Carriers whose journeys between two points in the same State necessarily pass through another State are engaged in inter-State trade protected by s 92 of the Constitution, and State transport licensing laws cannot validly apply to such journeys.
Later decisions that cite Golden v Hotchkiss
Decisions cited by Golden v Hotchkiss
GOLDEN v. HOTCHKISS (1959) 101 CLR 568
Constitutional Law (Cth)
High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4), Taylor(5), Menzies(6) and
Windeyer(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Freedom of inter-State trade commerce and intercourse - Public motor vehicle - Operating or intending to operate - Licence - Wool produced on station immediately south of border between New South Wales and Queensland - Wool carried on journey to Sydney (N.S.W.) - Route from woolshed necessarily via Hungerford (Q.) - Journey competitive with railway for distance exceeding fifty miles - Offence - State Transport (Co-ordination) Act 1931-1956 (N.S.W.), ss. 3 (1), (3), 12, 28 - The Constitution (63 & 64 Vict. c. 12), s. 92 - Judiciary Act 1903-1955, s.40.
HEARING
Sydney, 1958, November 14, 17.DECISION
March 12, 1959.2. From the conviction Golden appealed to the Supreme Court by case stated but while the matter was pending in the Supreme Court this Court made an order under s. 40 of the Judiciary Act 1903-1955 removing into this Court so much of the case stated as concerns the question whether s. 28 of the State Transport (Co-ordination) Act 1931-1956 validly applied to the defendant's vehicle upon the journey upon which it was engaged. (at p578)
3. For myself I do not think that the material part of s. 28 had any application to the conduct of the defendant Golden made the subject of the conviction. By the material part of s. 28 I mean so much of s. 28 as creates the offence charged in the information. Had the third schedule been found consistent with s. 92 the entire journey would in my opinion have been subject to the licence contemplated by the provisions which that schedule sought to make and no part of the journey could remain under the operation of the original unreformed provision. I do not think that any part of s. 3 (3) should be read as if there were no third schedule. The evident intention was to divide the operating of public motor vehicles into mutually exclusive categories for the purpose of licensing. The licence held by the defendant Golden related to one category but it is not the category under which the "operating" of the vehicle fell during any part of the journey in question. Golden could not therefore be said to have failed, in using the vehicle, to use it in conformity with the licence. (at p578)
4. I do not desire to decide this case upon grounds which go beyond or outside the charge contained in the information or the facts relevant thereto. They are no doubt special facts, but in my opinion they show that the charge does not lie. For they show that the licence applied at no part of the journey and accordingly that the condition was not broken, although the vehicle was driven through Bourke and thence onward to Sydney. The journey, as I think, was entire and incapable of severance into an inter-State operation and an intra-State operation for the purpose of the material part of s. 28. (at p579)
5. Once the defendant Golden had crossed the border after leaving Hungerford he picked up no more goods and he did nothing else which would give the "operating" of the vehicle a different character. We have recently considered the effect in law when a public motor vehicle during an inter-State journey picks up and sets down passengers whose journey is not between States: Pioneer Express Pty. Ltd. v. Hotchkiss [1958] HCA 45; (1958) 101 CLR 536 . What we decided applies equally to freight and to people. Nothing I have said means that if Golden had at Bourke, for example, taken aboard his vehicle further goods and had carried them to Sydney, he would not in respect of the carriage of those goods have fallen under some part of s. 28. But he did nothing of that kind; nothing that could give new ground for saying that he engaged in intra-State trade or commerce. If a carrier otherwise engaged in inter-State carriage does such a thing he uses his vehicle on the one journey for dual purposes and the consequence may be that he is governed by the law relating to intra-State carriage and as well by that which may validly apply to inter-State carriage. But in this case there is no concurrent operation both in trade within a State and in trade between States. (at p579)
