Clive Palmer just lost his WA border challenge — but the legality of state closures is still uncertain



original.

Anne Twomey, University of Sydney

Mining magnate Clive Palmer has lost his challenge to the closure of the Western Australian border in response to COVID-19. Palmer has also been ordered to pay costs.

While it is clear from the High Court’s order in Palmer v Western Australia that Palmer lost, it remains unclear whether the border closure was and remains valid.




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WA border challenge: why states, not courts, need to make the hard calls during health emergencies


The reason for the lack of clarity is because the High Court has not yet handed down its reasons, which may take weeks or months. In the meantime, all we have is its orders – and they are phrased in a rather peculiar and limited way.

What did the court decide?

The High Court was asked whether WA’s Emergency Management Act or its Quarantine (Closing the Border) Directions were invalid because they breached the Constitution by stopping people from crossing the state’s border.

Section 92 of the Constitution says the movement of people among the states shall be “absolutely free”. But the High Court has previously accepted it can be limited if it is reasonably necessary to achieve another legitimate end, such as the protection of public health.

In the Palmer case, the High Court gave a very limited answer to the questions it was asked. In relation to the Emergency Management Act it said that “on their proper construction”, sections 56 and 67,

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 section 92 of the Constitution.

Both these sections are quite general in nature. Section 56 says the minister can declare a state of emergency in the whole of the state or a part of it. There is nothing on obvious that would appear to offend section 92 of the Constitution in each of its limbs.

Section 67 says during a state of emergency, certain officers may issue directions that prohibit the movement of persons within, into or out of an emergency area. On the face of it, it is not directed at the movement of people across state borders. However, if a state of emergency were issued for the entire state under section 56, then section 67 would potentially allow a direction to be made that would prevent people from entering or leaving WA.

High Court of Australia
Clive Palmer launched his challenge after WA closed its border in April.
Lukas Coch/AAP

The High Court’s qualification in the phrase “on their proper construction” is therefore important. This raises the question of how the High Court has interpreted section 67 and whether it has restricted its interpretation in a manner that accommodates section 92 of the Constitution. We will have to wait for the High Court’s reasons to learn this.

The court’s order in relation to the Quarantine Directions is more unusual. It says the exercise of this power under clauses 4 and 5 of the directions “does not raise a constitutional question”. This refers to an issue raised during the hearing. The argument, initially raised by Victoria, was that the validity of a direction made under a power conferred by an act will depend on whether the direction falls within the scope of that power in the act.




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States are shutting their borders to stop coronavirus. Is that actually allowed?


If the section in the act that confers the power (in this case, section 67 of the Emergency Management Act) is constitutionally valid, then any direction that falls within that power will be valid too.

The real question, then, is whether the direction falls within the scope of the legislative power. This is not a constitutional question, but a question of administrative law. The High Court then said in its order that it had not been asked this question, so it did not need to answer it.

On the basis of this technicality, the High Court (or at least a majority of the Justices) concluded it was not necessary to address whether the actual directions that stop people going in or out of Western Australia were valid.

Does this mean more litigation?

As this case does not seem to have resolved whether or not the directions are valid, will there be more litigation? It is possible someone could challenge the directions, arguing this time that they do not fall within the scope of the authorising section in the legislation.

But such litigation would have to start from square one and so would take some time to determine. As it would not be a constitutional matter, it might have to be decided by a lower court first.

WA Premier Mark McGowan
WA Premier Mark McGowan celebrated the High Court result on Friday.
Richard Wainwright/AAP

Further, before initiating any such litigation, it would be important to read the High Court’s reasons, which may not be produced for some time. Those reasons will tell us about the scope of the legislative provision, which will be essential to know before any challenge to the directions made under it could proceed.

Hopefully, by the time we get to that point, there will be no need for such litigation because no such directions will exist, if the pandemic continues to ease in Australia.




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But it does mean we may be left with inadequate guidance about such matters for the future, which would be unfortunate given the cost and time taken with this litigation. Perhaps the court’s reasoning about the interpretation of section 67 of the Emergency Management Act will give us sufficient understanding about the operation of section 92 of the Constitution and the tests applicable to border closures in a pandemic. But that remains to be seen.

Victorian lockdown challenge also rejected

In a busy day for the High Court on Friday, it also threw out hotelier Julian Gerner’s challenge to Melbourne’s lockdown laws.




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Gerner’s challenge, to be successful, would have required the High Court to find an implied freedom of movement in the Constitution.

This would have opened up all sorts of other laws to challenge and been condemned by conservatives as judicial activism. The court was so unimpressed by the argument that it unanimously rejected it on the spot, without even needing to hear Victoria’s response.

The end of the case was swift and brutal. It is unlikely this point will be raised again before the court.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The NSW-Vic border will reopen this month, and ironically the risk is greatest for Victoria


Adrian Esterman, University of South Australia

New South Wales Premier Gladys Berejiklian today announced the border with Victoria will reopen on November 23.

