The Secretary, Department of Markets, has forwarded the following memorandum for advice:

For some time past the Victorian Government has prohibited the entry into Victoria of potatoes from Tasmania, in view of the possible danger of introducing a disease known as ‘Corky Scab’ which has been found to affect potatoes grown in Tasmania. The Victorian Government has, moreover, refused to allow Tasmanian potatoes to be carried over the Victorian Railways en route to other states.

The Victorian Vegetation and Vine Diseases Act No. 2744 of 1915 authorises action to be taken to prevent the introduction of diseases and insect pests. Regulations were issued under this Act in 1916 to prevent the introduction of ‘Spongospora Subterranea’ (corky or powdery scab) and were published in the Victorian Gazette of 8/11/16, page 4301.

The matter was brought under the notice of the Prime Minister and the Minister for Markets in the House of Representatives last week by Tasmanian representatives, and the question was raised as to whether the action of the Victorian Government in restricting the entry of Tasmanian potatoes is a contravention of the Constitutional provision relating to freedom of trade between the States.

It is understood that similar precautions have been taken by Tasmania against the importation of cattle from Victoria into King Island in consequence of the danger of pleuro-pneumonia, and that New South Wales also prevents the importation of Victorian potatoes, onions and other vegetables grown in areas where the lucerne flea is known to exist. Action has also been taken under the Commonwealth Quarantine Act to prohibit the entry into Australia of potatoes from New Zealand owing to the existence in the Dominion of ‘Powdery Scab’.

Advice is desired as to whether the action of the Victorian Government in prohibiting the entry of Tasmanian potatoes into Victoria and in refusing to allow Tasmanian potatoes to be carried over the Victorian Railways could be regarded as a contravention of section 92 of the Constitution, having regard to the Victorian Government’s desire to protect the State against the possible importation of agricultural diseases.

The Minister desires to make a statement in the House tomorrow (Wednesday) on the general position of this matter and it would be appreciated if your reply could be made available during the morning.

It is stated in the above memorandum that regulations were issued in 1916 preventing the introduction of ‘Spongospora Subterranea’ (corky or powdery scab).

This it is assumed is a disease prevalent in potatoes.

The advice asked is whether the action of the Victorian Government in prohibiting the entry of Tasmanian potatoes into Victoria, and in refusing to allow Tasmanian potatoes to be carried over the Victorian Railways could be regarded as a contravention of section 92 of the Constitution.

No information is given as to the exact nature of the action taken by the Victorian Government, nor of the precise authority for that action.

The general suggestion is that Tasmanian potatoes are prohibited entry into Victoria.

The legislation referred to relates only to the introduction of a specific disease.

Section 92 is not infringed by a law prohibiting the introduction of a disease or of diseased animals or products. 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.

I can find no regulations under the Vegetation and Vine Diseases Act at the reference given to the Victorian Gazette (8 November 1916, p. 4301).

In the absence of definite information of the action in respect of which advice is sought it is not possible to express an opinion on the matter.

The power of a State to prohibit the importation from another State of any articles for the purpose of preventing the entry of infectious or contagious disease was dealt with in the case of ex parte Nelson (42 C.L.R. 209).

In that case a Proclamation had been issued under the Stock Act 1901 of the State of New South Wales prohibiting or restricting the importation or introduction of stock into New South Wales from Queensland coming from a specified district in which it was stated there was reason to believe infectious or contagious disease in stock existed. It was there held by a majority of the Court that the section did not violate the provisions of section 92 of the Constitution.

It would therefore seem that where a State Authority has reason to believe that a disease exists in another State which may be carried into the first mentioned State by the importation of certain articles it may, notwithstanding section 92 of the Constitution, prohibit the importation of those articles.

It might be mentioned that in Nelson’s case there were three Justices who favored the validity of the action taken by the state and three Justices who dissented from the decision of the Court. A majority in favor of the validity of the State action was secured by the inclusion in the three Justices who took that view of the Chief Justice.

Although the decision in the Nelson case is at present the law, in view of the variation which has taken place in the personnel of the High Court, and in view of the fact that it has on several occasions overridden its previous decisions, the question whether the decision in that case would be supported on a future occasion is somewhat problematical.

[Vol. 25, p. 291]