The Director of Quarantine asks for advice as to the validity of the claim made by the Commonwealth for the refund of an amount of £180.15.11 for maintenance of and attendance upon persons sent to the quarantine station, Torrens Island, Adelaide, by the Health authorities of South Australia during the course of the outbreak of smallpox in Sydney.

The total number of persons sent to the Torrens Island quarantine station was 43, and of these 21 were defaulters, that is, persons who arrived at Adelaide from Sydney without vaccination certificates or without having complied with the Quarantine Regulations. The remaining 22 were either patients or contacts sent into quarantine by order of the Health Department, Adelaide, and it is for the expense incurred in connection with these that the claim is made.

The Government of South Australia acting on the advice of the State Crown Solicitor has refused to recognise the claim on the ground that, although the persons were ordered into quarantine by the State health officers, such action was taken as a result of the proclamation of Sydney as a quarantine area, and in taking such action these officers were acting, not as State officers, but as quarantine officers appointed by the Commonwealth under the Commonwealth Quarantine Act, all State medical officers having been gazetted as quarantine officers on 7 July 1913.

This case differs materially from the claim made on the Government of New South Wales, on which I advised on 20 July 1914⁽¹⁾. In that case the Commonwealth laid down certain definite terms upon which the station would be available to the State, and the State by its silence and by the action of its officers in making use of the station appears to have acquiesced in those terms.

In the present case, although the Commonwealth requested the co-operation of the State, no conditions were laid down on which the quarantine station would be available to the State, nor can any agreement be implied from the negotiations between the parties nor from the actions of the State officials.

If the State medical officers in ordering these patients into quarantine acted as State officers, carrying out measures directed by the State Health Department, the Commonwealth would, I think, have a claim against the State for services rendered, but the evidence on the file appears to be consistent rather with the position taken up by the State, viz. that they acted as quarantine officers under the Commonwealth Quarantine Act, notwithstanding the fact that none of the patients ordered into quarantine were found to be suffering from smallpox. The State throughout appears to have treated the whole matter as the concern and under the control of the Commonwealth.

I am of opinion, therefore, that the Commonwealth has no legal claim against the State of South Australia for a refund of the amount in question.

[Vol. 14, p. 89]

(1)Not published in Vol. 1.