Opinion Number. 347

Subject

INCONSISTENCY CRITERIA FOR : EXTENT TO WHICH COMMONWEALTH QUARANTINE REGULATIONS SUPERSEDE STATE QUARANTINE REGULATIONS

Key Legislation

CONSTITUTION, s. 109 : QUARANTINE ACT 1908, s. 87 : HEALTH ACT 1890 (VIC.)

Date
Client
The Comptroller-General of Customs

It appears that the Victorian Board of Health has recently issued a circular to shipowners informing them that certain provisions of the Victorian ship-berthing regulations must be observed in addition and supplementary to the regulations relating to rats and mice from vessels etc. under the Commonwealth Quarantine Act.

The Director of Quarantine has minuted the Comptroller-General as follows:

In connection with the administration of the Federal Quarantine Act in Victoria I gather from Dr Robertson, the Acting Chief Quarantine Officer, General, that the Board of Health consulted the Crown Solicitor as to its powers in respect of any proclamation under Section 160 (Health Act 1890(1)) and was informed that until the Federal Authority moved (which might be done on its own initiative or at the instance of an aggrieved State) to cancel or supersede any such proclamation, the State Health Department could maintain its precautions if reasonable, and on the lines of those laid down in any Federal Act or Regulations.

As the result of this the Board, which made its ship-berthing regulations under section 122 of the Health Act and not under any powers set out in Part 8, Division 4, of the same Act, resolved to enforce not only the Federal Regulations (138 and 139) but others which have been in practice in Victoria since 1901. I have obtained a copy of these-as distributed to the Shipping Companies and would suggest that the matter might be referred to the Federal Crown Law Authorities. Tasmania and perhaps South Australia is in the same position as Victoria as regards freedom from plague in man and rats and the alternative question that arises in my mind is as to whether discriminating regulations can be made under the Federal Act-to specially protect clean States.

The Comptroller-General forwards the file to me with the following minute:

I should be glad to receive an opinion on the point raised by the Director of Quarantine in attached minute.

It will certainly give rise to a most embarrassing state of affairs if a State Authority can go on issuing proclamations which, if the Federal Authority does not concur in, the latter must specifically cancel or supersede to render inoperative.

In this case no definite regulations have been made relating to the subject by Federal Authority. But if each State can come in with further regulations confusion must arise in the administration of the Act.

In the absence of proclamation or action to the contrary it would seem a proper assumption that the Federal Executive considered none such was required? The enforcement of a State proclamation would therefore override the action of the Commonwealth Government.

The Quarantine Regulations (Stat. Rules 1909, No. 73) made under the Commonwealth Quarantine Act, make provision (regulation 139) for the destruction of rats and mice on board ship; and for the prevention of ingress and egress of rats and mice to and from vessels (regulation 138).

These regulations are undoubtedly intra vires the Quarantine Act; see section 87, paragraphs (f), (g).

The State regulations under the Health Act make provision for the same purpose, but not to the same effect. Some requirements are common to both, others are not. E.g. the Federal regulations require obstruction of ports etc. by wire netting, while the State regulations do not. The State regulations require fenders and rat guards on hawsers, and night-watchmen, which the Federal regulations do not. Both regulations require fumigation, and illumination overside.

The question whether, and if so how far, the State regulations remain in force is a very difficult one. The State legislature has power to deal with public health, and even with quarantine, except so far as is inconsistent with Federal law. State and Federal laws are inconsistent, in my opinion, not only where there is an absolute repugnancy, so that it is impossible to obey both-as where the one requires something to be done which the other forbids-but also where the two cannot reasonably stand together. Thus the State laws regulating the liability of ships to quarantine, and the performance of quarantine, are inconsistent with the Federal law; it is inconceivable that the Federal Parliament intended that a ship given pratique under the Commonwealth law should be liable to State quarantine, or that a ship should perform Federal and State quarantine together. On the other hand, it is not so inconceivable that the Commonwealth Parliament may not have meant that the precautions which the Governor-General might prescribe against the egress of rats should be the only precautions which should be taken; or that in the absence of regulations under the Commonwealth Act the State regulations for that purpose might continue in force; or that in addition to Federal regulations the State might make regulations providing additional precautions to protect their wharfs, etc. from invasion of rats from ships.

On the whole, I incline to the opinion that so far as the State regulations cover the same ground as the Commonwealth regulations, they are superseded; but that where the State regulations provide additional precautions-e.g. rat guards on hawsers, and night-watchmen-they are not strictly speaking inconsistent with Federal law and therefore remain in force. But in the absence of authoritative judicial decision the extent of the inconsistency is open to much doubt.

[Vol. 7, p. 204]

(1)Victoria.