R v Young - [1919] HCA 60

Quarantine-Statute-Interpretation-Poe of Governor to make orders as to

infectious diseases-Closing of hotels-Quarantine Act 1897 (N.S.W.) (No. 25 SYDNEY,

Sec. 33 of the Quarantine Act 1897 (N.S.W.) provides that "The Governor may make such order as shall be deemed necessary and expedient upon any unforeseen emergency or in any particular case with respect to any vessel arriving under any alarming or suspicious circumstances as to infection

27 CLR 101

though not being liable to quarantine within the meaning of this Act, and also with respect to any person and any article on board the same; and in case of any infectious or contagious disease highly dangerous to the public health appearing or breaking out in New South Wales may make such order and give such directions in order to cut off all communication between any persons infected with any such disease and the rest of Her Majesty's subjects as appear to the Governor to be necessary and expedient for that purpose and likewise to make such order as the Governor sees fit for shortening the time of quaran- tine to be performed by particular vessels or particular persons or articles, or for absolutely or conditionally releasing them or any of them from quaran-

Held, that the section must be read 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.

The Governor made an order reciting that an infectious or contagious disease highly dangerous to the public health had appeared or broken out in New South Wales, and that it was desirable in the interest of the public health and safety that such orders should be made and directions given as might cut off all communication between any person infected with such disease and the rest of His Majesty's subjects, and ordering that all premises within a certain area licensed for the sale of liquor should be closed until further order.

Held, that the order was not authorized by sec. 33 of the Quarantine Act 1897, and was invalid. CERTIORARI.

On 3rd February 1919, there was published in the New South Wales Government Gazette a Proclamation by the Governor of New South Wales, dated the same day, the substance of which was in the following terms Whereas an infectious or contagious disease highly dangerous to the public health has appeared or broken out in New South Wales, and it is desirable in the interest of the public health and safety that such orders should be made and directions given as may cut off all communica- tion between any person infected with such disease and the rest of His Majesty's subjects Now, therefore, I, Sir Walter Edward Davidson, the Governor aforesaid, with the advice of the Executive Council, do hereby order in pursuance of the Statute made in that behalf, that on and after six o'clock p.m. on Tuesday the fourth day of February 1919 all premises licensed for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Young

Details

AGLC: R v Young [1919] HCA 60
Case: [1919] HCA 60
Decision Date: 14 November 1919

CaseChat Overview and Summary

This case concerned a challenge to the validity of a Proclamation issued by the Governor of New South Wales, which ordered the closure of all licensed liquor premises within the county of Cumberland. The Proclamation, dated 3rd February 1919, recited that an infectious disease highly dangerous to public health had broken out in New South Wales and that it was desirable to cut off communication between infected persons and the rest of the public. The order was made pursuant to section 33 of the *Quarantine Act 1897* (N.S.W.). William Henry Young, a publican, was convicted for failing to comply with this order. The matter was removed to the High Court of Australia following an appeal to the Court of Quarter Sessions and subsequent proceedings in the Supreme Court.

The central legal issue before the High Court was whether section 33 of the *Quarantine Act 1897* authorised the Governor to make an order closing licensed premises in response to an infectious disease breaking out within New South Wales, irrespective of any connection to vessels arriving from overseas. The Crown argued that the section provided a general power to make orders in such circumstances, while the respondent contended that the section should be interpreted narrowly, limited to matters concerning vessels and persons or things arriving in New South Wales.

The High Court, in a joint judgment delivered by Knox C.J., held that section 33 of the *Quarantine Act 1897* must be read in a narrower sense. The Court reasoned that the section, and the Act in which it was contained, dealt exclusively with vessels, and persons and things arriving in New South Wales by vessels, or persons communicating with such vessels. The Court found that the power to make orders was therefore restricted to matters connected with persons or things arriving in New South Wales by vessels, or with persons communicating with such persons or vessels. This interpretation was supported by reference to earlier legislation, which indicated a focus on preventing the introduction of diseases from overseas via vessels.

Consequently, the High Court found that the Governor's order closing licensed premises was not authorised by section 33 of the *Quarantine Act 1897*. The conviction of William Henry Young was quashed, and the Crown was ordered to pay the costs of the appeal to Quarter Sessions and the proceedings in the Supreme Court and the High Court.

Orders