FREED0M OF INTERSTATE TRADE WHETHER STATE HAS POWER TO PROHIBIT INTRODUCTION OF LIVESTOCK FROM STATE SUSPECTED OF HAVING DISEASE
CONSTITUTION, s. 92
Mr Frazer, M.H.R. has written to the Minister for Customs pointing out that the Governments of South Australia, Victoria and New South Wales have prohibited the introduction of horses and other stock from Western Australia for the reason that some camels landed in the north-west of that State were alleged to have 'Surra'. Mr Frazer, while recognising the rights of the States in question to keep themselves free from disease, thinks they have gone too far and have brought themselves into conflict with the provisions of the Constitution relating to the freedom of interstate trade.
The matter has been referred to me for consideration and advice.
Section 92 of the Constitution enacts that on the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
The bona fide exercise of powers under State laws regulating interstate quarantine would not it is submitted contravene clause 92.
In the absence of Commonwealth legislation on the subject, interstate quarantine is governed by the State laws applicable to the subject, and the exercise of powers under those laws is a matter for the proper authorities of the States concerned to consider.
Of course if there were evidence that the object of the prohibition was an interference with freedom of interstate trade, under the guise of a quarantine regulation, the matter would have a different aspect; but as there is no evidence of any such abuse of power by the States concerned, I am of opinion that no action should be taken by the Commonwealth.
I would draw attention to the following paragraph in the Report for 1905 of the Secretary to the Department of Agriculture in the United States of America:
In 1901 a serious disease known as surra was found to exist among horses in the Philippines. Upon the request of the War Department for information on the subject an emergency report on this disease was at once prepared in the Bureau. There is reason to believe that the information thus made available has greatly assisted in the work of repression undertaken in those islands, besides aiding the inspectors of the Bureau in their efforts to keep out animals so infected. On account of this disease the Department has prohibited the landing of any animals from those islands at ports of the United States. Surra is very destructive in its effects on horses, and its introduction into the United States would be a great disaster.
It is, of course, open to any citizen who is aggrieved by the action of the States concerned to take proper steps to test the validity of that action in the High Court.
[Vol. 6, p. 275]