It will be the first time people can freely cross the border since early July.

My preference would be to wait until both states have an extended period of time with zero community transmission of COVID. But I think the risk of a substantial outbreak from opening the border is low.

Victoria has done exceptionally well in squashing its second wave, and has now recorded five consecutive days of zero new cases. Even more pleasingly, the number of mystery cases — those with an unknown source — has dropped to just two in the past fortnight. In saying that, we’ll have to wait another week or so to see the effects of the latest round of eased restrictions.

For the first time in months, it looks as if the COVID situation is worse in NSW than Victoria. Arguably the risk of opening the border is greater for Victoria right now than it is for NSW. Indeed, Berejiklian said today that Victoria “may have, because of the lockdown, actually gone down a path of having eliminated it at this point in time”.

Today NSW recorded nine new cases, six of them among people already in hotel quarantine and three locally acquired. However, those three were already in isolation having previously been identified as close contacts of an existing case.

Elimination is on the cards

I’m concerned NSW is not going for elimination. It leaves the state as an outlier in Australia, with Victoria now joining all other states and territories by having zero community transmission (although Victoria’s official strategy is “aggressive suppression” rather than outright elimination).

I’d like to see NSW tighten restrictions in a few areas, because I think Australia now has a real shot at eliminating COVID. For example, NSW residents are currently allowed up to 20 visitors at a time, despite the Chief Health Officer recommending no more than ten. As homes are one of the greatest risk areas, why not follow this advice?

In saying that, NSW has shown it’s capable of controlling outbreaks with rapid contact tracing. And Victoria has substantially improved its contact-tracing system over the past few months.




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Time for a national approach

Unfortunately, border reopening is likely to make contact tracing more difficult. Many people will cross state borders during summer, particularly over Christmas and New Year.

Contact tracing is currently done on a state-by-state basis, by local teams using their own data sets. It’s not clear whether and how these data will be shared as borders reopen.

For example, if someone is infectious while on a road trip holiday and visits a restaurant in regional Victoria, before driving to towns in NSW and then Queensland, how will contact tracing be organised and shared?

I’d like to see a coordinated national effort to centralise these data. Ideally, there should be a centralised body, such as an independent federal Centre for Disease Control, which could handle national contract tracing, with regional hubs in each state and territory. This would ensure all states and territories would use the same contact-tracing software, using staff trained to the same level.

A national contact tracing database would then enable the tracking of people travelling interstate. Perhaps a QR code system could be implemented on a national level, so visiting a pub in South Australia means it is recorded in a centralised national database.

A federal disease control agency could also ensure consistency of hotel quarantining, and training of security staff.




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Rapid testing could help

In late September, the Therapeutic Goods Administration approved four rapid antigen tests for COVID.

These tests work by detecting proteins on the outside of the virus, called antigens, from nasal swabs. And they can deliver results in 15 minutes or even quicker.

Yes, their accuracy is not quite as good as the standard COVID tests in that they tend to have a higher rate of false negatives. But I think there’s potential for these to be used as interstate travel increases.

For example, interstate travellers could get one of these tests while waiting for their flights in airports, while crossing land borders by car, or when leaving or arriving by sea.




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Australia has done a fantastic job at controlling COVID, and is the envy of much of the world. Ideally, it would be good to have New South Wales take the extra step to eliminate COVID before borders are completely open, though this might be politically hard. Introducing additional measures like rapid antigen tests, and a hub and spokes contact-tracing system, would go a long way to ameliorating the small risks to other jurisdictions from New South Wales retaining its current suppression approach.The Conversation

Adrian Esterman, Professor of Biostatistics and Epidemiology, University of South Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Shots fired in the Himalayas: a dangerous development in the China-India border standoff



Mukhtar Khan/AP

Stephen Peter Westcott, Murdoch University

In the midst of all the stories about China’s oppression in Hong Kong and Xinjiang and its expulsion of foreign journalists, a recent clash on its border with India may pose the greater threat to Asian security.

For the first time in 45 years, shots were fired this week.

Confrontation on the roof of the world

During the evening of September 7, Chinese and Indian troops confronted each other along their undefined, de facto border, known as the “Line of Actual Control” (LAC).

This in itself was not unusual. The two sides have been locked in several tense standoffs along the LAC since May.

What makes this confrontation stand out is it involved the first known use of firearms on the border in almost half a century.

What happened?

China and India have accused each other of provoking this confrontation, which occurred in the Rezang-La heights area, just south of Pangong Lake.

According to Indian reports, there were between 30 and 40 Chinese troops involved. Photographs published in Indian media show Chinese soldiers armed with crude Guandao-style polearms, as well as standard issue rifles.

It is unclear how many Indian troops were involved or how they were equipped.

Pangong Lake near the India-China border
Border tensions have been building for months between India and China.
Manish Swarup/AP

China claims Indian troops crossed the LAC and “blatantly fired shots” when Chinese border troops moved to deter them. India, has strenuously denied this, saying Chinese soldiers crossed the LAC and were blocked by an Indian forward position, who they then tried to intimidate by firing “a few rounds in the air”.

