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-   -   All borders to reopen. (https://www.pprune.org/australia-new-zealand-pacific/632861-all-borders-reopen.html)

neville_nobody 16th Jul 2021 06:13


please do yourself a favor and read the Australian Constitition
In relation to what specifically?

MickG0105 16th Jul 2021 06:33


Originally Posted by neville_nobody (Post 11079481)
In relation to what specifically?

Section 51 would be a good place to start. Anything that is not specifically listed in S.51 remains a state, rather than federal, matter. You'll note that health is not listed in S.51. Lockdowns, travel and gathering restrictions, mask mandates and the like are being dealt with by the states as directions under their respective public health acts. The High Court has already upheld the states' constitutional rights in that regard.

In any event, how would Federal legislation overriding state-based restrictions, like border closures or mask mandates, work? Those matters are being enforced, by and large, by state police. Are you going to send in the Army to stop the various state police enforcing state legislation?

theheadmaster 16th Jul 2021 06:37


Originally Posted by neville_nobody (Post 11079481)
In relation to what specifically?

I suspect it is a reference to section 51.
The federal parliament only has powers to pass legislation with regard to the specific powers granted in section 51. If it is not covered in section 51, it is the domain of the state governments.

Lead Balloon 16th Jul 2021 06:42

Do yourselves a favour and google “Nationhood Power in Australia”.

If a nationally consistent and effective response to a pandemic is not squarely within the Commonwealth’s executive power, I’ll cartwheel nude down Northbourne Avenue.

It’s just that Scotty wants to be able to spread the blame.

Lead Balloon 16th Jul 2021 07:04

And to anticipate the inevitable…

Do yourselves a favour and google ‘vertical fiscal balance in Australia’. The Commonwealth doesn’t need to use brute physical force against the states. It can (and does) use brute fiscal force.

The result of the limitations on state taxing power is that the Commonwealth collects the money through taxes, and distributes that money to states. The power to distribute funds to states, on conditions, is contained in Section 96 of the Australian Constitution. As a result, the sphere of Commonwealth power has expanded through dictating policy through conditional grants. This limits the autonomy and power of the states in controlling policy.”

If you’re going to advocate reading the Constitution, best to read the Constitution noting that most of the law is between the lines.

Turnleft080 16th Jul 2021 07:15

Section 51. Couldn't find the bit where it should read, we will never put the fear of god, or threaten any fear with all constituents.
Dan's eyes lit up with gold. So in today's press conference quote "a 5 day lockdown is better than a 5 week lockdown or even better than a 5 month lockdown".
Good job Commonwealth.

blubak 16th Jul 2021 07:28


Originally Posted by SOPS (Post 11079468)
Fast developing situations. As from midnight, you are not allowed to enter WA from Victoria AT ALL. Even if you are from WA. West Australians are been told to come home now!!!

I think itís time to stop all international arrivals until proper quarantine centres can be built. Every time we get a leak, itís from overseas. And international flight crew should be provided with facilities airside at every airport.

Int arrivals are definitely a problem however in their defence the leak is usually caused by unsuitable quarantine facilities or people working here such as transport drivers or removalists for example who decide the rules that apply to them dont suit them.
I can understand to some extent the govt saying the information they need to get from these people is crucial to contact tracing & fining them will make them lie etc but at some point the excuses have to stop & offenders need to be dealt the consequences.
These selfish few are throwing the livlihoods of millions of people into turmoil right now & unfortunately it will happen again when somebody else decides the rules arent for them🤦‍♂️

PoppaJo 16th Jul 2021 07:29


Originally Posted by SOPS (Post 11079468)

I think itís time to stop all international arrivals until proper quarantine centres can be built. Every time we get a leak, itís from overseas. And international flight crew should be provided with facilities airside at every airport.

The Limo driver who started all this was transporting a FedEx crew of 3. Not pax ops.

When Dan halted Pax flights, the cargo ops still continued. Risk still there. Canít stop those flights coming and going.

neville_nobody 16th Jul 2021 07:31


Section 51 would be a good place to start. Anything that is not specifically listed in S.51 remains a state, rather than federal, matter. You'll note that health is not listed in S.51. Lockdowns, travel and gathering restrictions, mask mandates and the like are being dealt with by the states as directions under their respective public health acts. The High Court has already upheld the states' constitutional rights in that regard.

In any event, how would Federal legislation overriding state-based restrictions, like border closures or mask mandates, work? Those matters are being enforced, by and large, by state police. Are you going to send in the Army to stop the various state police enforcing state legislation?
No I wasn't arguing that. The only thing they could do is attempt to get back control of the State Borders federally. That could help the airlines tremendously. I would agree that there is nothing the Feds can do about local State of Emergency Powers and enforcement it's a State matter.
From what I have read the Border issue is still a open question which hasn't really been contested and as usual 6 Lawyers have 8 opinions on the matter so it really depends on who you are asking. The current Federal Government hasn't really challenged the States over Border Control even though there are provisions in Section 117 & 92 that would suggest freedom of movement but these aren't absolute. Since noone is going to make a challenge I would suggest it will stand as is.

