The Minister for Trade and Customs :

In this matter the Prime Minister wrote to the Premier of Victoria in the terms of my opinion of 23 October 1902⁽¹⁾, and received the following reply (dated 20 November):

In reply to your letter of 24 October I have the honour to enclose herewith a full copy of the Order in Council in the matter referred to which recites the statutory authority under which it was made. From this it will be seen that the provisions of the Health Act 1890, No. 1098 (of this State) invest the Governor in Council with a delegated legislative authority to prohibit the introduction into Victoria of certain animals coming from quarters where disease exists and for the detention of such animals in quarantine. The reasonableness of such a delegation of power is obvious, inasmuch as it deals with matters for which it would be highly inconvenient and even impossible for Parliament to make effectual provision by legislation in detail; and, indeed, such power of delegation is not only of very frequent occurrence, but has been on more than one occasion declared by the Privy Council to be within the powers vested in colonial legislatures (see Hodge v. The Queen 9 A.C. 117, and other cases).

It is admitted that the provisions in the Commonwealth Constitution relating to interstate freedom of trade are not infringed by a law prohibiting the introduction of diseased animals, nor are they, I venture to maintain, by a law prohibiting their introduction from places where diseases affecting such animals prevail.

The question of whether such laws are 'reasonable' or not is one for the legislative authority which makes them, provided always that there is no suggestion of mala fides or intention to evade a constitutional restriction. I do not desire, therefore, to be taken as admitting that the validity either of the section in the Health Act or of the Order in Council made under it depends upon whether the Federal Government, or even any judicial tribunal dealing with that question, would consider the legislation to be necessary for its purpose or not, provided that purpose lay within the ambit of the local authority.

As, however, the assistance of the Federal Government is sought in order to more conveniently give effect to the prohibition, it is not unreasonable that that Government should be put in possession of all the material facts. I send, therefore, in addition to the Order in Council, a report upon the merits of the matter, which I have obtained from the Minister of Agriculture.

I may add that it appears to me that this case comes within the category of those in which the interests both of convenience and economy are best served by aid being rendered by Commonwealth Departments to State Departments or vice versa.

The report referred to in the above letter is as follows:

Tick (Argas Americanus) having been found affecting poultry in the northern areas of the State it was scheduled under the provisions of the Stock Diseases Act as tick fever in poultry and the whole of the infested districts placed in quarantine. Poultry and poultry products can only come out of such districts under restricted conditions, and in no case is poultry allowed off an infested place. Tick are known to infest poultry in New South Wales and South Australia, and as far as can be ascertained nothing is being done in these States to eradicate or keep under control the pest. It is only confined practically to a small part of Victoria, and it is the intention of the Department to have it stamped out, and in order that this might be accomplished regulations were drawn up to prevent the spread of the disease to those parts of this State that are free of the pest. To effect this end it was deemed advisable to allow no poultry from any infected area into any district clear of it.

The poultry industry to this State is roughly estimated by the Statist to be worth £2,200,000, and as can be seen, requires every protection. Under Section 267 of the Health Act 1890 an order was obtained, as per attached slip, prohibiting the introduction of poultry into Victoria from New South Wales and South Australia. It has been the practice to requisition the services of the Customs Officers to advise me of any attempt to introduce prohibited stock.

The papers were then referred back to the Minister for Trade and Customs who forwards them to me with the following minute (dated 2 December 1902):

Returned to the Hon. the Attorney-General, with request for opinion on the position as now put by the Hon. the Premier of Victoria. The assistance of Federal Officers in this Department has always been cheerfully given for State purposes to which it is clear that no objection could constitutionally be taken. It is admitted by Mr Irvine that the Victorian Government is seeking the assistance of the Federal Government in the matter, and I take it that we should be satisfied not only as to the constitutionality of the action in which we are asked to assist, but also as to the probability of this action, which we are bound to take, being objected to by other States. Otherwise we may be unnecessarily embroiled in a State quarrel. Would it be well to let the States concerned have an opportunity of saying whether or not they object?

I have, as stated by Mr Irvine, admitted that interstate freedom of trade is not infringed by a law prohibiting the introduction of diseased animals. This is on the principle that 'there is no commerce in disease', and that the State police power extends to quarantine and reasonable inspection laws: Railroad Company \. Husen 95 U.S. 465.

