HIGH COURT OF AUSTRALIA

                                                       McCarter

                                                           Vs.

                                                         Brodie

         (Latham C.J.(1), Dixon(2), McTiernan(3), Williams(4), Webb(5) and Fullagar(6) JJ. )

                                                     8 June 1950

CATCHWORDS

Constitutional Law - Freedom of trade, commerce and intercourse among the States - Prohibition -
Regulation - Validity of State Act - Commercial vehicles prohibited from operating on State
highways unless licences obtained and fees paid - Licences subject to discretion of Crown - The
Constitution (63 & 64 Vict. c. 12), s. 92 - Transport Regulation Acts 1933-1947 (No. 4198 - No.
5220) (Vict.), Part II.*

HEARING

Melbourne, 1950, March 6-10; June 8. 8:6:1950 APPEALS from a Court of Petty Sessions of
Victoria.

DECISION

June 8.The following written judgments were delivered:-

LATHAM C.J.

The appellants F. C. McCarter and R. A. Gough were convicted on Regulation Act 1933 (Vict.), s.
45. McCarter was charged for that on 2nd August 1949 at South Merbein in Victoria he was the
owner of a commercial goods vehicle which operated on a public highway without the said vehicle
being licensed as a commercial goods vehicle under Part II. of the Transport Regulation Act 1933.
Gough was charged with driving an unlicensed vehicle in breach of the Act. I deal with the case in
relation to the appellant McCarter because no separate consideration is required of the case of
Gough. Section 45 of the Act provides, inter alia, that the owner of any commercial goods vehicle
which operates on any public highway and is not licensed as such under Part II. of the Act shall be
guilty of an offence. It was proved that the appellant was the owner of a commercial goods vehicle,
that the vehicle operated on a public highway in Victoria and that it was not licensed under the Act.
Accordingly if the Act applied to the appellant he was guilty of the offence charged. The appellant
had applied for a licence under the Act and his application had been refused. The Act does not give
any person a right to obtain a licence. The issue of licences is within the discretion of the Transport
Regulation Board except in certain cases specified in s. 22. The appellant's defence was that on 2nd
August his drive Gough was engaged in transporting beer from South Australia through the north-
west corner of Victoria to New South Wales. Both McCarter and Gough were therefore engaged in
inter-State trade and commerce. They contended that the Act was not valid in its application to such
trade and commerce because s. 92 of the Constitution provided that "trade, commerce and
intercourse among the States, whether by means of internal carriage or ocean navigation, shall be
absolutely free." The reply to this defence was that the Act had been held to be valid in Riverina
Transport Pty. v. Victoria (1937) 57 CLR 327 . The appellant contends in answer to this reply that
the case cited was based upon the decision R. v. Vizzard; Ex parte Hill [1933] HCA 62; (1933) 50
CLR 30 , and that the authority of both the Riverina Transport Case and of Vizzard's Case has been
destroyed by the decision of the Privy Council in the case of The Commonwealth v. The Bank of
New South Wales (1949) 79 CLR 497 (the Banking Case). That case, it is said, withdraws such
approval as was given by the Privy Council to Vizzard's Case in James v. The Commonwealth
(1936) AC 578; 55 CLR 1 , and, further, stated principles which destroyed the basis of the decisions
in the Riverina Transport Case and Vizzard's Case. (at p445)

2. The Court is therefore asked in this case to overrule Vizzard's Case; the Riverina Transport Case;
O. Gilpin v. Commissioner of Road Transport [1935] HCA 8; (1935) 52 CLR 189 ; Bessell v.
Dayman [1935] HCA 5; (1935) 52 CLR 215 ; and Duncan and Green Star Trading Co. v. Vizzard
[1935] HCA 43; (1935) 53 CLR 493 (the three last-mentioned cases were based upon Vizzard's
Case). The argument for the appellant also suggested that Willard v. Rawson [1933] HCA 12;
(1933) 48 CLR 316 was possibly wrongly decided and certainly that Hartley v. Walsh [1937] HCA
34; (1937) 57 CLR 372 and Milk Board v. Metropolitan Cream Pty. Ltd. [1939] HCA 28; (1939) 62
CLR 116 were also wrongly decided. Indeed in this case the Court is asked to hold that most of the
decisions of the Court in relation to s. 92 were wrong and that minority judgments throughout have
been right. (at p446)

3. There was a further argument for the appellant which should be mentioned at the outset. It was
contended that the Transport Regulation Act 1933 had, since the Riverina Transport Case held that it
was valid, been amended in relevant particulars. (at p446)

4. The Act contains a detailed scheme of transport regulation under a Transport Regulation Board
which was established by the Transport Regulation Act 1932. Section 5 of the 1933 Act provides
that "'commercial goods vehicle' means any motor car within the meaning of the Motor Car Acts
which is used or intended to be used for carrying goods for hire or reward or in the course of trade."
The word "operate" means, in the case of a commercial goods vehicle, "carry goods for hire or
reward or in the course of trade." It is therefore quite plain that the Act is intended to deal with trade
and the use of vehicles in trade. There is a prohibition of the operation of commercial goods
vehicles on any public highway unless the vehicle is licensed under the Act - s. 23. The Board has
power to grant a licence (s. 24) and the application for a licence must contain certain particulars (s.
25), namely - "(a) The routes or area upon or in which it is intended that the commercial goods
vehicle is to operate; (b) A description of the vehicle in respect of which the application is made; (c)
The classes of goods proposed to be carried; and (d) Such other particulars relevant to the subject-
matter of the said application as are prescribed". (at p446)

5. Section 26 provides:- "Before granting or refusing to grant any such licence the Board shall have
regard primarily to the interests of the public generally including those of persons requiring as well
as those of persons providing facilities for the transport of goods and without restricting the
generality of the foregoing requirement shall take into consideration - (a) the advantages of the
service proposed to be provided and the convenience which would be afforded to the public by the
provision of such service; (b) the existing transportation service for the carriage of goods upon the
routes or within the area proposed to be served in relation to - (i) its present adequacy and
probabilities of improvement to meet all reasonable public demands; and (ii) the effect upon such
existing service of the service proposed to be provided; (c) the benefit to any particular district or
districts or to the residents thereof which would be afforded by the service proposed to be provided;
(d) the condition of the roads to be included in any proposed route or area; and (e) the character
qualifications and financial stability of the applicant." (at p447)

6. Section 27 provides that, subject to the provisions of the Act (e.g. s. 22) "the Board may grant the
application (with or without variation) or may refuse to grant the application, and subject to this Part
the decision of the Board shall be final and without appeal." Section 28 provides for certain
conditions of licences relating to the fit and serviceable condition of the vehicle, limits of weight
and speed, limitation of hours of driving, observance of industrial awards as to wages and
conditions of labour. Section 28 further provides that, subject to the provisions of s. 22, the Board
may attach to a commercial goods vehicle licence all or any of the following conditions, namely -
"(a) A condition that the vehicle shall operate only upon specified routes or in a specified area; (b)
A condition that prescribed records relating to the operation of the vehicle under the licence shall be
kept; and (c) Such other conditions appropriate to the service to be provided by the vehicle as the
Board thinks proper to impose in the public interest." (at p447)

7. The period of the licence is four years - s. 30 as amended by Act No. 5220. (at p447)

8. The 1933 Act, s. 37, provided for a right of appeal to the Supreme Court if a licence were
refused. Act No. 4298, however, abolished this right and provided (s. 4) that decisions of the Board
granting or refusing to grant licences should not have any force or effect until they were reviewed
by the Governor in Council, who could approve or disapprove such decisions or make another
decision. Section 38 of the Act provides that the Victorian Railways Commissioners may,
notwithstanding the provisions of the Act as to the necessity for obtaining licences, with the consent
of the Governor in Council operate on public highways commercial passenger vehicles and
commercial goods vehicles on such routes or in such areas and subject to such conditions as the
Governor in Council thinks fit, but that before such a consent is given consideration must be given
to a recommendation of the Transport Regulation Board. The fee payable for a licence for a
commercial goods vehicle under the 1933 Act (s. 34) was such fee as was determined by the Board,
but not exceeding 5 pounds annually, or 5s. annually for vehicles referred to in s. 22. An
amendment was made by Act No. 5220, s. 7, providing that the fee for a licence for a commercial
goods vehicle should be 1 pound and a further fee calculated at an annual rate determined from time
to time by the Board based on the load capacity of the vehicle ascertained as prescribed but not
exceeding five shillings per hundredweight of load capacity. Section 7 also provides that the fees
received by the Board shall be paid into the Transport Regulation Fund out of which is paid the cost
of administration of the Transport Regulation Acts, cost of re-imbursement of expenses of municipal
councils in administering the Acts, cost of certain transport improvements, any surplus to go to
consolidated revenue, which is to make good deficits, if any, in the fund. There is no evidence as to
the amount of the fund or as to the amount of the charges upon it - which must vary from year to
year. (at p448)

9. These two amendments - (1) affecting the right of appeal to a court, and (2) increasing the fees
for licences and allocating the proceeds - do not in my opinion really affect the character of the Act,
which embodies a general control of road transport based upon considerations affecting, not only
traffic on the roads, but also the provision of necessary services along particular routes and in
particular areas, the exclusion of services deemed to be unnecessary or undesirable, and involving a
consideration of the interests of the railways as being another form of transport with which road
transport should be co-ordinated in the general interests of the community. The Act as amended
remains essentially a transport regulation Act dealing with trade and commerce and applying to
inter-State trade and commerce. The amendments made since 1933 do not in my opinion affect its
substantial character in any relevant respect. (at p448)

10. The contention for the appellant is that inter-State trade and commerce cannot be controlled by a
law of this character. It is conceded that the decisions in R. v. Vizzard and the Riverina Transport
Case are decisive against the appellant, but it is argued that those cases and the other transport cases
to which reference has been made, namely Gilpin's Case, Bessell v. Dayman, Duncan and Green
Star Trading Co. v. Vizzard, and possibly Willard v. Rawson, should be overruled. (at p448)

11. In James v. The Commonwealth [1936] UKPCHCA 4; (1936) AC 578; 55 CLR 1 the Privy
Council referred to some of the reasoning of Evatt J. in Vizzard's Case. It was said (1936) 55 CLR,
at p 50 : - "The elaborate judgment of Evatt J. in that case is of great importance. It is impossible to
quote here at length from it; one short passage may be extracted (1933) 50 CLR, at p 94 - 'Sec. 92
does not guarantee that, in each and every part of a transaction which includes the inter-State
carriage of commodities, the owner of the commodities, together with his servant and agent and
each and every independent contractor co-operating in the delivery and marketing of the
commodities, and each of his servants and agents, possesses, until delivery and marketing are
completed, a right to ignore State transport or marketing regulations, and to choose how, when and
where each of them will transport and market the commodities' . . . If this reasoning, which in
Vizzard's Case [1933] HCA 62; (1933) 50 CLR 30 was primarily applied to the States, as it seems to
be, is correct, then in principle it applies mutatis mutandis to the Commonwealth's powers under
sec. 51 (i) . . .". (at p449)

12. In the Riverina Transport Case and other cases this passage was treated as an approval of the
quoted statement. As far as transport is concerned, it will be seen that it denies that s. 92 gives
persons "a right to ignore State transport regulations" and to choose how, when and where each of
them will transport commodities. In other passages in James v. The Commonwealth the Privy
Council referred to a number of Federal and State statutes which applied to transactions of various
kinds in inter-State trade, commerce, or intercourse, and stated that their provisions did not infringe
s. 92. These statutes included the Post and Telegraph Act 1901-1923, the Wireless Telegraphy Act
1905, the Secret Commissions Act 1905, the Commerce (Trade Description) Act 1905-1933, the
Australian Industries Preservation Act 1906-1930, the Sea Carriage of Goods Act 1924, and the
Transport Workers Act 1928-1929 (see (1936) 55 CLR, at pp 54, 55 ). As to State statutes which
apply to inter-State transactions, the Privy Council in the first place rejected the argument (which
was stated at p. 24) that if a law imposed any burden upon anything which formed part of trade and
commerce as trade and commerce, that is, by reason of any of the characteristics which made it
trade or commerce, the legislation was a breach of s. 92. It was said (1936) 55 CLR, at p 57 :- "Nor
is help to be derived from speaking of freedom of trade as trade: as well speak of freedom of speech
as speech. Every step in the series of operations which constitute the particular transaction, is an act
of trade; and control under the State law of any of these steps must be an interference with its
freedom as trade." (at p449)

13. Their Lordships proceeded to say that among the State Acts which can validly be applied to
inter-State trade are Sale of Goods Acts and Bills of Exchange Acts. If a transaction "involves sea,
railway or motor carriage, relevant Acts operate on it; it is subject to executive or legislative
measures of State or Commonwealth dealing with wharfs or warehouses or transport workers. It
must be so subject. Otherwise the absurd result would follow that the inter-State operation of trade
would be immune from the laws of either State, of the State of origin equally with the other State.
There would thus be in every State a class of dealings and acts entirely immune from the general
law of the State, though only distinguishable from other like dealings and acts by the fact that they
are parts of an inter-State transaction." (at p450)

14. Accordingly in James v. The Commonwealth the Privy Council plainly recognized that there
might be valid State laws controlling transport and, in particular, controlling motor carriage. The
question which had to be determined was which of such laws were to be held invalid and which of
such laws could properly be held to be valid. The answer to this question given in James v. The
Commonwealth was that laws which dealt with the movement of goods were invalid if they were
inconsistent with the conception of "freedom from customs duties, imposts, border prohibitions and
restrictions of every kind: the people of Australia were to be free to trade with each other and to
pass to and fro among the States without any burden, hindrance or restriction based merely on the
fact that they were not members of the same State" (1936) 55 CLR, at p 58 . (at p450)

15. It is now contended that in the Banking Case the Privy Council has so expounded these
statements of principle that it should now be held that any law with respect to inter-State trade,
commerce, or intercourse which imposes any "burden" upon it is necessarily invalid. (at p450)

16. The particular reference made in the Banking Case to Vizzard's Case (1950) AC, at p 309; 79
CLR, at p 638 recites the approval in James v. The Commonwealth of the reasoning of Evatt J. in
that case. Their Lordships, however, go on to say that it does not appear that the whole of that
learned judge's reasoning received the considered approval of the Board and that the facts in relation
both to subject matter and to manner of restriction or interference are so widely different in the two
cases (that is Vizzard's Case and the Banking Case) that it is difficult to apply to one case all that
was said in the other. Reference is made to the statement in James v. Cowan that their Lordships
were in accord with the convincing judgement delivered by Isaacs J. in the High Court, and it is said
that it would not be easy to reconcile all that was said by Evatt J. in the one case with all that was
said by Isaacs J. in the other, though it is stated that the decisions in James v. Cowan and in Vizzards
Case may be reconciled. In my opinion it cannot fairly be said that this means that the decision in
one case was wrong and in the other case was right. (at p451)

