QUARANTINE SOURCES OF POWER : WHETHER EXERCISE OF POWER BY COMMONWEALTH DEPENDS ON TRANSFER OF STATE DEPARTMENTS
CONSTITUTION, ss. 51 (ix), 52, 69 : QUARANTINE ACT 1908
The Comptroller-General of Customs forwards the following memorandum for advice:
The Minister for Trade and Customs desires the opinion of the Crown Law Authori-ties on the point raised in the first paragraph in the attached press cutting and referred to in the memorandum of the Director of Quarantine, especially on the matter on which the supposed opinion of Professor Harrison Moore is quoted.
The paragraph referred to, from the Age of 22 June, is as follows:
The seriousness of the muddle into which quarantine matters have been allowed to drift has been emphasised by a legal opinion given by Professor Harrison Moore at the in-stance of the State Government. When the Customs Department and the Victorian Health Department were disputing over their respective responsibilities last May, it was pointed out in the leading columns of the Age that the whole trouble had its origin in the neglect of the Minister for Customs to take proper action to bring the Federal Quarantine Act into operation. This view is supported by the opinion of Professor Moore, Dean of the Faculty of Law at the Melbourne University, who formerly was retained by the State Governments to advise them on questions of Commonwealth legislation. The principal question submitted to him by the Premier was whether the quarantine function of the State had been legally transferred to the Commonwealth, in accordance with the Com-monwealth Constitution Act. He has answered the question in the negative. Thus, accord-ing to Professor Moore's reading of the Constitution Act, the Customs Department has had in office for some years a Director of Quarantine and has been operating under a Quarantine Act which is not legally in force.
I have no knowledge, apart from the paragraph, of Professor Moore's opinion; but it would appear to have been to the effect that as no proclamation under section 69 of the Constitution had been made with respect to the State Quarantine Departments, those Departments had not 'become transferred to the Commonwealth'. That view is undoubtedly correct.
The writer of the paragraph, however, proceeds to state that 'Thus, according to Professor Moore's reading of the Constitution', the Quarantine Act is not legally in
force. This appears to be a mere inference of the writer; it would require more than a newspaper paragraph to make me believe that it is part of Professor Moore's opinion, and in my opinion it is wholly incorrect.
The Commonwealth, independently of section 69, has power under paragraph (ix) of section 51 of the Constitution to make laws for the peace, order, and good govern-ment of the Commonwealth with respect to Quarantine. This power it has exercised by enacting the Quarantine Act, the validity of which does not depend on action under section 69.
The reason why no action was taken under section 69 would appear to be that the quarantine services of the States were so combined with the public health and other services that it was quite uncertain what would pass to the Commonwealth under a transfer of the 'Quarantine Departments' because in fact there were no 'Quarantine Departments'.
[Vol. 10, p. 175]