The close social, economic, political and emotional bonds between Britain and the Australasian colonies meant that many facets of colonial life reflected those in the mother country. This was true of much Australian law, and for many years it was argued that colonial legislation was largely English law transplanted. Kercher, however, derided the persistence of the idea that the colonies followed the mother country unthinkingly:
The idea that Australian law was to a degree original even in the nineteenth century is still controversial, but it should not be. It was impossible for eighteenth-century English law to be simply transplanted. That law was the product of a complex class-ridden society, and neither the society nor its rules could be dumped unchanged into the Australian bush. Nor was there an uncontested notion of English law which could have been parcelled up and sent to the colonies, let alone a single interpretation of it. Ambiguity, social difference and distance, in short, made legal originality possible.438
This section seeks to find to what extent this general assessment of the development of Australian law is applicable to public health legislation in the colonies, and compulsory vaccination legislation in particular.
Imperial influence has been implicated in the development of colonial public health policy, including compulsory vaccination.439 Cumpston argued that ‘The dominant influence throughout the whole of public health legislation before the year 1900 was the English legislation.’440 Ties with England were very close and, given that many health-related acts passed by the colonial governments reflected the English legislation either in form or in timing or both, it is unsurprising that Cumpston should have reached this conclusion, although it also, perhaps, reflects the frustration he had felt while trying to administer some of this legislation in his roles as the Director of Federal Quarantine and later as the first Director-General of the Federal Department of
438
B. Kercher, ‘Creating Australian Law’, in W. Hudson and G. Bolton (eds.), Creating Australia: changing Australian history (St. Leonards, NSW: Allen & Unwin, 1997), p. 106.
439
A. Mayne, ‘“The Dreadful Scourge”: responses to smallpox in Sydney and Melbourne, 1881-2’, in R. MacLeod and M. Lewis (eds.), Disease, Medicine and Empire: perspectives on western medicine and the experience of European expansion (London: Routledge, 1988): 219-241.
440
Health.441 He recognised that there were some differences between the colonies by arguing that the level of ‘intellectual and ethical reliance upon the mother country’ depended on the history of settlement and growth.442 This explained, he believed, New South Wales’s slow adoption of public health legislation in comparison to Victoria, whose population was comprised ‘entirely of young English people, all of whom had arrived within two or three years from England.’443 For Cumpston, the history of public health in Australia differed from that of England merely in time, not in substance. Indeed, his scathing assessment was that:
This adoption of English legislation was mechanical and unenlightened. Sufficient attention was not paid to local conditions and needs; it was not realized that the natural history of diseases in Australia was different from that in England.444
His only concession was that, on occasion, ‘temporizing measures designed to meet an emergency need or to satisfy a presumed public demand’ would produce some small difference between English and colonial laws.445
This view has some merit, but fails to take into account any factors beyond imperial influence and panic, and has been refuted by Dyason for these reasons. She argued that the Victorian Public Health Act differed significantly from its English counterpart in terms of administrative structure, and especially in its reliance on the police force, rather than the Local Boards of Health, for enforcement.446 Further, the way in which the administration of the act developed was informed by local conditions; notably, the sporadic growth of the gold diggings and the emergence of new municipalities both left their impact on the administration.
441
For more on Cumpston, see A. Hyslop, ‘A Question of Identity: J.H.L. Cumpston and Spanish Influenza, 1918- 1919’, in D. Walker and M. Bennett (eds.), Intellect and Emotion: essays in honour of Michael Roe, Number 16 (Geelong: Australian Cultural History, 1997/98): 60-76; M. Roe, ‘The Establishment of the Australian Department of Health: its background and significance’, Historical Studies 17(67) (1976): 176-192; M. Roe, Nine Australian Progressives: vitalism in bourgeois social thought, 1890-1960 (St Lucia: University of Queensland Press, 1984), pp. 118-154.
442
Cumpston, ‘The Development of Public Health in Australia’, op. cit., p. 333.
443 Ibid. 444 Ibid. 445 Ibid., p. 335. 446
D.J. Dyason, ‘Aspects of Public Health in the Colony of Victoria – the first 15 years’, XIVth International Congress of the History of Science, Proceedings No. 3 (Tokyo: Science Council of Japan, 1975): 15-18.
