Class action proceedings a border fiasco option
The beachside resort of Coolangatta has become the unlikely battlefront in the stand-off between Queensland and NSW as the states argue over Queensland’s hard border closure to keep COVID-19 out of the state, writes Bruce Simmonds.
With NSW in lockdown and recording soaring COVID-19 infection rates daily, Queensland clamped its borders shut that effectively cut the southern border community of Coolangatta and Tweed in half.
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Now the states are fighting over a “border bubble” to allow Tweed locals to enter Queensland for work and education. The hard closure means thousands can’t cross the border each day. Queensland is happy to move the border checkpoints into the Tweed, to allow locals to get to and from work and school. But NSW won’t budge on its refusal to allow any Queensland border checkpoints on NSW turf.
Now, with an impasse and both sides pointing finger at one another to play the fault and blame game, Tweed and Gold Coast businesses and workers driven to financial collapse by the Queensland/NSW border closure restrictions may have grounds for a class action lawsuit.
The Queensland-NSW border has become the front line in the battle against the COVID-19 pandemic as it swamps NSW and creeps north toward an increasingly nervous Queensland.
Queensland has imposed a hard border closure to NSW with police and army personnel checking every vehicle trying to enter the state. The closure and especially tough restrictions on who qualifies as an essential worker, are causing heartache and fury on both sides of the border line as increasing numbers of NSW people are denied access to Queensland.
There have been several calls for the Queensland border to be moved south but the idea has not been approved. Depending on whom you talk to, Queensland refused to shift the border or NSW refused to allow it.
Recently the Queensland government reportedly offered to temporarily move the border south, to include much of the Tweed within the Queensland zone.
But media say the NSW government refused to move the border into the Tweed to help locals caught up in the border restrictions. It’s this refusal that could be the trigger for a class action lawsuit.
Workers and businesses suffering because of the border issue could lodge a class action claim against NSW on the grounds that Queensland would allow movement but NSW unreasonably refuses to move the checkpoint bubble south to allow Queensland to apply inspection sites at a new line south of the current border.
While I am not aware of any class action suits underway at present it’s a logical consequence for those businesses that face ruin because of the border closures and the strict controls on who can cross the border.
Like COVID-19 creeping into Queensland, a class action case is increasingly just a matter of time.
It could be argued a class action is justified by business and workers across the borders for activity contrary to the mutual obligations created under the Australian constitution.
Grounds for such an action would include denying access to common labour rights and commerce.
There’s a fear the border stand-off is a consequence of the widely reported claim that the Queensland and NSW premiers do not get along together and it’s hard to avoid wondering if there’s an element of stubbornness in the NSW refusal to allow a temporary border expansion to cover the Tweed area.
Queensland Premier Annastacia Palaszczuk hasn’t ruled out also fighting the Morrison government in the High Court to defend Queensland’s right to close its borders.
Scott Morrison wants the borders open to return the economy to normal but the Queensland and Western Australian premiers won’t budge on their border closures.
There’s nothing obvious in the history of the Queensland border to rule out a temporary amendment to its definition. The line defining the Queensland-NSW border dates back to surveying work in the 1860s using rocks and trees as survey markers.
The mayor of the Tweed Shire desperately hopes her local government area can be brought under Queensland’s border protections, as the COVID-19 cases creep north toward her shire.
Chris Cherry wants the border to be moved south to encompass all of the Tweed Shire, which is yet to see a case of the virus. But Ms Cherry admits time is running out for any rescue plan to be implemented.
“There is a desperation that people are feeling, it has to be now, it has to happen,” she told media.
Coolangatta has become a focal point for the border stand-off with police roadblocks to check every vehicle entering the state. Tensions have been high, tempers have flared, fines have been issued and all the while there’s the fear of who will be the one to bring COVID-19 over the border into Queensland?
“It’s like a waiting game,” Ms Palaszczuk told media of the prospect someone will bring the Delta variant into Queensland from NSW. “Any day, this could change, and we need to be ready.”
Deputy Queensland Premier Steven Miles has been an advocate of a hard border closure.
“The border is our riskiest place right now,” he said and tensions over the tightened Queensland/NSW border are mounting. Protest groups have gathered on both sides of the Coolangatta checkpoint, protesting against COVID-19 restrictions and border measures.
Inevitably, the issue has become very political. If it was not a Labor electorate then the federal government would step up. Local Labor MP Justine Elliot and some local mayors and councillors have called on fellow Liberal and Nationals state MPs to support a Northern Rivers border checkpoint “to keep our community safe and to protect local jobs and businesses”.
However bipartisan support appears unlikely “owing to a range of legal and regulatory issues”, according to Nationals MLC Ben Franklin, who backed his leader John Barilaro’s views in a COVID-19 briefing that “moving the border becomes another cliff edge for another community”.
I think the National Party members need to step up and do more. I believe the late Doug Anthony would have done so.
There are growing fears that the COVID-19 pandemic is out of control in NSW and Ms Palaszczuk has warned of immediate lockdowns in Queensland if the virus sneaks into the state.
But tightened border restrictions on who can enter Queensland have threatened the livelihoods of thousands of Tweed residents and businesses that depend on cross-border movements.
The border move rejection has restoked the fires between the states with the NSW government showing it is completely out of touch with the people on the Tweed.
Thousands of Coolangatta-Tweed residents are stuck either side of the border and unable to commute to businesses and schools after Queensland slammed the border shut. Teachers and even essential health workers are shut out, families have been split apart and social media is alive with the fury of those who cannot travel to and from Queensland each day for work or education.
Tweed mayor Ms Cherry said the Queensland-NSW border checkpoints need to be south of the shire.
“Where it currently has more than 16,000 people trying to cross each day for work, we need to find a solution that allows our community to operate with southeast Queensland,” she said.
Everyone thinks it’s logical and common sense to adjust the border to help businesses and workers survive the economic crisis caused by the pandemic.
Some have wondered whether Clive Palmer’s failed legal bid to challenge the Western Australian hard border closure in 2020 could be a precedent in this matter.
Mr Palmer’s challenge centred on the freedom of movement between states, guaranteed in section 92 of the constitution.
However, the High Court rejected his claim and found Western Australia’s hard border with the rest of Australia was justified to prevent a potentially catastrophic event.
The judgment stated there could be no doubt that a law restricting the movement of people into a state was a suitable way of preventing COVID-19 from entering a community.
A temporary move of the Queensland-NSW border does not fall under the Western Australian and Mr Palmer court decisions as it’s not necessary to maintain the current border restrictions for the common good.
The border is just a line on a map and people’s lives and livelihoods depend on some common sense in this matter. If the political parties won’t talk to each other the next people they talk to may be lawyers pursuing a class action lawsuit against them.
Bruce Simmonds is the litigation director at Parker Simmonds Solicitors & Lawyers.