17. In my opinion this passage states what was always plain, namely that what was approved in the
judgment of Evatt J. in Vizzard's Case was only the passage quoted, which is described as reasoning,
but which, in my opinion, rather states conclusions reached as the result of reasoning. The
significance of that approval in the present case is to be found in the specific reference to State
regulation of transport. The present case is a case about transport, and not about some other subject.
What is pointed out in the Banking Case is that an approval of a particular statement of the law
made in relation to the passage of commodities cannot be, as it were, lifted out and mechanically
applied to questions relating to banking. It is necessary, their Lordships say, to consider the subject
matter and the manner of restriction or interference of which complaint is made. Accordingly I
regard the reference made to Vizzard's Case in the Banking Case as amounting to a warning that
general statements made with reference to a particular subject matter ought not to be extended so as
to be applied to another subject matter irrespective of distinctions between those matters and
without reference to the particular form of legislation in each case. In other words, a decision under
s. 92 with respect to transport ought not to be applied in relation to banking without regard to the
limitations mentioned. (at p451)
18. It is further argued for the appellant, however, that the reasoning of their Lordships in the
Banking Case destroyed the basis of the decisions in Vizzard's Case and in the other transport cases.
The Privy Council in the Banking Case corrected certain misunderstandings of prior decisions upon
which the appellants in the Banking Case had based their argument. But those misunderstandings
were not attributed to this Court and they were not, in my opinion, the ground of the decisions in
this Court which were attacked by the present appellant. The relation of s. 92 to individual rights
was expressly mentioned. No case has been decided upon the basis that s. 92 was irrelevant to
individual rights. It has been pointed out in this Court that, as was stated by the Privy Council in the
reasons for judgment in the Banking Case (1950) AC, at p 288; 79 CLR, at p 618 , s. 92 does not
create any new rights in an individual but that where it operates it has the effect of invalidating
legislation which otherwise might have prevented an individual from asserting a particular right or
defending himself against a particular claim: see, e.g. Riverina Transport Case (1937) 57 CLR, at pp
341, 342 and James v. The Commonwealth (1939) 62 CLR, at p 362 . It follows from this view as to
the nature of s. 92 that, as was stated in the Banking Case (1950) AC, at p 288; 79 CLR, at p 618 ,
the application of s. 92 does not involve calculations as to the actual present or possible future effect
(which would almost necessarily vary from time to time) upon the total volume of inter-State trade.
The difficulties of applying such a criterion are obvious. The statements in Vizzard's Case that it
was not shown that the volume of inter-State trade was or would be diminished by the statute were
replies to the contrary allegation made by those who challenged the statute. (at p452)

19. The Board and the Governor in Council have a discretion to grant or to refuse any application
for a licence. But this discretion is not an unlimited and arbitrary discretion as was held to be the
case in Gratwick v. Johnson [1945] HCA 7; (1945) 70 CLR 1 and the Airways Case [1945] HCA
41; (1945) 71 CLR 29 . This Court has already expressly held with respect to this Transport
Regulation Act that "the ambit of the discretion of the Board . . . is governed by the general scope
and object of the enactment": Victorian Railways Commissioners v. McCartney (1935) [1935] HCA
28; 52 CLR 383, at p 391: see also pp 394, 395, 396 , where there is a summary of the matters
which "the Board is required to take into consideration" under s. 26 of the Act. I see no reason for
assuming that the administrative authorities will act in disregard of the express provisions of the
Act. Subject to this qualification as to the nature of the discretion vested in the Board I agree with
the view of the character of the Transport Regulation Act which has been submitted on behalf of the
appellants. The Act requires a person to hold a licence before he can operate a commercial goods
vehicle upon the highways of the State. It applies to such a person even though he is engaged in
inter-State trade and commerce. No person has a right to obtain a licence. It can be granted or
refused at discretion - though, as I have said, that discretion is not unlimited and arbitrary in
character. If a licence is granted the licensee is subject to many conditions which control the manner
in which he is allowed to carry on his business. The appellants then say that the result is that their
activities in inter-State trade and commerce are subject to a burden or restriction imposed by State
law by reference to the characteristics of those activities as trade and commerce, and I agree also
with this proposition. It is argued that therefore the law is invalid, so that inter-State operators are
entitled to ignore all the provisions of the Act, though intra-State operators are bound by them. (at
p453)

20. The fact that everybody is not entitled as of right to obtain a licence is enough, it is argued, to
make the law invalid. It follows that it is beyond the power of any Parliament in Australia merely to
place a limit upon the number of vehicles using the highways. Further, the conditions attached to a
licence as to routes, areas to be served, conditions of work &c., are also said to be elements which
make the law totally invalid as far as inter-State trade is concerned because they impose burdens
upon it. (at p453)
21. The appellant really adopts and relies upon the decision as to the meaning of "absolutely free" in
s. 92 in W. & A. McArthur Ltd. v. Queensland [1920] HCA 77; (1920) 28 CLR 530 . The decision
in McArthur's Case that s. 92 did not bind the Commonwealth was overruled in James v. The
Commonwealth. But the other doctrine of McArthur's Case has been relied upon in dissenting
judgments in all the transport cases and in other cases relating to s. 92. That doctrine was that the
words "absolutely free" had a "natural meaning of absolute freedom from every sort of impediment
or control by the States with respect to trade, commerce and intercourse between them, considered
as trade, commerce and intercourse": (1920) 28 CLR, at p 554 . This proposition (with now the
substitution for the words "by the States" of the words "by either the Commonwealth or the States")
has been re-stated from time to time and it is now contended that it has been finally established as
good law by the Banking Case. The proposition was repeated in Peanut Board v. Rockhampton
Harbour Board [1933] HCA 11; (1933) 48 CLR 266, at p 287 in the following terms:- "the words '
absolutely free' admit of no qualification, but they are used with reference to governmental control
and exclude all such control; trade, commerce and intercourse among the States are made up of acts,
transactions and conduct which, considered as trade, commerce and intercourse, are free of all State
governmental control whatever (cf. McArthur's Case (1920) 28 CLR, at pp 550, 551, 558 )." See
also Vizzard's Case (1933) 50 CLR, at p 56 , where it was said in a dissenting judgment that
McArthur's Case showed that "the burdening of inter-State transport by means of taxes, duties, or
imposts, or impeding, regulating or controlling it by the requirement of licences, is obnoxious to the
provisions of sec. 92." See also Gilpin's Case [1935] HCA 8; (1935) 52 CLR 189, at pp 201, 205,
211 . (at p453)

22. In my opinion the authority of McArthur's Case as to both of the propositions stated was
destroyed by the decision in James v. The Commonwealth, and it has not been restored by the
Banking Case. The analysis of the decisions of this Court which was made in James v. The
Commonwealth leads up to a consideration of whether the rule in McArthur's Case, which had been
held in this Court to apply only to the States, should be accepted, and it was clearly held that it
should not be accepted. Their Lordships gave many examples of laws which imposed conditions
upon inter-State trade and commerce which were held to be valid and their Lordships specifically
rejected the view [1936] UKPCHCA 4[1936] UKPCHCA 4; ; (1936) AC 578; 55 CLR, at p 57 that
those laws were invalid because they applied to inter-State trade and commerce considered "as trade
and commerce." It was pointed out that control under State law of any of the steps in inter-State
trade "must be an interference with its freedom as trade." Nevertheless many specified State laws to
which reference has already been made were expressly held to be valid notwithstanding s. 92. The
decision in McArthur's Case that the price-fixing law of Queensland was invalid in its application to
inter-State transactions was expressly disapproved by the Privy Council in the observation that the
decision in McArthur's Case deprived the State of its sovereign power of fixing prices [1936]
UKPCHCA 4[1936] UKPCHCA 4; ; (1936) AC 578; 55 CLR, at p 49 . Their Lordships [1936]
UKPCHCA 4; (1936) AC 578; 55 CLR, at p 60 rejected "the theory" of McArthur's Case as to the
nature of the freedom protected by s. 92. (at p454)

23. The application of the principle for which the appellant contends would, now that it has been
finally determined that s. 92 applies to the Commonwealth as well as to the States, remove inter-
State trade and commerce from legal control under any law (Federal or State) that imposed what
could be described as a burden or restriction upon it. It has already been shown that many laws,
Federal and State, are applicable to inter-State trade and commerce. Trade and commerce are
unintelligible as conceptions and impossible as facts if there are no laws applying to trading and
commercial transactions: see Milk Board Case (1939) 62 CLR 116, at p 125 . Any other view would
reduce s. 51 (i.) of the Constitution, which gives power to make laws with respect to inter-State
trade and commerce, to a nullity, except in the case of facultative laws such as laws granting
bonuses or bounties. Another example may be given. The Commonwealth Parliament has power to
make laws with respect to quarantine: Constitution, s. 51 (ix.). The proposition for which the
appellant contends would make it impossible to pass any valid legislation under this power which
attempted to prevent the movement of things or persons inter-State, because the essence of
quarantine law is that the actual movement of persons or transportation of things, e.g. animals and
plants, is restricted or altogether prohibited. Such a law would be made in respect of the movement
or transportation itself and any such law would be invalid according to the test laid down in
McArthur's Case, unless indeed the suggestion were adopted which appears in McArthur's Case
(1920) 28 CLR, at p 551 , that laws on other subjects than inter-State trade or commerce might
restrict or prohibit inter-State trade and commerce, notwithstanding s. 92. But the essential character
of s. 92 is that, whatever it means, it imposes a limitation upon all law-making power: Gratwick v.
Johnson [1945] HCA 7; (1945) 70 CLR 1, at pp 11, 17, 20 . No law is to prevent inter-State trade
and commerce from being absolutely free. It is not material to ask whether the law can be described
as a law upon crime or bankruptcy or health or sanitation or the exercise of a particular occupation.
If the law does in fact interfere with the freedom protected by s. 92 it must be invalid, whether or
not it can be described as a law which is not itself a law upon trade and commerce. (at p455)

24. It is true that in all arguments upon s. 92 certain concessions are made by those who contend
that s. 92 invalidates a law. One concession is that they do not argue, for example, that criminals
cannot be imprisoned because imprisonment would interfere with their travelling inter-State or
conducting inter-State business. Other concessions are that of course it is not argued that traffic
regulations must not be obeyed, that motor cars travelling interstate need not carry lights or observe
the rule of the road or have their brakes in order or observe directions as to the non-user of certain
roads or limitations of weight in respect of bridges and the like. If the general principle is that no
law may impose a restriction or burden upon inter-State trade - that it is to be free from all
governmental control - then laws with respect to the matters mentioned simply become
incomprehensible exceptions. But these concessions are not, in my opinion, supported by any
argument which shows that the admissions made are consistent with the arguments submitted. All
the laws to which I have referred are laws which in fact impose restrictions upon inter-State
movement or inter-State trade and commerce. This is true of the simplest rule of the road. (at p455)

25. There is no authority for the proposition that the courts are authorized to inquire whether such
restrictions are "reasonable" or not in order to determine whether they become "burdens" so as to
infringe s. 92. It is not for a court to determine, to take some examples, whether a Sale of Goods
Act, a Bills of Exchange Act, an Act relating to the control of wharves and warehouses, an Act
requiring fruit to be prepared in a particular way before it is sold or animals to be killed in licensed
abattoirs before the meat can be sold, are reasonable or not. The Transport Regulation Act deals
directly with transportation in trade, which is itself trade and commerce: Australian National
Airways v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 . The Act imposes restrictions
upon persons engaged in such transportation and prevents those persons doing as they please.
Without control of transport on the roads, chaos would result. There would be the same result if
inter-State transport were free from control and intra-State transport were subject to control. There
is in my opinion no authority for the proposition that such restrictions will be valid if, in the opinion
of a court, they are "reasonable" but not otherwise. There are many laws relating to highways. It is
contended primarily that there can be no control of the persons who use the highways in inter-State
transport by permitting only licensed persons to use them, but there is a reluctant admission that if
the licence fee is "reasonable" it may be permissible to impose it. The roads of the State of Victoria
have cost many millions of pounds; the railways of the State have cost many millions of pounds. It
would be a most difficult task to determine what is a reasonable charge for the use of all or some of
the roads by a particular motor truck or private motor car or some other vehicle. If a court is at
liberty to inquire into such matters I do not see why the railway fares and freights between Victoria
and all other States should not be held to be invalid unless it can be shown that they are
"reasonable." Similarly the toll on the Sydney bridge, which is part of a highway used by inter-State
traffic, might be held to be inconsistent with s. 92 unless a court was of opinion that it was
reasonable. It is obvious that the determination of such matters as the amounts of licence fees,
freights and fares, of conditions of road traffic and rail traffic, must depend upon considerations of
policy which cannot be determined by a court. If the question is asked what would be a reasonable
fee for a licence for a large truck or a small truck or a private motor car, or if it is asked how far it
would be "reasonable" to limit motor traffic by reason of the financial obligations of the State in
relation to the railways, or how much should motor traffic be required to contribute to general
revenue to help to pay for roads &c., it would be quite impossible for a court to answer the
questions. Any answer would depend upon the policy to be applied, e.g. whether the town should be
favoured as against the country or the railways as against the roads or the producers as against the
distributors. In my opinion there is no authority for the proposition that it is left to a court to
determine whether particular laws with respect to inter-State trade are "reasonable" or not. (at p457)

26. The principle for which the appellant contends would necessarily result in overruling such cases
as Hartley v. Walsh [1937] HCA 34; (1937) 57 CLR 372 , where a law was upheld which required
that dried fruits should not be sold until they had been treated in registered packing houses, and
Milk Board v. Metropolitan Cream Pty. Ltd. [1939] HCA 28; (1939) 62 CLR 116 upholding the
validity of a system of control of the sale of milk which was directed towards securing hygienic
treatment and distribution of milk. Indeed the adoption of the principle for which the appellant
contends would involve the overruling of almost every case in which legislation has been upheld by
this Court against an objection based upon s. 92. (at p457)

27. I proceed to consider more in detail whether the principles laid down by the Privy Council in the
three cases of James v. Cowan, James v. The Commonwealth and the Banking Case should lead to a
reconsideration of the principles which have been applied by this Court from the time of Vizzard's
Case to that of the Milk Board Case. (at p457)

28. In James v. Cowan the precise question was whether a Minister had used a statutory power in
accordance with the provisions of the statute. Section 28 of the South Australian Dried Fruits Act
1924 provided that "Subject to sec. 92 of the Commonwealth of Australia Constitution Act and for
the purposes of this Act or of any contract made by the Board, the Minister may on behalf of His
Majesty purchase by agreement or acquire compulsorily any dried fruits in South Australia. . . ." It
was found as a fact that the Minister had used this power for the purpose of forcing surplus dried
fruit off the Australian market. Their Lordships said (1932) AC 559 that "'To force the surplus fruit
off the Australian market' appears necessarily to involve two decisions: first, the fixing of a limited
amount for Australian consumption (a necessary element in the conception of a 'surplus'); secondly,
the prevention of the sale of the balance of the output in Australia." It was found as a fact that the
Minister exercised his powers for the express purpose of preventing the sale of the plaintiff's fruit
inter-State. There was no difficulty therefore in holding that the section (expressed to be subject to s.
92) did not authorize such an exercise of the power. The conclusion which was drawn in this Court
from the decision in James v. Cowan was that if legislation was "directed against" inter-State trade
and commerce it was invalid, but that inter-State trade and commerce might be regulated and
controlled by some laws. This conclusion was based upon the further statement in James v. Cowan
which was in the following terms:- "If the real object of arming the Minister with the power of
acquisition is to enable him to place restrictions on inter-State commerce, as opposed to a real object
of taking preventive measures against famine or disease and the like, the legislation is as invalid as
if the legislature itself had imposed the commercial restrictions" (1932) AC, at pp 558, 559 . If a
power of acquisition were used for these latter objects (as to famine, disease, &c.) it would as
effectively interfere with inter-State trade and commerce as in the prohibited case (prevention of
inter-State trade). The individual owner of the fruit would be deprived of his fruit in every case.
There would be no possibility that he could sell it inter-State. Thus James v. Cowan did not decide
that all laws which restricted the power of an individual to deal with his goods in inter-State trade
were invalid. (at p458)