But it is impossible to admit, without qualification, his further contention that this rule extends to laws absolutely prohibiting the introduction of animals from places where diseases affecting such animals prevail; or that 'the question of whether such laws are "reasonable" or not is one for the legislative authority which makes them, provided always that there is no suggestion of mala fides or intention to evade a constitutional restriction'.

In Railroad Company v. Husen (above) a law of Missouri, prohibiting the conveyance of any Texas, Mexican, or Indian cattle into the State between 1 March and 1 November in each year, was held to be in conflict with the commerce clause. Mr Justice Strong, delivering the opinion of the Court, said:

It seems hardly necessary to argue at length, that, unless the statute can be justified as a legitimate exercise of the police power of the State, it is a usurpation of the power vested exclusively in Congress. It is a plain regulation of interstate commerce, a regulation extending to prohibition . . .

We admit that the deposit in Congress of the power to regulate foreign commerce and commerce among the States was not a surrender of that which may properly be denominated police power. What that power is, it is difficult to define with sharp precision. It is generally said to extend to making regulations promotive of domestic order, morals, health, and safety . . . The same principle, it may also be conceded, would justify the exclusion of property dangerous to the property of citizens of the State; for example, animals having contagious or infectious diseases . . .

But whatever may be the nature and reach of the police power of a State, it cannot be exercised over a subject confided exclusively to Congress by the Federal Constitution. It cannot invade the domain of the national government . . . Many acts of a State may, indeed, affect commerce, without amounting to a regulation of it, in the constitutional sense of the term. And it is sometimes difficult to define the distinction between that which merely affects or influences and that which regulates or furnishes a rule for conduct. There is no such difficulty in the present case. While we unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, etc., from entering the State; while for the purpose of self-protection it may establish quarantine, and reasonable inspection laws, it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection. It may not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce . . .

Tried by this rule, the statute of Missouri is a plain intrusion upon the exclusive domain of Congress. It is not a quarantine law. It is not an inspection law. It says to all natural persons and to all transportation companies, 'You shall not bring into the State any Texas cattle or any Mexican cattle or Indian cattle, between March 1 and December 1 in any year, no matter whether they are free from disease or not, no matter whether they may do an injury to the inhabitants of the State or not; and if you do bring them in, even for the purpose of carrying them through the State without unloading them, you shall be subject to extraordinary liabilities'. Such a statute, we do not doubt, it is beyond the power of a State to enact. To hold otherwise would be to ignore one of the leading objects which the Constitution of the United States was designed to secure.

In coming to such a conclusion, we have not overlooked the decisions of very respectable courts in Illinois, where statutes similar to the one we have before us have been sustained: Yeazel v. Alexander 58 II1. 254. Regarding the statutes as mere police regulations, intended to protect domestic cattle against infectious disease, those courts have refused to inquire whether the prohibition did not extend beyond the danger to be apprehended, and whether, therefore, the statutes were not something more than exertions of police power. That inquiry, they have said, was for the legislature and not for the courts. With this we cannot concur. The police power of a State cannot obstruct foreign commerce or interstate commerce beyond the necessity for its exercise; and under colour of it objects not within its scope cannot be secured at the expense of the protection afforded by the Federal Constitution. And as its range sometimes comes very near to the field committed by the Constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion.

This case was distinguished in the recent case of Rasmussen v. Idaho 181 U.S. 198, decided in 1901. There it was held that a statute of Idaho, providing that where the State Governor has reason to believe that scab or any other infectious disease of sheep has become epidemic in certain localities in any other State, or that conditions exist that render sheep likely to convey disease, he may prohibit the importation from those localities of any sheep into the State, 'except under such restrictions as, after consultation with the State sheep inspector, he may deem proper', did not conflict with the Constitution of the United States. In delivering the judgment of the Court, Mr Justice Brewer said:

