Opinion Number. 516

Subject

QUARANTINE SCOPE OF POWER : WHETHER APPLIES TO ENDEMIC DISEASE : VENEREAL DISEASES AND PROSTITUTION

Key Legislation

CONSTITUTION, s. 51 (ix) : QUARANTINE ACT 1908-1912. ss. 4. 5

Date
Client
The Prime Minister

The General Secretary of the Australian Natives Association, Queensland, has written to the Prime Minister urging Commonwealth legislation on the lines of the Contagious Diseases Act(1) until recently in force in Queensland.

The Prime Minister asks to be advised whether the Commonwealth Parliament has power to pass such legislation.

The objects of the Act in question are the segregation and disinfection of prosti-tutes infected with venereal disease.

The means by which the Act seeks to attain these objects are-

  1. compulsory medical examination-with penalty of imprisonment for refusing to submit;

  2. compulsory detention in hospital for treatment;

  3. punishment of women, released uncured, who resort to prostitution;

  4. punishment of occupiers who induce or permit women affected with disease to resort to their premises for purposes of prostitution.

The only provision of the Constitution, under which it could be contended that any part of this legislation comes within the powers of the Commonwealth, is section 51, paragraph (ix), which empowers the Commonwealth Parliament to make laws with re-spect to 'Quarantine'.

The word 'Quarantine' in the Constitution has not been the subject of judicial interpretation.

In the Quarantine Act 1908, Quarantine is denned as having relation to-
measures for the exclusion, detention, observation, segregation, isolation, protection, and disinfection of vessels, persons, goods, animals, or plants, and having as their object the prevention of the introduction or spread of diseases or pests affecting man, animals, or plants.

The Act itself does not cover the whole ground of the isolation etc. of disease. It covers (as regards man) quarantinable diseases on board ship whether oversea or not; and 'quarantinable disease' extends not only to certain specified diseases, but also to 'any disease declared by the Governor-General, by proclamation, to be a quarantinable disease'. But as regards diseases existing in the Commonwealth, the powers conferred by the Act appear to be limited to preventing the spread of disease from one part of the Commonwealth to another.

The isolation etc. of cases of endemic disease generally appears to be a matter of public health rather than of quarantine; and though it is difficult to define the exact limits of the quarantine power, I am of opinion that it does not extend to the enactment of a Contagious Diseases Act on the lines described.

[Vol. 11, p. 408]

(1)Act of the Preventaion Contagious Diseases of 1868(Qid).