Lewis has taken a more moderate position, acknowledging both that the Australian Public Health Acts borrowed extensively from the English laws and that the difference between them was in the operation of the legislation, with:
…supervision exercised from the centre because of the comparative weakness of local government in the colonies, a function of smallness and thinness of population and the colonial tradition, initiated in the convict era, of strong government from the capital.447
However, Lewis emphasised the reactive nature of the government decisions, noting that ‘epidemic disease was a powerful spur to introduction of legislation, though smallpox in Australia usually played the part of cholera in Britain.’448 It was fear of infectious disease that Lewis saw as providing the immediate provocation necessary for bills to be passed, and the unusually extreme fear of smallpox, despite (or perhaps because of) its relative rarity, that prompted major advances in public health organisation in each of the colonies during the second half of the nineteenth century. Roe, too, asserted the importance of epidemic disease in the development of public health, by arguing that the story of quarantine in Australia, formulated specifically to prevent the introduction of epidemic diseases, is essentially also the story of the establishment of the Australian Department of Health.449
The history of public health in New South Wales differs from that of the other Australian colonies in that it did not pass a general public health act until 1896. Fisher has argued that the difference in timing between the British and New South Wales legislation was not simply the result of an immature colony lagging behind, but rather reflected the economic concerns of late nineteenth- century New South Wales.450 Taking the example of the regulation of noxious trades, she argued that pollution produced by urban manufacturers was left largely unregulated because the pastoral interests needed the noxious traders, and the government needed the rural interests to be productive for economic stability. Hence,
447
M.J. Lewis, The People’s Health: public health in Australia, 1788-1950 (Westport, Connecticut: Praeger, 2003), p. 71. See also: Mayne (1988), op. cit., p. 236.
448
Ibid.
449
M. Roe, ‘The Establishment of the Australian Department of Health: its background and significance’, Historical Studies 17(67) (1976): 176-192.
450
The exporters’ need to produce in a low cost situation, unfettered by government controls, was deemed more important than was the preservation of Sydney’s environment and the health of Sydney’s population.451
Fisher therefore assessed economic factors as being more important in the formulation of public health policy than British influence in New South Wales.
One of the major differences between English and Australian public health has been identified by Bashford, and consists of the very different approaches to quarantine between the mother country and her colonies. This discrepancy was obvious to contemporaries. An anonymous writer for the
Australian Medical Journal noted that:
We are somewhat peculiar in these colonies in the law and practice of quarantine. We may be inclined to agree with the English sanitary authorities, that the prevention of disease is mainly an internal question, one, that is to say, of sanitary improvement within the country, and less the keeping of disease out by restrictive measures. Local conditions, however, and especially our comparative remoteness from the great centres of population in older countries, supply what we consider justification for the use of quarantine precautions, such as are now completely abandoned in England.452
Bashford agreed, and argued that ‘normally Australian medical and public health measures predictably followed European developments’, but that in the case of quarantine, the colonies responded to the geographical facts of the Australian continent, and that this had important consequences for the development of the idea of the Australian nation.453 The practice of quarantine resulted in the conception of Australia as a ‘geo-body’ and an ‘island-nation’ with attendant connotations of purity and vulnerability, and was strongly motivated by racial politics. This idea is complicated, but not negated, by the islands of Fiji and New Zealand (which, ultimately, were not included in Australia) and Tasmania (which was), and their inclusion in discussions of quarantine during the late nineteenth century.454 As England moved away from 451 Ibid., p. 89. 452 AMJ, 9 (1887), pp. 323-326. 453
A. Bashford, ‘Quarantine and the Imagining of the Australian Nation’, Health 2(4) (1998): 387-402, p. 387; Bashford (2004), op. cit., pp. 115-136.