No troops have been reported injured or killed.

Regardless of which side actually fired the shots, the tactic did not work. Both Chinese and Indian soldiers remain in a stand-off, reportedly only 200 metres apart.

Unravelling rules of engagement

This recent exchange represents a troubling escalation between the two countries.
It directly contravenes the rules and norms painstakingly established by China and India to govern behaviour on the border.

Negotiations on the disputed border have always been tough for China and India. The two sides took nearly 12 years of tentative negotiations before signing their first treaty in 1993, in which they agreed to “maintain peace and tranquillity” along the LAC.




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Subsequent agreements were reached after negotiations in 1996, 2005 and 2013. These govern military conduct on the border and guidelines for a diplomatic resolution.

The prohibition against the use of weapons along the LAC was first laid out in the 1996 agreement.

Neither side shall open fire, cause bio-degradation, use hazardous chemicals, conduct blast operations or hunt with guns and explosives within two kilometres from the Line of Actual Control.

Until this week, China and India have upheld this agreement, even when previous border patrol confrontations became heated.

However, both sides have been pushing the limits of what the other will tolerate and have trying to exploit loopholes and technicalities for several years now.

Border confrontations have gradually escalated from farcical shoving matches to fully-fledged brawls and stone flinging, which caused injuries in 2017.




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This year has seen both sides up the ante, with the introduction of makeshift clubs in a lethal melee at the Galwan Valley in June and China now seemingly equipping some border patrols with polearms.

Earlier this month, Indian media reported India was using new rules of engagement. This change allows its border troops to use whatever means are available for “tactical signalling” against the Chinese.

A dangerous deadlock

As two of the world’s largest militaries – and two nuclear-armed countries – even a limited border war between China and India would be devastating for regional peace and stability. It would likely ruin what little cooperation there is left and potentially pull in third parties, such as Pakistan or the United States.

Indian leader Narendra Modi points finger during conversation with China's Xi Jinping.
War between India and China would be devastating.
Manish Swarup/AP

It is clear from the flurry of diplomatic activity between China and India over the past months that they feel the gravity of their situation.

But despite both sides proclaiming they seek a peaceful resolution to the ongoing standoffs, a culture of mistrust continues to poison discussions.

China and India’s foreign ministers are scheduled to meet in Moscow on Thursday to discuss the border standoff in person for the first time since the crisis began.




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Both countries will now need to engage in some masterful and innovative diplomatic work to find a way to rejuvenate their diplomacy.

And find a mutually face-saving way to disengage before the standoff escalates out of control.The Conversation

Stephen Peter Westcott, Post-doc research fellow, Murdoch University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Job recovery may be slowing as border closures have tightened: Frydenberg


Michelle Grattan, University of Canberra

More than half of the 1.3 million people who lost their jobs or were stood down on zero hours at the start of the pandemic had started some form of work by July, according to figures released by Treasurer Josh Frydenberg.

Treasury figures show the national effective unemployment rate at 9.9% in July, compared with a peak of 14.9% in April, with 689,000 gaining effective employment. The official July unemployment rate was 7.5%.

Excluding Victoria – which is in full lockdown combatting a second COVID wave – the national effective unemployment rate would be 9.5%.

The effective unemployment rate includes the jobless looking for work, those who are employed but on zero hours, and those who have left the labour force since March.

Frydenberg said Victoria was a setback however “the jobs recovery across the rest of the country gives cause for optimism”.

But he warned, “high frequency data is showing signs that the jobs recovery may be slowing as state border closures have been tightened.”

The effective unemployment rate is expected to increase above 13% with a rise of about 450,000 effectively unemployed over August and September compared to July. Most will be in Victoria.

The effective unemployment rate is lowest in the ACT (5.2%), Tasmania (7.9%) and NSW (8.5%) and highest in the NT (12.1%), Queensland (11.4%) and Victoria (10.5%). South Australia and Western Australia are both at 9.8%.

NSW has had the strongest recovery with 315,000 people gaining effective employment since April. This is 46% of total effective employment, and compares with NSW’s 32% of the country’s population.

NSW has supported the federal government’s argument for open borders, although its border with Victoria has been shut in light of Victoria’s second wave.

In July, nearly half of those who were employed but working zero hours for economic reasons were from Victoria. This contrasts with April, when only 30% of zero hour workers were in Victoria and about 35% in NSW.

Outside Victoria, the number of people on unemployment benefits is about 3% below the May peak. In Victoria it is 3.8% above its previous peak in May, after a 6.3% rise since the end of June.

By mid August, the number on unemployment benefits had fallen by 22,800 from the May peak, despite an increase of 14,900 in Victoria.

The fortnight parliamentary session beginning Monday will have as the main legislation before it the extension of the JobKeeper scheme and the Coronavirus supplement beyond the end of September. Each would be scaled down.

