POSITION OF COMMONWEALTH AND STATES IN RELATION TO INTERNATIONAL SANITARY CONVENTION : ADHERENCE : IMPLEMENTATION : COMMONWEALTH AS CHANNEL OF COMMUNICATION BETWEEN STATES AND OTHER POWERS : TRADE AND COMMERCE : QUARANTINE : SANITATION OF SHIPPING
CONSTITUTION, ss. 51 (i). (ix). (xxix), 98
The Prime Minister wishes to be advised what legal or constitutional difficulties if any exist to the adherence of the Commonwealth to the Venice International Sanitary Convention.(1)
This matter is distinctly one of the external affairs of the Commonwealth which should be dealt with by its Government.
Any neglect to adhere to the Convention or comply with its requirements might seriously injure the trade and commerce of Australia of which the Commonwealth is sole guardian.
No Federal legislation as to quarantine or to navigation and shipping has yet been passed but the conditions of the Convention will require to be taken into account in regard to both of these. The power of the Parliament to legislate with respect to quarantine includes power to legislate with respect to infectious diseases wherever found within the Commonwealth. See Quick & Garran, p. 567.
The States could legislate independently in regard to the sanitation of shipping and their concurrence will always be necessary to make the adherence effective.
There is much under the Convention which the States alone can do and they could do all that it requires, but a part of the jurisdiction is open to the Commonwealth and properly undertaken by its Government. The requirements of the Convention under Chapter 1, sections I and II and probably Chapter 2, Titres I, VI, VII, VIII are within the scope of the Constitution.
Practically the whole of the provisions other than those relating to pilgrims are described in the Convention as 'measures to be taken in Europe' and do not seem to have been drawn with any intention of including Australia but it may be assumed that the same obligations ought to be accepted here. As the neglect of any one of these by a State might involve some or all of its neighbours, although they would be in no sense responsible for its neglect or able to prevent it, there can be no objection on this score to the intervention of the Commonwealth.
It would be wise to obtain the explicit adherence of the States in the first instance and then on behalf of the whole of them and on its own behalf add that of the Commonwealth.
For the present at all events the Federal Government may act only as the means of communication between our States and the other powers concerned in the Convention. But even this simple office is Federal in character and might therefore be properly undertaken by the Prime Minister.
[Vol. 1, p. 439]
(1) Dated 19 March 1987.