My original point is that really nothing can be done as all the States are running their own show hence the appearance that there is no leadership. As Lead Balloon suggests it may be a deliberate strategy.

Foxxster 16th Jul 2021 07:36


Originally Posted by PoppaJo (Post 11079507)
The Limo driver who started all this was transporting a FedEx crew of 3. Not pax ops.

When Dan halted Pax flights, the cargo ops still continued. Risk still there. Canít stop those flights coming and going.

not to mention the big Victorian outbreak was caused by guards having sex with people in quarantine. A dedicated quarantine station would not have stopped that either. Or the northern beaches outbreak.

the more you look into the practicality of a dedicated quarantine station, the more you see it faces the same or more issues than hotel quarantine. It only takes one person, like the limo driver who has set off this latest fiasco. And as said above that was from a freight crew. So that would not have been stopped either. In fact I donít think any of the outbreaks would have been stopped.

jrfsp 16th Jul 2021 07:40


Originally Posted by Foxxster (Post 11079515)
not to mention the big Victorian outbreak was caused by guards having sex with people in quarantine. A dedicated quarantine station would not have stopped that either. Or the northern beaches outbreak.

the more you look into the practicality of a dedicated quarantine station, the more you see it faces the same or more issues than hotel quarantine. It only takes one person, like the limo driver who has set off this latest fiasco. And as said above that was from a freight crew. So that would not have been stopped either. In fact I don’t think any of the outbreaks would have been stopped.

Yes, it still only needs one person to undo it all, but Howard Springs is the only place in the country not to have issues.....that in itself should be proof enough.

But yes the limo driver guy would still have happened....although the fedex crew is still only "the most likely theory"

Foxxster 16th Jul 2021 07:48


Originally Posted by jrfsp (Post 11079517)
Yes, it still only needs one person to undo it all, but Howard Springs is the only place in the country not to have issues.....that in itself should be proof enough.

But yes the limo driver guy would still have happened....although the fedex crew is still only "the most likely theory"

to date Howard springs has not had any issues. Let’s see how they go with the new staff and now taking larger numbers of international arrivals from highly infected countries.

MickG0105 16th Jul 2021 08:22


Originally Posted by Lead Balloon (Post 11079494)
Do yourselves a favour and google “Nationhood Power in Australia”.

The top search response is for the Australian Parliament House's Parliamentary Paper No 63 - Commonwealth Executive Power and Accountability Following Williams (No 2) (where Williams (No 2) is Williams v Commonwealth (No. 2) (2014) 252 CLR 416, as opposed to Williams v Commonwealth (2012) 248 CLR 156 (Williams (No. 1)).

Apart from the problem that "nationhood power" is essentially a legal construct that sits outside of the Constitution, there's prior High Court precedent, specifically Williams (Nos 1 and 2), that has found that the concept of a "nationhood power" does not trump the the division of legislative responsibilities spelled out in S.51. In the cases where the High Court has found that the "nationhood power" provides a legitimate basis for the Commonwealth exercising a power not otherwise articulated it has been largely related to S.61 - for example, Davis v Commonwealth (1988) 166 CLR 97 regards the Commonwealth's power to establish the Australian Bicentennial Authority.

Then there's the matter of what exactly is "nationhood power"? The High Court has found that it is an implied executive power derived, in part, from Australia’s national status. And the only reason that the concept of "nationhood power" gets a run is that when the Constitution Act was passed in 1901, there were certain external national powers that Australia could not at that time exercise. For example, at the time Australia could not declare war or enter treaties. It was only after the retreat of the Crown through things like the Imperial Conferences of 1926 and 1930, the passage of the Statute of Westminster and the corresponding Australian legislation, the Statute of Westminster (Adoption) Act, and finally the Australia Acts, that Australia had the opportunity to fully exercise external powers.

With regards to what exactly falls under "nationhood power", the High Court routinely relies on a definition provided by Justice Mason in Victoria v Commonwealth and Hayden (the AAP Case) (1975) 134 CLR 338; specifically he describd it as ‘a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation'. It's often referred to as 'peculiarly adapted' test although the 'which cannot otherwise be carried on' element is also important.