The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: With an abundance of caution, Palaszczuk puts out the unwelcome mat to Sydneysiders


Michelle Grattan, University of Canberra

As the Morrison government on Wednesday stepped up its attack on Western Australia over its refusal to open its borders, it faced a couple of awkward political questions.

The Prime Minister was quizzed at a news conference in Canberra on why his government was supporting Clive Palmer in his High Court challenge to the closure.

And on Perth radio, Attorney-General Christian Porter was asked whether the federal government would be thanked or blamed if Palmer won the case.

The Palmer challenge is in the federal court, which is dealing with matters of fact before the High Court hears it.

Well before the High Court decision, the federal government is calling the result, predicting the McGowan government is headed for a legal bruising.

“It is highly likely that the constitutional position that is being reviewed in this case will not fall in the Western Australian government’s favour,” Morrison said. Porter put the same view.

Whatever the ultimate court outcome, there is little doubt McGowan’s tough line has gone down a treat with his constituency. It has not just helped keep the state COVID-safe but fits nicely with those latent WA secessionist instincts.

The federal government is dealing with the bad look of being aligned with the discredited Palmer by simply denying the reality.

“Let me be clear, we are not supporting Clive Palmer,” Morrison declared, a proposition that was anything but clear.

“An action has been brought in relation to the WA border. It goes to quite serious constitutional issues which the Commonwealth could not be silent about,” Morrison said.

Porter’s take is that the Commonwealth isn’t arguing for either side in the case but is “a middle man…there to provide expert evidence”.

That evidence, however, backs up Palmer.

As a general rule Morrison, with economic considerations in mind, has never favoured closed state borders, though he had to give pragmatic support to the present NSW-Victorian closure. The states went their own ways regardless of Canberra’s view.

With no persuasive argument easily mounted at the moment to open any border to Victorians, the federal government wants WA to compromise by opening to low risk states.

Finance Minister Mathias Cormann, in an opinion piece this week, urged a “balance” between protecting the health of West Australians and “protecting current jobs and not standing in the way of the strongest possible jobs recovery”.

Porter warned WA’s all-or-nothing approach risked “an adverse finding in the High Court which requires you to do everything at once.” Both Porter and Cormann are West Australians.

As relations between the Morrison and McGowan governments became even more fractious over the border issue, Queensland premier Annastacia Palaszczuk announced on Wednesday she will close her border to Sydneysiders from 1am Saturday.

This followed two 19-year-old women who flew from Melbourne to Brisbane via Sydney and did not isolate (there is an investigation as to whether they gave false information). A third woman, a close contact, has also tested positive.

NSW premier Gladys Berejiklian wasn’t warned and, it can be assumed, wasn’t pleased. Earlier, she had been vociferous about the need for Queensland to open its border.

Asked about the Queensland action, Morrison said “I think it’s important to sort of put borders aside when it comes to those things”, preferring to focus on limiting movement of people from outbreak zones.

The PM wants targeted responses to outbreaks, not nuclear options.

His approach rests on an optimistic assumption – that limited outbreaks are capable of containment without a massive reaction, such as border closures or major lockdowns. For this to be correct, everything needs to go right.

The Morrison prescription also depends on other political leaders being willing to take some risks – and Palaszczuk and Mark McGowan are not.

Palaszczuk’s decision will bring economic costs for Queensland. Businesses expecting Sydney visitors will have cancellations, and future uncertainty will be created.

There will be some blowback for the premier, as she approaches the state election in October. But she calculates, probably correctly, the negatives will be a lot less politically dangerous than if she were seen to fail to do everything possible to protect Queenslanders’ health.

And the sudden high alert in Queensland is likely to just reinforce McGowan’s resistance to the federal government’s pressure to compromise.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Morrison government accepts Victorian closure but won’t budge on High Court border challenges


Michelle Grattan, University of Canberra

Scott Morrison has repeatedly and vociferously championed keeping state borders open.

But on Monday, Morrison was forced to change course, agreeing, in a hook up with premiers Daniel Andrews and Gladys Berejiklian that the Victorian-NSW border should be closed.

In a somewhat Jesuitical distinction, Morrison said they had agreed “now is the time for Victoria to isolate itself from the rest of the country. What’s different here [is] this isn’t other states closing their borders to Victoria”.

Deputy Chief Medical Officer Michael Kidd said later “the Commonwealth accepts the need for this action in response to containing spread of the virus”.

But, Kidd said, the Australian Health Protection Principal Committee – the federal-state health advisory body so often invoked by Morrison – “was not involved in that decision”.

“The AHPCC does not provide advice on border closures,” Kidd added.

Borders have always been a strictly state matter.




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Even during the high stage of the pandemic, NSW and Victoria kept their border open, unlike Queensland, South Australia, Western Australia and Tasmania.

Monday’s decision to close the border from Tuesday night underlines that we are staring at a dangerous new phase in the evolution of the COVID crisis.

