QUARANTINE WHETHER STATE LAW PROHIBITING IMPORTATION OF BEES UNLESS COMPLIANCE WITH CONDITIONS IS INCONSISTENT WITH QUARANTINE ACT PROHIBITING IMPORTATION OF BEES UNLESS COMPLIANCE WITH NON-IDENTICAL CONDITIONS: WHETHER COMMONWEALTH LAW INTENDED TO COVER THE FIELD
QUARANTINE ACT 1908 ss 2A, 11: QUARANTINE ACT 1908 (Qld)
In reply to your memorandum dated 14th January, 1941, (v.4/1/3), I desire to say that the power of the Commonwealth to make laws with respect to quarantine is not an exclusive power, and the States may, therefore, legislate with respect thereto so long as the State legislation is not inconsistent with the Constitution or with any Commonwealth law.
The Quarantine Act, and the proclamations and Regulations thereunder, prohibit the importation of bees except on compliance with certain conditions. The State law prohibits the importation of bees into Queensland except on compliance with certain conditions which are not the same as the Commonwealth conditions. The State law does not appear to be inconsistent with any provision of the Constitution, so that the only question for consideration is whether it is inconsistent with the Quarantine Act.
There is no direct conflict between the two laws, in the sense that it is possible for an importer to obey both, without disobeying either. There may, however, be inconsistency between a Commonwealth law and a State law where the Commonwealth has dealt with a matter and shown the intention to deal exhaustively with it, so that any State law dealing with the same matter is inconsistent. In the present case, the question, therefore, is whether the Quarantine Act is intended to deal exhaustively with the importation of animals. The matter is not altogether free from doubt but, on the whole, I do not think that the Quarantine Act is intended to deal exhaustively with the subject. Sections 2A and 11 expressly contemplate State laws operating side by side with the Commonwealth law.
In the absence of any judicial decision declaring the Queensland Act to be invalid, I do not think the Commonwealth should take the responsibility of informing the New Zealand authorities that compliance with the Quarantine Act is sufficient. They might be informed that the question whether the State may lawfully impose conditions on importation which go beyond the conditions laid down by the Commonwealth is not free from doubt, but, until the Queensland Act is declared to be invalid, it should be complied with.
[Vol. 34, p. 67]