Opinion Number. 325

Subject

QUARANTLNE SCOPE OF COMMONWEALTH POWER : EXTENT OF INCONSISTENCY BETWEEN COMMONWEALTH AND STATE LAWS

Key Legislation

CONSTITUTION, ss. 51 (ix), 108, 109 : QUARANTINE ACT 1908, ss. 12, 13, 18, 31, 32, 34, 35, 87

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs in a memorandum asks a number of questions relating to the scope of the Quarantine Act and its relation to the laws of the States.

The questions asked, and my observations in answer to them, are as follows:

Question 1:

As some doubts have been expressed in regard to the exact scope of the Quarantine Act in regard to dealing with quarantinable diseases which originate in a State, it is requested that this Department may be favoured with an opinion on the following points:

Section 18 provides that any person infected with a quarantinable disease or who has been in contact with any person affected or who has been exposed to infection in any way shall be subject to quarantine. (In this respect attention is called to the definition of the word 'Quarantine' in section 4 and of'Quarantinable disease' in section S of the Act.)

In section 12 it is also provided that where any place in Australia is infected etc. with a quarantinable disease certain action may be taken by the Federal authorities.

Section 35 authorizes any quarantine officer to order into quarantine any vessels persons or goods at his option without reference to their origin.

In regard to these sections and others of a somewhat similar character opinion is sought as to how far the position of State quarantine authorities and legislation is affected by the Federal Act, and the following questions seem to arise in connection with the matter.

Is State legislation entirely superseded by Federal legislation? If not, to what precise extent is it still in operation?

Answer:

I think it can be gathered from the provisions of the Act generally that the Act is primarily concerned with the prevention of the introduction of disease by sea, and with the stamping out of disease which, notwithstanding all precautions, has been introduced by sea.

It is true that the powers conferred by the Act are not limited to such cases.

If a case of smallpox is found at a seaport, or inland, the Commonwealth has not to wait, before taking action, until it is proved that the infection is traceable to an outside source. Section 18 (persons and goods subject to quarantine) and section 35 (order to perform quarantine) are wide enough in their terms to apply to all persons infected with or exposed to a quarantinable disease, irrespective of the source. As regards section 12, empowering the Governor-General to proclaim infected places, in Australia or elsewhere, the only effect of such a proclamation is in relation to the provisions of the Act as to 'proclaimed places'-viz. section 32(1), section 34, and section 35 (2)-which all relate to vessels arriving from proclaimed places.

It is true that section 13, paragraphs (g), (h) and (i) of sub-section (1), does expressly empower the Commonwealth to take certain action with respect to inland quarantine; but the limitation of those powers in sub-section (3) shows that they are only intended to be used as emergency powers.

As a general rule, State legislation with respect to a matter on which the Commonwealth has legislated, remains in force, except so far as it is inconsistent with Commonwealth law (Constitution, sections 108, 109).

There is little judicial decision on the precise meaning of'inconsistency'; but it may be taken that there is inconsistency when, on a reasonable construction, the State law and the Commonwealth law cannot have been intended to stand together. By way of illustration-it cannot have been intended that vessels should perform two sets of quarantine or two sets of pratique-one under State law and one under Federal law; and to that extent the State law is inconsistent with the Federal law. But there is no inconsistency in both Federal and State laws requiring notification of disease to Federal and State authorities respectively. Nor is it necessarily inconsistent with the Commonwealth Quarantine Act for a State law to prescribe preventive measures for preventing the spread of disease; though action under the State law would always have to yield to any action which might be taken under the Commonwealth law.

It is of course impossible, in answer to a general question, to do more than indicate the general principles. The answer to the question, how far the position of State quarantine authorities and legislation is affected by the Federal Act, is, in my opinion, that as regards quarantine of sea-going vessels the State laws are superseded; but that as regards the spread of disease on land, though the Commonwealth authorities have certain powers vested in them by the Act, State legislation is not affected, and the exercise of statutory powers by State authorities is not affected except in so far as it must yield when the Federal authorities step in under the Federal laws.

Question 2:

Does the Federal Act throw upon the Commonwealth Government the entire responsibility of dealing with all quarantinable disease in the Commonwealth without reference to its origin or location?

Answer:

No. The Commonwealth is responsible for the administration of Commonwealth law; the State Government for the administration of State law. Though a constable or authorized person has power, under the Quarantine Act, to apprehend any person subject to quarantine who is found in any place (section 31), and a quarantine officer may order into quarantine any person (whether subject to quarantine or not) being or likely to be infected with a quarantinable disease, etc. (section 35), such action is optional, and until it is taken there is nothing in the Act to exclude persons in Australia from the operation of the health laws of the States.

Question 3:

Would it be competent for this Government to limit the exercise of its powers to dealing with quarantinable disease from oversea or in relation to traffic between States (both by sea and overland) leaving State authorities to deal with all such disease originating in any State?

Answer:

I think the Act contemplates the Commonwealth Government dealing with all quarantine by sea-oversea, interstate, and intrastate; but there is nothing to prevent the State authorities being left to deal on land with all disease originating in a State.

Question 4:

In connection with this matter it may be pointed out that there are State Acts which allow of all kinds of measures to be adopted to prevent the spread of disease such as destruction of tenements, clothing, bedding etc., which are not provided for in the Federal Act. To what extent, if any, could the provisions of such Acts be cried in aid of Federal legislation?

Answer:

This question has been answered in the answer to question 1.

Question 5:

Section 87 inter alia permits of regulations being made requiring notification to be made to a quarantine officer in each case of quarantinable disease which arises in Australia. Would it be competent, for instance, for such regulation to require that any medical man or head of a household shall give notice in such case (under penalty) and if so, how far would State legislation to the same effect be valid?

Answer:

I think that the Commonwealth regulations could so require, and that State legislation to the same effect would not be affected.

Question 6:

In the event of a quarantine station being established in any State would it be competent for the Federal authorities to bring patients from the States to be treated at such station notwithstanding the fact that the laws of the State in which such station was situated prohibited the introduction of diseased persons into that State from elsewhere.

Answer:

Yes. The Commonwealth Parliament has power, under the heading of 'Quarantine', to provide for the appointment of quarantine stations in Australia and for their use for quarantine purposes; and the States cannot by their laws hamper or impede the administration of the Commonwealth law. If it were otherwise, the whole policy of the Commonwealth laws as to quarantine could be controlled by State legislation.

[Vol. 7, p. 33]