Opinion No. 236
WHETHER COMMONWEALTH HAS POWER TO PREVENT INTRODUCTION OF CONTAGIOUS OR INFECTIOUS DISEASE : SCOPE OF QUARANTINE POWER
CONSTITUTION, s. 51 (i), (ixj : CUSTOMS ACT 1901, ss. 52, 56
21 March 1906
The Minister for Trade and Customs
The following letter has been written to the Prime Minister:
Sydney Labor Council.
Trades Hall, Goulburn Street, Sydney
16 February 1906.Sir,
I have the honour to inform you that members of the Sydney Labor Council view with profound alarm the proposal of Dr Danysz to inoculate rabbits with the virus of a contagious and fatal disease, possibly communicable to man, and therefore urge upon the Federal Government-in the interests of the preservation of health and human life-the desirableness of prohibiting its introduction and dissemination.I have the honour to be, Sir,
Your obedient servant,
J. P. Cochran
The Minister for Trade and Customs has forwarded the letter to me with the following minute:
The Attorney-General might be asked for advice as to the power vested in the Federal Government to prohibit a State dealing with this matter.
In the absence of precise information as to the proposal it is impossible to advise upon it specifically.
Under the Customs Act 1901, sections 52 and 56, a proclamation could be issued prohibiting the importation of the virus of any contagious or infectious disease whether affecting man, animals or plants. But if the virus of the disease is in Australia or is capable of being produced there, the proclamation would, obviously, be ineffective.
Under the Constitution the Commonwealth Parliament has power to make laws for the peace, order and good government of the Commonwealth with respect to quarantine. This power would enable the Commonwealth to legislate, amongst other things, with respect to the prevention of the introduction of contagious or infectious diseases from abroad and the prevention of the spread of and the stamping out of those diseases if introduced.
The Commonwealth has not yet legislated with respect to quarantine and the State laws under that head still remain in force and their administration rests in the State Governments.
Further advice can be given, if necessary, when more information with respect to the proposal is available.
[Vol. 5, p. 202]