Opinion Number. 463



Key Legislation

CONSTITUTION, ss. 51 (i), 98, 107, 108, 109 : NAVIGATION ACT 1912 : HEALTH ACT 1911 (W.A.)

The Comptroller-General of Customs

The Comptroller-General of Customs desired to be advised on the point raised by the Director of Quarantine in a memorandum written by the Director on a letter received by him from Dr Cumpston.

Dr Cumpston wrote as follows:

On visiting the Kapunda yesterday I found alterations to the engine room in progress. It appears that these alterations were being made as the result of either an order served by or representations made by Drs Atkinson, Chambers and Berry, who visited the vessel together on her last visit to Fremantle. As the interpretation of 'house' in the Health Act 1911, Western Australia, ihcludes any ship and as the medical officer has considerable powers under the Act it is probable that Dr Atkinson was quite within his rights in serving an order, if he did so. I was unable to ascertain whether an actual order was served or merely representations made. It appears that the matter was carried out through the agents whose Melbourne office could probably afford information.

The alterations in progress were intended to improve the ventilation of the officers' quarters running fore and aftwise amidships and they would certainly effect improvement in this direction.

The memorandum of the Director of Quarantine is as follows:

The case to which Dr Cumpston's minute relates raises the question whether when the Navigation Act comes into operation such matter will cease to be dealt with under the State Health Acts.

It is certainly desirable that in respect of Australian vessels there should be a single standard of sanitation so that masters may know that they will not be subject to different demands in the parts of the several States. It would in my opinion be well to obtain the opinion of the Crown Law authorities on this point if there is any doubt as to the super-session of the State Health Acts in regard to the control of sanitation on shipboard.

Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The Commonwealth has power under the Constitution to legislate with regard to navigation and shipping, and in exercise of that power may make provisions with re-gard to sanitation on board ship.

The State still retains the power to legislate with regard to health matters within its own borders, but if in so doing the provisions of the Health Act as regards sanitation on board ship are inconsistent with the provisions of the Commonwealth Navigation Act, when passed, on that subject, the State Health Act will, by section 109 of the Consti-tution, be invalid to the extent of the inconsistency.

On the question of inconsistency, in an opinion given by me on 21 January 1909(1) on the Quarantine Act 1908 I stated:

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 quaran-tine 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 authori-ties 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.

In view of the fact that the Navigation Bill has not yet become law, it is impossible to give a definite opinion on the question raised by the Director of Quarantine, but what has already been said may be taken as the general principles applicable to the case of a conflict between Federal and State laws on this subject.


(1)Opinion No. 325.