29. James v. The Commonwealth [1936] UKPCHCA 4; (1936) AC 578; 55 CLR 1 decided that the
Commonwealth as well as the States was bound by s. 92. In that case a further exposition of s. 92
was given by the Privy Council. That case overruled McArthur's Case on both points which were
there decided. The effect of McArthur's Case was summarized by Gavan Duffy C.J. in the following
terms in R. v. Vizzard; Ex parte Hill (1933) 50 CLR, at p 46 :-
This Court in McArthur's Case "laid down the following propositions with respect to sec. 92 of the
Constitution of the Commonwealth of Australia:- (1) The section in no way limits or restricts the
legislative power of the Commonwealth. (2) The section precludes the Parliaments of the States
from in any way regulating or controlling trade, commerce, and intercourse among the States." In
James v. The Commonwealth both of these propositions were rejected. There is no dispute that
proposition No. (1) was rejected. As to proposition No. (2), that also was rejected. If it had not been
rejected the position would have been that no Parliament in Australia could "in any way regulate or
control trade, commerce and intercourse among the States." In James v. The Commonwealth (1936)
55 CLR, at p 60 this result is expressly stated as one of the reasons for rejecting "the theory
expounded in McArthur's Case." In McArthur's Case the view of the Court was that s. 92, as
construed by the Court, must be held not to bind the Commonwealth because otherwise inter-State
trade and commerce would be free from all law, with the result that s. 51 (i.) would be a nullity. The
Privy Council rejected the doctrine that s. 92 meant that inter-State trade and commerce was free
from law - either Federal or State. As it was put in James v. The Commonwealth (1936) 55 CLR, at
p 60 , if the theory enunciated in McArthur's Case failed, the only substantial argument for the
respondent's contention (as to s. 92 not binding the Commonwealth) failed. Accordingly in James v.
The Commonwealth it was held that inter-State trade and commerce could be controlled and
regulated by law and that such control and regulation was not necessarily inconsistent with s. 92,
provided, to use the words of James v. Cowan, that "it was not directed against" such trade and
commerce. (at p459)

30. In the Transport Cases, in Home Benefits Pty. Ltd. v. Crafter [1939] HCA 12; (1935) 61 CLR
701 , Hartley v. Walsh [1937] HCA 34; (1937) 57 CLR 372 , and Milk Board v. Metropolitan
Cream Pty. Ltd. [1939] HCA 28; (1935) 62 CLR 116 , this Court endeavoured to apply what were
understood to be the principles laid down in James v. Cowan and James v. The Commonwealth. In
these cases it was held that inter-State trade and commerce could be regulated by law consistently
with s. 92 but that a mere prohibition of such trade and commerce was inconsistent with s. 92. This
principle was applied in the Milk Board Case and repeated in Australian National Airways v. The
Commonwealth [1945] HCA 41; (1945) 71 CLR 29 , in the following words quoted in the Banking
Case from a judgment of the Chief Justice in the Airways Case (1949) 79 CLR, at p 640 :- "I
venture to repeat what I said in the former case (viz. the Milk Case [1939] HCA 28; (1939) 62 CLR
116, at p 127 ): 'One proposition which I regard as established is that simple legislative prohibition
(Federal or State), as distinct from regulation, of interstate trade and commerce is invalid. Further, a
law which is "directed against" interstate trade and commerce is invalid. Such a law does not
regulate such trade, it merely prevents it. But a law prescribing rules as to the manner in which trade
(including transport) is to be conducted is not a mere prohibition and may be valid in its application
to interstate trade, notwithstanding s. 92'." (at p459)

31. This quotation follows an express statement that regulation of trade, commerce and intercourse
among the States is compatible with absolute freedom and that s. 92 is violated only when a
legislative or executive act operates to restrict such trade, commerce and intercourse directly and
immediately, as distinct from creating some indirect or consequential impediment which may fairly
be regarded as remote. Thus the Privy Council in the Banking Case expressly rejected the
proposition that s. 92 precluded Parliaments (Commonwealth or State) from in any way regulating
or controlling inter-State trade and commerce, and a statement of the law was selected for approval
which defined the relevant criterion as the distinction between regulation which was permitted, and
prohibition, which was not permitted. (at p460)

32. The result is that s. 92 does not mean that inter-State trade and commerce is to be free from
control by law. In a passage to which I have just referred their Lordships held that if laws have only
an indirect effect in relation to inter-State trade and commerce they are not invalidated by s. 92.
This proposition deals with the case of the man who is convicted of an offence and is imprisoned
and other similar cases. The laws which are permitted as being consistent with s. 92 include not only
laws which have only an indirect effect upon inter-State trade and commerce, but also laws which
have a direct effect and operation upon that trade and commerce. For example, any laws which can
validly be enacted under the power given to the Commonwealth Parliament under s. 51 (i.) to make
laws with respect to trade and commerce among the States must have a direct operation in relation
to trade and commerce. How then can a distinction be drawn between laws having such a direct
operation which are permitted by s. 92 and those which are not so permitted? The answer is to be
found in the distinction between regulation and prohibition. This is the distinction which was
applied in the Home Benefits Case, the Milk Board Case and the Australian National Airways Case
and this is the distinction, as already stated, which has now been expressly adopted by the Privy
Council as the relevant criterion. (at p460)

33. In the Banking Case their Lordships conclude their judgment by stating that it will sometimes be
difficult to determine in a particular case whether a law exceeds the limits of regulation and
transgresses into prohibition and the conclusion of the Privy Council is summarized in the following
words:- " . . . it appears to their Lordships that, if these two tests are applied: first, whether the effect
of the Act is in a particular respect direct or remote; and, secondly, whether in its true character it is
regulatory, the area of dispute may be considerably narrower" (1950) AC, at p 313; 79 CLR, at p
642 . Therefore the questions which are to be asked are these:- Is the effect of a challenged Act in
relation to inter-State trade and commerce direct or remote? If it is remote no question in relation to
s. 92 arises. Next, where the effect of the Act is direct, is the Act in its true character regulatory and
not merely prohibitive? If it is truly regulatory and not prohibitive it will not be invalidated by s. 92.
(at p460)

34. The question, therefore, is whether the Transport Regulation Acts of Victoria are regulatory or
prohibitive. The Acts are entirely different from, for example, the Act which was considered in
James v. The Commonwealth, a statute which was enacted upon the then accepted basis that s. 92
did not bind the Commonwealth. The Act specifically penalized the transport of fruit inter-State
without a licence. In the sense of James v. Cowan it was held to be "directed against" inter-State
trade. It was obvious that if the Commonwealth was bound by s. 92 such an Act was an
infringement of that section. The present Transport Regulation Act is a carefully designed extensive
system of transport control. Perhaps the most common method of regulating trade is by a licensing
system, e.g. in the case of intoxicating liquor, drugs, slaughtering of stock, dealing in marine stores
&c. In each case some authority has the duty of determining whether an application for a licence
shall be granted or refused. Such licences are generally subject to conditions relating to the manner
of carrying on the trade and these conditions frequently involve the payment of a fee. It is such a
system which the Transport Regulation Act applies. The Act has all the characteristics of a system
of regulation. The words of Gavan Duffy C.J. in Vizzard's Case (1933) 50 CLR, at p 47 , with
respect to a substantially identical Act, in my opinion apply precisely to the present Act:- " . . . the
intention of the Legislature was . . . to provide that transport within the State should be carried on in
the most effective and economic manner and to co-ordinate the means for carrying on such transport
so as to obtain the best available services." This in my opinion is what the Act does. It is a system of
regulation and is valid. (at p461)

35. It has, however, been particularly objected that a power to regulate trade and commerce does not
include a power to exclude any person from operations in trade and commerce. But it is obvious that
any regulation which imposes conditions upon activities of individuals must exclude from those
activities persons who are not prepared, or who are not able for any reason, to satisfy those
conditions. In other words all regulation involves some degree of prohibition and, further, all
regulation operates upon persons. Laws apply to persons, not to things, and what is called regulation
of a subject matter must be a system of regulating the conduct of persons. The argument that a
power to make laws regulating and controlling inter-State trade and commerce does not authorize
the exclusion of any person from such trade and commerce is met, not only by the general
considerations which have just been mentioned, but also by the express decision of the Privy
Council in the Banking Case:- " . . . regulation of trade may clearly take the form of denying certain
activities to persons by age or circumstances unfit to perform them or of excluding from passage
across the frontier of a State creatures or things calculated to injure its citizens" (1950) AC, at p
312; 79 CLR, at p 641 . It must be a question of policy for Parliament to determine what creatures
or things or courses of action are to be regarded as "calculated to injure the citizen" of a State. (at
p462)

36. Finally, reference was made to certain cases decided in the United States of America and it was
contended that these authorities supported the view that the legislation challenged in this case is
invalid. With respect to American authorities on this subject the following comments may be made.
The Constitution of the United States does not contain any such provision as s. 92. The problems
which arise from the presence of s. 92 in the Commonwealth Constitution do not arise in the United
States in anything like the same way. The power of Congress is a power to make laws to regulate
commerce with foreign nations and among the several States and with the Indian tribes. There has
been much variation of opinion in the Supreme Court of the United States with respect to the
character and limits of this power. Originally it was held to be a concurrent power. Later it was held
to be an exclusive power - see Willis, Constitutional Law, (1938) pp. 307 et seq. It was the
prevailing view that Gibbons v. Ogden (1824) 9 Wheat 168 decided that "The States may not in any
manner directly interfere with or attempt the regulation of commerce between the States by
whatever agency that commerce may be carried on": see Willoughby on the Constitution of the
United States, (1929) 2nd ed, vol 2, at p 763, so stating the effect of Gibbons v. Ogden (1824) 9
Wheat 168 . This proposition is rejected, with respect to the Commonwealth Constitution, in James
v. The Commonwealth and in the Banking Case. Later, however, it was held that the States were at
liberty to regulate local matters, and that the power of Congress was exclusive only in relation to
matters which were considered (by the Supreme Court) to require treatment upon a national scale.
No such doctrine has ever been suggested or applied in Australia. There was much conflict of
opinion in the United States as to the position where Congress had been silent in relation to a
particular matter: Willis, p. 308. On the one hand it could be contended that the silence of Congress
upon a matter meant that Congress intended that the States were to be free to legislate with respect
to that matter. On the other hand, it was sometimes argued that the silence of Congress meant that it
was the intention of Congress that subject matter should be free from any regulation. No such
principles have ever been adopted in Australia. In the United States there is a doctrine of the police
power of the States which permits some degree of local regulation of inter-State trade and
commerce. This doctrine finds many difficulties in its application and has never been part of the law
of Australia. In the United States it has been decided that the States may impose "reasonable" fees
for licences in the case of road traffic. No such doctrine has hitherto been applied in Australia for
the purpose of limiting legislative power in relation to trade and commerce. Reference has already
been made to the difficulties of applying such a criterion of validity. (at p463)

37. The Banking Case has, in my opinion, finally decided that laws directly operating upon persons
engaging in inter-State trade and commerce are not infringements of s. 92 if they are what can fairly
be described as "regulation." If, however, they are laws which directly deal with the subject matter
of trade and commerce and exceed regulation and pass into prohibition they are invalid. The
Transport Regulation Acts of Victoria are, in my opinion, truly described as Regulation Acts. (at
p463)

38. In my opinion the appeals should be dismissed. (at p463)

DIXON J. At the time when R. v. Vizzard; Ex parte Hill [1933] HCA 62; (1933) 50 CLR 30 was
decided I found myself unable to accept the conclusion that was reached. But what was worse, I was
conscious of a failure on my part to refer the conclusion to any interpretation of s. 92 of which I
could obtain a clear grasp. To my cast of mind it seemed to introduce an incoherence into the
application or operation of s. 92. On the question of the valid operation upon inter-State traffic of
legislation of the same general character as that with which the case dealt, the decision became, of
course, a decisive precedent and it was followed. Indeed, as I think, it was somewhat extended. The
cases are O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) [1935] HCA
8; (1935) 52 CLR 189 , Duncan and Green Star Trading Co. Pty. Ltd. v. Vizzard [1935] HCA 43;
(1935) 53 CLR 493 and Riverina Transport Pty. Ltd. v. Victoria [1937] HCA 33; (1937) 57 CLR
327 . Together these cases are often conveniently described as the Transport Cases. (at p463)

2. That last mentioned (the Riverina Transport Case [1937] HCA 33; (1937) 57 CLR 327 presented
a state of facts which I took some trouble to state because, though I did not say so, it appeared to me
to provide a reductio ad absurdum. But I said:- "The decisions in those cases appear to me
completely to establish the validity of legislation taking substantially the same form as the Victorian
Transport Regulation Acts. In particular they decide that the prohibition of carrying goods by motor
vehicle, except under licence, involves no impairment of the freedom of trade, commerce and
intercourse among the States, although carriage of goods upon a journey across the border is
included and although there is a full discretion to grant or withhold a licence. I remain quite unable
to agree in that conclusion, but I should have thought that it covered the present case and that the
elements relied upon by the plaintiff could make no difference. It is better that I should not attempt
any restatement for myself of the principles upon which the decisions rest. Probably my grasp of
those principles is imperfect and, as a rule, it is neither safe nor useful for a mind that denies the
correctness of reasoning to proceed to expound its meaning and implications" (1937) 57 CLR, at p
362 . (at p464)
3. In the Airlines Case [1945] HCA 41; (1943) 71 CLR 29 , however, it became necessary to form a
conclusion as to the ratio decidendi of the Transport Cases. For it was claimed that the business of
providing inter-State carriage of men and things was not itself part of trade commerce and
intercourse between the States, although subject to the commerce power as something incidental
thereto. The conclusion I formed I stated in this passage:- "After a full study of the Transport Cases
I have come to the conclusion that they do not decide this proposition. In the pragmatical solution
which those cases gave to a problem which they approach as a complex the essential features of the
legislation were examined for the purpose of determining its practical operation upon inter-State
commerce and intercourse regarded as a sum of activities; to see whether it obstructed, restricted,
retarded or impaired, not some operations of commerce considered separately or in isolation, but the
commerce between New South Wales and Victoria considered as a whole. The legislation was, in
effect, treated as part of an attempt to make the internal transport of the State a planned structure, a
framework within which the freedom guaranteed by s. 92 subsisted and even by which that freedom
was secured. The reasons given for the solution necessarily comprised much that was really directed
to denying that in the character and operation of the legislation factors or features could be found to
which s. 92 was inimical. It is, I think, in the course of this demonstration that, among other things,
any adverse effect upon the flow of trade is excluded and the relation in fact which transport has to
trade in goods is emphasised. It is to be noticed that it is not the business of inter-State carrying but
motor trucks themselves which Rich J. describes as aids or implements to commerce and intercourse
but not the thing itself. The decision was, I think, based upon a combination of all the considerations
mentioned in the passage, negative and positive, particularly the fact that it was the undifferentiated
road transport of the State that was regulated on a non-discriminatory basis" (1943) 71 CLR, at p 90
. The passage was preceded by an attempt to bring together the points which Rich J. had made in his
judgment in Vizzard's Case which Evatt J. and McTiernan J. had said truly described the legislation
under consideration in Gilpin's Case. (at p465)

4. For my part I adhere to the explanation of the reasoning in the Transport Cases which on that
occasion I gave, ending as it does in the passage I have set out. But it is an explanation which places
the decisions upon certain conceptions or preconceptions the validity of which I was never prepared
to admit. (at p465)

5. In the cases now before us the appellants assert that they are, or they at least include, the very
conceptions which in the Banking Case [1949] UKPCHCA 1; (1950) AC 235; 79 CLR 497 the
judgment of the Privy Council has condemned as unsound. On that ground the appellants say that
this Court ought no longer to feel bound by the authority of the Transport Cases but should
reconsider them. (at p465)