The latest Victorian tally of 127 new cases was a record for the state. Kidd said: “The situation in Melbourne has come as a jolt, not just for the people of Melbourne but people right across Australia who may have thought that this was all behind us. It is not.

“The outbreak in Victoria is a national issue. We are all at risk from a resurgence of COVID-19.”

If the Victorian situation can’t be brought under control quickly – and conditions in Melbourne are complicated, even chaotic – the country could face a new bleak outlook on the health front, with a substantial risk of the virus ticking up elsewhere, regardless of other states keeping out Victorians, and an even deeper than anticipated recession.

Borders have been a source of division among governments from early on.

In particular Queensland premier Annastacia Palaszczuk – now reopening her state’s borders from this Friday though excluding Victorians – found herself under attack from the federal government and also from NSW.




Read more:
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As well, both Queensland and WA face challenges from Clive Palmer in the High Court over the constitutionality of their border closures. There’s also another case being brought by Queensland tourism operators.

The High Court has sent the three cases to the federal court to look at certain aspects. The WA matter will be before that court on July 13 and 14.

The constitution provides for free trade and intercourse between the states. The key issue is “proportionality” – whether keeping a border closed is reasonable on health grounds at a particular point of time.

The Morrison government, consistent with the Prime Minister’s argument from the get go, is intervening in the cases to argue the borders should have been opened.

WA premier Mark McGowan on Monday was quick to use the Victorian development to call on Morrison to pull out, saying that in light of the Victoria-NSW closure “I’ve asked the Prime Minister to formally withdraw [federal government] support from Clive Palmer’s High Court challenge.

“It does not make sense for the federal government to be supporting a border closure between NSW and Victoria but on the other hand challenging Western Australia’s border in the High Court.

“Quite frankly, the legal challenge, and especially the Commonwealth involvement in it, has now become completely ridiculous.”

But the federal government is refusing to take a step back.




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Attorney-General Christian Porter noted the challenges were not being brought by the Commonwealth, and said it was the right of any citizen to take legal action if they believed “their basic rights of freedom of interstate movement are being disproportionately taken from them”.

“The Commonwealth has intervened to put evidence and views on the situation … the Court would normally expect the Commonwealth to be involved, given the importance of the issues raised.”

Porter said the Commonwealth’s intervention was to provide its view on whether, constitutionally, border closures were permitted in certain circumstances and not others.

“Clearly the courts will be required to consider whether, in determining these specific cases, border restrictions were proportionate to the health crisis at specific points in time as Australia dealt with the immediate and longer-term impact of the COVID-19 pandemic.

“The Court would expect to hear from the Commonwealth on those types of significant constitutional questions.”

Whatever the legal logic, to be endorsing the Victorian closure but arguing against other states’ abundant caution may be a complicated proposition to defend in the court of public opinion.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Victoria is undeniably in a second wave of COVID-19. It’s time to plan for another statewide lockdown


Adrian Esterman, University of South Australia

Victoria recorded its largest daily increase of 127 new COVID-19 cases on Monday, 16 more than the previous peak of 111 cases on March 28.

As I recently wrote, there’s no formal definition of what constitutes a second wave, but a reasonable one might be the return of an outbreak where the numbers of new daily cases reach a peak as high or higher than the original one.

By that definition, a second wave has arrived in Victoria. So why isn’t the state back in lockdown?

What can be done to bring the outbreak under control?

The current strategy of mass testing and information campaigns in hotspot areas, and quarantining whole tower blocks, may not be working. Regardless, cases are now appearing outside the hotspot areas, among people who were most likely infected before the latest measures were put in place.

The Victorian government must now seriously consider going back into statewide Stage 3 lockdown restrictions. Under these rules, there are only four reasons to leave your home: shopping for food and supplies, care and caregiving, exercise, and study and work if it can’t be done from home. And exemptions to quarantine rules should not be granted.

Testing should no longer be a choice. People in 14-day quarantine should be tested on day 11, and if they refuse, made to go into another 14 days of quarantine. Breaking quarantine should be a serious offence.

Far better communication is needed to explain why these measures are essential, and health authorities should ensure their messaging also reaches those who do not speak English as a first language.




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People should be encouraged to wear face masks whenever outside. There is increasing evidence they are effective in areas of high transmission.

Much more must be done to educate the public about panic buying. If necessary, Australian Defence Force personnel could be used to deliver food and essential supplies to those at high risk, and assist with logistics.

The newly announced closure of the New South Wales and Victoria border is welcome, and probably overdue. It comes after a returned traveller who quarantined in Melbourne tested positive to the virus after working at a Woolworths in Sydney.

Some people living in border communities will be granted an exemption from this closure, including those whose nearest health provider or place of work is just across the border. Hopefully they will be closely monitored and regularly tested.

Finally, all other states and territories should rally to assist Victoria. It is in everyone’s interest to defeat this outbreak.

Where to from here?

