Opinion Number. 426

Subject

FREED0M 0F INTERSTATE TRADE : INCONSISTENCY WHETHER STATE PROHIBITION OF IMPORTATION OF PLANTS FROM OTHER STATES VALID : WHETHER COMMONWEALTH QUARANTINE LAW EXCLUDES STATE RESTRICTIONS : AUTHORITY OF STATE MINISTER TO IMPORT GOODS CONTRARY TO COMMONWEALTH LAW

Key Legislation

CONSTITUTION, ss. 92, 109 : QUARANTINE ACT 1908 : THE DISEASES IN PLANTS ACT OF 1896 (QLD)

Date
Client
The Minister for Trade and Customs

The Minister for Customs has referred the following minute by the Director of Quarantine to me for advice:

Both in Queensland and New South Wales there appears a desire to impose quarantine restrictions which shall be under the control of the State Minister. This appears to me to be entirely unconstitutional and a thing which should be definitely checked. It is recommended that the file attached be referred to the Secretary, Attorney-General's Department for the benefit of the Attorney-General's guidance with a view to any necessary action.

The file contains a copy of the Regulations(1) under The Diseases in Plants Act of 1896 of the State of Queensland, of which regulation 2 is as follows:

2. The importation is hereby prohibited of the following plants:

  1. Sugar-cane and banana plants grown in New Guinea, Sandwich Islands, Fiji, or other country in which the beetle-borer of sugar-cane (Sphenophorus obscurus) or other beetle-borers of the said genus Sphenophorus exist;
  2. Potatoes from Europe, America, New Zealand, and all other countries in which the disease caused by Phytophthoras infestans exists;
  3. Plants, or portions of plants, of all and every species of Vitis from Europe, Asia Minor, America, Cape of Good Hope, New South Wales, Victoria, South Australia, and New Zealand, and all other countries in which Phylloxera vastatrix is known to exist: Provided that the importations by sea from South Australia of the fruit of any species of Vitis is not prohibited:

Provided always that the Minister may, at his discretion, import from any of the said places any of the plants mentioned in this Regulation, all of which plants shall, when so imported, be suitably disinfected, detained, and grown in close quarantine.

I am of opinion that this regulation is invalid.

Paragraph (c) of the regulation clearly contravenes section 92 of the Constitution.

But, further, I think that the whole regulation is invalid as being inconsistent with the Quarantine Act and Regulations, which cover the same ground, and imply freedom from other legal restrictions in respect of the same subject-matter.

As to the final proviso, I do not think that a mere authority to a State Minister to import plants would in itself be objectionable, as it might without such a regulation be outside his official functions to import plants. But any Minister acting on the authority of such a regulation would be subject to the Quarantine Act and Regulations to the same extent as a private person, and the regulation could confer on him no power to import plants in contravention of that Act and Regulations.

[Vol. 9, p. 103]

(1)Made 23 June 1911 and published in the Government Gazette (Qld),24 June 1911, No. 160, p. 2009, Vol XCVI.