6. I do not think that there is any room for doubting that their Lordships have rejected as erroneous
three propositions that have often been put forward. The first is "that sec. 92 of the Constitution
does not guarantee the freedom of individuals." The second is "that, if the same volume of trade
flowed from State to State before as after the interference with the individual trader . . . then the
freedom of trade among the States remained unimpaired." The third relates to the relevance of
absence of discrimination. As I understand it their Lordships have rejected the theory that because a
law applies alike to inter-State commerce and to the domestic commerce of a State, it may escape
objection notwithstanding that it prohibits restricts or burdens inter-State commerce. (at p465)

7. I shall not stop to examine or explain the contraries of these propositions or to state how they
should be understood to apply. They have been much canvassed and there ought to be no difficulty
in understanding them. All that is important for present purposes is that in face of the
pronouncement of the Privy Council the propositions themselves are no longer tenable. (at p465)

8. There are two further matters settled by the decision of their Lordships that are relevant to the
basis upon which the Transport Cases appear to me to rest. One is that the object or purpose of an
Act challenged as contrary to s. 92 is to be ascertained from what is enacted and consists in the
necessary legal effect of the law itself and not in its ulterior effect socially or economically. The
other is that the question what is the pith and substance of the impugned law, though possibly of
help in considering whether it is nothing but a regulation of a class of transactions forming part of
trade and commerce, is beside the point when the law amounts to a prohibition or the question of
regulation cannot fairly arise. Now I think that every one of these five errors will be found to have a
place in what in the passage I have quoted I ventured to call the pragmatical solution which the
Transport Cases gave to a problem they approached as a complex. (at p466)

9. Trade and commerce was treated as a sum of activities. The inter-State commercial activities of
the individual and his right to engage in them were ignored. Inter-State commerce as a whole was
considered and the adverse effect upon the total flow was treated as the test or at all events a test.
Great importance was attached to the absence from the Act of discrimination against inter-State
trade. The purpose imputed to the Act of making a planned structure of the internal transport of the
State was taken into account as another element weighing in favour of the valid operation of the Act
upon inter-State carriage. But that purpose was a matter of supposed policy which as it was thought
it was the design of the Act to carry out: not the legal effect of the enacted provisions. The use of
the idea expressed by the words "pith and substance" may not appear so clearly; but I think that
underlying much of what is said in the judgments in the Transport Cases is a view of the Act which
treated the restriction on the carriage of goods by road as a means of effecting a main purpose of
distributing the traffic between road and rail in a "rationalized" manner. (at p466)

10. To these elements one other was added; one not the subject of consideration by the Privy
Council. That element is the distinction taken between on the one hand motor vehicles as integers of
traffic and on the other hand the trade of carrying by motor vehicle as part of commerce. It is a
distinction that I have never understood. The statutes dealt with the commercial use of motor
vehicles and not with motor vehicles as such or at rest so to speak. There are tendencies in the
Transport Cases to thrust the carriage of goods and persons towards the circumference of the
conception of commerce, but in the Airlines Case (1945) 71 CLR 29 , it was shown that it must lie
at or near the centre. The combination of ideas upon which, according to my view, the Transport
Cases are based, consists therefore of no element which can survive. Five of them have been
destroyed by the judgment of the Privy Council. The sixth would not suffice as a separate reason
and is unsustainable. I am therefore of opinion that we should no longer regard ourselves as bound
by the authority of the Transport Cases. (at p467)

11. It remains to consider whether those decisions can be supported on independent grounds. Now
upon this subject it is enough to say that I have had the advantage of reading the judgment of
Fullagar J. and entirely agree with it. But perhaps there are two or three observations that it may be
better for me to add. The first is to say that my own judgment in R. v. Vizzard; Ex parte Hill [1933]
HCA 62; (1933) 50 CLR 30 , expresses reasons for dissenting which I have not seen any cause to
regret and by which I abide. The second is to remark that what I wrote in the case of O. Gilpin Ltd.
(1935) 52 CLR 189 may be nothing but an illustration of the observation made by their Lordships
concerning "the way in which the human mind tries and vainly tries, to give to a particular subject
matter a higher degree of definition than it will admit." I took the hazardous course of attempting to
state a general theory of s. 92 derived from purely logical considerations because it then seemed I
was dealing only with a chapter that had ended. On re-reading the judgment I notice that it is not
particularly addressed, as perhaps it ought to have been, to the Transport Cases, but I see not much
in it greatly inconsistent with their Lordships' judgment and some things which I respectfully think
that judgment confirms. The third matter to which I wish to refer is the question whether the
Victorian Transport Regulation Acts can possibly be treated as no more than a regulation of the
carriage of goods by motor vehicle by road. I state the question in that way because when the
judgment of the Privy Council speaks of an enactment being no more than regulatory I understand
that to mean regulatory of some description of transactions of trade and commerce. The distinction
between regulating a subject and restricting or prohibiting the subject is of course a familiar one. It
appears to me quite impossible to describe a statute like the Victorian Transport Regulation Acts as
no more than regulation of the commercial carriage of goods by road involving no impairment of
the freedom of trade commerce and intercourse among the States. It is perhaps enough to quote the
following statement by Isaacs J. in a by-law case (Country Roads Board v. Neale Ads Pty. Ltd.
[1930] HCA 5; (1930) 43 CLR 126, at p 139 ):- "The power of regulation may, and almost
necessarily does, involve some restriction or prohibition. The body entrusted with the power to
regulate must in some sufficient way mark out whatever limits of prohibition are to exist. That is to
say, legal rights otherwise existing are not to be cut down at the discretion of some individual or
individuals, but must be dealt with by the law. And they are not properly dealt with in that case by
first exercising the power of prohibition which is not confirred. But where the by-law itself
prohibits, and in the absence of a written consent prohibits completely, the consent if refused simply
leaves the by-law to operate without it, and if given satisfies the provision of the by-law by a factum
which excludes the given case from its operation." See further Swan Hill Corporation v. Bradbury
[1937] HCA 15; (1937) 56 CLR 746, at p 762 . (at p468)

12. The facts of the present case simply are that a carrier seeks to carry beer from South Australia
through Victoria into New South Wales. The Victorian Act forbids it unless the Victorian Executive
Government in the exercise of an uncontrollable discretion sees fit to grant a licence upon
considering a decision of the Transport Board upon an application by the carrier for a licence. That
appears to me to impair the carrier's guaranteed freedom to engage in inter-State trade and not
simply to regulate his trade. (at p468)

13. I am of opinion that the appeals should be allowed with costs and the convictions quashed. (at
p468)

McTIERNAN J. I concur in the reasons for judgment of the Chief Justice. (at p468)

2. The crucial question emerging from the argument on the grounds depending on s. 92 of the
Constitution is whether Vizzard's Case [1933] HCA 62; (1933) 50 CLR 30 should be overruled. It is
the crucial question because no material distinction can be made between the Act there upheld and
the present Act which would justify a decision opposite to the decision in Vizzard's Case, if that
decision is not overruled. Counsel for the appellants argued that the decision in Vizzard's Case fails
to secure to inter-State transportation the freedom guaranteed to inter-State trade, commerce and
intercourse. The argument is founded upon the reasons of the Judicial Committee for deciding that
s. 46 of the Banking Act 1947 offended against s. 92. Counsel for the States of Victoria, New South
Wales, Queensland and the Commonwealth relied upon those reasons to defend the decision in
Vizzard's Case and the Act attacked in the present case. In the course of their reasons the Judicial
Committee said that the decisions in James v. Cowan (1932) AC 542; 47 CLR 386 and in Vizzard's
Case (1933) 50 CLR 30 may be reconciled. This statement is a strong obstacle to the attack on the
latter decision but a great help to its defence. The former case is of unimpeachable authority. The
value of the statement of the Judicial Committee to the defence of Vizzard's Case depends upon this
fact. In view of the possibility of this reconciliation, Vizzard's Case cannot be manifestly wrong,
supposing it is not right. The statement of the Judicial Committee is not an express approval of the
decision. It may be a tacit approval of the conclusion but not of all the reasons. The conclusion
could not have been reached on grounds as broad as the propositions enunciated by the Judicial
Committee because McArthur's Case left a very attenuated and uncertain residue of legislative
power to the States. The Act upheld in Vizzard's Case was a State Act. The statement that the case
may be reconciled with James v. Cowan is a strong prop to the decision in Vizzard's Case, whatever
may be said of the reasons upon which the Act was upheld. (at p469)

3. The Transport Acts of all the States depend for protection against an attack based upon s. 92 upon
the conclusion in Vizzard's Case that the Act there in question is not inconsistent with s. 92. The
statement of the Judicial Committee conveys no suggestion that these Acts are in jeopardy. It is
more than a neutral proposition in a controversy about the consistency of such Acts with s. 92. If the
decision in Vizzard's Case deprived inter-State transportation of its constitutional freedom, it could
not possibly be reconciled with James v. Cowan. The authoritative statement that the two decisions
may be reconciled tells strongly in favour of the decision in Vizzard's Case. This statement is not a
mere theoretical speculation. If the statement be taken in conjunction with the proposition which the
Judicial Committee enunciated about the ambit of s. 92 and what class of Acts it allows and forbids,
the statement provides solid ground for the view that the Act upheld in Vizzard's Case is in general
an Act of the class which could not be condemned. I presume that the Judicial Committee
contemplated that the reconciliation would be attempted by applying the propositions they were
laying down for determining whether a legislative or executive Act offends against s. 92. James v.
Cowan is right because it went the way required by those propositions. The admission of the
possibility of reconciling the two decisions makes it reasonable to infer that the Judicial Committee
entertained the view that the propositons they enunciated would not spell death to the decision in
Vizzard's Case and the State Transport Acts known to depend upon it. The reconciliation which is
contemplated is one which could only be reached by observing and applying "the distinction
between restrictions which are regulatory and do not offend against s. 92 and those which are
something more than regulatory and do so offend." The statement that Vizzard's Case may be
reconciled with James v. Cowan impliedly assigns the restrictions imposed by the Act in Vizzard's
Case to the former category: at least that statement precludes the view that those restrictions might
have been regarded as belonging to the latter category. (at p470)

4. It is clear that in James v. The Commonwealth [1936] UKPCHCA 4; (1936) AC 578; 55 CLR 1
the Judicial Committee approved of that part of the reasoning of Evatt J. in Vizzard's Case which is
quoted by Lord Wright. The passage which is quoted must be regarded as defining a field in which
s. 92 does not prohibit a State or the Commonwealth from legislating. The position under s. 92 of an
owner of commodities which are the subject of an inter-State transaction involving inter-State
carriage is the subject of the passage. What is said is that s. 92 does not guarantee him "a right to
ignore State transport or marketing regulations." It is not possible, in my opinion, to endorse this
passage and reject the conclusion that the Act in question in the case did not offend against s 92.
The Judicial Committee said that it would not be easy to reconcile all that was said by Evatt J. in
Vizzard's case with what Isaacs J. said in James v. Cowan. However if the passage which Lord
Wright quoted from the reasons of Evatt J. is irreconcilable with anything that was said by Isaacs J.
approval by the Judicial Committee of that specific passage makes it authoritative. When James v.
Cowan was decided by this Court, McArthur's Case was more authoritative than when Vizzard's
Case was decided. It seems that Evatt J. proceeded upon that view. In Vizzard's Case I thought that
the Act there in question could be brought within the qualifications which Nelson's Case (No. 1)
(1928) 42 CLR 209 and Roughley's Case [1928] HCA 48; (1928) 42 CLR 162 appeared to me put
upon the doctrine laid down in McArthur's Case. In my opinion Vizzard's Case should not be
overruled. (at p470)

5. The explanation of the ambit of s. 92 given by the Judicial Committee and the propositions which
they have laid down for determining whether an Act offends against s. 92 do not demonstrate that
the decision in Vizzard's Case is wrong in its result. It is necessary to apply the more authoritative
explanation and propositions of the Judicial Committee rather than any part of the reasoning in
Vizzard's Case of which the Judicial Committee has not expressly approved to determine whether
the present Act offends against s. 92. The Act regulates motor transport on the public highways in
Victoria by restricting to the holders of licences granted in accordance with the provisions of the Act
the right to operate for hire motor vehicles used or intended for the carriage of passengers or goods
in the course of trade. The vesting of an executive agency established by statute with authority to
grant or refuse licences to operate such motor vehicles is a form of regulation of motor transport.
Under this system of regulating this economic activity the restrictions which are imposed are that
nobody may operate a motor vehicle on the highways unless he has a licence and any person who is
refused a licence or has not been granted a licence is prohibited from doing so. The terms "trade,
commerce, and intercourse" comprise motor transport which is thus restricted. If these restrictions
are "regulatory" they do not offend against s. 92. If on the other hand they are "something more than
regulatory" they do offend against s. 92. The Judicial Committee gave their authority to two
"general propostions". These are:- "(1) that regulation of trade, commerce and intercourse among
the States is compatible with its absolute freedom, and (2) that s. 92 is violated only when a
legislative or executive act operates to restrict such trade, commerce and intercourse directly and
immediately as distinct from creating some indirect or consequential impediment which may fairly
be regarded as remote." Their Lordships added the following observation:-
"In the application of these general propositions, in determining whether an enactment is regulatory
or something more, or whether a restriction is direct or only remote or incidental, there cannot fail
to be differences of opinion. The problem to be solved will often be not so much legal as political,
social, or economic, yet it must be solved by a court of law." Applying the propositions and rules
which are formulated by the Judicial Committee for determining whether s. 92 is violated by a
legislative Act to the present Act, I think that the correct conclusion is that the Act does not violate
the section. (at p471)

6. The Act operates to restrict interstate trade, commerce and intercourse to some degree. I think
that the proper view of the Act, having regard to the nature of the subject matter and the economic
problem which it was passed to solve is that the restrictions which it imposes on trade, commerce
and intercourse are not direct and immediate but are indirect and consequential. The restrictions are
essentially regulatory and do not offend against s. 92. (at p471)

7. The appeals should be dismissed. (at p472)

WILLIAMS J. The appellant McCarter, who is an interstate carrier of goods, was convicted and
fined under the provisions of s. 45 of the Transport Regulation Act 1933 (Vict.) as the owner of a
commercial goods vehicle which operated on a Victorian public highway without a licence under
this Act in the course of carrying goods from South Australia through Victoria into New South
Wales. The appellant Gough was convicted as the driver of the vehicle. They contend that no such
licence was necessary because the Victorian Transport Regulation Acts infringe s. 92 of the
Constitution and are invalid unless they can be read down under s. 2 of the Acts Interpretation Act
1930 (Vic.) so as not to apply to interstate trade and commerce, in which case this journey would be
beyond their operation. The question for decision therefore is whether the Transport Regulation
Acts (Vict.), at least in relation to interstate trade and commerce, infringe s. 92. If they do not the
appellants were rightly convicted. (at p472)

