COVID and the Constitution - Crossing State borders
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- Опубліковано 11 вер 2024
- During the COVID-19 pandemic, some Australian States shut their borders, preventing cross-border movement, except for people falling within particular exceptions. This meant that some States were COVID-free for long periods.
Some argued that this was constitutionally invalid, because section 92 of the Constitution says that movement among the States shall be 'absolutely free'. This video explains section 92 in its context, both within the text of the Constitution and as discussed by the framers of the Constitution during the Constitutional Conventions of the 1890s. It follows this interpretation through the High Court's jurisprudence, and discusses restrictions on border crossing during two pandemics - the Spanish flu of 1919 and COVID-19 in 2020. It explains why the closure of the Western Australian border was held valid by the High Court in 2021.
What part of 'absolutely free' do you not understand? BTW, every word in the constitution was placed there with great thought and deliberation. Lawyers have from the get go subverted the constitution.
Interestingly, Section 76(i), grants the High Court "original jurisdiction" in determining its interpretation, and consequentially, its jurisprudence is what ultimately provides the meaning of "absolutely free". The provision appears in Chapter IV "Finance and Trade", and the title of section 92 specifically states "Trade within the Commonwealth to be free". In Cole v Whitfield [1988] HCA 18, the High Court unanimously held that the purpose of section 92 was to "create a free trade area throughout the Commonwealth".
Cases prior to Cole v Whitfield admitted the validity of laws for the protection of a State against the introduction into the State of animal (Ex parte Nelson (1928) and plant (Tasmania v Victoria (1935) diseases, noxious drugs (Commonwealth v Bank of NSW (1950) gambling materials and pornography (R. v. Connare; Ex parte Wawn (1939) Mansell v. Beck (1956). The Privy Council said that permissible regulation of trade might take the form "of excluding from passage across the frontier of a State creatures or things calculated to injure its citizens". (See also Fergusson v. Stevenson (1951)
The drafters of the Constitution also held this position. For example, see the views of Inglis Clark in "Studies in Australian Constitutional Law" (1901), at page 146, Harrison Moore in "The Constitution of the Commonwealth of Australia" (1910), at page 571, and in Quick and Garran's commentary, at pages 850-853, where the authors draw on US jurisprudence relating to obstructions to inter-state commerce.
Perhaps watch the video and you will see specific reference to what the people who wrote the Constitution said that they intended, as part of their great thought and deliberation.
How was closing borders (as well as lockdowns, closing businesses, etc) ever a “proportional” response to the risk posed by COVID when for example total deaths from COVID for those aged under 70 without a pre-existing medical condition has been effectively ZERO (since 2020 of the 1209 deaths of those aged under 70 nearly all had a pre-existing medical condition). A more “proportional” and effective measure would have been to focus resources solely on isolating and protecting those actually vulnerable rather than imposing draconian and authoritarian measures (incl. curfews in Victoria for goodness sake!) on the whole community. Yet judges considered such measures were proportional - go figure!
Judges made their assessment upon the basis of the medical evidence put to them at the time. If you want to make an informed criticism of the judgment that they made, you would have to go through the transcript of expert evidence given to Justice Rangiah and the findings he made about it, which was then relied upon by the High Court in its assessment.
@@constitutionalclarion1901 Where are the transcripts of such hearings kept and are they available to the public to read? Some years ago, I went to the County Court Vic library to read a case and the librarian attendant refused access. I had not even mentioned the name of the case. Though I don't remember the name of the case. I wanted to read the transcript as well. A criminal matter heard by Judge Duncan Allen who is still at the bench.
@@keithad6485 High Court transcripts are publicly available here: www.austlii.edu.au/cgi-bin/viewdb/au/cases/cth/HCATrans/. With other courts, its trickier. Some don't have transcripts at all, because they are expensive. It depends on the particular proceeding. You would have to check with the registry of the relevant court.
In relation to controversial cases, you might find media reports from journalists in court are useful, and the judgment will also often quote from the evidence given.
With regards to the most recent border closures: Although the "proportionality" test may have been established on paper, it seems a rather large proportion of Australians tested the proportinality in reality and found it rather lackcking, especially after the initial few months. With regard to Victoria specificly, it certainly seems disproportionate to perpetually and indefinitely quarantine all healthy people on the basis of remote risk.
The test applies to the proportionality of the relevant law. Victoria's emergency laws were not tested in the High Court to see whether or not they met the proportionality test, so we still don't know what a court would have found.
Trapping Victorian residents on the NSW side of the border on 1/1/21 with only about 7 hours notice was hardly proportionate. I found out at 3.30pm that the Vic border was closing and I was in northern NSW. It became a balancing act of which laws to follow and which to bend, to reach the border before it shut. My fuel stops were like Formula 1 pit stops. 🏎😂
@@davidunwin7868 There were still ways of crossing the border, One Victorian I heard about, got to Albury, found the roads into Victoria with police manning road blocks. He simply walked back into Albury, located the Melb Sydney railline and walked across the railbridges across the Murray, got on the train at Wodonga and travelled back home, no one was there to stop him.