454
New Zealand passed compulsory vaccination legislation comparable to that in Victoria and Tasmania in 1863 and 1871. These Acts were repealed by the Public Health Act 1872, which included compulsory vaccination clauses. Compulsion, however, was not effectively enforced and problems of implementation were compounded by difficulties with the supply of lymph and the conflicts of interest inherent in devolving responsibility for prosecution to medical practitioners or teachers. During the smallpox scares of the 1870s and 80s, it was claimed that the Maori were
quarantine and towards medical inspection, then, the colonies became increasingly reliant upon quarantine as the first line of defence against infectious diseases.455
Maglen has also investigated this seeming anomaly in response to Baldwin’s assertion that a state’s stance on quarantine was determined by geography in two ways.456 Baldwin described the first way as the ‘geoepidemiological learning curve’, in which countries situated further away from the source of disease had time to prepare for its arrival and so were less likely to impose strict quarantine measures. The second way he argued that geography could govern health policy was through topography, in which specific geographic and demographic features could override the imperative of the distance from the source of disease. Maglen assessed Baldwin’s theory in relation to the Australian colonies and concluded that, although situated a long way from disease founts, topographical factors were indeed influential.457 More specifically, however, Maglen identified three factors that contributed to the colonies’ predilection for quarantine: poor internal sanitary conditions relative to Britain, insufficient vaccination, and the exotic nature of the diseases they sought to prevent from entering the colonies through quarantine.458 Further, whereas Bashford emphasised the importance of racial ideas to the construction and administration of quarantine around the time of Federation, Maglen argued that these were far less important for the first three quarters of the nineteenth century and that authorities focused their attention on the responding more enthusiastically to the provision of vaccination than the Pakeha, despite not being affected by the compulsory legislation. See F.S. Maclean, Challenge for Health: a history of public health in New Zealand
(Wellington: Government Printer, 1995), pp. 223-245; D. Dow, Safeguarding the Public Health: a history of the New Zealand Department of Health (Wellington: Victoria University Press, 1995), pp. 15, 21-24, 27-32; R. Lange, May the People Live: a history of Maori health development, 1900-1920 (Auckland: Auckland University Press, 1999), p. 74, 154; P. Wood, Dirt: filth and decay in a new world Arcadia (Auckland: Auckland University Press, 2005), pp. 70-71.
455
Alfred Mault, the Secretary of the Tasmanian Central Board of Health, defined the difference between quarantine and medical inspection in the late nineteenth century. Quarantine was a system that provided for (1) the detention of ships with any infectious cases on board, with all their crews and passengers, for periods varying from ten to twenty- one days, (2) removal of cargo, and disinfection of it and of the ships, and (3) when cases have occurred during the voyage, or when the ship has left an infected port, the quarantine time counts from last liability to infection. Medical inspection, on the other hand, provided for (1) the establishment of sanitary authorities in every port, (2) immediate free pratique to all clean vessels from non-infected ports, (3) immediate inspection of all vessels from suspected ports, or on which there are suspicious cases, (4) immediate free pratique when this inspection shows no cases of infectious disease, except when there have been such cases during the voyage, under which circumstances ship, passengers, and their goods are to be disinfected before admission to pratique, (5) if, on inspection, cases are found – (a) immediate removal of sick to hospital, (b) disinfection of those who are well, and their goods, (c) disinfection of ship, after which, all that are well are to have free pratique, and (6) free pratique to all merchandise, except rags and other objects of a susceptible kind, which must undergo thorough disinfection. A. Mault, ‘Quarantine: memorandum by the secretary of the Central Board of Health’, TPP, 1888, No. 90, p. 3.
456
K. Maglen, ‘A World Apart: Geography, Australian Quarantine, and the Mother Country’, Journal of the History of Medicine and Allied Sciences 60(2) (2005): 196-217; Baldwin, op. cit., pp. 211-223.
457
Maglen, op. cit.
458
threat of disease from European, rather than Asian, sources, so that the reliance on quarantine was entrenched well before the colonies began focusing on Asian sources of disease.459 In the case of quarantine, then, it is particularly evident that the Australian colonies, far from aping English precedent, increasingly differentiated their circumstances from those of the mother country and formulated policy in accordance with these observations. Although English examples were frequently cited in discussions regarding quarantine, factors of geography, cost, risk and administration proved more decisive.
The contentions offered by Baldwin and Maglen support Kercher’s general assessment of the development of Australian law. This approach does not discount the impact of English legal precedent on the colonies, but rather offers the rational position that even when the colonies tried to adopt English law, implementation in the Australian context necessarily involved adaptation and innovation. This can be seen clearly in the case of compulsory vaccination.
