Okay – so I’m happy to believe that requiring people who enter States or Territories to self-isolate for 14 days isn’t actually “closing the border”. When we hear stories that the State borders are being “closed” that is short-hand for medical quarantining.

Anne Twomey had an excellent piece at The Conversation explaining why this isn’t a violation of s92 of the Australian Constitution.

Movement of people and goods across state borders in Australia is guaranteed by the Constitution. Section 92 of the Constitution says

trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

“Intercourse among the States” in this context, means the movement of people, goods and communications across state boundaries.

If movement of people across state borders must be absolutely free, can the states hinder or even prevent such movement during the coronavirus pandemic? The short answer is “yes”.

But – is this Constitutional?

“Go home,” is the message to non-Tasmanian residents from the state’s Premier, Peter Gutwein.

The island state is effectively expelling nonresidents who are not in self-isolation; they must leave all accommodation by 11.59pm Sunday and return interstate.

“Go home – I’m sorry to say that, but go home,” Mr Gutwein told visitors, via a press conference on Thursday morning.

“There will be some dislocation and difficult circumstances (from this edict) but I make no apology for working hard to keep Tasmanians safe.”

Can a State or Territory summarily expel an Australian citizen from its territory? I wouldn’t have thought so – let’s hear the argument.

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23 Responses to TasXit

  1. Robert Thomson

    I don’t understand the phrase ‘non-Tasmanian resident’ in this context. If you’re living in Tasmania then you don’t have any other residence to “go home” to.

  2. Sinclair Davidson

    I think they mean people on holidays.

  3. FelixKruell

    Interesting that the phrase ‘absolutely free’ was interpreted by the high court to mean something quite a bit less than ‘absolutely’ free…

  4. billie

    why would you read people’s opinions and give them any weight whatsoever?

    greg’s opinions are as substantial as anyones, his just get wider dispersion, so what?

    you might as well get climate advice from someone who does dress up and make believe for a living

  5. Zyconoclast

    “Intercourse among the States”

    Tasmania has been ‘intercoursing ‘ mainland taxpayers for decades.

  6. Sinclair Davidson

    billie – wrong thread.

  7. Jon Hanlon

    Well the High Court would naturally rule that any person of indigenous heritage would have a deep and meaningful connection to the soil of Tasmania and therefore be ineligible for any expulsion.

  8. Graham

    Section 92 of the Constitution has a fascinating history where the High Court had adopted many different theories over the years until it changed course in the 1990s in a case called Cole v Whitfield and adopted a new meaning of the section which was mainly to do with discriminatory trade treatment.

    The idea of the ‘intercourse’ of people between the States has not featured much in the cases.

    I think the Tasmanian action is probably unconstitutional as they cannot in effect expel from Tasmania residents of other States even on public health grounds. However no-one affected is likely to litigate the point rather than return to their home State or Territory.

    The High Court has effectively shut up shop to most new cases in the next few months anyway.

  9. C. Paul Barreira

    Early in 1919 New South Wales, Victoria and South Australia (at the least) all placed themselves in “quarantine”. When I saw this the other day (per Trove, where I sought something quite different), I took it as given that this choice of expression followed receipt of legal advice—but I do not know. People were vastly more recondite and literate a century ago than we are today.

    Oh, and they may have had masks.

  10. Tombell

    “A rapidly changing climate is now the new normal and we must learn from the recent lessons of the mainland bushfires and once again we must do more,” Gutwein said in his first press conference as premier.

    Why would anyone want to go to this economic sanitorium in the first place. Gutwein is a Lib – of course.

  11. Go home

    …and never come back, any of you mainlanders.

  12. Sydney Boy

    The same mendicant Tasmanian state? Methinks a redistribution of GST is required once this whole thing blows over.

  13. vlad

    I was taught that State parliaments have plenary power – ie they can enact anything whatsoever without any limitation.

    Commonwealth laws can be unconstitutional – not State laws.

    If a State law is in direct conflict with a Federal law, the Federal law prevails. This incidentally hands the Commonwealth a de facto power to repeal State legislation.

    On the face of it I don’t see why any State can’t shut its borders to the other States. It would be different if the Commonwealth attempted to bar free movement across those borders. You might also have to pass some laws for it to happen. We’re not seeing much of that at the moment, or that kind of “rule of law” thinking. I don’t think it’s too much to say that we’re living at the moment in a federation of dictatorships.

  14. nfw

    Have all the Chinese from the epicentre of this madness been told to go home? Oh no, that would be wascist! They’re okay because they are studying! Yeah right. Give us back our GST receipts.

  15. Bruce

    I remember my younger days, when “doing a Section 92” involved cross-border friskiness. “Social distance” was a challenge to be overcome, not a legal “obligation”.

    As someone with above-average wisdom once noted:

    “Liberty limited is Liberty lost”.

    Of course, in those days, someone abusing Liberty could end up at the end of a rope or in a small, smelly cell. As opposed to today, when trashing Liberty is “edgy” and “progressive”.

  16. Noodles Romanoff

    We should cut the tow rope and Tassie a gentle nudge over toward NZ.

  17. Pyrmonter

    On the strength of Street’s case, I’d have thought exclusion of the Queen’s subjects (perhaps not non-citizens) resident elsewhere prohibited by s 117, unless the HCt could qualify that wording by some sort of police or welfare power.

  18. BorisG

    However no-one affected is likely to litigate the point

    No but they can just stay put.

  19. BorisG

    I think they mean people on holidays.

    well this is not even clear. It is also unclear how they are going to enforce it. They can probably inspect hotels etc, but if I am holidaying and staying with friends, how will they find me?

  20. Herodotus

    Mr. Gluhwein should stick to building new dams and associated power stations. And reinstating forest industries. Get that pulp mill built so paper products can again find their way onto supermarket shelves.

  21. Angus Black

    A legalistic argument – Tasmania is not expelling non-residents, it is merely defining them out of the right to temporarily rent property which constitutes “self-isolation”.

    This leaves them with the right either to rent or purchase a residential abode and bunker down in it… or to leave.

  22. Angus Black

    Not bunker, hunker

    I’m getting tired of Steve Jobs interfering with my typing.

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