Anyone that lived in the Coolangatta and Tweed area, the border restrictions were a bloody nightmare during Covid to say the least. Even worse was the town of Mungindi, it was cruelely cut in half. People's mental health was never considered.
Basic democratic freedoms and civil liberties weren't even CONSIDERED, as shown in a recent Queensland Supreme Court case.
The response was clearly heavily politicised. BLM protesters who openly stated their intentions to ignore government edicts were treated with bend-over-backwards consideration, while those protesting the lockdowns themselves, and other illiberal government measures were treated much more harshly.
Governments vied with one another to publicly demonstrate how "tough" they were prepared to be..to "keep everyone safe".. while Victoria, with one the most draconian responses in the world, reportedly had more Covid-related deaths than Queensland and NSW combined.
Public servant GPs were regularly trotted out with their political fellow travellers while experienced epidemiologists were ignored. "Our" ABC's resident "experts" proudly did their bit to "keep up the skeer" ( as Confederate military leader Nathan Bedford Forrest liked to put it)
Many commentators, including self - described "conservatives" in commercial media, failed to defend democratic freedoms and even attacked those who attempted to do so. Now, they're reluctant to acknowledge their previous behaviour.
People should read Rebecca Weisser's recent article: Choosing China over Sweden.
Interestingly rhe SA govt included a bubble around Broken Hill within SA for border closure purposes. It work well as health services and practically all services are delivered from SA.
It broke down during the Delta wave sadly when there were cases in the indigenoisl communities and within the town itself when SA was COVID free so it had to be closed.
@@franktully3065 And the Constitution (via the High Court) protected the people from themselves...for the greater good, and this was generally before a vaccine was available, so there was little else that could be implemented to prevent the spread of Covid.
Wallangarra too
@@t-dog8528 Yup, the town where Qld and NSW couldn't even agree on the local railway station roof, let alone the rail gauges in usage then.
Snakes are not poisonous but are venomous.
Good point! Thanks - I'll be more careful next time.
I'm absolutely LOVING these videos. I've been linking to them from my website, because people are more inclined to watch videos rather than read the case law text provided. So far this one, the red/green constitution, local government constitutionality and your Auspol Explained interview divided up into relevant pieces and added to the individual subject articles. Looking forward to more!
Glad they are helpful.
@@constitutionalclarion1901 ua-cam.com/video/1dY4YKAOizs/v-deo.html
In other words as Humpty Dumpty said " It means just what I chose it to mean - no more no less " to suite the political agenda of the various dictators , sorry State Premiers .
No - the video clearly traces the meaning all the way through from those who drafted the provision in the 1890s to the Palmer case. Try watching it.
@@constitutionalclarion1901 No - There are the actual words and then , no doubt too suite various ends or needs of the day , there are the "interpretations " by the so called learned legal profession .
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean - neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master--that’s all.”
@@grosvenorclub It is the High Court that is granted power by the Constitution to interpret the Constitution - not you.
@ constitutionalclarion1901 does that include yourself also?
I saw your lecture on the 9th of June in the State Parliament I would have loved to attend, is there a way that I can find out when and where you do lectures for the general public?
No - it's a pretty random thing. But I do often speak at the NSW Parliament, so if you subscribe to their talk announcements, you will find my pop up usually a couple of times a year.
@@constitutionalclarion1901 very Good to know :)
PJ Dunning QC (Clive Palmer and his companies legal representation), in Palmer v Western Australia led the High Court to believe that he was challenging the validity of the Act "The Emergency Management Act" W.A. 2005 for contravention of section 92 of the Constitution. Section 92 of the constitution like all of our constitutional guarantees act as a restraint on ;legislative powers and not upon executive actions such as directions. however, at hearing when questioned by Kiefel CJ to clarify whether he was still challenging the validity of the Act, PJ Dunning did a backflip and changed the question of law and challenged the directions only. In so doing, he assumes the Act is valid and therefore section 92 has zero chance of invalidating the Act and therefore any directions made under it...
It actually covers both. The question (and answers) of the decision was, quote:
"Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?"
"On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.
The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court."
I notice however, that your comment is a verbatim copy and paste from Darren Dickson's "Constitutional Watch" website, a well-known pseudolaw adherent that was involved with fellow pseudolaw adherents' Rodney Culleton and Mike Palmer of "Know Your Rights Group", each of which are serial litigation failures and their words need to be read with a lot of salt.
Thanks to @auspseudolaw for explaining this first. Yes, there is some misinformation spread around about the Palmer case and what was decided. Best to look at the actual case, rather than relying on the dubious comments peddled on the internet.
@@constitutionalclarion1901 It's a very common habit for pseudolaw adherents to pick out pieces of a HCA transcript in isolation from the decision and run with it. A good example is the long-standing "Australian Tax Office is not a legal entity and therefore cannot impose taxes" concept that originated with lawyers David Fitzgibbon and Wayne Levick of the "Institute of Taxation Research" in the late 1990's. They always cite Moeliker v Chapman [2000] HCATrans 242, in which it was agreed that the Australian Tax Office does not have legal personality, but omit the actual decision itself in the case, Dooney v Henry [2000] HCA 44 which held as relevant, because it was the Commissioner of Taxation that brought proceedings, and not the Australian Tax Office.