6. What is suggested is not that there was a journey serving the two kinds of commerce concurrently but that at some point the inter-Stateness of the journey was complete and that the succeeding part of the journey was intra-State. It is a suggestion that cannot, I think, be sustained. There is not any divisible transaction capable of severance into independent parts, one inter-State, the other intra-State. The whole thing, the agreement with Golden to carry the Talyealye wool, his travelling across the boundary to the wool shed, his return to Hungerford, the taking aboard the lorry of the machinery parts for carriage to Sydney and the journey to Sydney all seem to me to form the components or incidents of a carrier's single and entire inter-State journey. In the circumstances of this case I attach no more importance to the fact that it was necessary to go ten miles into private property in New South Wales to load the wool than I would have done if the private property had been situated in the Northern Territory and had fronted the other boundary of Queensland. Notwithstanding the fact that the Northern Territory is not a State I should have thought it clear that s. 92 protected the journey from the Queensland border to its terminus in Sydney, and I should not have thought that the provision of s. 28 with which we are concerned was intended to apply to it. To concentrate on the fact that the point of dispatch of the wool and the point of delivery are both in New South Wales may be natural, but it seems to me to give this case a false setting. It is because trade commerce and intercourse between the States is free that the owners of Talyealye are entitled to unfettered and unburdened access to the Queensland roads, in other words to an exit from their property. It is for the same reason that the wool thus going into Queensland may be sent down for sale in the Sydney market. It is for the same reason that Golden was available in Queensland to carry the wool, notwithstanding that the owners of Talyealye were "blocked right out and could get nobody to shift it". We are not told why it was so. But one may be sure that a strong reason would be supplied for carrying the wool of the Koorwindi station, situated as it is in Queensland, in preference to that of Talyealye, if the situation of the wool shed of the latter changed the character of the carriage and subjected it to all the liabilities of intra-State carriage by road. Doubtless it is a reason sounding in the end in freight charges. But its existence illustrates the inseverability of the whole transaction by which the wool was carried through Queensland into New South Wales and to Sydney. In my opinion the conviction of the defendant was wrong. (at p580)
7. Under s. 18 (5) a sum of 109 pounds 16s. 0d. was fixed as payable by Golden by way of charges due to the Commissioner of Motor Transport on the footing that Golden had violated the condition of the licence. Under s. 38A there was added to the conviction an order that he pay this amount to the clerk of petty sessions. This order should be discharged. (at p580)
8. I think that the appeal should be allowed with costs including the order of removal and the conviction and order of the Court of Petty Sessions quashed. (at p580)
McTIERNAN J. This was a prosecution in a Court of Petty Sessions at Sydney for an alleged offence against s. 28 of the State Transport (Co-ordination) Act 1931-1956. The defendant raised a defence based upon s. 92 of the Constitution. There was also a defence involving no constitutional issue. The magistrate found the defendant guilty and imposed penalties in accordance with the Act. The defendant appealed by case stated to the Supreme Court of New South Wales. While the appeal was pending, the defendant applied under s. 40 of the Judiciary Act 1903-1955 to remove it into this Court. An order was made removing the part of the cause involving the constitutional question. The question concerns transportation, by motor vehicle, of wool from Talyealye station in New South Wales to Sydney. The transportation was continuous but moved in its course through a border area of Queensland. The question is whether the transportation was "among the States" within the meaning of s. 92 of the Constitution. (at p581)
2. The freight carried consisted of seventy-five bales of wool. The consignment was apparently produced in New South Wales. It was loaded on the motor vehicle at the woolshed on Talyealye station. The northern boundary of this property, which is about forty miles long, coincides with the border between New South Wales and Queensland. The woolshed is about ten miles south of the border. The nearest road to Sydney is reached by travelling to Bourke in the far west of New South Wales. But the only practicable road for motor transport from the woolshed to Bourke is via Hungerford a town in Queensland near the New South Wales border. The route of the transportation was via Hungerford to Bourke, and thence by the main road to Sydney. (at p581)
3. The defendant carried on business as a carrier, and he held a licence issued under the State Transport (Co-ordination) Act 1931-1956 to operate this motor vehicle for carrying goods in New South Wales. It was a condition of the licence that the motor vehicle should not be operated on any journey exceeding fifty miles competitive with the railways. The distance from Bourke to Sydney is about five hundred miles, and there is, of course, a railway between Bourke and Sydney. Trains run frequently on this railway for the carriage of passengers and all kinds of goods, including wool. The substance of the offence alleged against the defendant is that he contravened s. 28 of the State Transport (Co-ordination) Act 1931-1956 by carrying the wool from Bourke to Sydney, because the condition of the licence required that he should not operate the motor vehicle past Bourke for a greater distance than fifty miles. The fact upon which the defendant relied to make the transportation inter-State was its passage through a part of Queensland. If that fact impressed the entire transportation with the character of commerce "among the States", s. 28 did not apply to the defendant or the motor vehicle while operated in New South Wales. (at p581)
