It was wartime 1944 and Dulcie Johnson in Sydney missed her fiancé in Perth. Being a determined lady, she decided to visit him by train. However, when she arrived in Perth she was charged and convicted of an offence.
For the purpose of visiting her fiance, the defendant, on or about the material date, travelled by rail from Sydney to Perth by way of Broken Hill, Adelaide, Cook and Kalgoorlie without a permit under the Restriction of Interstate Passenger Transport Order, she having been informed upon inquiry that her reasons for travel were insufficient to warrant the granting of a permit.
Dulcie must have had some good connections because her case ended up in the Australian High Court.
In a recent case that also reached the Australian High Court Clive Palmer claimed that the Western Australian border closure is illegal as he needs to travel from Queensland to Western Australia to conduct his mining business.
So, what is behind this?
When our forefathers wrote the Australian Constitution they wanted to make it clear that travel and commerce between the States should be free. For example, NSW could not charge customs duty on goods being brought into NSW from another state, and people could not be prevented from travelling from one State to another. This concept is set out in Section 92 of our Constitution which says:
"... trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free...
Section 92 has been considered many times by the High Court and, for such a simple sounding clause, the Court has not set out clear principles as to how it operates. However, the High Court has said that it has to operate on a reasonable basis".
In Dulcie's case the High Court said that the law that Dulcie was said to have breached "does not, depend in any degree for its practical operation or administration upon the movement of troops, munitions, war supplies, or any like considerations. It is simply based on the " inter-Stateness " of the journeys it assumes to control". The Court said that the law was invalid and Dulcie was off the hook.
On the other hand, Clive Palmer was not so lucky. The High Court said that the Western Australian law preventing people from entering Western Australia did not breach Section 92. Unfortunately the High Court has not yet published its reasons, but the case was argued on the basis that the Western Australian law which prohibited travel to Western Australia was not drafted to discriminate against people from other states but was based on reasonable health issues to protect the residents of Western Australia.
If you have been affected by COVID-19 related border closures it is unlikely that you will get any comfort from the High Court.
Elizabeth died in Sydney on 2 December 2020. Her Will appointed her two daughters as executors but they could not agree on the form of the funeral. The sisters commenced court proceedings for an urgent resolution of the disagreement, with the result that the court published its reasons on 23 December 2020 so that there could be a funeral on Christmas Eve.
The law says:
an executor named in the will has the right to arrange for the burial of the deceased's body,
a deceased person has no right to dictate what will happen to his or her body,
executors must act jointly and the law will not recognise their separate acts,
where two or more persons have an equally ranking privilege to arrange the burial, the practicalities of burial without unreasonable delay will decide the issue.
Because of substantial disagreements as to the funeral director to be appointed, the "simplicity" of the service and the cost, the court was forced to take evidence from family members as to the wishes of the deceased, which of course differed, and then to make final orders. The court made 17 orders including such items as:
appointing a funeral director
the deceased's hairdresser may be invited to her cremation if she wishes to attend
the deceased cremation will not be advertised to the public by any media
the photographs of the deceased to be displayed at the cremation will be left to the professional judgment of the funeral director
The judge noted that the parties had jointly spent approximately $50,000 on the court proceedings and so authorised the funeral director to provide a higher cost funeral, to be paid for out of the estate.
In our July Newsletter we mentioned that the NSW government was going to make changes to the Retirement Villages Act relating to a resident moving into a nursing home. The changes are now in place and include:
the exit entitlement under the retirement village contract must be paid within a set period after a resident enters an aged care facility.
the village operator may be required to pay part of the resident's estimated exit entitlement as a Daily Accommodation Payment to the nursing home, and
the village operator may be required to pay the resident's ongoing levies out of the exit entitlement.