Opinion Number. 1531


quarantine Quarantine: customs: power of commonwealth to prescribe conditions prohibiting export of stock with view to preVenting spread of disease from Australia

Key Legislation

Quarantine Act 1908 ss 4, 87(m): Customs Act 1901 s 112

The Director-General of Health

The Director-General of Health has submitted the following memorandum for advice:

The question has arisen as to whether authority exists under the Quarantine Act to prescribe conditions controlling the export of live stock from Australia with the object of preventing the distribution of disease from Australia.

It is assumed that such power exists under the definition of ‘quarantine’ in section 4 of the Act, more especially as such power is assumed to exist and is widely used in respect of the possibility of the exportation of human disease such as plague. Under the International Sanitary Convention it is an obligation upon each signatory country to take measures to prevent the exportation of diseases and these measures include the examination of persons and goods.

Your advice in this respect would be appreciated.

Section 4 of the Quarantine Act 1908–1924 reads as follows:

4. In this Act, Quarantine has relation to measures for the inspection, exclusion, detention, observation, segregation, isolation, protection, treatment, sanitary regulation, and disinfection of vessels, persons, goods, things, animals, or plants, and having as their object the prevention of the introduction or spread of diseases or pests affecting man, animals or plants.

Section 4 does not expressly refer to the control of the export of animals but ‘measures for the … detention … of animals … and having as their object the prevention … of the spread of diseases or pests, affecting … animals …’ could be adopted which would have the same effect. Section 4 does not, however, of its own force empower the making of regulations.

The only direct reference in the Act to quarantine measures in relation to export is that contained in paragraph (m) of section 87, which empowers the Governor-General to make regulations for providing for the examination by quarantine officers of animals or plants for export.

If the proposed control of the export of live stock does not contemplate more than the mere examination of stock, there does not appear to be much doubt about the existence of the necessary authority to prescribe appropriate conditions with regard to such examination.

If it is desired to prescribe conditions which, in effect, relate to the prohibition of the export of stock, sufficient statutory authority does not, in my opinion, exist in the Quarantine Act for the prescribing of those conditions.

If the existing provisions of the Quarantine Act prove to be ineffective, section 112 of the Customs Act 1901–1930 could probably be called in aid. Paragraph (b) of that section authorises the Governor-General to issue a Proclamation prohibiting the exportation of any goods, the exportation of which would, in his opinion, be harmful to the Commonwealth. This power extends to the authorization of the prohibition of the exportation of goods generally, or to any specified place, and either absolutely or so as to allow of the exportation of the goods subject to any condition or restriction. The expression ‘goods’, in this paragraph includes stock, and it would, in my opinion, be legally possible for a proclamation to be issued prohibiting the export of stock unless such stock had first been passed in accordance with conditions laid down in the Quarantine Act and Regulations.

[Vol. 26, p. 154]