4. There is no decision of this Court directly on the point under s. 92 which this matter raises. The commerce clause of the Constitution of the United States provides for the federal regulation of commerce "among the several States". Decisions on that clause were cited in argument, and I refer to several of them. The first is Lehigh Valley Railroad Co. v. Pennsylvania [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) . The Supreme Court there decided that transportation between points in the same State was domestic commerce of that State, and that for the purpose of the exercise by the State of its taxing powers, the character impressed upon the commerce by the fact that it was between points in that State was in no way changed because the transit of the traffic between those points was over another State. This case was decided in 1891. I mention this fact because it was just ten years before the foundation of the Commonwealth. The case was distinguished in Hanley v. Kansas City Southern Railway Co. [1903] USSC 7; (1903) 187 US 617 (47 Law Ed 333) , decided in 1902, that is, subsequent to the foundation of the Commonwealth. The Supreme Court held in that case that State railroad commissioners could not validly enforce rates in respect of transportation between points in their State because its route was partly outside the State. This crossing of State lines in the view of the court brought the entire transportation within the commerce clause and it was therefore excluded by the Constitution from the jurisdiction of the States. That, of course, is something peculiar to the Constitution of the United States. Under the Australian Constitution, a State has, subject to s. 109, concurrent power with the Commonwealth over inter-State commerce within the State's territory and the Commonwealth, as well as each State, is subject to s. 92 of the Constitution. The Court said as to the Lehigh Valley Railroad Case (1): "That was the case of a tax, and was distinguished expressly from an attempt by a state directly to regulate the transportation while outside its borders" (1903) 187 US, at p 620 (47 Law Ed, at p 336) . In the instant case, there is no attempt to regulate the transportation while in Queensland. The Court continued: "And although it was intimated that, for the purposes before the Court, to some extent commerce by transportation might have its character fixed by the relation between the two ends of the transit, the intimation was carefully confined to those purposes" (1903) 187 US, at p 621 (47 Law Ed, at p 336) . The doctrine of Hanley v. Kansas City Southern Railway Co. [1903] USSC 7; (1903) 187 US 617 (47 Law Ed 333) has been stated so far as the American Constitution is concerned to be this: "Interstate commerce, as distinguished from domestic commerce, includes traffic between points in the same state but which in transit is carried through another state". (Judson on The Law of Inter-State Commerce 2nd ed. (1912), p. 14). As I have said, the State of New South Wales has not made any attempt by its State Transportation (Co.-ordination) Act to regulate the passage of the transportation through Queensland. The State's legislative jurisdiction of course does not extend beyond its own territory. The present prosecution was really brought in respect of the transportation from Bourke to Sydney. There is no railway between Bourke and the Queensland border. (at p583)
5. It is useful for present purposes to refer also to the Western Union Telegraph Co. v. Speight [1920] USSC 148; (1920) 254 US 17 (65 Law Ed 104) , decided in 1920. That case concerned the transmission of a message between two points in the same State, which went through another State and was telegraphed back to the point of destination. The specific conclusions of the court were: (1) That the message was interstate, irrespective of the motive of the defendant company in routing it outside the first State or of the necessity for so doing, and (2), if a motive to evade the jurisdiction of that State were material, it was error to lay the burden on the defendant company of disproving it. The Court in that case proceeded upon these principles: First, "that the transmission of a message through two States is interstate commerce as a matter of fact" (1920) 254 US, at p 18 (65 Law Ed, at p 105) . That proposition was based upon Hanley v. Kansas City Southern Railway Co. [1903] USSC 7; (1903) 187 US 617 (47 Law Ed 333) . The second principle was "that the fact must be tested by the actual transaction" (1920) 254 US, at p 18 (65 Law Ed, at p 105) . Kirmeyer v. Kansas [1915] USSC 69; (1915) 236 US 568, at p 572 (59 Law Ed 721) is cited as authority for this principle. If these criteria be applied to the present case, the question is whether the business between Talyealye station and Sydney was, as a practical matter of fact, internal business of New South Wales, or business between Queensland and New South Wales. It seems to me that it was the former, not the latter, and therefore not within the protection of s. 92. (at p583)
