I refer to your memorandum 362/30, dated 13 September 1934, relative to the legal and administrative control of the preparation and sale of Biological Products. I note that the principles enumerated in my memorandum of 10 September 1934,⁽¹⁾ have caused you grave concern. I suggest, however, that fuller consideration of the contents of my memorandum will tend to allay those fears and to dissipate the view that the existence of those principles necessitates a drastic revision of the provisions of the Quarantine Act.

My memorandum was directed solely towards showing that the proposals outlined in the memorandum attached to your memorandum of 1 August 1934, were substantially beyond the powers of the Commonwealth. As those proposals dealt only with the control and regulation of the manufacture, sale, distribution and use of Biological Products, actually I was not concerned to enumerate in detail the quarantine powers of the Commonwealth. On the contrary, my attention was focussed on the object of quarantine, viz., the prevention of the introduction or spread of diseases affecting man, animals or plants. No reference was therefore made, in the definition of the quarantine power, to the isolation and segregation of goods. The omission was not, however, deliberate, nor was it inadvertent. If the latter part of the definition is looked at it will be seen that it embraces the precautions to be taken to prevent the introduction or spread of contagious or infectious disease. Such precautions would include the isolation and segregation and, if necessary, treatment or destruction of goods, and the possibility or necessity for such action was contemplated by me when framing the definition. Further, the fourth last paragraph of my memorandum shows clearly that the power includes the power to deal with goods. There can be no doubt that Biological Products are goods.

In the 7th paragraph of your memorandum you refer to the definition of Quarantine contained in the Quarantine Act itself. I would point out, however, that that definition can not help in regard to the construction of the Constitution. In the same paragraph you suggest that I consider that the power of the Commonwealth Parliament in relation to quarantine does not extend beyond the dictionary definition; that is, the definition contained in Webster’s Dictionary. I would point out, however, that that does not accurately describe my opinion, which I think goes far beyond Webster’s definition and goes just as far as the definition in the Quarantine Act itself. I do not think therefore that the opinions expressed in my memorandum affect in any way the existing provisions of the Quarantine Act, with the exception perhaps of paragraph (r) of section 87.

With regard to the adoption of a definition from an American dictionary in preference to an English dictionary, I would observe that my object in doing so was twofold. In the first place, the definition adopted in Quick and Garran’s Annotated Constitution of the Commonwealth of Australia was Webster’s definition, and, secondly, Webster’s definition gives a wider scope than that contained in the new Oxford Dictionary, which may be regarded as the most authoritative of the English dictionaries.

The definition of ‘quarantine’ in the latter dictionary is as follows:

A period during which persons who might serve to spread a contagious disease are kept isolated from the rest of the community, especially a period of detention imposed on travellers or voyagers before they are allowed to enter a country or town, and mix with the inhabitants; commonly the period during which a ship, capable of carrying contagion, is kept isolated on its arrival at a port. Hence, the fact or practice of isolating such persons or ships, or of being isolated in this way.

In Funk and Wagnall’s New Standard Dictionary the term is defined as follows:1.

The interdiction for a fixed period of time all communication with persons, ships or goods arriving from ports or places infected with contagious disease, or having or being supposed to have infectious disease on board.

3. The enforced isolation of any person or place infected with contagious disease; …

It will thus be seen that the definition which I adopted is more favourable to your view than those contained in the leading English Dictionary and another prominent American Dictionary.

The view expressed by Sir Josiah Symon and quoted in your memorandum has been affirmed from time to time by the High Court and it is a well recognised rule that terms in the Constitution bear the meaning which they had at the passing of the Act. The rule must not, however, be read literally as preventing any expansion due to the development of trade and commerce or means of intercourse, or the advances made in medical knowledge. For example, it is obvious that the quarantine power must extend to the control of intercommunications and intercourse by means of aeroplanes and airships just as much as prior to the advent of air transport it applied in relation to the movement by road and water of persons, animals, plants. I would, however, suggest that the principle enumerated by Sir Josiah Symon does not lend any support to the view for which you contend.

With regard to the question asked in the 6th paragraph of your memorandum I think that, in view of my remarks in the last preceding paragraph, it does not call for any answer. I may add that any head of power is not to be restricted by reason only of the limitations of human knowledge at the date Constitution was adopted.