2. These Acts, except the Transport Regulation (Licences and Fees) Act 1947, are the very Acts
which were considered by this Court and held to be valid in Riverina Transport Pty. Ltd. v. Victoria
[1937] HCA 33; (1937) 57 CLR 327 . This case was the culmination of a line of cases commencing
with R. v. Vizzard; Ex parte Hill [1933] HCA 62; (1933) 50 CLR 30 ; and followed by O. Gilpin
Ltd. v. Commissioner of Road Transport & Tramways [1935] HCA 8[1935] HCA 8; ; (1935) 52
CLR 189 ; Bessell v. Dayman [1935] HCA 5; (1935) 52 CLR 215 ; and Duncan & Green Star
Trading Co. Pty. Ltd. v. Vizzard [1935] HCA 43; (1935) 53 CLR 493 . These cases were discussed
and accepted by this Court as correct but distinguished in Australian National Airways Pty. Ltd. v.
The Commonwealth (No. 1). [1945] HCA 41; (1945) 71 CLR 29 . They are now attacked on the
ground that the reasons in the judgment of the Privy Council in Commonwealth v. Bank of New
South Wales (1949) 79 CLR 497 show that they were decided upon a misapprehension of the true
meaning of s. 92. Of these case R. v. Vizzard; Ex parte Hill [1933] HCA 62; (1933) 50 CLR 30
must be considered the most important because this case, and in particular the reasoning of Evatt J.,
was picked out for special mention by the Privy Council in James v. The Commonwealth [1936]
UKPCHCA 4[1936] UKPCHCA 4; ; (1936) AC 578, at pp 621, 622; 55 CLR 1, at pp 50, 51 . It was
also mentioned in the latest judgment of the Privy Council. The reasoning of Evatt J. in Vizzard's
Case is based to a considerable extent on the ground that s. 92 does not protect the freedom of
individuals to engage in inter-State trade and commerce among the States but only protects the free
passage of the goods themselves across State borders and s. 92 is not infringed provided the volume
of trade which flows from State to State is not affected. In the Bank Case in this Court, this view is
explained in the joint judgment of Rich J. and myself in the following passage: "The defendants
contended that s. 92 is not concerned with the right of an owner of goods to sell them out of the
State, and therefore is not concerned with the ownership of such goods prior to, at the time of, or
subsequent to, the passage of the goods across State boundaries. Accordingly the Commonwealth
and State Parliaments legislating within their constitutional powers can select the individuals who
are to engage in inter-State trade. But they must not place any hindrance, burden or restriction on
the free passage of the goods of such individuals across State boundaries" [1948] HCA 7; (1948) 76
CLR 1, at p 291 . The opinion of Isaacs J. in James v. Cowan [1930] HCA 48[1930] HCA 48; ;
(1930) 43 CLR 386, at p 418 that the freedom guaranteed by s. 92 is a personal right attaching to
the individual and not attaching to the goods, in spite of the fact that Lord Atkin in this case on
appeal (1932) AC 542, at p 561 had said, in delivering the judgment of the Privy Council, that their
Lordships were in accord with the convincing judgment of Isaacs J., was rejected. It has always
seemed to me, as I have already stated in the Australian National Airways Case (No. 1) (1945) 71
CLR, at pp 107-110 , and Clement & Marshall Pty. Ltd. v. Field Peas Marketing Board [1947] HCA
61[1947] HCA 61; ; (1947) 76 CLR 401, at p 409 , that the opinion of Isaacs J. was right in the
sense, as stated by the Privy Council in the Bank Case [1949] UKPCHCA 1; (1950) AC 235, at p
305; 79 CLR, at p 635 that though s. 92 did "not create any new juristic rights, it does give the
citizen of State or Commonwealth, as the case may be, the right to ignore, and, if necessary, to call
upon the judicial power to help him to resist legislative or executive action which offends against
the section," and that the line of cases under discussion could not be supported on this ground. The
law is stated to the same effect in the joint judgment of Rich J. and myself in this Court in the Bank
Case (1948) 76 CLR, at p 290 . This ground was relied upon to support the legislation held to be
invalid in the Australian National Airways Case (No. 1) because that legislation was careful to
provide for the monopoly in favour of the Australian National Air Lines Commission only
becoming and remaining absolute when and so long as the airlines operated by this Commission
were able to carry the whole of the inter-State traffic in persons and goods. Accordingly it appeared
to me to be necessary to reconcile this line of cases with the opinion of Isaacs J. before the
Australian National Airways could succeed in the action. It was not a matter of avoiding these cases
by some dexterity. It was a matter of attempting to reconcile the approval of the judgment of Isaacs
J. by the Privy Council in James v. Cowan with the passage from the judgment of Evatt J. in
Vizzard's Case cited by the Privy Council in James v. The Commonwealth. This led to the reasoning
which appears in the Australian National Airways Case (No. 1) (1945) 71 CLR, at pp 108-110 ,
which seems to me to be the only way in which to effect a reconciliation. (at p474)

3. The judgment of the Privy Council in the Bank Case has thrown new light on the solution of the
problems presented by s. 92. In particular it has corrected the misapprehensions which have arisen
with respect to its own two previous judgments. The Privy Council has to my mind made it plain
that the freedom of trade and commerce and intercourse protected by s. 92 is the freedom of the
individual to engage in trade and commerce and pass freely among the States. But freedom of trade,
commerce and intercourse in a community regulated by law presupposes some degree of restriction
upon the individual and their Lordships said: "(1) that regulation of trade and commerce and
intercourse among the States is compatible with its absolute freedom and (2) that s. 92 is violated
only when a legislative or executive act operates to restrict such trade, commerce and intercourse
directly and immediately as distinct from creating some indirect or consequential impediment which
may fairly be regarded as remote." Of Vizzard's Case they said that it does not appear to them that
the whole of Evatt J's. reasoning received the considered approval of the Board; "the decisions in
James v. Cowan and in Vizzard's Case may be reconciled: it would not be easy to reconcile all that
was said by Evatt J. in the one case with all that was said by Isaacs J. in the other." I assume that
regulation of trade, commerce and intercourse among the States is compatible with its absolute
freedom, although any regulation necessarily involves some interference with the freedom of the
individual, because it is necessary to read the Constitution as a whole and such legislation falls
within the power of the Commonwealth Parliament to legislate with respect to trade and commerce
among the States under s. 51, par. (i.) of the Constitution and within the power of the States to
legislate with respect to both intra- and inter-State trade and commerce reserved to them by s. 107
of the Constitution (subject of course to s. 109 of the Constitution in the case of inter-State trade and
commerce). (at p474)

4. The Australian National Airways Case, which was expressly approved of by the Privy Council, is
a clear decision that the business of carrying passengers and goods for reward among the States is
part of trade and commerce among the States. Section 23 of the Victorian Transport Regulation Act
1933 provides that a commercial goods vehicle shall not operate on any public highway unless such
vehicle is licensed in accordance with this Part. Section 27 provides that, subject to the provisions of
this Part, the Board may grant the application (with or without variation) or may refuse to grant the
application, and subject to this Part, the decision of the Board shall be final and without appeal. The
Part referred to in these sections is Part II. of the Act headed - Regulation of Motor Transport.
Section 37 of the Act of 1933 gave an aggrieved person a right of appeal on law or fact to the
Supreme Court but this section was repealed by s. 4 of the Transport Regulation Act 1935, and a
new s. 37 substituted providing that no decision of the Board granting or refusing to grant a licence
or revoking or suspending any such licence should have any force or effect until such decision is
reviewed by the Governor in Council. The Act of 1935 also repealed the words in s. 27 (1) "and
subject to this part the decision of the board shall be final and without appeal." The effect of s. 23 is
to prohibit a carrier of goods from operating his vehicle upon the public roads of Victoria without a
licence. The Board, subject to review by the Governor in Council, has an absolute discretion
whether to issue a licence or not. Carriers have no right to a licence, so that the Victorian Transport
Regulation Acts directly and not remotely restrict their right to engage in a form of inter-State trade,
and this restriction is therefore one which can only escape the operation of s. 92 if it forms a part of
legislation which is essentially regulatory in character. (at p475)

5. It was contended for the appellant that the form of regulation intended by the Privy Council was
regulation which prescribed certain conditions relevant to the orderly carrying on of the trade with
which all who desired to engage in that trade were bound to comply but which preserved an equal
right in every individual to engage in the trade subject to such compliance. In other words it was
contended that regulation did not include prohibition. The regulation of a trade necessarily implies
its continuance and no law which absolutely prohibits the carrying on of a trade could be a form of
regulation. But the power to regulate has often been held to include partial prohibition where such
prohibition is reasonably necessary for effective regulation. Their Lordships said that they did not
intend to lay it down that in no circumstances could the exclusion of competition so as to create a
monopoly either in a State or Commonwealth agency or in some other body be justified. Each case
must be judged on its own facts and in its own setting of time and circumstance. Their Lordships
also said that they must "add, what, but for this argument so strenuously urged, they would have
thought it unnecessary to add, that the regulation of trade may clearly take the form of denying
certain activities to persons by age or circumstances unfit to perform them, or of excluding from
passage across the frontier of a State creatures or things calculated to injure its citizens." It appears
to me that the Privy Council must have contemplated that an enactment could be regulatory and
nothing more although it placed restrictions upon the right of individuals to engage in inter-State
trade where such restrictions were reasonably necessary for its effective regulation. Their Lordships
reiterate the view already expressed in James v. The Commonwealth that the question is one of fact
and add that in determining whether an enactment is regulatory or something more or whether a
restriction is direct or only remote or incidental, the problem to be solved will often be not so much
legal as political, social and economic. (at p476)

6. There can be no doubt that the regulation of a trade includes the enactment of all conditions
reasonably necessary for its safety and preservation, and of the imposition of reasonable charges for
the administration of its regulation, so that a State could enact all legislation reasonably required for
the safety, maintenance and preservation of the public roads and could make a reasonable charge for
their use. It is clear, I think, that Willard v. Rawson [1933] HCA 12; (1933) 48 CLR 316 , which
goes thus far and no further, was rightly decided. But the Victorian Transport Regulation Acts, and
the corresponding Acts in New South Wales and South Australia, upheld in the line of cases under
discussion, go further. These Acts are intended to prevent undue competition with the State railways
by road transport. Accordingly s. 26 of the Victorian Transport Regulation Act provides that before
granting or refusing to grant a licence the Board shall have regard primarily to the interests of the
public generally including those of persons requiring as well as those of persons providing facilities
for the transport of goods, and without restricting the generality of the foregoing require that they
shall take into consideration inter alia the existing transportation service for the carriage of goods
upon the roads and within the area proposed to be served in relation to its present adequacy and
probabilities of improvement to meet all reasonable public demands and the effect upon such
existing services of the service proposed to be provided. (at p476)

7. I have given careful consideration to the submissions of counsel for the appellants, but I am not
satisfied, after carefully examining the reasoning of the Privy Council in the Bank Case, that the
cases under discussion were wrongly decided, and I am not prepared to overrule them. They have
been acted on in the States and have no doubt exerted a strong influence upon their policies in
relation to their railways and roads. In my opinion they ought not to be re-opened in this Court
without the greatest hesitation. The Acts do regulate competition between land transport by rail and
road, both of passengers and goods, but only so far as such competition arises out of competing
facilities provided by the States themselves. In this respect the Acts differ fundamentally from the
legislation held to be invalid in the Australian National Airways Case and the Bank Case, for there
the effect of the legislation was simply to prohibit competition with the government airlines in the
one case and the government banks on the other. The Transport Regulation Acts do not prevent
individuals carrying on the business of land transport among the States without a licence. But they
do prevent individuals plying their vehicles on the public roads of the States without a licence. They
proceed on the broad principle that the interests of the State require the regulation of the whole
service of land transport wherever it is conducted upon the public roads. I am of opinion that a State
must have a wide power to regulate the use of the facilities which it provides for trade and
commerce, so that the public funds invested in such facilities, in this case the railways, shall not be
jeopardised by undue competition brought about solely by the provision of another facility by the
State. It is a question of fact whether such Acts are, as they profess to be, regulatory or something
more, and the solution of this question raises social and economic problems. The competition could
be destroyed, as Evatt J. pointed out in Vizzard's Case (1933) 50 CLR, at p 82 , by the State
adopting the simple if drastic expedient of destroying the roads so as to compel all traders and
travellers to use the railways. The same result could be achieved by allowing the roads to fall into a
sufficient state of disrepair. Another way would be for a State to stop the roads short of the
boundary and sell a strip of land along its frontiers with other States to private individuals. It has not
yet been suggested that the freedom guaranteed by s. 92 is violated if a private individual refuses to
allow an inter-State trader or traveller to pass over his land. By building and maintaining State
highways States provide means of competition with their own railways, and I can find nothing in
the judgment of the Privy Council which leads me to alter the opinion expressed in the Australian
National Airways Case (No. 1) (1945) 71 CLR, at p 109 that "it is simply an exercise of the
sovereign rights of the States to co-ordinate traffic by rail or road, and to confine the use of roads to
particular persons and vehicles. If the choice of these persons and vehicles has no relation to their
passage across the border, but the legislation operates without discrimination with respect to all
persons and vehicles desirous of using the roads, such legislation is not aimed or directed at inter-
State commerce but at regulating, maintaining and co-ordinating a number of utilities for trade,
commerce, and intercourse, State and inter-State, provided by the State." (at p478)

8. It was also contended that the licence fee not exceeding 5s. per cwt. of load capacity in the case
of a commercial goods vehicle imposed by the new s. 34 introduced by s. 7 of the Transport
Regulation (Licences and Fees) Act 1947 violated s. 92 because it imposed a tax on trade and
commerce among the States. But there is no evidence that this fee is other than a reasonable charge
for the expenses incurred in the administration of the Acts and the maintenance of the roads which
the licensee is authorized to use. The section provides that the fees shall be paid into a fund to be
established and kept by the Treasury and known as a Transport Regulation Fund. This fund may be
used to pay for expenses other than those incurred in the administration of the Act and the
maintenance of the roads, but if the fee is a reasonable charge for these services, it is, in my opinion,
immaterial that the State uses the moneys for some other purpose: cf. Aero Mayflower Transit Co.
v. Board of Railroad Commissioners [1947] USSC 135; (1947) 332 US 495 (92 Law Ed 99) . (at
p478)

9. I would dismiss the appeals. (at p478)

WEBB J. Whether a Commonwealth or State statute or executive act infringes s. 92 of the
Commonwealth Constitution is in every case a question of fact (James v. The Commonwealth
[1936] UKPCHCA 4; (1936) AC 578, at p 631; 55 CLR 1 ; Commonwealth v. Bank of New South
Wales (1949) 79 CLR, at pp 637, 638 ). In Riverina Transport Pty. Ltd. v. Victoria [1937] HCA 33; ;
(1935) 57 CLR 327 the legislation now attacked was held not to be an infringement of s. 92. There
has been no material change in this legislation. The Riverina Case applied R. v. Vizzard; Ex parte
Hill [1933] HCA 62; (1933) 50 CLR 30 , in which legislation somewhat similar was held not to
infringe s. 92. This legislation provides for the co-ordination of road and rail transport and may be
administered so as to bring about a rationalisation of transport engaged in both inter-State and intra-
State trade, commerce and intercourse. Provision is made for the issue of licences where certain
conditions are complied with e.g., to insure that the drivers of motor vehicles are competent and
responsible, and that the vehicles are in good order. Licences could be withheld on the ground that
over-crowding of the roads would otherwise result. The legislation also makes provision for road
charges which appear to me to be based on the extent of use of the roads, or of the right of use, but
the fund into which these charges are paid is not required to be wholly applied to road purposes. But
a licence may also be withheld if that is deemed desirable in the public interests. This power can be
exercised to restrict competition between road carriers and the State-owned railways. (at p479)

2. Whether the co-ordination or rationalisation of motor transport in inter-State trade, commerce and

intercourse infringes s. 92 depends firstly upon whether its effect is direct, or only remote. Since the

decision of this Court in Australian National Airways Pty. Ltd. v. The Commonwealth (No. 1)

[1945] HCA 41; (1945) 71 CLR 29 it must be assumed that transport for reward is itself trade and

commerce, and not merely something incidental thereto which can be dealt with by legislation or

executive action without directly affecting such trade or commerce. The coordination and

rationalisation of such transport has, I think, a direct effect, i.e. an effect on trade and commerce as

trade and commerce. But if it is still essentially regulatory, and not prohibitive or restrictive, it is not

an infringement of s. 92. It was submitted for the appellants that it cannot be found to be essentially

regulatory, because of the reasoning of the Judicial Committee of the Privy Council in the Banking

Case; and particularly because of their Lordships' observations on Vizzard's Case. In the James Case

(1936) AC, at p 622; 55 CLR 1 Lord Wright in delivering the judgment of the Judicial Committee

observed that the reasoning of Evatt J. in Vizzard's Case seemed to be correct. But it did not appear

to their Lordships in the Banking Case that the whole of the reasoning of Evatt J. received the

considered approval of the Judicial Committee in the James Case. Their Lordships said that even if

it did receive that approval, still it did not follow that the judgment of this Court in the Banking

Case could not be maintained; and further that the facts, both in relation to subject matter and to

manner of restriction or interference, were so widely different in the two cases that it was difficult to

apply to one case all that was said in the other. It may be that this latter observation could be taken

to apply to the difference between Vizzard's Case and the Banking Case. Their Lordships, after

noting that in James v. Cowan (1932) AC 542, at p 561; 47 CLR 386, at p 387 Lord Atkin said the

Judicial Committee found themselves in accord with the convincing judgment of Isaacs J.,

proceeded  to  say:-

"The decisions in James v. Cowan and in Vizzard's Case may be reconciled: it would not be easy to

reconcile all that was said by Evatt J. in the one case with all that was said by Isaacs J. in the other."

