland hospitals for our people.” There should be no place for such protectionist and contemptible remarks by a prominent leader. "

" The premiers think they are political heroes, defending their poor subjects. But let’s state the realities: the border closures are overkill when other measures could be used; they reflect a political decision taken by premiers that coincide with their electoral self-interest; they damage Australia as a constitutional and economic entity; and they represent a serious regression in our national capacity to manage a crisis when our success, a few months ago, was conspicuous. "

 

[Must...Fly!]

It would be surprising if the HC takes the facts - that border closures are the best response - but then says, 'no' you can't close them.




True. But we are in the middle of a state of emergency/disaster. And a world-wide pandemic. This isn't ordinary times.

Without a vaccine or treatment, other options will need to be looked at. But that's not the case today.

The high court is the ultimate gatekeeper of the constitution. Personally don't think the court should concern itself with the matters of the day, simply that if what is legislated is allowed.

As I've said in the past here, if border closures are against the constitution then states will have to find other (note: legal) ways to reach their policy goals.

How in 5 months of closures many of our state and territory governments are seemingly no closer to being able to safely allow travel within our own country is a damning reflection.

What have they been up to this whole time? Apart from beating electioneering drums - and borrowing stacks of money, of course.

 

[MEL_Traveller]

What have they been up to this whole time?

I think we all have the same information here. We know there are dozens of scientists working on either vaccines, other preventative medicines, or treatments. Five months is a tiny amount of time to expect that work to be completed.

There was a huge amount of reactive work to be done to protect health and the health system. Longer term planning has to be slotted between that.

 

[CMA222]

Is Australia's travel ban a breach of International Human Rights Law ?

Is Australia’s travel ban a breach of international human rights law?

The frustrations felt by Australians unable to travel internationally, as well as the lack of meaningful enforcement options with respect to the right to leave, lend weight to calls for Australia to adopt a Bill of Rights at the federal level, writes Dr Kate Ogg.

www.lawyersweekly.com.au

all very hypothetical as the Australian Government has previously ignored any ruling as 'it does not accept the HRC's views are binding'.

 

[Must...Fly!]

I think we all have the same information here. We know there are dozens of scientists working on either vaccines, other preventative medicines, or treatments. Five months is a tiny amount of time to expect that work to be completed.

There was a huge amount of reactive work to be done to protect health and the health system. Longer term planning has to be slotted between that.

If there's any evidence of the latter then I'm yet to find it. All McGowan in WA has mentioned lately is March 2021 or later - election in March, by the way.

International travel is underway in many parts of the world - USA has (largely) free travel between states. EU (largely) free travel between and within countries.

When you compare us with the rest of the world we are lagging badly behind when it comes to how our own governments are treating Australians. I am increasingly saddened and frustrated by the lack of forward planning and goal to allow free movement within our own borders.

 

[StevoQFtraveller]

I like what Mr McGowan has done. But enough is enough. I don't see any reason why a west aussie should not be able to travel to SA or NT

 

[antycbr]

I like what Mr McGowan has done. But enough is enough. I don't see any reason why a west aussie should not be able to travel to SA or NT

Take jobkeeper out of the equation and see how popular Mark McGowan is...

 

[jakeseven7]

I agree we should keep the Victorian border closed. The rest of us can get on with our lives at the level of infection occurring in other states and territories.

Closing the Queensland border didn't stop the small handful of infections jumping the border anyway...

It won’t be too far away (hopefully) that Victoria reaches NSW levels of cases 5-25 range per day and then I suspect we will see NSW and VIC opening up to each other at a minimum.

I just hope a more rational and logical POST ELECTION mode Qld will also follow suit and let’s be honest if the big 3 states (plus ACT bundled in for free) can make it work that’s a huge % of Australia’s economic activity and population back in some form of ‘covid normal’ until about effective treatment arrives.

Tasmania will have some big decisions to make over the next couple of months they are going to be economically ruined as jobkeeper winds back, they are so reliant on Victoria and tourism and spring is budding.....

 

[HappyFlyerFamily]

True. But we are in the middle of a state of emergency/disaster. And a world-wide pandemic. This isn't ordinary times.

To be pedantic, apparently in NSW there is no state of emergency or disaster.

NSW wonders what this state of emergency fuss is all about
The New South Wales Government doesn't even need to declare a state of emergency to deal with a public health issue.
Brad Hazzard automatically gets broad public health powers.
The state's Health Minister, Brad Hazzard, can make any direction he needs to reduce or remove the risk of COVID-19 in an area, to segregate or isolate people, or to block access to any part of NSW.

Other authorised officers can do things such as:

• Enter and inspect any premises relevant to public health
• Take samples, photos or videos and inspect documents that might relate to the pandemic
• Compel anyone to answer questions relating to public health

What powers do authorities have under a coronavirus state of emergency?

Victoria's state of emergency may be extended by 12 months. You might be surprised how much power some state governments have over you during the coronavirus crisis.

www.abc.net.au

I like what Mr McGowan has done. But enough is enough. I don't see any reason why a west aussie should not be able to travel to SA or NT

I think the standard reasoning given is because there is a risk.

Post automatically merged: Aug 26, 2020

It won’t be too far away (hopefully) that Victoria reaches NSW levels of cases 5-25 range per day and then I suspect we will see NSW and VIC opening up to each other at a minimum.

just in case you missed the news, they have announced increased border bubble type movements.

 

[jakeseven7]

just in case you missed the news, they have announced increased border bubble type movements.

Its a good bandaid for a broken leg, will help some agribusiness and border communities which is great though.

 

[MEL_Traveller]

Interesting about NSW not having a state of emergency... I wonder the basis that they can restrict business and gatherings, etc?

 

[woodborer]

Interesting about NSW not having a state of emergency... I wonder the basis that they can restrict business and gatherings, etc?

Public Health Powers under the Public Health Act (2010) NSW.

https://justiceconnect.org.au/resources/how-the-new-south-wales-governments-emergency-restrictions-on-covid-19-work/

 

[HappyFlyerFamily]

Would also be useful if the State Governments published their medical advice and rules for imposing and opening borders. If I was a large business owner I'd be doing a FOI on all of it given the cost to their business.

I suspect such advice does not exist in a format that is actually defensible, therefore there is no basis for some of the border closures.

I‘ve only heard that the Victorian government could be Sued for an unreasonable lockdown. Haven’t heard any reference to the legalities of suing because of a border closure, apart from Mr Palmer trying to parlay his current s92 action.

 

[MEL_Traveller]

I‘ve only heard that the Victorian government could be Sued for an unreasonable lockdown. Haven’t heard any reference to the legalities of suing because of a border closure, apart from Mr Palmer trying to parlay his current s92 action.

I think the owner of Jim's mowing said they had a barrister advise they could sue the Vic government for closing them down. But I guess the Vic govt will have their own barrister telling them the complete opposite!

Public Health Powers under the Public Health Act (2010) NSW.

https://justiceconnect.org.au/resources/how-the-new-south-wales-governments-emergency-restrictions-on-covid-19-work/

Cheers!

 

[OATEK]

I think the owner of Jim's mowing said they had a barrister advise they could sue the Vic government for closing them down. But I guess the Vic govt will have their own barrister telling them the complete opposite!



Cheers!

The basis for the proposed action by Jim's mowing is that private mowing contractors are forbidden to work, but public sector "mowers" (eg Council staff) are free to out and cut the grass.