6. The reasons why federal power under the American commerce clause is exclusive of State control over commerce between two points in the same State when it is partly outside the State are stated briefly in Yohn v. United States (1922) 280 Fed Rep 511 , another case cited in argument. "Intrastate commerce is that commerce which is during its whole course of transportation within the jurisdiction of a single state. Commerce which originates in a state, passes into another, and then returns to the first is interstate, as it has gone beyond the state in which it originated, and then passed back again into it, and so has become subject to different jurisdictions in the course of its transportation. Neither state is able to protect it during the whole period of its transportation and this fact makes federal control practically necessary, as well as legally possible" (1). It could not be for reasons of that kind that it would be right to include within the scope of s. 92 transportation between points in the same State which has no other element external to the State than that it traversed part of another State. Although s. 92 applies to a State legislature, there is nothing in the Constitution which expressly or impliedly excludes inter-State transportation entirely from the legislative jurisdiction of any State through which it passes. Another point of distinction between the Australian and the American Constitutions is as I have already stated the presence in the former of s. 92, to which all State legislatures and the federal Parliament as well are subject. (at p584)
7. Another case to which the Court was referred is Cornell Steamboat Co. v. United States of America [1944] USSC 59; (1944) 321 US 634 (88 Law Ed 978) decided in 1944. The judgments in that case are, I think, helpful in understanding the connotation of the expression "among the States" in s. 92, and in considering whether that expression is as wide as it would have been if it explicitly included transportation between places in the same State through another State. In Pt. III of the Transportation Act of 1940, Congress provided for the regulation of water carriers in inter-State and foreign commerce. This Part defined "transportation in inter-State . . . commerce" for the purpose of such regulation to mean "transportation of persons or property - (1) wholly by water from a place in a State to a place in any other State, whether or not such transportation takes place wholly in the United States." A question at issue in the last-mentioned case was whether this power of regulation extended to tug-boats operating on the Hudson River from place to place in New York. As Frankfurter J. said, these tugboats "simply" left the New York boundary and navigated on Jersey waters. The majority decided that this fact brought the tugboats within the scope of the power. Frankfurter J. was a dissenter. The discussion which I regard as helpful in elucidating the present problem is in his judgment because it attaches importance to the fact that there were separate definitions of inter-State transportation by railroad, motor and water. The Act in Pt. I conferred jurisdiction over "transportation . . . wholly by railroad . . . from one State to another State." Black J., who delivered the opinion of the Court, said that the definition in Pt. III relating to transportation by water carriage was modelled on the definition relating to rail transportation and that this definition "had long before been interpreted both by the Commission and the courts as broad enough to cover railroad movements which pass through the territory of two states, even though the freight be carried from a place in one state to another place in the same state" (1944) 321 US, at p 640 (88 Law Ed, at p 983) . It seems to me that he was referring to the decision in Hanley v. Kansas City Southern Railway Co. [1903] USSC 7; (1903) 187 US 617 (47 Law Ed 333) . Frankfurter J. attached importance to the particularization in the definitions of the three classes of inter-State transportation defined in the Act. These are, as I have said, rail, motor and water. Part II of the Act defined "inter-State commerce" by motor vehicle as including "commerce between places in the same State through another State". Frankfurter J. said: "We must first define the field of the regulation - what 'commerce' between two points in the same State but going through another becomes federally regulated although theretofore free from state regulation as was rail transportation, and what 'commerce' is given over to federal regulation although theretofore it was within the province of state regulation as was water transportation in a situation like that under discussion" (1944) 321 US, at p 647 (88 Law Ed, at pp 986, 987) . All commerce passing through New South Wales, prior to the operation of s. 92, was completely subject to State legislative power. The present question is in respect of what part of that commerce s. 92 diminished State legislative power. Was it only commerce between