(at p480)

3. As the facts in these two last-mentioned cases were also widely different it may be that their
Lordships did not refer to the reasoning of Isaacs J. and Evatt J. in applying s. 92 to the facts of the
respective cases, but to their reasoning on s. 92 independently of the facts. Therefore I do not think
that because of what their Lordships said as to the reasoning of Evatt J. in Vizzard's Case we should
regard that case as wrongly decided. Nor can I find in the reasoning of their Lordships in the
Banking Case, anything from which it necessarily follows that their Lordships thought that the
decision in Vizzard's Case was wrong. Their Lordships say (1950) AC, at pp 309, 310; 79 CLR, at
pp 639, 640 :- "But it seems that two general propositions may be accepted: (1950) AC, at pp 309,
310; 79 CLR, at pp 639, 640 that regulation of trade, commerce and intercourse among the States is
compatible with its absolute freedom, and (1945) 71 CLR, at p 61 that s. 92 is violated only when a
legislative or executive act operates to restrict such trade, commerce and intercourse directly and
immediately as distinct from creating some indirect or consequential impediment which may fairly
be regarded as remote. (at p480)

4. In the application of these general propositions, in determining whether an enactment is
regulatory or something more, or whether a restriction is direct or only remote or incidental, there
cannot fail to be differences of opinion. The problem to be solved will often be not so much legal as
political, social or economic, yet it must be solved by a court of law. . . . (at p480)

5. Difficult as the application of these general propositions must be in the infinite variety of
situations that in peace or in war confront a nation, it appears to their Lordships that this further
guidance may be given." (at p480)

6. Their Lordships then refer to the following passage in the judgment of Latham C.J. in the
Airways Case (No. 1) (1945) 71 CLR, at p 61 :- "'One proposition which I regard as established is
that simple legislative prohibition (Federal or State), as distinct from regulation, of inter-State trade
and commerce is invalid. Further, a law which is "directed against" inter-State trade and commerce
is invalid. Such a law does not regulate such trade, it merely prevents it. But a law prescribing rules
as to the manner in which trade (including transport) is to be conducted is not a mere prohibition
and may be valid in its application to inter-State trade, notwithstanding s. 92'." (at p481)

7. Their Lordships expressed their agreement with this passage and then referred to a further
passage in the judgment of Latham C.J. as one that no doubt had led his Honour to a correct
decision in the Airways Case (1945) 71 CLR, at p 61 :- "In the present case the Act is directed
against all competition with the inter-State services of the Commission. The exclusion of other
services . . . are themselves inter-State services. . . . The exclusion of competition with the
Commission is not a system of regulation and is, in my opinion, a violation of s. 92." (at p481)

8. On this passage their Lordships observed (1950) AC, at p 309; 79 CLR, at p 640 :- "Mutatis
mutandis these words may be applied to the Act now impugned, for it is an irrelevant factor that the
prohibition prohibits inter-State and intra-State activities at the same time." (at p481)

9. So also it might appear that these words of Latham C.J. could be applied to this legislation. But
their Lordships continued (1950) AC, at pp 309, 310; 79 CLR, at pp 640, 641 :-
"Yet about this, as about every other proposition in this field, a reservation must be made. For their
Lordships do not intend to lay it down that in no circumstances could the exclusion of competition
so as to create a monopoly either in a State or Commonwealth agency or in some other body be
justified. Every case must be judged on its own facts and in its own setting of time and
circumstances, and it may be in regard to some economic activities and at some stage of social
development it might be maintained that prohibition with a view to State monopoly was the only
practical and reasonable manner of regulation, and that inter-State trade, commerce and intercourse
thus prohibited and thus monopolised remained absolutely free." (at p481)

10. If economic activities at some stage of social development could justify legislation giving a
monopoly as being essentially regulatory, legislation short of that might be essentially regulatory in
circumstances not so exceptional, e.g., legislation to co-ordinate and rationalise motor transport to
protect State railways against competition. (at p481)

11. At the end of their reasons their Lordships say (1950) AC, at p 311; 79 CLR, at p 642 :- " . . . if
these two tests are applied: first, whether the effect of the Act is in a particular respect direct or
remote; and, secondly, whether in its true character it is regulatory, the area of dispute may be
considerably narrower. It is beyond hope that it should be eliminated." (at p482)

12. The provisions of legislation of this kind directed to securing safety, e.g. by requiring drivers to
be competent, vehicles to be in good order, traffic rules to be observed, limiting the number of
vehicles to the capacity of the roads, and providing for the upkeep of the roads by imposing
reasonable charges for their use, have, I think, only a remote effect on inter-State trade, commerce
and intercourse, and so are not an infringement of s. 92. In the present case there is no evidence that
the moneys collected by way of fees under the Act are not used to meet administration expenses of
the Transport Regulation Board and for the improvement of transport facilities. But provisions to
co-ordinate or rationalise transport have a direct effect, and, without the authority of Vizzard's Case,
I would not find it easy to sustain, as essentially regulatory, legislation of a State designed to protect
its railways against the competition of road carriers engaged in inter-State trade and commerce. That
would appear to me to subordinate to the economic and financial interests of the State the rights of
Australians generally, including the residents of the particular State, to the freedom guaranteed by s.
92. As to this I have not overlooked the reasoning of Williams J. in the Airways Case (No. 1) (1945)
71 CLR, at p 108 based on the State ownership of the roads as well as of the railways. But when the
State dedicates its roads to public use, I am unable to see why the protection afforded by s. 92
should not extend to transport on them. (at p482)

13. A State has the right to avoid placing, or to remove or lighten a burden on its citizens of high
taxes, fares and freights to maintain the State railways in competition with road carriers, by
restricting the number of road carriers and thereby reducing the competition of intra-State trade,
and, according to Vizzard's Case by restricting the number of inter-State road carriers and reducing
competition in inter-State trade. How this can be regarded as essentially regulatory and not
prohibitive or restrictive of inter-State trade, commerce or intercourse it is difficult to see. But
although Vizzard's Case may have been weakened I do not think that has been disposed of as an
authority by observations of the Judicial Committee in the Banking Case. (at p482)

14. I would dismiss the appeals because of Vizzard's Case and the Riverina Case. (at p483)

FULLAGAR J. The appellants were charged before a Court of Petty Sessions at Mildura for that
they were respectively the owner and driver of "a commercial goods vehicle which operated on a
public highway without the said commercial goods vehicle being licensed as a commercial goods
vehicle under Part II. of the Transport Regulation Act 1933 contrary to s. 45 of" that Act. They were
convicted and fined, and now appeal by way of order to review to this Court. The Act alleged to
have been contravened is an Act of the Parliament of the State of Victoria, but the defence in each
case was based on s. 92 of the Constitution. The Court of Petty Sessions was therefore called upon
to exercise Federal jurisdiction, and an appeal lies to this Court under s. 73 of the Constitution. (at
p483)

2. The first Transport Regulation Act was passed in 1932, but it did little more than provide for the
constitution and incorporation of a body to be known as the Transport Regulation Board. The main
operative Act is the Act of 1933. This Act by s. 5 defines "commercial goods vehicle" as "any motor
car within the meaning of the Motor Car Acts which is used or intended to be used for carrying
goods for hire or reward or in the course of trade." The same section defines "operate" (in the case
of a commercial goods vehicle) as meaning "carry goods for hire or reward or in the course of
trade." Section 23 provides that a commercial goods vehicle shall not operate on any public
highway (which means, of course, any public highway in Victoria) unless such vehicle is licensed in
accordance with the Act, and the complement of s. 23 is s. 45, under which the charges in the
present case were laid. Section 45, so far as material, provides that the driver and the owner of any
commercial goods vehicle which (a) operates on any public highway, and (b) is not licensed as such
under the Act, shall be severally guilty of an offence against the Act. (at p483)

3. Section 24 provides that the Transport Regulation Board may, on the application of the owner of
a commercial goods vehicle, grant in respect of such vehicle a commercial goods vehicle licence.
Section 25 provides for applications for licences (which must state, inter alia, the route or area of
proposed operation and the class or classes of goods proposed to be carried) and for the hearing of
any person who may object to the granting of a licence to an applicant. Section 26 provides that
before granting or refusing a licence the Board shall have regard primarily to the interests of the
public generally, including those who require as well as those who provide facilities for the
transport of goods. In particular the Board is to take into consideration (a) the advantages of the
proposed service to the public; (b) any already existing service, its adequacy and the probable effect
upon it of the proposed service; (c) the benefit to the residents of any particular district of the
proposed service; (d) the condition of the roads in the proposed route or area; and (e) the character,
qualifications and financial stability of the applicant. Section 27 provides that the Board may grant
the application with or without variation or may refuse to grant the application. Subject to s. 37
(which will be referred to in a moment) the decision of the Board is to be final and without appeal.
Section 28 provides that every licence shall be subject to the condition that the vehicle shall be
maintained in a fit and serviceable condition and that certain laws as to weight of load and speed
and wages and hours of work shall be observed. It also provides that the Board may impose certain
other conditions on any licence granted, including such conditions appropriate to the service as the
Board thinks proper to impose in the public interest. Section 30 provides that a licence shall be
granted for a period of not less than two years and not more than three years, and s. 31 provides for
the renewal of licences. Section 34 provides for payment of a licence fee not exceeding 5 pounds
annually. (at p484)

4. Section 37 of the Act of 1933 provided for an "appeal" to the Supreme Court from any decision
of the Board granting or refusing to grant a licence. This section was invoked by the Victorian
Railways Commissioners in a case which came ultimately before this Court in McCartney v.
Victorian Railways Commissioners (1935) 52 CLR 283 . It was repealed by the Transport
Regulation Act 1935, which substituted a provision that no decision of the Board either granting or
refusing a licence should be of any force or effect until it had been reviewed by the Governor in
Council. The Governor in Council was given power within six months of the Board giving a
decision to approve or disapprove that decision or to make any determination which the Board
might have made. The effect of this provision is that no person may operate a commercial goods
vehicle on a public highway in Victoria except with the approval of the Crown in right of the State
of Victoria, which may grant or withhold approval at its absolute discretion. That discretion is not
subject even to the limited measure of control afforded by the often practically unsatisfactory
remedy of mandamus to hear and determine according to law. (at p484)

5. Apart from the substitution of a new s. 37, the Acts of 1932 and 1933 had been amended in
various respects before the charges now in question were laid. Perhaps the most important of these
was that which is contained in s. 7 of the Transport Regulation (Licences and Fees) Act 1947. This
repealed the old s. 34 and substituted a new section, which provides for an annual licence fee of 1
pound plus an annual fee based on the load capacity of the vehicle, and not exceeding 5s. per
hundredweight. A very much more substantial licence fee thus became chargeable. Some reliance
was placed on this and other amendments for the purpose of distinguishing the present case from
certain cases which have been decided by this Court. I do not, however, regard either this or any
other of the amendments made as material for the purposes of this case or as affording any ground
for distinguishing those cases. (at p485)

6. The facts of the present case were not in dispute. The appellant McCarter was the owner of a
motor truck which on 2nd August 1949 was being driven by his servant, the appellant Gough, along
the Sturt Highway near South Merbein, in the extreme north-west of Victoria. The vehicle was in
the course of an inter-State journey, being bound from Adelaide in the State of South Australia to
Cootamundra in the State of New South Wales, with a load of 640 dozen bottles of beer. The whole
of the beer, which was the product of the Springfield Brewery in Adelaide, was loaded in Adelaide
for delivery in Cootamundra. It constituted the whole of the load: no other cargo was being carried.
The distance from Adelaide to Cootamundra by road is about 650 miles. The road on which the
journey was being made crosses the north-west corner of the State of Victoria and lies for a distance
of about seventy-three miles in the State of Victoria. It is not altogether clear on the evidence
whether McCarter was carrying the beer under a contract of carriage with the Springfield Brewery
or whether he had bought it from the brewery for re-sale to customers in Cootamundra. The
managing director of the brewery company said that his company looked to McCarter for payment
of the price of the beer, but McCarter was directed as to the customers to whom the beer was to be
delivered in Cootamundra. It is perhaps regrettable that more care was not taken to elucidate the
exact legal relation subsisting between the brewery, McCarter and the Cootamundra customers,
although in the view which I take nothing in this case turns on that relation. It seems clear that the
vehicle in question was carrying goods either for hire or reward or in the course of McCarter's trade,
so that at the material time it was a commercial goods vehicle operating on a public highway within
the meaning of the Transport Regulation Acts, and it was not licensed as a commercial goods
vehicle. It seems clear also that the vehicle was at the material time engaged in the commercial
carriage of goods from a place in South Australia to a place in New South Wales, and that it was
engaged in nothing else in the sense that the sole reason for its presence on the Victorian highway
lay in the fact that it was carrying those goods between those places on a normal and convenient
route. (at p486)

7. The argument for the appellants is in its essence extremely simple. They say that s. 92 of the
Constitution declares that trade and commerce by (inter alia) internal carriage among the States shall
be absolutely free. They were engaged at the relevant time in an essential operation of inter-State
commerce, that is to say, in the internal carriage of goods from South Australia for delivery to
buyers in New South Wales. They were doing no other thing that is relevant. If a State law prohibits
them absolutely from doing that thing, it denies to them the very freedom which s. 92 gives. If it
prohibits them from doing that thing without a licence which may be refused at absolute discretion,
there is equally a denial of that very freedom. The State law must give way to the superior authority
of s. 92, with which it is inconsistent. It is not necessarily invalid in toto, but at least it must, in
accordance with s. 2 of the Victorian Acts Interpretation Act 1930, be construed as excluding from
its operation the conduct of the appellants which was the subject of the charges against them. (at
p486)
8. The success or failure of the appellants' argument is far from depending entirely on its merits,
because there is authority against it, and decided cases are never to be overruled lightly. But it is
convenient to consider it on its merits for a moment before proceeding. I am bound to say that, in
my opinion, there is clearly no valid answer to it. It may have been suggested at one time, but the
view has never, I think, been seriously entertained, that s. 92 does no more than prevent the
imposition of customs duties at State borders. It is clearly established that it goes much further than
that. On any view it could hardly be held that a mere prohibition of the exportation or importation
of goods generally or of any particular goods from one State to another was outside the scope of s.
92: cf. Tasmania v. Victoria [1935] HCA 4; (1935) 52 CLR 157 , in which Dixon J. said: "The
Constitution says that trade between Victoria and Tasmania shall be free, and Victoria says that a
commodity produced in Tasmania shall not come in. If the words of s. 92 have any meaning, they
affirm a proposition which the Victorian proclamation specifically denies." It is impossible, to my
mind, to distinguish such a case from a mere prohibition of "internal carriage" of goods either
generally or by means of a particular kind of vehicle unobjectionable in itself. Nor is the character
of such a prohibition changed in any relevant respect by making it subject to the granting of
discretionary exemptions or "licences" by the Crown or by some person or body of persons. I would
add only two observations at this stage. In the first place, it is well settled - at least since James v.
Cowan (1932) AC 542; 47 CLR 386 - that s. 92 protects inter-State trade against violation of its
freedom not only by laws which deal merely or specially with inter-State trade but by laws which
deal indiscriminately with intra-State and inter-State trade or with trade generally. In the second
place, the contention of the appellants does not assert and, of course, need not assert, that s. 92
affords to him who is engaged in inter-State trade, commerce or intercourse complete immunity
from all laws. It will be necessary to return to these matters later. (at p487)