At this stage, the situation is unclear. Daily cases could still rapidly increase, or we could have reached the peak and we might start seeing cases subside. However, the number of new cases each day isn’t necessarily the critical factor. More important is the daily number of new community-acquired infections. Because we have no idea where these people got infected, it makes controlling the situation very difficult.

Other cases are not a major threat as it’s possible to contain them with quarantine and contact tracing. If necessary, additional staff experienced at contact tracing can easily be brought in from other states.

The first epidemic wave was controlled by imposing severe restrictions. Unfortunately, history might have to repeat itself.


This article is supported by the Judith Neilson Institute for Journalism and Ideas.The Conversation

Adrian Esterman, Professor of Biostatistics, University of South Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can I cross the NSW-Victoria border? There are exemptions, but you’ll need a very good reason


Jon Iredell, University of Sydney

The NSW-Victorian border will be closed as of midnight Tuesday this week, the NSW and Victorian premiers have announced, in an effort to limit the spread of COVID-19.

The announcement comes amid a resurgence of COVID-19 cases in Victoria, which has returned several postcodes to Stage 3 Stay-At-Home restrictions and instituted a “hard lockdown” in at least nine Melbourne tower blocks.

In a press conference on Monday morning, NSW Premier Gladys Berejiklian said people seeking an exemption to the temporary border closure will be able to apply through the Service NSW portal.

It’s good exemptions are available – but it’s crucial these options are not abused. The exemption option is there for people who really need it but please don’t treat it as a challenge.

We all have a shared responsibility to do all we can to limit the spread of COVID-19. That means staying home if unwell, practising physical distancing where warranted, washing hands diligently and getting tested if you have any COVID-19 symptoms.


The Conversation, CC BY-ND

What we know about exemptions to the border closure

In her press conference, Berejiklian said

Tomorrow midnight is when all Victorians will be prevented from coming across the border unless they have a permit […] The next 72 hours will be difficult, for some people who normally travel across the border for their daily lives will be restrained until we get the permit system in place and we hope that will happen in the next two days.

When asked about people who already had flights or train trips booked, Berejiklian said

There will always be exemptions due to hardship cases, people can apply for permits or exemptions. And so, for those reasons, we anticipate there will still be some flights and trains services available. There will also be NSW residents returning home […] we will be relying on them to self-isolate.

In the same press conference, NSW Police Commissioner Mick Fuller said:

it will be difficult, not impossible, but difficult to make that crossing. There will be delays whilst we work through who are essential workers.

Victorians in NSW would be allowed to return to Victoria, the ABC reports. A NSW government press release said “NSW residents returning from a Melbourne hotspot are already required to go into 14 days of self-isolation. This requirement will be extended to anyone returning from Victoria. This will be backed by heavy penalties and fines.”

Victorian Premier Daniel Andrews said:

There will be a facility for people who live on those border communities to be able to travel to and from for the purposes of work, the purposes of the essential health services they might need… [but holidays would] not be an acceptable reason.

Infectious diseases clinicians and researchers in my field realise this will be frustrating for many people, especially as it comes during school holidays. But the risk of cross border transmission is very real.

Please don’t treat the border closure as a challenge, or seek exemption unless you have a very good reason to do so. Many of us will miss out on much-anticipated family catch-ups and events; it is sad but necessary, unfortunately. Any cross-border movement increases risk and we all have a responsibility to do what we can to minimise it. It’s not even a law enforcement issue; it’s about doing what’s right.

Everyone feels frustrated but moving across the border right now really does magnify risk and we risk losing control.

It’s possible to have trivial or even no symptoms but still be capable of spreading COVID-19.

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Don’t dismiss it as ‘just a cough’

Australians have a culture of soldiering on when sick and dismissing symptoms as “just a cough” or “just a runny nose”. We really need to change that mindset and make sure we get tested if we have any symptoms at all, and physically distance from others.

The key messages are to wash hands and if you’re at all unwell, cover your cough and face, stay home, self-isolate and get tested.

Testing in Australia is phenomenally available. We are so lucky to have such great testing facilities so easily accessible and we should avail ourselves of them.

The risk is if we don’t observe the border closures sensibly, minimise spread and test appropriately we will do excessive damage to the economy or lose control of the outbreak – or both.




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The Conversation


Jon Iredell, Professor, Medicine and Microbiology (conjoint), University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Here’s how the Victoria-NSW border closure will work – and how residents might be affected



Wikimedia Commons

Andrew Burridge, Macquarie University

Victorian Premier Daniel Andrews has announced the border between his state and NSW will close after 11:59pm on Tuesday to prevent the coronavirus outbreak in Melbourne from spreading further.

It will be the first border shutdown between the two states since 1919, when the Spanish flu epidemic prompted the NSW government to close its borders with Victoria, Queensland and South Australia to slow the spread of the virus.

What will this new shutdown mean for residents on both sides of the border and what are the potential longer-term consequences of the closure, as well as those between other states?

How will residents be affected?

There are more than 50 land crossings between NSW and Victoria, peppered between the coast and South Australia. Last year, NSW welcomed more than 4.7 million overnight visitors from Victoria.