@@auspseudolaw Thanks for the heads up, found the the website, I will check it out, appears lots of info, I like to see all sides
I found the Constitutional Clarion recently when a collaboration Video came up in my recommended list.
Delighted it did. It's like finding a new author and a rich vein of knowledge and/or entertainment.
I have had both.
Thank you! I have in the last week watched many.
I love the intro as well..
I was aware of section 92 but was ignorant of the context and watched events unfold during COiVID somewhat bewildered, but pragmatically happy at what happened.
Thanks. Welcome aboard! There's lots more to come.
While you are on the subject of Western Australia I would love to hear your opinion on the manner in which our state government has pushed through the new firearms legislation despite minimal public consultation, significant public protest and political personal agendas. The fact that the police have begun using the new legislation before the act has passed the upper house and the both houses are effectively unopposed. Help!
The states retained powers over health, which were not ceded to the Commonwealth in the Constitution.
So the states kept the power to close borders temporarily for health protection.
The critics of the closures are just wrong!
I am old enough to remember being regularly baled up at the Victorian border and searched for fruit. Generally considered a reflection on snooty Victorian's looking down on their tawdry Northern neighbours.
However the underlying stupidity of the covid "rabbit fence with rabbits on both sides" policy was obvious to all but the law, the provincial minded State politicians, and their power drunk health bureaucrats. If nothing else we learned that legal does not necessarily mean rational or sensible.
PS. The High Court could hardly defy government actions taken in a state of emergency declared on the basis of advice from the medical bureaucrats. Lawyers are not doctors. That the medical bureaucracy might have been grossly exaggerating the dangers and promoting a totally dysfunctional policy for dealing with the matter was completely beyond the courts at that time and apparently remain so.
I lived in the country, not too far from the NSW/Victoria border, and my childhood involved a lot of 'quick, eat all the apples before we get to the border'. But because we came from a fruit-growing region, which would be devastated by the spread of disease, we respected and appreciated the rules. Quarantine rules that appear to be mindless bureaucracy to some, are absolutely crucial to others.
The Governments response to SARS-Cov-2 was abhorrent and putrid. The legal backlash is still in process.
Gee pandemics are annoying
I would have to say that Cvd exposed the truth of the lack of "rights" Australians actually have; or at least the definition of what the word "right" means in this context. It matters not how you reason it out, a right that can be withdrawn is simply an entitlement gifted by government, that they can, and will, withdraw, by force, whenever they feel the need arises.
As I said in the video, no rights are absolute and rights often conflict. There are always limits imposed upon them. This is not new or unusual or confined to Australia. It is the case everywhere.
I can't disagree with your assessment; even the right to life needs to be withdrawn on occasion. Historically, I think there has been more thought, or wisdom, employed when restricting rights. More tact in imposing mandates.
CVD exposed a great weakness in modern government. A lack of leadership and a loss of public trust.
Free of costs to cross the borders, always seemed to me to be what was meant by this section . This section to me is badly written and needs clarification. Unless the creators of the constitution intentionally meant it to be ambiguous. I tend to take the view that if a situation was created by incompetence, or malevolence, incompetence is always the more likely.
Thank you for directing me to this video.
It answered some of the matters I was wondering about.
The one that issue I look forward to - is the role of the military in enforcing the border closures.
Border closures hurt more than they helped in most cases. In actual fact, there is little actual evidence for your assertion that the WA border closure helped save lives.
Thank you for addressing S92 and Covid. You research the history thoroughly.
Much appreciated.
and by 'State Borders', this Lady actually means, 'Political Limitations'.
No, I mean State borders (also described in the Constitution as the 'limits' of the States).
@@constitutionalclarion1901For explanation, Steven Spiers, Wayne Glew, Rod Culleton and others have been preaching for years that state borders do not exist, and that they were removed by covering clause 8 at Federation. It's a basic misunderstanding of the effect of the Colonial Boundaries Act 1895 and it being superseded by section 123, but it has really caught on.
@@auspseudolaw Thanks. I wondered where this nonsense came from. They couldn't read the Constitution itself and notice its many references to State boundaries? Sigh...
@@constitutionalclarion1901 I provide the origins of most popular Australian pseudolaw motifs on the Freeman Delusion website. A browse of the index may even give you some ideas on some future video topics. A good example is the article titled James Bowes, who is spreading misconceptions citing your own work regarding the Queen of Queensland, and very similar arguments as rejected in Sharples v Arnison.
@@constitutionalclarion1901 Yes, they should, but with the complete absence of the term "boundaries" in the Constitution, (besides cc 8) they generally believe that "the limits of the State" are not geographical "borders", but rather "political limitations" sort of like a business franchise might have a set area which is their own. I've often pointed out that the Colonial Boundaries Act 1895 didn't actually create the geographical boundaries, but they existed prior to it, with the Letters Patent establishing the colony even providing specific coordinates of longitude and latitude.