9. I have said that there is authority against the argument of the appellants. The authority is to be
found in a series of six cases decided by this Court, and commonly grouped together under the name
of the "Transport Cases." Those cases are R. v. Vizzard; Ex parte Hill [1933] HCA 62; (1933) 50
CLR 30 ; O. Gilpin Ltd. v. Commissioner for Road Transport & Tramways (N.S.W.) [1935] HCA 8;
(1935) 52 CLR 189 ; Bessell v. Dayman [1935] HCA 5[1935] HCA 5; ; (1935) 52 CLR 215 ;
Duncan and Green Star Trading Co. v. Vizzard [1935] HCA 43 ; (1936) 53 CLR 493 ; and Riverina
Transport Pty. Ltd. v. Victoria [1937] HCA 33; (1937) 57 CLR 327 . Actually the cases which are
commonly called the "Transport Cases" include an earlier case of Willard v. Rawson [1933] HCA
12[1933] HCA 12; ; (1933) 48 CLR 316 . But, for reasons which I will indicate briefly later, I do
not regard Willard v. Rawson as militating against the present argument of the appellants. Indeed,
the reasoning of the judgments delivered in that case tends strongly, in my opinion, against the
decisions in the six later cases and in favour of the appellants in the present case. The most
important case is R. v. Vizzard; Ex parte Hill. I think that the doctrine of that case was actually
extended in Gilpin's Case. But the cases after R. v. Vizzard were really governed by the decision in
that case, and that case is unquestionably the central authority. It was the "fons et origo." (at p487)

10. Now I feel no doubt that, if R. v. Vizzard is now to be regarded as a binding authority, the
appellants here must fail. The statute in question in that case was an Act of the Parliament of New
South Wales. It differed in many matters of detail from the Victorian Transport Regulation Act
1933, but the essential features which were challenged as contradicting s. 92 were the very same
features which are now challenged in the Victorian Act. I also feel no doubt that, unless good reason
to the contrary is shown, one should adhere to the policy of following decided cases whether one
agrees with them or not. But there is a third point on which also I feel no doubt, and that is that the
most recent pronouncement of the Privy Council, which is to be found in Commonwealth v. Bank of
N.S.W. (1949) 79 CLR 497 (the Banking Case), not merely compels a reconsideration of R. v.
Vizzard, but indicates that the decision in that case cannot be regarded as sound. This view is
fortified by certain other considerations which I shall mention later. Before considering what their
Lordships said, it is necessary, I think, to examine briefly the basis of the decision in R. v. Vizzard.
(at p488)

11. I think it reasonably clear that the decision in R. v. Vizzard rested fundamentally on three
conceptions, the judgments of the majority differing somewhat in the stress laid upon each. (at
p488)

12. The first conception was, I think, that the function of transporting goods from State to State is
not a thing which is itself comprehended within the expression "trade and commerce" in s. 92. It is
merely an incident of trade and commerce, a means by which trade and commerce are carried on.
Two extremely important consequences seem to follow if this view is accepted. It would seem, in
the first place, to follow that the man whose livelihood consists in carrying goods from seller to
buyer or otherwise for reward is not engaged in trade or in commerce within the meaning of the
Constitution, and so is not protected in respect of his inter-State operations by s. 92. As Dixon J.
said in the Riverina Case (1937) 57 CLR, at p 363 , "One important step in the reasoning is the
adoption of the view that the use of motor vehicles for the carriage of goods from one State to
another, though an incident of trade, commerce and intercourse among the States, is not in itself
within the protection of s. 92." The second important consequence is this. There was a good deal of
authority for the view that s. 92 protects against "direct" interference with inter-State trade or
commerce as such, but not against "indirect" or "remote" or "incidental" or "consequential"
restraints or interferences. Now, if the transportation of goods is merely an "incident" or an
"instrument" or a "means" of trade and commerce, then, in so far as an interference with the
transportation of goods may be said to impinge upon the trade of a trader whose goods are being
carried, the interference may properly be regarded as merely indirect or remote and as permitted by
s. 92. (Cf. Gilpin's Case [1935] HCA 8; (1935) 52 CLR 189 , where a trader was transporting his
own goods in the course of his own trade.) So, in R. v. Vizzard (1933) 50 CLR, at p 47 , Gavan
Duffy C.J. draws the distinction between "direct" and "indirect" effects upon trade and commerce
(1933) 50 CLR, at p 48 , and the distinction between "interfering with trade, commerce and
intercourse and interfering with the methods by which they are carried on." So Rich J. (1933) 50
CLR, at p 49 refers to action which operates to restrict trade and commerce "immediately and
directly as distinct from giving rise to some consequential impediment," and clearly takes, as one
foundation for his conclusion that the Act in question affected trade and commerce only indirectly,
his view that "the acts or transactions with which the statute is concerned, and upon which it
operates, are not actual commercial dealings, the actual transfer of goods from one place to
another." In some of the American cases cited by McTiernan J. the distinction is drawn (though, I
think, for a different purpose) between commerce and the "instruments" or "vehicles" of commerce,
although McTiernan J. himself took the view that transportation of goods for reward was trade and
commerce (1933) 50 CLR, at p 98 . (at p489)

13. The two other fundamental conceptions upon which R. v. Vizzard rested are, as their Lordships
pointed out in the Banking Case, closely "linked" together. Each is in a sense complementary of the
other, and both seem to rest on the view that the words "trade and commerce" in s. 92 have
reference to the totality of trade and commerce subsisting at any given moment between any two
States. The first is that s. 92 does not operate to protect an individual trader, and the second is that,
so long as the totality or volume of trade may remain unaffected by a statute, that statute does not
infringe s. 92. So Gavan Duffy C.J. in R. v. Vizzard (1933) 50 CLR, at p 48 , said:- "For anything
disclosed by the evidence, this Act may on the whole benefit not only inter-State trade and
commerce at large but even that part of inter-State trade and commerce which is carried on by the
applicant." (Yet Mr. Hill, the applicant, was prohibited from engaging in the carrying of goods by
motor vehicle unless he could obtain a licence which might be refused at discretion.) So Rich J.
(1933) 50 CLR, at p 51 speaks of the Act as regulating transportation "in such a way as to help
rather than obstruct the movement of commercial goods" and "to facilitate and help commercial
transportation." Evatt J. (1933) 50 CLR, at p 77 said:- "There is no evidence that the Act has had the
effect of reducing or restricting inter-State commerce or intercourse. So far as appears, its effect is,
by providing a more orderly system of land transport, to facilitate and increase the passage of
persons and the flow of commodities to and from the State." If the "flow" was not reduced, it did
not matter that Mr. Hill was not allowed to swim in it. (at p490)

14. The above considerations were, in my opinion, clearly at the bottom of the reasoning of the
majority in R. v. Vizzard, though more or less weight was doubtless attached to each by different
Justices. In the argument before us an attempt was made to support R. v. Vizzard on another ground,
but this may be postponed for the moment. (at p490)

15. Before approaching what their Lordships said in the Banking Case, one or two general
comments on the conceptions to which effect was given in R. v. Vizzard may be made. In the first
place, the first conception - that the transportation of goods (or passengers) by vehicle for reward is
not itself trade and commerce - was clearly rejected by this Court in Australian National Airways
Pty. Ltd. v. Commonwealth (No.1) [1945] HCA 41; (1949) 71 CLR 29 (the Airlines Case). Latham
C.J. indeed thought that the Transport Cases did not really give any countenance to such a view. (at
p490)

16. Secondly, while the opinion of Lord Wright in James v. Commonwealth [1936] UKPCHCA 4;
(1936) AC 578; 55 CLR 1 has been discussed in this Court on a number of occasions, notably in the
Riverina Case [1937] HCA 33; (1937) 57 CLR 327 , and it has been thought by some that R. v.
Vizzard there received the approval of their Lordships, it should not be overlooked that one aspect
of the actual decision in James v. Commonwealth cannot be reconciled with R. v. Vizzard. James v.
Commonwealth decided two things. The first thing it decided was that s. 92 bound the
Commonwealth equally with the States. This was so much the more conspicuous, and so much the
more strenuously argued, of the two things decided, that it is perhaps understandable that one should
be inclined to overlook the other. But there was another point no less clearly the subject of actual
decision, and that was that a particular section of a Commonwealth Act of Parliament was invalid
because it was inconsistent with s. 92. The section in question was s. 3 of the Dried Fruits Act 1928-
1935. That section provided:- "Except as provided by the Regulations - (a) the owner or person
having possession or custody of dried fruits shall not deliver any dried fruits to any person for
carriage into or through another State to a place in Australia beyond the State in which the delivery
is made: and (b) the owner or any other person shall not carry any dried fruits from a place in one
State into or through another State to a place in Australia beyond the State in which the carriage
begins - unless he is the holder of a licence then in force, issued under this Act, authorising him so
to deliver or carry such dried fruits as the case may be, and the delivery or carriage is in accordance
with the terms and conditions of that licence." Penalties were provided. It was further provided that
"prescribed authorities may issue licenses for such periods and upon such terms as are prescribed."
Regulations were made under the Act, which, if s. 92 bound the Commonwealth, were in conflict
with James v. South Australia (1927) 40 CLR 1 . But James did not merely challenge the
regulations. He challenged the Act. And the Act was distinctly and expressly held by their Lordships
to be invalid. Lord Wright (1936) AC, at p 633 said:- "The Act and the Regulations either prohibit
entirely, if there is no licence, or, if a licence is granted, partially prohibit, inter-State trade." The
italicised words (the italics are mine) obviously refer to the effect of the Act, and the words which
follow to the combined effect of the Act and the regulations. The validity or invalidity of
regulations made under the Act could not possibly, of course, affect the validity of the Act itself.
And the Act was held invalid. The substance of the Act was exactly and precisely the same as the
substance of the Victorian Transport Regulation Act 1933. I cannot myself see any valid distinction
between the two cases. It is true, of course, that the Commonwealth Act applied to inter-State
carrying only, whereas the Victorian Act applies both to inter-State carrying and to intra-State
carrying. But, as I have already said, it was settled by James v. Cowan, if not before, that an Act
which would be wholly invalidated by s. 92 if it applied only to inter-State trade will not be saved,
so far as inter-State trade is concerned. by the fact that it applies both to inter-State trade and to
intra-State trade. Lord Porter in the Banking Case (1949) 79 CLR, at p 640 said:- ". . . it is an
irrelevant factor that the prohibition prohibits inter-State and intra-State activities at the same time."
(at p491)

17. Thirdly, R. v. Vizzard seems to me to be contrary to the general views expressed at length by
Isaacs J. in his dissenting judgment in James v. Cowan [1930] HCA 48; (1930) 43 CLR 386 . It is
sufficient to refer, without actual quotation, to his Honour's repeated and emphatic insistence on the
absolute discretion given to the Board by the Statute in that case, on the protection by s. 92 of James
as an individual trader, on the proposition that trade consists of acts, and on the further proposition
that what matters, from the point of view of s. 92, is not the purpose or intention or motive which
actuated the enactment of a statute but the effect of the statute on those acts of the individual which
constitute his trade. It is to be remembered that Lord Atkin, giving the reasons of the Privy Council
for allowing the appeal in James v. Cowan (1932) AC 542, at p 561; 47 CLR 386, at p 387 , said
that their Lordships "find themselves in accord with the convincing judgment delivered by Isaacs J."
Finally, the doctrine of R. v. Vizzard was always strongly resisted by Starke and Dixon JJ., and it
has never, I think, commanded general assent. (at p492)

18. Now, it is true that in James v. Commonwealth [1936] UKPCHCA 4; (1936) AC 578; 55 CLR 1
there are passages which suggest that R. v. Vizzard is accepted as a sound decision. Lord Wright
(1936) AC, at p 631 said that the construction of s. 92 which their Lordships adopted was, in the
opinion of their Lordships, "not inconsistent with any decided case with the doubtful exception of
McArthur's Case [1920] HCA 77; (1920) 28 CLR 530 ." And (1936) AC, at pp 621, 622 , after
referring to the "great importance" of the "elaborate" judgment of Evatt J. in R. v. Vizzard, he
proceeded to quote the following passage (1933) 50 CLR, at p 94 :-
"Section 92 does not guarantee that, in each and every part of a transaction which includes the inter-
State carriage of commodities, the owner of the commodities, together with his servant and agent
and each and every independent contractor co-operating in the delivery and marketing of the
commodities, and each of his servants and agents, possesses, until delivery and marketing are
completed, a right to ignore State transport or marketing regulations, and to choose how, when and
where each of them will transport and market the commodities." (at p492)

19. I do not myself think that the extremely wide proposition denied by Evatt J. has ever been
seriously asserted by anybody, even in McArthur's Case. I would certainly not assert it. In any case,
there are two things to be said. The first is that anything that was said in James v. Commonwealth
must be read in the light of the inconsistency (which I have already pointed out) between the actual
decision in that case and the decision in R. v. Vizzard. The second is that anything so said must also
be read in the light of the Banking Case. There was clearly nothing binding on the Judicial
Committee in anything that was said in James v. Commonwealth about R. v. Vizzard, and I do not
think for one moment that their Lordships in the Banking Case regarded James v. Commonwealth as
expressing final and considered approval of R. v. Vizzard. (at p492)

20. It is clear that the doctrine of R. v. Vizzard and the last two of the three propositions on which I

consider that it was really founded, had been strongly pressed upon their Lordships in the Banking

Case. The actual decision in that case was that no appeal lay from the High Court to the Privy

Council by reason of the application of s. 74 of the Constitution to the special circumstances of the

case. But it is established that, if the only question involved in the Banking Case had been the

question arising under s. 92, the Judicial Committee would have had jurisdiction: that body is not

prevented by s. 74 from pronouncing with final authority upon a question under s. 92. And, the

matter having been very fully argued, and it appearing that a large part of the appellants' argument

was based upon a misapprehension of the effect of James v. Cowan and James v. Commonwealth,

their Lordships were at pains to correct the misapprehension. The correction of the misapprehension

seems to me to have involved a very clear and explicit denial of the whole basis of R. v. Vizzard.

The declaration of the law thus made, although not essential to the actual decision in the case,

appears to me in the very exceptional circumstances to carry the full force and the final authority of

an actual decision by the highest tribunal in our system. Lord Porter (1950) AC, at p 305; 79 CLR,

at p 635 after referring to James v. Cowan and James v. Commonwealth, dealt with the points which

are most material in connection with R. v. Vizzard. The passage should be quoted in full. It is as

follows:-

"The necessary implications of these decisions are important. First may be mentioned an argument

strenuously maintained on this appeal that s. 92 of the Constitution does not guarantee the freedom

of individuals. Yet James was an individual, and James vindicated his freedom in hard-won fights.

Clearly there is here a misconception. It is true, as has been said more than once in the High Court,

that s. 92 does not create any new juristic rights, but it does give the citizen of State or

Commonwealth, as the case may be, the right to ignore, and, if necessary, to call upon the judicial

power to help him to resist legislative or executive action which offends against the section. And

this       is  just  what  James                                      successfully  did.