In the case before us the statute makes no absolute prohibition of the introduction of sheep, but authorizes the Governor to investigate the condition of sheep in any locality, and, if found to be subject to the scab or any epidemic disease liable to be communicated to other sheep, to make such restriction on their introduction into the State as shall seem to him, after conference with the State sheep inspector, to be necessary. The executive acted on the authority thus conferred, and, after consultation with the State sheep inspector and examination of the matter, found that the scab was epidemic in qer-tain localities in Utah and Nevada, and that if sheep from those localities were moved therefrom into Idaho they would spread infection and disease among the sheep of the State, and thereupon forbade the introduction of sheep from such localities for the space of sixty days. It will be perceived that this is not a continuous act, operating year after year irrespective of any examination as to the actual facts, but is one contemplating in every case investigation by the chief executive of the State before any order of restraint is issued. Whether such restraint shall be total or limited, and for what length of time, are matters to be determined by him upon full consideration of the condition of the sheep in the localities supposed to be affected. The statute was an act of the State of Idaho contemplating solely the protection of its own sheep from the introduction among them of an infectious disease, and providing for only such restraints upon the introduction of sheep from other States as in the judgment of the State was absolutely necessary to prevent the spread of disease. The act, therefore, is very different from the one presented in Railroad Company v. Husen above, and is fairly to be considered a purely quarantine act, and containing within its provisions nothing which is not reasonably ap-propriate therefor.

In my opinion the force of these decisions is strengthened, under the Constitution of the Commonwealth, by section 92, which provides that trade, commerce, and intercourse among the States shall be absolutely free. Neither the Federal Parliament nor the State Parliaments have power to infringe this provision. And clearly any legislation by either which has the effect of obstructing interstate trade must be subject to judicial decision as to whether it involves a direct breach of the Constitution. Indepen-dently altogether of mala fides, or intention to evade the Constitution, the courts, and not the legislature, must be the ultimate judges of whether an actual evasion– whether innocent or not–has been effected. Were it not so, the State legislatures or the Federal Parliament might, in an honest effort to prevent the spread of disease, absolutely prohibit all interstate commerce or intercourse whatever.

It remains to be considered whether there is anything in section 267 of the Victorian Health Act 1890 or in the Order in Council above referred to, which is unconstitutional or of doubtful constitutionality.

Section 267 of the Victorian Act provides inter alia that:

The Governor in Council may from time to time make alter and repeal such orders as may seem to be necessary for the purpose of prohibiting or regulating the introduction into Victoria from any country or colony or part of a country or colony (in which respectively any disease in sheep cattle horses dogs swine or other animals of the same or any other kind or kinds whatsoever is known to exist) ...

It also enables the Governor in Council to make orders for the detention in quarantine of all animals or articles likely to propagate amongst men or animals any infectious or contagious disease.

The Order in Council recites the above section, and declares that the Governor doth, 'in exercise of the powers conferred by the above recited Act and of every other power enabling him in that behalf, prohibit the introduction of poultry into Victoria from New South Wales and South Australia'.

In the Act itself there would seem to be no conflict with the Constitution. Except by an Order in Council made under the section, it can have no effect. But any Order in Council so made must itself be subject to be tested by the Constitution, and cannot be of greater validity than if it were incorporated in the Act.

I am unable to advise that the constitutionality of this Order in Council is beyond doubt. It is an absolute prohibition, without exception, without condition, without limitation in point of time. It is more than a quarantine or inspection regulation. Whether any circumstances whatever could support such a regulation, in the face of sections 51 and 92 of the Constitution, is doubtful; but it is hardly doubtful that the facts alleged by the Department of Agriculture do not justify absolute prohibition. That this is so seems to be recognized by the Department itself, which within a month of its first notification to the Comptroller-General, forwarded a second notification that 'it has pleased the Hon. the Minister of Agriculture to permit pigeons to be introduced from New South Wales and South Australia for shooting and homing purposes. The pigeons must be consigned to Melbourne by railway, and crossed into Victoria from New South Wales at Wodonga, and from South Australia at Serviceton'

.

I agree with Mr Kingston that it would not be proper to assist a State Government in enforcing a regulation of doubtful constitutionality; and I do not think that even the approval of the Governments of the States concerned would altogether remove the objection, as the matter is one which concerns individual citizens as well as Governments.

It is to be understood that this opinion applies only to this particular Order in Council;.and that an Order in Council prohibiting introduction except under the conditions of effective quarantine and inspection would stand on a different footing.

[Vol. 3, p. 6]

(1) Opinion No. 101.