With regard to paragraph (r) of section 87 of the Quarantine Act, this has not been questioned for the reason that no action has ever been taken under the paragraph. If, however, regulations on the lines of those drafted in 1922 were promulgated and manufacturers were subject to restrictions and regulation, it is possible that, if they were suffering any pecuniary disadvantage by reason of the application of the regulations, sooner or later the validity of the law would be questioned. The fact that this paragraph was drafted in this Department and became law without any doubts being raised by this Department suggests one of two things, viz., either the view held at that time was wrong, or the provision was intended to operate only within the permitted limits, namely, those of interstate and overseas trade. My own view of the provision is that it is extremely doubtful whether it is constitutional in so far as it applies to the manufacture and sale within one State of vaccines, serums, etc. There is, I think, no doubt that regulations made under the clause prescribing the standards to be observed with regard to such products which are the subject of interstate trade would be quite sound. It may be, of course, that the framers of the provision had some doubts with regard to its legality but that those doubts did not appear to them to be so strong as to necessitate an express limitation of the power. The validity of the provision was, in fact, questioned by Sir Littleton (then Mr.) Groom on the motion for the Third Reading of the Bill in the House of Representatives, and the Minister for Customs (Mr. Tudor.) who was in charge of the Bill, admitted the possibility of the provision being to some extent beyond the powers of the Commonwealth. (See Hansard, Vol. 79, pp. 7255, 7256). But even though the view held in this Department in 1915 was that provisions of paragraph (r) of section 87 were wholly within the power of the Commonwealth Parliament and authorised the making of regulations relating to the preparation and sale within a State of vaccines or serums, still it is not inconceivable that a different or more limited construction might now be given to the Commonwealth’s power. Even the High Court has been known to change opinions held by it for many years and regarded as basic. I think you will agree that this liability to change of opinion is not confined to those engaged in the practice and exposition of the Law.

With regard to the draft Quarantine (Human Biological Products) Regulations which were revised in this Department in 1923 and in relation to which I expressed the opinion that there was no legal objection to them in their then form,⁽²⁾ I would point out that in expressing that opinion I had regard only to the power contained in the Act and which it was assumed was a valid power. At that time the question of the validity of the provisions of the Act was not raised and apparently not considered by me.

With regard to the 8th paragraph of you memorandum, I note the action taken in Canada and the United States of America. With regard to the Canadian Regulations it is to be observed that they are made under an Act which was enacted not in pursuance of the quarantine power but in pursuance of the power to make laws in relation to agriculture (see Brooks v. Moore, 13 B.C. 91). The regulations cannot therefore be looked to for support of a wider interpretation of the quarantine power.

With regard to the Act of the United States, it is to be noted that its provisions, as the long title indicates, relate only to sale of viruses &ampc. in the District of Columbia, and to interstate and overseas trade in such products. Briefly, the Act of Congress prohibits the sale of viruses & c., in the District of Columbia, the export of such products, and the sending of such products from the State for sale in another unless the products have been manufactured in an establishment licensed by the Federal Government. The United States’ Law goes no further than, in my opinion, the Commonwealth Parliament can go in pursuance of its power to make laws with regard to the Territory for the Seat of Government and with regard to trade and commerce with other countries and among the States. I have no doubt that the Commonwealth can enact legislation in similar terms to those of the United States’ law. I cannot agree with you, therefore, that no doubt exists as to the power of Congress to legislate in precisely the field now proposed by your Department. I may add that the power of Congress to legislate with respect to quarantine is not conferred in terms, but is derived from the trade and commerce power and is, therefore, narrower than the power of the Commonwealth.

With regard to your suggestion that section 67 of the Quarantine Act would be an invalid provision if the views expressed by me were correct, I would point out that section 67 relates only to imported goods, and, with regard to such goods, the Commonwealth Parliament has full power of legislation.

Briefly, it appears that, subject to the view expressed above with respect to paragraph (r) of section 87 of the Quarantine Act, the provisions of the Act are within the powers of the Commonwealth Parliament. If, however, it is desired that the manufacture, distribution and use generally of biological products should be regulated, action by the States and the Commonwealth would be necessary. Provision could, I think, be made under paragraph (r) of section 87 of the Quarantine Act for some measure of control of the sale of such products outside the State of manufacture. Further legislation would, I think, be required to give the Commonwealth control of the movement of such products from State to State for any purpose other than sale. The manufacture of such products for sale, distribution or use within the State of manufacture and such sale, distribution or use are matters for State control. The Commonwealth Parliament has, of course, full power to legislate with respect to the preparation, sale, distribution and use of biological products within the several Territories of the Commonwealth.

[Vol. 27, p. 562]

(1) Opinion No. 1565.

(2) Opinion not found.