points in different States? Or was commerce between points in the same State, moving in its course through another State, also withdrawn from plenary State control as was the former class of commerce? The explicit inclusion, for example, by the definition in Pt. II of "interstate commerce by motor vehicle" of transportation between places in the same State through another State, suggests that the trend of the decisions from Lehigh Valley Railway Co. v. Pennsylvania [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) did not make certain that the accepted connotation for all purposes, of "inter-State transportation" necessarily includes transportation between two points in the same State which goes through another State. Since s. 92 cuts down the legislative power which was formerly vested in the States, the words "among the States" should not be given a meaning more extensive that it is certain that they bear. They certainly apply to commerce which originates in one State, and terminates in another State, but it is by no means so certain that those words properly mean commerce which originates in a State and terminates in the same State, though passing through another State. (at p586)
8. I refer to another American case mentioned in argument, namely, Central Greyhound Lines v. Mealey [1948] USSC 83; (1948) 334 US 653 (92 Law Ed, 1633) decided in 1948. Frankfurter J. quoted (1948) 334 US, at p 660 (92 Law Ed, at p 1640) the definition of "inter-State commerce" in the Motor Carrier Act of 1935. Commerce between places in the same State through another State is explicitly included in this definition of "inter-State commerce". (at p586)
9. The majority in the last-mentioned case considered that the judgment of the Court in Lehigh Valley Railway Co. v. Pennsylvania [1892] USSC 156; (1892) 145 US 192 (36 Law Ed, 672) depended upon a "needless fiction - calling commerce local which is in fact inter-State" (1948) 334 US, at p 659 (92 Law Ed, at p 1640) . The minority said this: " . . . it is something more than a fiction to say that both interstate and intrastate features are present . . . It is a recognition of the hard realities of the situation. It is a realization that transporting persons between points in the same state is a business local in all its commercial connotations, even though there is a physical movement of an interstate character. Due respect for Holmes J's. admonition that commerce among the states is a practical rather than a technical legal conception (Swift & Co. v. United States [1905] USSC 29; (1905) 196 US 375, at p 398 (49 Law Ed, 518, at p 525) ) forbids an indiscriminate application of the interstate label simply on the ground that state lines are crossed in the course of a particular business. Where local elements remain intact despite the interstate movement it is of the essence of practicality to give recognition to that fact. Such is the situation in this case" (1948) 334 US, at pp 666, 667 (92 Law Ed, at pp 1643, 1644) . And I think it is also the situation in the instant case. (at p586)
10. The present case is not concerned with the question whether the transportation of the wool within New South Wales was within the legislative province of the State or of the Commonwealth. It is concerned with the question whether the legislative power of New South Wales over such transportation was limited by s. 92. I do not understand why, for the purposes of s. 92, the mere fact that the transportation merely crossed the border determines that the commerce was inter-State despite the fact that it was really commerce between points in the same State. Commerce between the two places, Talyealye and Sydney is essentially local notwithstanding that the detour into Queensland was necessary to the journey. It is clearly not the purpose of s. 92 to make such transportation "absolutely free" in New South Wales. I agree with the observation of the Supreme Court in Lehigh Valley Railway Co. v. Pennsylvania [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) that commerce which is local or domestic is not rendered "foreign", that is inter-State, by its mere passage over the soil of another State. I have always believed that the purpose of s. 92 is to guarantee the freedom only of trade, commerce and intercourse which originates in one State and terminates in another. This conception conforms with the federal character of the Constitution. The transportation with which this case is concerned originated and terminated in the same State. The movement through a part of Queensland was an incident of the transportation in question, but not of its essence. The connexion with Queensland was purely mechanical and had no commercial significance. The words "among the States" do not explicitly include nor necessarily imply commerce between points in the same State passing through another. I think it would be clearly foreign to the purpose of s. 92 to restrict the legislative power of a State to control trade, commerce or intercourse between parts of the same State. Section 92 applies expressly only to trade, commerce and intercourse "among the States". To construe s. 92 as extending to trade commerce and intercourse among parts of a State would cut down