With the granting of self-government, Tasmania and Victoria both passed Compulsory Vaccination Acts, in 1853 and 1854 respectively. Although these laws took the form of the 1853 English Vaccination Act, they were nevertheless laws drafted and passed in the colonies, and prompted by local events and people. It was an outbreak of smallpox in Sydney in 1853 that caused Dr Edward Bedford to write to the Lieutenant-Governor in support of a system whereby the medical practitioners of the colony would be paid by the Colonial Treasurer to vaccinate the people of Van Diemen’s Land through house-to-house visitation.460 Bedford saw no need to argue for the virtues of vaccination – that was taken as a given – but he noted that ‘a large number of persons are careless in getting their children, and consequently the Public, protected by its use’.461 He made mention of the Vaccination Bill that was under consideration in England at that time, and recommended that, if it became law, that ‘it would be desirable to have an enactment in this Colony’.462 This single letter encompasses the balancing act between Imperial and local factors that is characteristic of this period of colonial governance in Van Diemen’s Land and Victoria, and hints at the role that medical experts would attempt to play.
459
Bashford, ‘Quarantine and the imagining of the Australian nation’, op. cit., pp. 388, 397-399; Maglen, op. cit., pp. 206-210.
460
E.S.P. Bedford, ‘Small-pox. Enclosure in His Excellency the Lieutenant-Governor’s Message No. 22’, TPP, 1853, No. 58. Van Diemen’s Land officially became known as Tasmania from 1 January 1856.
461
Ibid.
462
While Victoria and Van Diemen’s Land followed the example set by England in this matter, the same cannot be said of New South Wales. Significantly larger, more established and with more independence of spirit, the colony of New South Wales was not so quick to deem legislation based on the English model desirable and did not pass compulsory vaccination legislation at this, or at any other, point in time, despite having the greatest incidence of smallpox out of any of the Australasian colonies. This is not to say that the New South Wales colonial government was anti- vaccination – indeed, a Vaccine Institution was established in 1847 for the purpose of maintaining the supply and quality of lymph, distributing it to medical practitioners, and vaccinating any applicants – but rather anti-compulsion.463 Early administrators of vaccination in New South Wales, such as Arthur Savage and John Yates Rutter, pronounced themselves to be confident that vaccination was being practised extensively throughout the colony.464
Despite this optimism about the state of vaccination in New South Wales, several vessels arriving at Port Jackson were found to contain smallpox cases, leading to widespread panic and a sharp increase in the number of applicants for vaccination.465 Rutter found it increasingly difficult to meet the demand and this, combined with the general mood of the populace with regard to the dangers of smallpox, caused the Colonial Secretary to request that the Medical Advisor to the Government notify the government of any cases of smallpox and provide suggestions for the best manner of dealing with such cases.466 After consultation with the medical community of Sydney, Rutter provided a series of recommendations, focusing on mass vaccination, the establishment of Branch Vaccine Institutions, and personal visitation by specially appointed Public Vaccinators. He advocated the use of isolation and sanitation as supporting measures. His recommendations received rapid assent, demonstrating the influence of medical expertise on policy formation in the face of a crisis, as well as highlighting the concerted effort that the New South Wales colonial government made to make vaccination available to all, particularly within the greater Sydney area.467 Nevertheless, vaccination was not made compulsory, and nor was there any suggestion of
463
A. Savage, ‘Vaccine Institution’, NSWV&P, LC, 1848, p. 310.
464
A. Savage, ‘Vaccine Institution’, NSWV&P, LC, 1852, p. 1161; J.Y. Rutter, ‘Vaccine Institution’, NSWV&P, LC, 1853, Vol. 1, pp. 411-412.
465
‘Vaccination’, NSWV&P, LC, 1853, Vol. 2, p. 575.
466
Ibid., p. 574. The Colonial Secretary was E. Deas Thomson, and the Medical Advisor to the Government was B. O’Brien.
467
making it so; rather, the general panic seemed to be sufficient to allay any fears of apathy from the administration.
A few years later, however, the Registrar-General, Christopher Rolleston, was requested to investigate the state of vaccination in New South Wales.468 Although local experiences with smallpox were clearly influential in instigating this investigation, the fact that Britain, closely