There are also a number of interconnected communities along the length of the border, most notably Albury-Wodonga along the Murray River. There are some 89,000 people living in those towns, according to the 2016 census. Other large border towns include Echuca, Swan Hill and Mildura.




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Since the outbreak of COVID-19, many states have announced similar border “closures”. It should be noted, however, that borders rarely, if ever, close completely. They are designed to act as filters, allowing officials to decide who, or what, crosses.

Victorian Premier Daniel Andrews announced the border closure after talks with NSW Premier Gladys Berejiklian and Prime Minister Scott Morrison.
Daniel Pockett/AAP

In other states with closed borders, residents in border communities have been given permits or exemptions to cross for specific reasons, such as specialist work or to care for sick relatives.

Permits for the NSW-Victoria border will likely be made available for residents of border communities like Albury-Wodonga and for those who believe they must cross for “exceptional circumstances.”

The permit system will also likely allow people to cross the border for health care. The Albury and Wodonga health system is unique in that it straddles the state line, providing service to 250,000 people in the region. The state of Victoria runs the Albury Hospital, even though it is located in NSW.

Trade is also unlikely to be highly affected. The NSW-Queensland border has been closed since March, but freight trucks have generally been allowed to continue to cross unfettered, though perhaps more slowly than usual.

Constitutionality of border closures

Even though there have been few disruptions, this has not stopped challenges to the High Court over whether such closures are constitutional.

Section 92 of Australia’s constitution says

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

There are some exceptions to this freedom, though, particularly when it is necessary to protect the people of a state from the risk of injury from inbound goods, animals and people.

COVID-19 has generally been accepted as a reason for imposing border closures.

This has happened in Australia before. In January 1919, during the Spanish flu outbreak, a case of influenza arrived in NSW from Victoria.

NSW unilaterally closed the border between the states, followed by other closures (notably between NSW and Queensland). Some people tried to circumvent the border restrictions by taking to the sea.

The NSW-Queensland border was closed in March, causing traffic back-ups and headaches for residents who live there.
Jason O’Brien/AAP

Have there been border disputes before?

Victoria officially became an independent colony on July 1, 1851, with the border defined under the Australian Constitutions Act as

a straight line drawn from Cape How (sic) to the nearest source of the River Murray and thence the course of that river to the eastern boundary of the province of South Australia.

A boundary survey was conducted in the 1870s by Alexander Black and Alexander Allan to demarcate the straight line portion of border through the often mountainous terrain between the two colonies.

Disputes over the boundary have persisted since then, with reports noting that fishermen blew up the original cairn at Cape Howe to avoid license fees.

These disputes eventually found their way to the High Court in the 1970s and 1980s, particularly in regards to the boundary along the Murray River. The entirety of the river was found to sit within NSW in the 1980 ruling of a case involving bizarre circumstances – the jurisdiction of a murder that took place on the shoreline.

In 1984, the straight-line border between the states was resurveyed by the Department of Surveying, Royal Melbourne Institute of Technology, and renamed the Black-Allan line in honour of the first surveyors. The border was not officially recognised in name until 1998 by the Geographic Place Names Act.




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What do border closures mean long-term?

One point of concern in the states’ response to the pandemic is the way it has changed the way we talk and think about borders. We have begun to separate ourselves from our neighbours.

And while the political rhetoric that goes back and forth between states has been mostly trivial in nature (think of Andrews’ comment about who would want to travel to SA), there is a risk of longer-term damage to relations between states.

Perhaps more importantly, some cross-border residents have been subjected to abuse for legitimately crossing state lines, often identified by their license plates.

Health experts have also disagreed over the need for border closures, with some saying there is a lack of evidence for their effectiveness in curbing disease transmission. However, even these messages have been mixed, and some have been politicised.

How NSW and Victoria proceed in managing their highly crossed and integrated border will throw up previously unforeseen challenges that Black and Allan were unlikely to have considered while navigating the alpine terrain between the colonies 150 years ago.

The boundary marker monument on the NSW-Victoria border in Genoa, an area affected by this summer’s bushfires, reminds us of the need for cross-state cooperation on issues that are not confined neatly within borders.




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The Conversation


Andrew Burridge, Lecturer in Human Geography, Macquarie University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Destitution on Australia’s hardening border with PNG – and the need for a better aid strategy



Visiting women from the South Fly selling their crafts in an informal market on Boigu Island in the Torres Strait.
Author provided

Mark Moran, The University of Queensland

Less than four kilometres from Australia’s northernmost islands in the Torres Strait lies the South Fly District of Papua New Guinea.

If you’ve ever heard anything about this borderland region – wedged between Australia, Indonesia and the Fly River in southern PNG – it’s likely about protecting Australia from disease, illegal migration, drugs and gun smuggling.

However, the story of the South Fly District is much more complex. It is a story of chronic underdevelopment and growing frustration with a border management regime that favours some PNG nationals over others and ever-tightening restrictions on trade across the Australian border.

