HIGH COURT ~ “Parliament could not pass a law requiring citizens to submit to Vaccination”



Attorney-General (Vic); Ex rel Dale v Commonwealth ("Pharmaceutical Benefits case") [1945] HCA 30; (1945) 71 CLR 237 (19 November 1945)



I illustrate the position as I understand it by taking public health legislation as an example. Under s. 51 (ix.) the Commonwealth Parliament has power to make laws with respect to quarantine. Quarantine legislation may be regarded in most, if not all, of its aspects as a particular form of public health legislation. In relation to quarantine the Commonwealth Parliament has full powers of legislation. It can not only provide that money shall be spent upon quarantine, but it can devise and put into operation a whole compulsory system of quarantine under which duties can be imposed upon persons and penalties inflicted for breach of the law. But in relation to other aspects of public health the Commonwealth (once again leaving out of account the Territories) has no such power of legislation. The Commonwealth can, in my view, authorize the expenditure of public money on inquiries, investigations, research and advocacy in relation to matters affecting public health. But the Parliament could not pass a law requiring citizens of the States to keep their premises clean or to submit to vaccination or immunization. The power to appropriate and expend money, however wide that power may be, does not enable the Commonwealth to extend its legislative powers beyond those marked out and defined by the Constitution, although (in my opinion) those powers include a general appropriation power.

46 pages.



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