Great videos & series please keep producing them.
Still disagreeing with the interpretation of absolute.
But with previous judges & lawyer having stuck with the notes from before, think we are stuck with our borders being closed at the drop of a virus next time.
Time has shown us voters do like a strong Premier.
Any chance of doing a video about the topic that Australia has 2 constitutions (social media). And that Australia is registered on the USA stock market thus is a company of the USA - I know this is rubbish, but having a Prof explaining this area would great if you have the time.
Some on social media really push that topic. I thought it came about as the Aust Gov purchase goods from the US gov it needed a US securities registration??
Thank you for time and efforts so far.
Thanks. I've done a video on the 'colour of the Constitution' argument. I've certainly debunked the corporation argument for fact checking organisations, but not done my own video on it. I'll wait until I have the internal fortitude to face the wave of abusive comments (and no, they don't respect a Professor saying these things - although they do always refer to me as a 'lady', which involves a degree of civility).
Two many laws we can hardly breathe anymore if you think this is a democracy I think you’re surely mistaken
Parliament is still elected by the people. You are free to form your own party and seek election. It will depend upon whether other people agree with you and want the change that you seek.
Covid-19 and the 1918 Spanish Flu Response could be in the Same video, as think would be great to see how 100 years of the Constitution Law and Debate lead us.
And they are in the same video...
Look up the 2013 smallpox epidemic, its very comparable to Covid. The same emergency powers as today were first enacted then
Thanks for the presentation and the time put into setting out the history and context in such an easy to follow manner.
It is great to be able to understand what the law is.
It is concerning that during covid the court saw complete state border closure as constitutional in the circumstances. Everyone was stopped regardless of infection status. Unlike the potatoes in the video example that were only stopped when infection was detected.
It has to erode confidence in the court that they thought this was precautionary and not excessive.
From memory at the time it was already known that the suite of vaccines didn’t increase absolute immunity much if at all, but we’re intended to reduce severity of symptoms.
Before criticising the court, you should look at the evidence that it relied upon, as set out in the judgment of Rangiah J - www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/1221.html. You will see that the hearing of expert evidence occurred in July 2020 and the judgment was given on 3 September 2020, well before vaccinations first became available in Australia in February 2021. Judges can only make findings upon the basis of the evidence put before them. Too many people assess judicial decisions on the basis of hindsight and material that was neither known at the time nor presented to the court.
Could then the intercourse between states translate to the restriction of movement within one's states for example " the lock downs".
Given that there is free trade between states (absolute) it goes without saying that there is free trade within the states i.e movement
There was a case where the plaintiff tried to draw on section 92 to establish a freedom of movement within a State (eg to get to the border, to be able to cross it) but it failed. I'll deal with it when I do a video on COVID and rights.
@@constitutionalclarion1901 looking forward to it.
I would argue....that there were some other anomalies here as well Section 51(ix)quarantine gave the Federal Government the power to make quarantine legislation which they did in 1908 and later In the Biosecurity Act 2015 (comm) the biosecurity act gave the Federal Health Minister the power to make Regulation for intrastate, interstate and international border closings. That and section 109's Supremacy clause could have had they wished opened the borders of the states.... I suspect that the Federal government had received that advice after initially enjoining with Palmer against the WA state government and then dropping out of the matter. I would say that the Federal Government received advice that went contrary to what they had been telling the public that the states could override the Federal government in relation to border closure. Had the Federal government stayed enjoined with Palner the High Court would have pointed out the Federal minister could have opened or closed borders at the Ministers order, the dropping of the case by the Federal Government handed that power back to the State which saw Palmer lose.
Yes, I too thought the same about S. 109. Yet there probably were legal, as well as political difficulties and obstructions.
The Coalition federal government didn't seem to be any more cognisant or interested in the impact on basic democratic freedoms and civil liberties than the mostly ALP states... But whatever his faults, at least Palmer tried!
There are certainly a lot more aspects to the COVID story re the application of the Constitution. I'm happy to do videos about them if people are interested. I had thought that people probably didn't want to hear too much about COVID at the moment, as they want to forget it all, but I can certainly explain why some powers were used an others weren't. In the end, it mostly came down to practical and operational matters, rather than legislative power itself.
We are past the tipping point with Covid. Time to get on the right side of history.
Yep get over it and get on with life
@@johnoneill6231 NO haha just because some want to quickly forget falling for it? no mate, too many have suffered, still suffering and have lost, so many voices are going unheard. People WILL be held accountable! Does it look like they are following their fiduciary duties?
ok but dosint someone by law have to be proven to have such infection or disease to be quarantined in the first place ??
No - because in many cases deadly diseases can be carried and spread without yet appearing in the carrier. That was the whole point of quarantine for people entering Australia - to wait the relevant period during which the disease would have manifested itself in symptoms before letting them into the rest of the community.
Thank you for this presentation.