Over the past four years, researchers from the University of Queensland visited 35 South Fly villages and five Torres Strait islands to better understand the relationship between the two sides of the border. The findings were just released as a book, Too Close to Ignore: Australia’s Borderland with Papua New Guinea and Indonesia.

A map of the South Fly District in southern PNG and neighbouring Torres Strait Islands.
Author provided

Extreme poverty on the PNG side

The World Bank has set the international poverty line at A$2.70 per person per day, but the median income in South Fly villages is less than half of this. Worse still, basic goods like flour and sugar are twice what people pay in remote areas of Australia, and the cost of fuel is A$3–4 per litre.

PNG is often described as having a dual economy, with mining and other foreign investment driving the main economy with money, and subsistence gardening underpinning the other. Subsistence activities (growing only what is needed for survival) remain essential in rural areas where more than 80% of people live.

But cash is also desperately needed for basic food items, health services and schooling. People are constantly looking for markets, but they face formidable obstacles due to the remoteness of the region and high transportation costs.

Now, the hardening of the Australian border is proving to be another barrier, too.

A South Fly Village house with an improvised door (scavenged from the Torres Strait).
Author provided

Hardening of the border

To stem any threat of coronavirus, cross-border travel with the exception of medical emergencies has been banned since mid-February, more than a month before PNG’s first confirmed case.

But even before then, a complex border management system was fuelling frustrations.

Under the Torres Strait Treaty, residents of 14 nominated “treaty” villages in PNG have been allowed to cross the border, so long as they have a pass signed by a Torres Strait Island councillor.

Passage is limited to traditional purposes only, which is interpreted by Australian authorities to exclude commercial trade. South Fly residents, however, still seek to barter across the border for cash and goods. This trade is critical to their economic survival.




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For PNG residents, the Australian government approach to border management relies on a hierarchy of haves and have-nots — those villages with treaty status, and those without.

As non-treaty villages can’t cross the border, they sell their goods to treaty villages, who then on-sell them into the Torres Strait. The treaty villages guard their privileges, informally helping to manage the border.

But the treaty villages themselves are now also struggling to trade, as the Australian Border Force (ABF) and Torres Strait Island councillors have, in recent years, asserted more control over the border.

By not issuing passes, the councillors limit the numbers of days for visitors and even issue total bans to entire villages. They do so to protect their limited resources during times of water shortages, to prevent the spread of infectious diseases or viruses (like COVID-19), or as punishment for overstaying on previous visits, fighting or other breaches.

The Australian government relies on the councillors to be informal frontline defenders of the border. ABF officers have also imposed harsh restrictions on those who do manage to cross, including limits on access to ATMs for PNG visitors trying to collect remittances from extended families.

PNG visitors are no longer able to sell their goods or avail themselves of medical services to the extent that they once did, either.

Border management trumping aid assistance

This system has some kind of logic for border control, but it makes no sense when it comes to other issues, like health.

Australian aid assistance in the South Fly District is largely limited to the capital Daru and the 14 treaty villages. In these regions, Australia has funded a world-class response to tuberculosis, including a hospital in Daru and health centre in Mabuduan, a treaty village.

The primary health system in the rest of the district, meanwhile, is grossly understaffed and under-resourced. People from South Fly villages often travel to health clinics on the outer Torres Strait Islands, where clinicians adopt a humanitarian position for medical emergencies.




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If patients have TB, they are sent back for treatment at the Daru hospital. But the health system’s transport is extremely limited, and most PNG residents can’t afford the exorbitant cost of fuel for private dinghies.

When they can raise the money to travel to Daru, they are often accompanied by family members and stay in squalid, overcrowded housing, where they run the risk of further spreading or catching TB.

One of the Daru settlements where many visitors from South Fly Villages stay.
Author provided

Normalise aid spending for greater impact

Despite the long history of reciprocal relationships between the South Fly and Torres Strait, a hardening border is worsening destitution and on the PNG side and exacerbating the security threat to Australia.

And as the Australian border hardens, the Indonesian border beckons, where trade in mostly dried fish products has been long established. Compared to the Australian border, the PNG-Indonesia border is relatively porous, and illegal border crossings and overfishing are pervasive.

Allowing commercial trade across the PNG–Australian border would certainly help. For example, the crab trade has been dominated by Chinese store owners in Daru, who buy up everything until stocks are depleted to sell onward to Singapore.




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Building a crab fishery in the South Fly could be a profitable enterprise for Torres Strait Island businesses, with live exports sold to restaurants in Australia, and better prices paid to the PNG women who traditionally catch them. Australian quarantine officers in the Torres Strait Islands could control catch size.

Expanding the bilateral aid program to benefit all the villages in the district, not just treaty villages would also help.

The current money needs to be dispersed more evenly for greater impact, according to the principles of aid effectiveness and population health, and not play “second fiddle” to border management.The Conversation

Mark Moran, Professor of Development Effectiveness, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.