Opinion Number. 392

Subject

QUARANTINE WHETHER COMMONWEALTH MAY REQUIRE OWNER OR AGENT OF VESSEL PERFORMING QUARANTINE TO PROVIDE FREE PROVISIONS AND MEDICINES TO PASSENGERS : EFFECT OF REQUIREMENT ON RIGHTS OF OWNER AGAINST PAS

Key Legislation

CONSTITUTION, s. 51 (ix), (xxxixj : QUARANTINE ACT 1908, s. 59

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs has asked for advice as to whether there is any doubt as to the constitutionality of sub-section (3) of section 59 of the Quarantine Act 1908.

Section 59 is as follows:

  1. The owners and agents of any vessel ordered into quarantine shall supply the crew and passengers thereof with such wholesome and suitable provisions and medicines as are required by the quarantine or medical officer in charge of the quarantine station, or as are prescribed.
  2. If such provisions and medicines are not forthwith supplied by the owners or agents, they may be provided by order of the Minister, and the cost thereof and any costs incidental thereto shall be paid by the owners or agents to the Commonwealth.
  3. A passenger shall not be liable to compensate the owner or agent for the cost of any provisions or medicines so supplied to him, and any contract or stipulation purporting to impose any such liability upon him shall to that extent be null and void.

The Commonwealth Parliament could, if it thought fit, insist on quarantine being performed on board the ship.

It is to a large extent in the interest of the ship that passengers are allowed to leave the ship to perform quarantine at a quarantine station, and the latter may be regarded as a substitution for the ship in relation to such performance.

The obligation of the ship to its passengers should not be lessened by reason of the performance of quarantine being permitted at a quarantine station instead of on the ship.

The obligations of a ship to its passengers in relation to quarantine are, in my opinion, a matter incidental to quarantine, and as the sub-section deals with those obligations, I have no doubt whatever as to its constitutionality.

Contracts in relation to passages made outside Australia and containing stipulations inconsistent with sub-section (3) might be valid in the country where the contract was entered into, and enforceable against the passenger in that country notwithstanding the sub-section; but this would depend on the terms of the particular contract, and whether the Court found that the stipulation in question was intended by the parties to be governed by the law of the place where the contract was made, or by the law of Australia. But in either case, such a stipulation could not, I think, be enforced in Australia. The Commonwealth is, however, powerless to directly prevent the enforcement of a contract outside Australia.

[Vol. 8, p. 160]