On the basis that a determination on how best to manage health matters had been made at the outset of federation, there's an argument that the 'peculiarly adapted' test was done and dusted 120 years ago - the determination was that the Commonwealth was not 'peculiarly adapted' to manage the nation's health, that would be an activity that would be 'otherwise be carried on for the benefit of the nation' by the states. The fact that that arrangement was tested by a pandemic less than two decades later could be seen as an argument in its favour.

Further, without having to invoke "nationhood power" to support a Federal power grab, there are a range of mechanisms to provide for a nationally coordinated and effective response to national health emergencies, things like the Australian Health Ministers’ Advisory Council, the Australian Health Protection Principal Committee, the Advisory Committee on Vaccines and the like.


Originally Posted by Lead Balloon (Post 11079494)
If a nationally consistent and effective response to a pandemic is not squarely within the Commonwealth’s executive power, I’ll cartwheel nude down Northbourne Avenue.

That'd be a matter for the High Court - just in case, you would probably want a summer hearing on the matter.

LapSap 16th Jul 2021 08:33


Originally Posted by jrfsp (Post 11079517)
Yes, it still only needs one person to undo it all, but Howard Springs is the only place in the country not to have issues.....that in itself should be proof enough.

But yes the limo driver guy would still have happened....although the fedex crew is still only "the most likely theory"

I seem to recall one woman scaling the fence at Howard Springs in the earlier part of the pandemic and started heading into Darwin.
Just one case... but as you say....

SHVC 16th Jul 2021 08:33

I cant wait for Monday, this will most certainly be a test of Liberal Vs Labor C-19 delta strain battle techniques, after all C-19 is more political than medical now.

Will Gladys lock down thats not a lock down because everyone is still out and about work? AMA already saying SY could face indefinite lock down but Gladys saying SY is in lock down so is it really a lock down because I can still go buy tracksuit pants at Rebal as they're essential, or, Dan quick snap sharp circuit breaker for 5 days where literally all of ML only leave home to buy food win this battle.


MickG0105 16th Jul 2021 09:00


Originally Posted by neville_nobody (Post 11079511)
From what I have read the Border issue is still a open question which hasn't really been contested and as usual 6 Lawyers have 8 opinions on the matter so it really depends on who you are asking. The current Federal Government hasn't really challenged the States over Border Control even though there are provisions in Section 117 & 92 that would suggest freedom of movement but these aren't absolute. Since noone is going to make a challenge I would suggest it will stand as is.

The s 92 argument was tested in Palmer v WA. All five High Court Justices found unanimously that the state's border closure did not infringe the constitutional limitation in s 92. So, on that front, the question is closed. No one has brought a s 117 case and on the basis that the High Court closed out on s 92, arguably the stronger case, it's unlikely that anyone will chance their arm there.

highflyer40 16th Jul 2021 09:14


Originally Posted by Tucknroll (Post 11078971)
Who is locked in their homes? I met a florist two days ago who thought they were an essential worker.

Ha! Here in the UK the first lockdown when schools were closed to all but essential children in a school of 180 kids there were 12 children who came to school because BOTH their parents were essential workers.

The last one in January when they closed schools they had 120 children still coming to school as the parents classed themselves as essential.

One runs a cafe. One is a photographer. One in marketing. It was just nuts, and nothing the school could do as the governments list of ďessential workersĒ was so broad and open to interpretation.

Foxxster 16th Jul 2021 09:50

Also in the uk.. I think we can forget international travel for 2021, and 2022.


ruprecht 16th Jul 2021 11:27


Originally Posted by highflyer40 (Post 11079572)
The last one in January when they closed schools they had 120 children still coming to school as the parents classed themselves as essential.

One runs a cafe. One is a photographer. One in marketing. It was just nuts, and nothing the school could do as the governments list of “essential workers” was so broad and open to interpretation.

Well, 2 out of those 3 sound like small businesses. Maybe, just maybe, they were quite happy with the first lockdown to “flatten the curve” because “we were all in this together” and watched their savings deplete while their friends who could work from home were minimally affected. Now they’re probably at the end of their tether, both emotionally and financially, and they figure they might as well try and make some money while they can.

There are only so many times you can ask the same sector of society to pay for the pandemic before they tell you to shove it.

Turnleft080 16th Jul 2021 12:17

That sector represents 12 million people. Half the country shut down. How much longer can that last?

One thing about the virus. Even if you record Zero cases, It's still out there. It hides it lurks it want's to spread i.e. sewage water. That's it's job.
The faster it spreads the faster it will dissipate. The longer you lockdown the longer the pandemic will continue. Tell that to the CHOs.
Weather we are 50/60/70/80% vaccinated it's still going to go ballistic and it must in order for it to go. The other variants
have just about infected as much as they can and are now dissipating. i.e. UK now have 98% Delta. USA have 58% Delta and climbing.
We are not hearing about the other variants because they have come and gone or going.




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