Opinion Number. 216



The Secretary, Department of Home Affairs

It appears that the earth closet at the Drill Hall, Bunbury, W.A. is at a less distance from the street than is required by the by-laws of the Board of Health; and the Town Clerk has informed the State Under-Secretary for Public Works that the Board of Health has determined to enforce the by-law.

The Secretary, Department of Home Affairs asks to be advised whether the Commonwealth is subject to municipal regulations.

In my opinion, the Commonwealth is not so liable. The point appears to be the same as was advised on in the case of the Inglewood Post Office.(1) That case came before the High Court (Roberts v. Ahem 1 C.L.R. 406). No decision was given in that case as to the general question whether State health laws or regulations bind the Commonwealth; but it was held that section 5 of the Victorian Police Offences Act 1890 did not bind the Crown (as represented by either the State or the Commonwealth Government).

At the same time, 'the Commonwealth should undoubtedly set an example by co-operating to the fullest extent in giving effect to any measures adopted by a State for public health and security': see opinions of Mr Attorney-General Deakin, dated 23 February 1903(2)) on the subject of rat destruction on wharves, and 23 December 1901 (3) as to vermin destruction.

[Vol. 5, p. 1 ]

(1) Opinion not found.

(2) Opinin No. 130.

(3) Opinin No. 33.