R v Young [1919] HCA 60; (1919) 27 CLR 100 (14 November 1919)

HIGH COURT OF AUSTRALIA

The King against Young

H C of A

14 November 1919

Knox C.J., Isaacs, Gavan Duffy, Powers and Rich JJ.

Broomfield K.C. (with him Flannery), for the Crown.

Maughan K.C. (with him Bathgate and Evatt), for the respondent.

Broomfield K.C., in reply.

Knox C.J.

In this case the question for decision is whether the provision in sec. 33 of the Quarantine Act 1897 authorizing the Governor to make orders and give directions in case of any infectious or contagious disease appearing or breaking out in New South Wales, is a provision of general application enabling the Governor to make orders for the purpose of restricting communication between persons in New South Wales not connected with ships or shipping, or with persons or goods carried by ships, or whether the provision must be read as restricted to the subject matter of persons directly or indirectly connected with ships or shipping. In support of the latter view it is pointed out that the section is found in a code of legislation dealing exclusively, but for these particular words, with vessels, and persons and things arriving in New South Wales in vessels, and persons in New South Wales communicating with vessels which have arrived there. In my opinion there is no doubt that the section must be read in the narrower sense, that is to say, as authorizing the making of orders in connection only with persons or things arriving in New South Wales by vessels or with persons communicating with such persons or vessels. This conclusion is strengthened by reference to the earlier Acts, which were consolidated by the Act now under consideration, which purports to be merely a consolidating Act. The preamble to the original Act, 3 Wm. IV. No. 1, recites that it is expedient that regulations should be made to prevent the introduction of the disease called the malignant cholera, or any other infectious disease highly dangerous to the health of His Majesty's subjects, into the Colony of New South Wales, and the provisions of sec. 1, which relate solely to vessels and persons and things in vessels arriving in New South Wales from overseas refer to orders made by the Governor with the advice of the Executive Council. The power to make orders which is contained in sec. 2 of that Act is in almost identical terms with the power contained in sec. 33 of the Act of 1897, but the use of the words "any such disease" in sec. 2 of the earlier Act makes it clear that the power to make orders conferred by that section was directed to the making of orders preventing the introduction or extension of diseases by communication with vessels arriving from overseas. There is nothing in either Act to suggest that the Legislature was dealing with any subject matter other than the prevention of the introduction of diseases into New South Wales through the medium of vessels from overseas.

We have not been referred to any other statutory provision enabling the Governor to make such an order as that for the breach of which the respondent was prosecuted, and I am therefore of opinion that the conviction cannot be sustained and should be quashed, and that the costs of the appeal to Quarter Sessions and of the proceedings in the Supreme Court and in this Court should be paid by the Crown.

Isaacs, Gavan Duffy, Powers and Rich JJ.

agreed.

Rule nisi discharged. Conviction quashed. Crown to pay costs in all Courts.

Solicitor for the Crown, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitor for the respondent, C. O. Smithers.