But it leaves open the question of what is considered a serious risk to health?
And in hindsight the verdict regarding to the dangers of this virus and the effectiveness of the treatment, is well and truly settled, but yet not formally, let alone legally and constitutionally, accepted.
The dangers and treatments of the virus are still a subject of study.
@@chriswatson7965 no they are not! One can study until the cows come home, does not change the outcome which is conclusive, perhaps not a full 100%, but it does not have to be.
@@Robert-xs2mv The outcome is not yet conclusive. We still have to wait to measure long term impact on renal and cardiac disease and dementia.
@@chriswatson7965 it is conclusive beyond reasonable doubt, therefore any doubt , no matter how substantial, is as such unreasonable.
It is highly doubtful that further long term evaluation will reverse the current diagnosis.
@@DavidHRyall Thank you. Sadly the majority either does not understand or refuse to accept the reality.
As a saying goes, the majority is always wrong, the minority seldom is right.
And another, if one find oneself aligned with the majority, it is time to reevaluate one’s position.
One more, never ever blindly believe anything to be the truth or lie, always ask questions until one is satisfied that what is said is indeed the truth or a lie.
well done.. These are the reasonings that I have been wondering about.
I'm glad it was helpful.
Please also complete your commentary on the application of Section 92 of the Australian Constitution following the availability of the vaccination becoming available however various State borders continued to remain closed!
The borders were all eventually opened once a sufficient proportion of the population had been vaccinated.
@@constitutionalclarion1901 I am sorry but your reply does not fully answer my question from a purely legal (Constitutional) perspective. Incidentally I remember that after the Queensland borders were opened with a high percentage of Queenslanders and other Australians vaccinated the rate of COVID infections skyrocketed in Queensland (from a very low level) which demonstrated to me that the issue of the availability of vaccinations had NO influence on reducing the COVID infection rate and therefore reducing the impact of COVID on the health of all Queenslanders. Thus what was the real justification for closing the borders in the first place when these vaccines were, and still have never shown to be effective?
@@ianbishop8986 The answer from a purely legal perspective is that no one challenged the continuing border closures after the Palmer case. Courts cannot decide cases that are not brought before them. If they had been challenged after vaccinations were available, and the circumstances had been different (including different laws in different States) then the outcome may have been different. But no one did, so we will not know.
Thank you however I seem to remember that at least one border closure was challenged in the High Court following the availability of the vaccines and I heard an opinion from an authoritative source, at the time, that this challenge have have been successful IF the Commonwealth Government had joined this challenge. Makes you think doesn't it?
@@ianbishop8986 My recollection is that there was a lot of talk about more challenges. I was certainly asked a lot by the media about them. But I think if they were ever formally commenced, they were eventually withdrawn (probably after the borders re-opened, so no one wanted to waste the money on them). They certainly never resulted in a judgment by the High Court (other than the Palmer one re WA).
In hindsight there was no evidence to justify an emergency, as there was no material risk evidenced, and as such there needs to be greater transparency on any government utilising quarantine/emergency powers. In Victoria there was a health direction imposed via the Public Health and Wellbeing Act 2008 under section 198-9 which defied the meaning of a Public Health order in the legislation and as such was inconsistent with the requirements of the Act relating to a public health order. The Victorian Health directions created a blanket public health order over all the population without fulfilling the strict requirements of the quarantine portion of the Act where an examination and testing order is required before a public health order can be actioned by the Chief health officer, on a person by person basis, see sections 111 -118.
With respect to free movement between States the High court did go into great detail about Federation and free movement of the people in Gratwick v Johnson 1945 30 May.
Section 92 of course is structured around the introducing words being "On the imposition of uniform duties and customs......", which puts a different angle on what most people perceive section 92 to mean. It is interesting that the High Court in October last year did bring about a powerful ruling redefining section 92 and 90 with respect to excise .
Gratwick v Johnson is the case about Dulcie and Ada, that I mentioned, which is discussed in my previous videos. As for the Vanderstock case, about excise, in my view it was far from wonderful. All it did was create a vast deal of confusion about State taxing power and centralise more power in Commonwealth hands, neither of which is helpful. I will do a video about it at some stage.
I stand with any state that chooses to keep Clive Palmer away from the general public.
Please keep your Green Socialism away from Clive.
He's a good man who at least is trying to give Australians a 3rd option.
In the meantime, enjoy your cardboard chardonnay and vote for your Teal-Labor ticket.😊
@@typetersen8809 you cannot discern my ‘supposed’ greens affiliation from what I just wrote. If it makes you feel any more or less self righteous ( your choice- of course) - I generally place that particular party absolute last on my ballot paper. From what I did write, I merely meant that Clive Palmer is not a man of high credit in my eyes and I would not want to associate with him. Tell me to be nice about big Clive when he does not have to be dragged through multiple law courts before he deigns to pay his workers their due entitlements. You are more than welcome to let Mr Palmer proverbially ‘kiss your baby’ when he is on the campaign trail and I will maintain my right to refuse such contact.
