Posted 27/07/2021 by Howard Maclean
Commonwealth quarantine legislation, from the original form of the Quarantine Act 1908 through to the current Biosecurity Act 2015, has always included provisions for the Commonwealth to declare movement restrictions, quarantines and other emergency measures.
These powers were first exercised on 3 July 1913 in response to an outbreak of smallpox within Sydney. The Governor-General issued a Proclamation under section 12 of the Quarantine Act 1908, declaring the entire area within a 15 mile radius of the Sydney General Post Office a quarantined area.
The Governor-General also made Provisional Regulations under the Quarantine Act 1908–1912. The Regulations provided:
2. No person who has not been successfully vaccinated shall leave the proclaimed quarantine area of the metropolitan district of Sydney, in the State of New South Wales, for the purpose of journeying to any other State.
Individuals traveling to other states of the Commonwealth were required to produce a ‘certificate of successful vaccination issued by the Department of Public Health of a State’ on demand of a quarantine officer. The Regulations required the ‘successful vaccination’ must have been within the past five years.
Any person who travelled interstate from Sydney, and who could not produce a vaccination certificate, could be ordered into quarantine by a Commonwealth quarantine officer. If a person in quarantine was successfully vaccinated they could be released under ‘quarantine surveillance’. They were obligated to report to federal quarantine officers or relevant state public health officers as directed.
The penalty for breaching these regulations was up to £50, in a time when the minimum wage was £2.10.0 per week so the maximum penalty was 20 weeks of the minimum wage. The National Minimum Wage is currently $772.60 per week, so an equivalent fine now would be $15,452.
Debate over the lifting of quarantine
The Commonwealth quarantine of Sydney was controversial both within Sydney and the country more broadly. On 18 September 1913, the Sydney Morning Herald reported the New South Wales Board of Health resolved:
That … the board is satisfied from [its experience with 700 cases of smallpox] that the disease now present in Sydney is an exceedingly modified form of smallpox, mild in its nature, and with no tendency to change its type and become more virulent …
That the danger of it becoming epidemic in the other States of the Commonwealth is negligible, seeing that compulsory vaccination laws have been in force there for very many years past.
That the board has by its strong advocacy of the effectiveness of vaccination as a protective measure succeeded in inducing more than one-half of the population of Sydney and suburbs to protect themselves in this manner. …
That, in conclusion the board is of opinion [sic] that the proclamation issued by the Federal Government quarantining Sydney should be withdrawn, as it is unnecessary, and while in existence it is injurious in many respects to the State of New South Wales in particular, and to the Commonwealth in general.
On 10 November 1913, the presidents of the state Health Departments and the Commonwealth Director of Quarantine met in Melbourne to discuss ‘the best way of dealing with the smallpox outbreak’, with the Sydney Morning Herald hoping that one result of their conference would be the lifting of the quarantine:
To persist in declaring Sydney a quarantined area will, in view of the later history of the outbreak, do little to safeguard the rest of Australia, and will involve Sydney in inconvenience and loss quite incommensurate to the advantages gained by such a course.
No one can blame the Federal authorities for quarantining Sydney in the earlier stages of the epidemic. Smallpox is a disease usually associated with a high degree of infectiousness, and a high death rate, and any local sacrifice seemed preferable to allowing it to run its course unchecked through the continent.
…
Clearly the epidemic is dying out, and under the circumstances the people of Sydney feel that the continuance of the quarantine is unnecessary and unfair.
By 19 November 1913, the conference of medical officers had identified a series of conditions under which it would be safe to repeal the Commonwealth proclamation:
- vessels from Sydney must quarantine at ports in Tasmania and Western Australia
- NSW authorities maintain their system of:
- isolation of patients
- dealing with 'imperceptible' and 'susceptible' contacts
- disinfection and
- required notifications under the Public Health Act
- every person leaving NSW by land or sea be required, for 21 days, to report any symptoms of illness which would then be reported to any relevant state
- the lifting of all restrictions would be at the discretion of the NSW Government and
- states must notify the Commonwealth immediately of any case of questionable disease.
The Federal Government agreed to lift the quarantine of Sydney provided that Sydney adopted the conference’s recommendations.
On 21 November 1913, the NSW Governor issued a proclamation under the Quarantine Act 1897 (NSW), implementing the conference’s recommendations. On 26 November 1913, the Commonwealth repealed the proclamation, ending the quarantine of Sydney after 145 days.
Recommendations for future outbreaks
The November 1913 conference noted the difficulty of reconciling the Commonwealth responsibility for quarantine with the state responsibility for public health, and recommended that, in future, measures be:
… agreed on by the parties in common, not during the operation of restraint and restrictions, and political or other influences, but in circumstances which all the authorities concerned are in the same position with respect to the health requirements and the subjects considered.
However, the 1913 conference did not create a lasting set of arrangements between the state and federal governments for managing pandemics and epidemics. Six years later, the Spanish Flu pandemic also upset intergovernmental arrangements.
The Commonwealth’s current infectious disease emergency powers is provided by the emergency regime under the Biosecurity Act 2015 with a human biosecurity emergency declared on 18 March 2020 and remains in effect. See the Library’s previous flagpost on the operation of the human biosecurity emergency powers.