"Linked with the contention last discussed was another which their Lordships do not find it easy to

formulate. It was urged that, if the same volume of trade flowed from State to State before as after

the interference with the individual trader and, it might be, the forcible acquisition of his goods,

then the freedom of trade among the States remained unimpaired. In the first place, this view seems

to be in direct conflict with the decisions in the James Cases; for there the section was infringed

though it was not the passage of dried fruit in general, but the passage of the dried fruit of James,

from State to State that was impeded. Secondly, the test of total volume is unreal and unpractical,

for it is unpredictable whether by interference with the individual flow the total volume will be

affected, and it is incalculable what might have been the total volume but for the individual

interference. Thirdly, whether or not it might be possible, if trade and commerce stood alone, to

give some meaning to this concept of freedom, in s. 92 'trade and commerce' are joined with

'intercourse,' and it has not been suggested what freedom of intercourse among the States is

protected except the freedom of an individual citizen of one State to cross its frontier into another

State or to have such dealings with citizens of another State as his lawful occasions may require."

(at p494)

21. This passage seems to me completely to destroy the whole basis of R. v. Vizzard, the only
foundation discoverable from the reasons of the majority as that on which it was rested. But Lord
Porter went further. In a passage which seems to me to govern affirmatively the present case, His
Lordship said (1950) AC, at pp 305, 306; 79 CLR, at pp 635, 636 :- "The bearing of those decisions
with their implications upon the present appeal is manifest. Let it be admitted, let it, indeed, be
emphatically asserted, that the impact of s. 92 upon any legislative or executive action must depend
upon the facts of the case. Yet it would be a strange anomaly if a grower of fruit could successfully
challenge an unqualified power to interfere with his liberty to dispose of his produce at his will by
an inter-State or intra-State transaction, but a banker could be prohibited altogether from carrying
on his business both inter-State and intra-State and against the prohibition would invoke s. 92 in
vain. In their Lordships' opinion there is no justification for such an anomaly. On the contrary, the
considerations which led the Board to the conclusion that s. 20 of the South Australian Dried Fruits
Act 1924 offended against s. 92 of the Constitution lead them to a similar conclusion in regard to s.
46 of the Banking Act 1947. It is no answer that under the compulsion of s. 11 of the Act the
Commonwealth Bank will provide the banking facilities that the community may require, nor, if
anyone dared so to prophesy, that the volume of banking would be the same. Nor is it relevant that
the prohibition affects the intra-State transactions of a private bank as well as its inter-State
transactions; so also in the James Cases there was no discrimination; his fruit, for whatever market
destined, was liable to be the subject of a 'determination'." (at p494)

22. A person whose business is the transportation of goods cannot be in a different position from a
banker, unless indeed a person whose business is banking is, while a person whose business is the
transportation of goods is not, engaged in trade and commerce, and that view has, as I have said,
been decisively rejected by this Court. (at p495)

23. The only other passage in the Banking Case to which I need refer specifically is the passage
(1950) AC, at p 307; 79 CLR, at p 637 in which their Lordships consider the references made by
Lord Wright in James v. Commonwealth to R. v. Vizzard. This passage need not be set out. It
conveys to my mind that their Lordships felt a difficulty in reconciling R. v. Vizzard with James v.
Cowan, and considered it impossible to reconcile all that was said by Evatt J. in the one case with
all that was said by Isaacs J. in the other. I have already called attention to what I regard as the
conspicuous features of the judgment of Isaacs J., and expressed my opinion that R. v. Vizzard
represents a complete denial of his reasoning. (at p495)

24. I am of opinion that R. v. Vizzard is irreconcilable with the law as propounded in the Banking
Case. I have still, however, to consider an argument put before us in support of R. v. Vizzard, the
major premiss of which argument is not only consistent with, but supported by, the Banking Case.
The major premiss is, in the words of their Lordships, that "regulation of trade commerce and
intercourse among the States is compatible with its absolute freedom." And the minor premiss is
that the Transport Regulation Acts of the State of Victoria are merely regulatory of trade and
commerce, including trade and commerce among the States. (at p495)

25. The distinction between what is merely permitted regulation and what is a true interference with
freedom of trade and commerce must often, as their Lordships observed, present a problem of great
difficulty, though it does not, in my opinion, present any real difficulty in the present case. We may
begin by taking a few examples, confining our attention to the subject matter of transportation,
which is now under consideration. The requirements of the Motor Car Acts of Victoria afford very
good examples of what is clearly permissible. Every motor car must be registered: we may note in
passing that there is no discretionary power to refuse registration. A fee, which is not on the face of
it unreasonable, must be paid on registration. Every motor car must carry lamps of a specified kind
in front and at the rear, and in the hours of darkness these lamps must be alight if the car is being
driven on a road. Every motor car must carry a warning device, such as a horn. A motor car must
not be driven at a speed or in a manner which is dangerous to the public having regard to all the
circumstances of the case. Other legislation of the State - Parliamentary or subordinate - prescribes
other rules. In certain localities a motor car must not be driven at more than a certain specified
speed. The weight of the load which may be carried by a motor car on a public highway is limited.
The driver of a motor car must keep to the left in driving along a highway. He must not overtake
another vehicle on a curve in the road which is marked by a double line in the centre. He must
observe certain "rules of the road" at intersections: for example, the vehicle on the right has the right
of way. (at p496)

26. Such examples might be multiplied indefinitely. Nobody would doubt that the application of
such rules to an inter-State trader will not infringe s. 92. And clearly in such matters of regulation a
very wide range of discretion must be allowed to the legislative body. When we ask why such rules
do not infringe s. 92, I think that commonsense suggests a fairly clear and satisfactory answer. The
reason is that they cannot fairly be said to impose a burden on a trader or deter him from trading: it
would be foolish, for example, to suggest that my freedom to trade between Melbourne and Albury
is impaired or hindered by laws which require me to keep to the left of the road and not drive in a
manner dangerous to the public. (at p496)

27. Of course, even rules of the kind which I have taken as examples could be made to operate as a
burden or deterrent in a high degree. Let me take an example. The town of Wangaratta is in Victoria,
some fifty miles by road from the border between Victoria and New South Wales. It is on the Hume
Highway, which is the busy main highway between Melbourne and Sydney. A law which provided
that a motor car should not travel on that highway at greater speeds than thirty miles per hour within
the limits of towns and sixty miles per hour outside towns would not impede or interfere with the
trade of persons carrying goods for reward between Melbourne and Sydney: their trade would
remain "free." But let me suppose a law that no person should drive a motor car between Wangaratta
and the border at a speed exceeding one mile per hour. We should instantly say that such a law
interfered with the freedom of inter-State trade. It would operate as a burden and a deterrent to the
trader by making the journey economically impossible. The examples which I have taken seem
clear. On which side of the line a particular case falls will, of course, be a question of fact. It may be
a difficult question in some cases, but it does not seem to me likely that any very difficult question
will arise within the sphere of practical politics. The real, and truly baffling, difficulties of s. 92
seem to me to lie outside the field of transportation. Within that field the very nature of the subject
matter seems to lend itself to the application of a quite simple test, which will rarely, if ever, be
productive of any real difficulty. When difficulty does arise, it will be the kind of difficulty with
which lawyers are constantly called upon to deal in a great variety of cases. (at p497)

28. The question is sometimes raised whether a State - or the Commonwealth for that matter, since
the Commonwealth is equally bound by s. 92 - can, consistently with s. 92, make a charge for the
use of trading facilities, such as bridges and aerodromes, provided by it. The answer is that of
course it can. The great bridge over Sydney Harbour was erected at huge expense to facilitate trade
commerce and intercourse between all places north of the Harbour and all places south of the
Harbour. The collection of a toll for the use of the bridge is no barrier or burden or deterrent to
traders who, in its absence, would have to take a longer or less convenient or more expensive route.
The toll is no hindrance to anybody's freedom, so long as it remains reasonable, but it could, of
course, be converted into a hindrance to the freedom of trade. If the bridge authority really wanted
to hamper anybody's trade, it could easily raise the amount of the toll to an amount which would be
prohibitive or deterrent. It would not be possible a priori to draw a dividing line between that which
would really be a charge for a facility provided and that which would really be a deterrent to trade,
but the distinction, if it ever had to be drawn, would be real and clear, and nobody need worry about
it in advance. Nothing but futile exaggeration of the difficulties of s. 92 can result from an insistence
on imagining border-line cases which are excessively unlikely to arise in practice. If we are ever
actually called upon to say whether a money exaction is really a charge for a facility provided or
really a burden on somebody's freedom to conduct a trade or business or engage in intercourse,
human affairs are such that we are unlikely to experience any very serious difficulty in making a
decision. (at p497)

29. It is clear enough that such provisions as I have been considering are properly regarded as
regulatory in character, and therefore within the category which their Lordships have held to involve
no violation of s. 92. It should be emphasised that they are to be examined from the point of view of
every individual engaged in trade commerce or intercourse, because s. 92 protects the trade
commerce and intercourse of the famous Mr. James and every other individual. As to what is not
regulatory in the relevant sense, one thing at least is clear. Prohibition is not regulation. Lord Porter
(1950) AC, at p 309; 79 CLR, at p 640 , after quoting from the judgment of the learned Chief
Justice of this Court in Australian National Airways Pty. Ltd. v. Commonwealth (1945) 71 CLR, at
p 61 , said "simple prohibition is not regulation." (at p498)

30. It is quite impossible, in my opinion, to distinguish the present case from the case of a simple
prohibition. If I cannot lawfully prohibit altogether, I cannot lawfully prohibit subject to an absolute
discretion on my part to exempt from the prohibition. The reservation of the discretion to exempt by
the grant of a licence does not alter the true character of what I am doing. This was, indeed, as I
have pointed out, one of the two things that were really decided in James v. Commonwealth [1936]
UKPCHCA 4; (1936) AC 578; 55 CLR 1 , though it was naturally treated as more or less self-
evident, and the contrary view does not seem to have been very seriously argued. Such cases as
Melbourne Corporation v. Barry [1922] HCA 56; (1922) 31 CLR 174 , and Swan Hill Corporation
v. Bradbury [1937] HCA 15; (1937) 56 CLR 746 , do not, of course, afford exact parallels to such
cases as the present, because they turn primarily on the meaning of the word "regulate" in a statute,
but they are, in my opinion, precisely in point, since one thing that they make plain is that, if a
legislative body cannot lawfully prohibit altogether, it cannot lawfully prohibit subject to an
administrative discretion to exempt from the prohibition. It is quite true to say that regulation may
involve partial prohibition, but it is quite untrue to say that total prohibition subject to discretionary
exemption or "licensing" is merely partial prohibition within the meaning of that proposition. (at
p498)

31. The truth is that it is possible to regard such legislation as regulatory with respect to trade and
commerce if, but not unless, we regard s. 92 as referring not to the trading and commercial activities
of individuals but to a totality or general volume or flow of trading and commercial activities. A
simple prohibition, or a prohibition subject to discretionary exemption, of the trade of an individual
may be regarded as regulatory of the general flow or volume of trade. It cannot possibly be regarded
as regulatory of the trade of the individual who is simply not allowed to carry on his trade at all.
The view that s. 92 does not protect an individual trader but has regard only to a general volume of
inter-State trade could hardly have been more emphatically rejected by the Privy Council, and it
must now, I would think, plainly be regarded as unsound. And, without it, the view that the
Victorian Transport Regulation Act is merely regulatory, so far as it affects inter-State trade and
commerce, cannot stand. (at p499)

32. It was argued before us that the regulation of public transport vehicles in respect of such matters
as safe maintenance and so on could not be efficiently undertaken without a system of inspection
and licensing. The same difficulty was felt by municipalities in connection with their building by-
laws by reason of such decisions as Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56
CLR 746 , but very little ingenuity was required to overcome the difficulty. The modern Victorian
building by-law requires the issue of a permit or licence to commence building, but it also provides
that, if plans and specifications comply with the specific requirements of the by-law, the intending
builder is entitled, as of right, to the issue of the licence or permit. The legal right, so given, is, of
course, enforceable by mandamus to issue the licence or permit. Such a law differs vitally from a
prohibition subject to obtaining a licence which may be granted or withheld at discretion. The only
reason why such a system would not be regarded as satisfactory in such legislation as that now
under consideration is that such legislation is not really concerned - or at any rate is by no means
solely concerned - with the safety of public transport. It is concerned very largely with restricting
the development, in competition with existing railways, of modern and convenient methods of
transport, and one of its supposed advantages is that the discretion to withhold licences can be used
to protect the trade of one State at the expense of another. It is, for example, obviously within the
sphere of practical politics that it should be thought in Melbourne that Cootamundra ought to drink
Victorian beer and not South Australian beer. The protection of the industries of one State against
those of another State was, of course, one of the primary things which s. 92 was designed to
prevent, but, if the legislation now in question is valid, effect can easily be given to such an opinion
without anybody knowing anything about it. I mention these matters only by the way and as serving
to emphasise the essential vice of the legislation. (at p499)

33. It only remains, I think, to refer briefly to Willard v. Rawson [1933] HCA 12; (1933) 48 CLR
316 . I have already expressed my opinion that that case, unlike R. v. Vizzard, can, in my opinion,
be supported consistently with what is said by their Lordships in the Banking Case. In Willard v.
Rawson the relevant legislation was contained in s. 4 of the Victorian Motor Car Act 1928 as
amended by the Motor Car Act 1930. That section required every motor car to be registered under
an indentifying number. On registration a fee was to be paid. The amount of the fee payable
depended on the weight and horse-power of the vehicle. A person who drove on a public highway in
Victoria a motor car which was not registered under the Act was guilty of an offence. Sub-section
(7) (a) provided:- "This section shall not apply to a motor car (other than a motor car which is used
in Victoria for carrying passengers for hire or goods for hire or in the course of trade) - (i) which is
owned by a person resident in another State; (ii) which is temporarily in Victoria; (iii) which is
registered in such other State; and (iv) on which the number allotted to the motor car in such other
State is exhibited." The effect of this provision was that, if four conditions were fulfilled, a motor
car registered in another State was not required to be registered in Victoria before travelling on a
Victorian highway, unless it was a vehicle used for carrying passengers or goods for hire or in the
course of trade, in which case registration was required. It was held that the requirement of
registration, which involved, of course, payment of the prescribed fee, did not contradict s. 92. I
think, with respect, that the essential reasons underlying the decision are correctly stated by Dixon J.
in R. v. Vizzard; Ex parte Hill (1933) 50 CLR, at pp 67, 68 . To put it very shortly, the fee was not a
tax but rather in the nature of a reasonable charge for facilities provided by the State and used by
persons who drove motor cars in Victoria, it did not deal with trade and commerce as such, and, if it
could be said to have any burdensome effect on inter-State trade and commerce, that effect was
merely indirect and consequential. So understood, I think that there is no great difficulty in
regarding Willard v. Rawson as an example of "regulatory" legislation. It would not, of course,
affect my opinion in the present case if I thought otherwise of Willard v. Rawson, but I have thought
it proper to express my view of that case. (at p500)

34. I have advisedly refrained from discussing in this judgment a number of American authorities
which have been cited from time to time in this Court in cases arising under s. 92, although I have
given a good deal of consideration to a number of them. The Constitution of the United States
contains no such provision as our s. 92, and I have thought it sufficient to refer only to decisions of
this Court and of the Privy Council. I may add, however, that the American decisions suggest
strongly to my mind that, if Congress were to enact a law in the terms of s. 92 of our Constitution, a
State Act such as the Victorian Transport Regulation Act would have no chance of surviving a
challenge in the Supreme Court. (at p501)

35. In my opinion, the appeals should be allowed, and the convictions quashed. (at p501)

ORDER

Appeals dismissed with costs.

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