I also don’t drink and the colour teal looks horrendous on me . Bye 😊
😂😅😊
Another excellent commentary on our (often inscrutable) governmental activities. Well done Prof !
Glad you found it informative.
as I suspected, State and Federal governments treat people as commodities. Be interesting to see what a State government would do if someone accuse the CEO of a State of slavery.
as suspected you are a sovereign citizen flat earther
it seems the cookers found prof Twomeys channel in the last video for reasons that aren't clear to me. On the one hand I hope they listen and learn something, but on the other I suspect they won't and will continue to be a nuisance in the comments
@@dielfonelletab8711 there are much more interesting reads to be had...such as a forensic court document related to the Constitution....which proves many things
@@royevetts4900 cooker alert ⚠️
How can there be zero risk of spreading disease? Hence any risk can be used as an excuse to impede a citizen?
The High Court never said that there had to be zero risk. The key issues are whether there is a legitimate purpose (eg protecting health and life), and whether the law is proportional to achieving that. This takes into account both the degree of risk to health/life as well as the degree of burden on the freedom of movement across State borders.
@@constitutionalclarion1901
It would be interesting to hear how the degree of burden was estimated in balancing this equation? How did he court balance the effect on the millions of citizens, businesses etc? One is tempted to believe that guess work must have been involved - so few of the impacted parties were ever consulted.
The governments involved have admitted they did not perform any real impact analysis before introducing their lockdowns. Has anyone ever seen a contemporaneous analysis of the downside of the lockdowns dating from the decision making timeline?
Don't you mean perceived risk rather than risk? The number of people actually at risk from covid has been shown to be far, far lower than the exaggerated numbers put about to justify these regulations and laws. For example 90% of those who died were over 75! The risk to children is minuscule, yet schools were closed on multiple occasions. Significant impact imposed for near zero benefit for the children.
These are wonderfully and succinctly presented and of huge import nowadays with the creeping ubiquity of OPCA litigants. It also should be absolutely on all consti learning guides since it shows anyone that constitutional law is not that scary - my own cohort thought I was quite mad because I enjoyed consti immensely. I also suspect you miss teaching F2F and USYD is worse off because you don't/can't anymore :(
Thanks. I do enjoy teaching - but not the marking and administration! Hence a UA-cam channel is a very good outlet for me.
I understand that S92 was used to block nationalisation of the banks. If so I would be interested in this.
The RBA website says the Commonwealth bank was owned by the Government from 1911 to 1991.
Yes, the bank nationalisation case was an important early case on s 92 - although the legal reasoning in it is very dull. I fear I would send all my viewers to sleep with that one!
Dingo fence?
Australia needs a bill of rights
Yes. My right as a Western Australian not to be infected by filthy viruses from the Eastern States.
Please no. The less we copy form the US the better
Have a look at the Australian Human Rights Commission and search with the term, "How are human rights protected in Australian law?"
I think covid exposed that. The trouble is any bill of rights that would be created today would focus on various issues and leave out various other issues that the elite feel would be troublesome.
@@DavidHRyall yea and look at litigious mess they are in
Hopefully not too random but what are “letters patent”? Thanks Professor.
Good question. Literally, it means 'open letters', being a public legal document issued by the Executive. In Australia they are mainly documents from the monarch that set out rules concerning the Governor or the Governor-General. NSW got rid of its Letters Patent after the Australia Acts 1986 were enacted. There are still Letters Patent at the Commonwealth level regarding the Governor-General.
I honestly believe at the High court in recent years has made terrible descissions for Australia as a Nation and this was one of them. They had tests that they were using to test for COVID-19 Border closures did more harm to families and FIFO workers than any party has owned up to. I disagree with the country border closure as well as a Lot of Australians were left stranded. These are all things I was hoping would of been addressed in a Royal comission into COVID-19 to avoid this. Australia is a country we all pay Australian tax's and we all pay into Medicare so it is not just 1 states health care. WA passed a stupid law also to stop Clive Palmer for ever been able to get reimbursement for state government laws on his business. So what this did for me was made me loose faith in our High Court system to look after citizens that don't have the funds to put up challenges. Then the release of the refugees held indefinatly whilst seeking a 3rd country to take them Just proves High Court does not Consider Australian citisens safety or rights. A high court that allows a packet of crisps to cross a border but not the citizens of the country.
One thing you need to consider is that the High Court is required to apply the Constitution and the law, drawing on precedent and legal reasoning to do so. The judges' decisions are also based upon the facts and evidence put to them - eg regarding the accuracy of testing and the risk involved in border-crossing. They don't just sit around and decide on what is best for the country from a policy point of view. That isn't their job.
Having said that, the Court is not immune from criticism. I think some of its judgments are terrible, but that is because of poor and inconsistent legal reasoning.
One constitutional law question I have that might be interesting enough for a video, depending on how nerdy your viewers are, is could Australia use a mixed-member proportional representation (MMPR) system like New Zealand with list MPs elected on a national level?
