Opinion Number. 758

Subject

QUARANTINE: INCONSISTENCY WHETHER COMMONWEALTH QUARANTINE AUTHORITIES ARE BOUND BY STATE LAWS REGULATING FUMIGATION OF VESSELS

Key Legislation

CONSTITUTION, s. 109: QUARANTINE ACT 1908: QUARANTINE REGULATIONS: MELBOURNE HARBOR TRUST REGULATIONS, reg. 276 (5)

Date
Client
The Director of Quarantine

The following memorandum by the Director of Quarantine is referred for advice:

It has been reported that the following regulation has recently been made by the Melbourne Harbor Trust Commissioners:

276. Every person who shall commit any of the acts following shall be guilty of an offence, that is to say:

(5) Cause any vessel within the Port to be fumigated or smoked without the permission in writing of the Commissioners, and under the direction of the Harbor Master.

In view of the fact that fumigation of vessels by sulphur, gas and other fumes is constantly being carried out by the Quarantine Service in the Port of Melbourne, as a routine procedure, under the authority of the Federal Quarantine Act, I should be glad to be advised whether the regulation in question, which would seriously hinder and restrict the work of the Quarantine Service, can be enforced against the Commonwealth, and further whether in any conflict of authority the Commonwealth legal authority would prevail.

In my opinion the regulation in question cannot be enforced against the quarantine authorities acting under the authority of the Quarantine Act or Regulations, which prevail over any State Regulations in conflict with them.

[Vol. 15, p. 11]