The reason I am unsure of the answer to this question is that section 29 of the Commonwealth Constitution says: "A division shall not be formed out of parts of different States." List MPs elected on a national level could be argued to be coming from an electorate that is composed of the entire country, which would undoubtedly be formed out of parts of different states.
This is a very problematic issue, and if anyone wants to appreciate a less positive interpretation than the Professor’s nothing to see here conclusion, you may want to see Chapter 5 of my most recent work The Naked Australian Constitution which is highly critical of the Palmer decision. That chapter concerns Constitutional provisions undermined by the High Court and provides some information that the Professor's otherwise interesting discussion did not include; such as the views of other founding fathers such as Isaacs, or those of other Judges, such as those of Owen Dixon who seem in favour of giving the words “absolutely free” in s 92 a meaning in its ordinary and natural sense.
That chapter also compares the effect of the Australia’s supposed constitutional freedom of “absolute freedom” of interstate intercourse with other equivalent federations, such as the USA and Canada where there are no constitutionally entrenched freedom of intestate intercourse - and it finds, not surprisingly, that we come up very poorly.
I was actually second guessing the decision in Palmer would be decided the way it was, 6 months before that. My assumption was based on the prior jurisprudence relating to the interpretation, particularly Cole v Whitfield [1988] HCA 18 and in relation to diseases such as a pandemic, Nationwide News Pty Ltd v Wills (1992) HCA 46 where Brennan J (at 33) referred to the decision of the Privy Council in The Commonwealth v. Bank of N.S.W.(1949) 79 CLR , (at p 641); (1950) AC, (at p 312) that "Regulation of trade may, without contravening s. 92 of the Constitution, take the form of ... excluding from passage across the frontier of a State creatures or things calculated to injure its citizens."
The same written text, such as a constitution, can be interpreted in many different ways. We are each persuaded by our personal political leanings and that can create disputes.
Hence it's important to understand section 76(i), which grants the High Court "original jurisdiction" in determining its correct interpretation. The 120 years of jurisprudence is what ultimately provides the interpretation.
@@auspseudolaw Agreed, but having said that even a High Court Justice' interpretation can be swayed by personal bias; as seen in the US. I do believe our system is stronger and less influenced by political persuasion.
Sure I could agree too, but with it being the final arbitrator of all matters involving the interpretation of the Constitution, with even its "seriously considered dicta" being binding on all Australian courts, let alone where a ratio decidendi appears in its decisions, debating the virtues or correctness of those decisions is quite the pointless pursuit indeed.
Structured proportionality or reasonable necessity? (Or is it a pointless debate?)
I'm not a great fan of structured proportionality, but it is where a majority of the High Court has gone, and therefore constitutional commentators have to follow. I also think that there were problems in how some judges applied structured proportionality at the level of the emergency legislation in Palmer, rather than at the level of the actual order to shut the border. This is because the test requires consideration of the proportionality of the operation of the law, which cannot be adequately judged at the level of a general emergency law, rather than the order that deals with a specific emergency. But this is far too complex to explore in a video for the general public.
Thank you for the education
You're very welcome.
Very interesting. Thank you.
Glad you enjoyed it
I am a living man and the sole beneficiary of my trust i do not contract or joinder and i waive any benefits you have on offer. Common law trumps constitutional law/Corporate law lol
No mention of S117 ???
Section 117 is a whole different story (although, admittedly, often combined with s 92 in exam questions, but I'm not asking exam questions here). I'm happy to do a video on s 117 one day - it's quite a tricky and misunderstood section of the Constitution.
@@constitutionalclarion1901 yes that would be helpful as i believe it hasn't been tested much, I enjoy watching your videos :)
I struggle with the concept that healthy people were restricted, as you described diseased animals and contaminated potatoes.
if you get time could you look into the King of Australia as I believe this title is unconstitutional and has no legislative provisions now to enable this title as different to the previous Queen of Australia title provide for in the Royal Styles and Titles Act schedule. I have the brief and memo that were used to form the proclamation if that would help
@@johnnorton8451 what was the cause of the diseased animals and contaminated potatoes I wonder?
@@johnnorton8451 Yes, I would also love Anne to do a video on that whole subject, she covers "the divisibility of the Crown" so well in her books.
The "Queen of Australia" concept drew on similar theories regarding the Royal Styles and Titles Act 1973, especially surrounding covering clause 2 of the Constitution, which provides that references to the Queen are to be understood as to "Her Majesty’s heirs and successors in the sovereignty of the United Kingdom". Sue v Hill [1999] HCA 30 explains well the office "Queen of Australia" is a distinctly separate legal entity to the "Queen of the United Kingdom" and discussed other senses in which the term "the Crown" has been used in constitutional theory, especially since the decision in Isaacson v Durant (1886) 17 QBD 54 that "allegiance was due to the King in his politic, and not in his personal, capacity."
The rather new concept regarding the "King of Australia" was raised in several of Mike Palmer of "Know Your Rights Group" cases. In DCT v Palmer (No 2) [2022] VCC 2001, MacNamara J goes into great detail explaining the concept in paragraphs 16-69, it's well worth a read.
Despite this lengthy text, Mike Palmer still raised it in Deputy Commissioner of Taxation v Palmer (No 3) [2023] VCC 432, Re Palmer [2023] VSC 458, and in Michael Gareth Palmer v No Respondent [2023] VSCA 322, where Beach JA noted he described himself as "Michael Gareth Palmer a subject of the King of the United Kingdom" and rejected the notion it made his proposed appeal any more or less arguable. Identically, in Stefan v McLachlan [2023] VSC 501, the assertion was made that the applicant was a subject of the "King of the United Kingdom" as opposed to the "King of Australia".
Oh my goodness. People posting unsupported opinions as factual counter arguments.
Constitutional Clarion is like the final boss of a video game but one that cannot be beaten. She has all the answers.
Do the smallest of research on her and you will very soon learn.
Helpful thank you
You're most welcome.
Seeing you spent a bit of time on WA. Did WA vote to succeed from the Commonwealth prior to WW2 but it wasn't acted upon because of the outbreak of war. If this is so does this vote still have some relevance?
There was a vote to secede from Australia, but it was earlier in the 1930s - 1933 I think. The reason it failed was essentially a constitutional one (in the broader sense of the word). I will do a video on it one day, as quite a few people have asked about it.
No, the vote would not have any continuing effect today - and it did raise constitutional issues about secession that would have to be considered if anyone wanted to try it again.
@@constitutionalclarion1901 Thank you for your reply
Funny story time.
When I studied law, S92 came up during a tutorial and you could tell there was a mood change towards tension/awkwardness in the room when the word, "intercourse", was said.
I couldn't help myself. I had to give out a sneaky little cheeky kiddies giggle behind my hand.
It was a great moment, it broke the tension in the room and everyone had a good laugh. Even the Tutor appreciated it and class mates congratulated me on a quality joke.
I wasn't the only one making childish jokes. A Tutor in another subject, whenever the number 69 came up would always add, "My favourite number". I'm sure I wasn't the only one who contemplated asking, "Why is that your favourite number?"
PS: I see a few unrelated, unhelpful, argumentative comments below. I really hope they don't become the norm. It really brings the vibe down man.
Yes, I always made a small joke about the 'intercourse' aspect of s 92 at the start of my class on it, just to break the tension and allow people to move on.
Michael Coper has a great introduction to s 92 in his book Encounters with the Constitution. It concerns a floating bordello on the Murray River, and the argument that a customer could make when refusing to pay - that s 92 requires intercourse between the States to be absolutely free! (The section actually says 'intercourse among the States', which rather spoils it).
As for the tone of the comments, I heartily agree. It would be good if people could: (a) actually watch the videos; and (b) comment on the legal arguments involved.
Bird flu coming.
No
The protection of life, health and the containment of a dangerous disease should always outweigh any inconvenience from travel restrictions either within or between a state. It should be noted that once vaccination became widespread and anti-virals available these restrictions were loosened and ultimately dropped. Full marks to the Governments of Queensland, Western Australia and the other states that acted to protect their citizens.
😂
Really? So the government can confiscate your car? Your car could be involved in an accident, harming other people. Tens of thousands of vehicles are every year. So to prevent this possible impact to life and health, they should confiscate your personal vehicle? Happy with that calculation? I guess few people would be. Not sure who originated the saying but .."Any person willing to sacrifice freedom for safety, deserves neither". mI am sure they could make a similar argument with all of your freedoms - some of the food you eat may harm your health, some of your activities may be of risk to others, some may harm the environment etc - soon your quest for 'safety' will leave you in figurative chains!
The one thing we know about covid is that the government were not truthful throughout this whole emergency. They are not on the side of the citizens. They have forfeited our trust.
Closing the borders was the only thing I agreed with in the whole fiasco of covid management.
@@rachaelcourtnell7275 this is not about personal issues, but the rule of, constitutional, law.
Natural justice must prevail.
@@rachaelcourtnell7275 did you change your comment?
And closing the borders is, debatable, not an effective way to address the covid management.
Also in the cover of the legal fictions passport states we are free to travel.
Sure it does, but that is regarding travel between countries, it isn't regarding travel between states. But even so, that is entirely up to the country one is entering, even whether they are allowed to enter, for example, they can reject a travel visa on whatever grounds their own laws provide.
@@auspseudolaw Free to travel to other countries? Do you not need the permission of country you are going to? Can you please show me where you interpretation is written down? I may have missed it?
@@k4ngk0ng74you are just splitting hairs with that comment.
@@johnoneill6231 hahaha no I'm not haha I'm addressing the msg from the Governor General, the one who has the power.
@@johnoneill6231 lol is there something wrong with asking questions? Also while we are here why is it the the previous Governor General's say about the Royal Styles and Titles Act? Can you please tell me why it states "left for her Majesty's discretion?
Nice bit of fiction, since the real reason has become appearannt.
It is not fiction - you can check the accuracy of everything I said, from the Constitutional Convention debates, through to the High Court judgments. All the primary sources are publicly available.