the legislative power of the States more than the Constitution expressly intends. The operation of s. 92 is not to be enlarged by implication. The commerce in the present case was between the locality of New South Wales where Talyealye station is situated, and Sydney, the market to which the wool was consigned, and where it arrived. That was purely an intra-State commercial operation. I am of opinion that the defence which the defendant raised under s. 92 to the prosecution is devoid of any substance. The result is that the question whether or not the defendant was rightly convicted depends upon the outcome of the cause pending in the Supreme Court of New South Wales. I would determine the part of the cause removed into this Court in favour of the respondent, and order that the costs be paid by the appellant. (at p587)
FULLAGAR J. I do not think that this case is free from difficulty, but I am of opinion that the part of the cause removed from the Supreme Court of New South Wales to this Court should be determined in favour of the defendant, and that the question asked by the case stated should be answered by saying that the conviction was erroneous. The facts are of an exceptional character. They are set out in the judgments of Menzies and Windeyer JJ., and I need not set them out here. (at p588)
2. The information was laid under s. 28 of the State Transport (Co-ordination) Act 1931-1956. That section is in general terms, but it must be read subject to s. 3 (2), and, if it is accordingly read as not applying to the use of a motor vehicle in the course of inter-State commerce, its validity is not affected by the decision in Hughes & Vale Pty. Ltd. v. State of New South Wales [1954] UKPCHCA 5; (1955) AC 241; (1954) 93 CLR 1 . The defendant was charged with using his vehicle otherwise than in conformity with his licence, in that it was operated for the carriage of goods on a journey which for a distance exceeding fifty miles was competitive with the railways. The "journey" was described as "a journey between Talyealye station and Sydney". The defendant's licence authorized the use of the vehicle for the carriage of goods on roads within the State of New South Wales "on journeys none of which for a distance exceeding fifty miles is competitive with the railways." We are not concerned with the question whether that part of the journey which lay between Bourke and Sydney was "competitive with the railways", because the cause has been removed into this Court only so far as it raises a question under s. 92 of the Constitution. That question depends, as I see the position, entirely on the character of the journey which is the subject of the charge. Did it possess the character of inter-State commerce within the meaning of s. 92? (at p588)
3. The magistrate held that the vehicle was not being operated in the course of or for the purposes of inter-State trade. He held that the journey was a continuous journey from a point of departure in New South Wales to a destination in New South Wales, and he regarded this fact as decisive. He said that it was irrelevant that, in order to proceed to Sydney from Talyealye, the defendant was compelled to take the route through Hungerford in the State of Queensland. (at p588)
4. It is far from obvious that the initial finding of the magistrate, that the relevant journey was from a point in New South Wales to another point in New South Wales, was correct. To compare small things with great - if one travelled from one's home in a suburb into the city of Sydney, one would not naturally be said to have commenced one's journey until one had emerged from one's own property onto some thoroughfare. So here there is obviously much to be said for the view that the defendant's journey did not commence until he had emerged directly from the private property of the owner of Talyealye into the territory of the State of Queensland. On this view the relevant journey was not a journey from a point in New South Wales to another point in New South Wales, but a journey from a point in Queensland to a point in New South Wales. I will, however, assume, as it was assumed in argument, that the initial finding of the magistrate should be accepted. (at p589)
5. Now, it is clear, in my opinion, that a journey is not necessarily to be classed as an intra-State journey merely because its terminus a quo and its terminus ad quem are in the same State. It has been so held in the United States: see, e.g., Central Greyhound Lines Inc. v. Mealey [1948] USSC 83; (1948) 334 US 653 (92 Law Ed 1633) and cf. Western Union Telegraph Co. v. Speight [1920] USSC 148; (1920) 254 US 17 (65 Law Ed 104) , where the transmission of a telegram from a place in North Carolina through Norfolk Va. to another place in North Carolina was held to be an act of inter-State commerce. See also Missouri Pacific Railroad Co. v. Stroud [1925] USSC 63; (1925) 267 US 404 (69 Law Ed 683) . The case of Lehigh Valley Railroad Co. v. Pennsylvania [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) , which was cited by Mr. Wallace might be thought to support the contrary view, but this case was explained by Holmes J. in Hanley v. Kansas City Southern Railway [1903] USSC 7; (1902) 187 US 617 (47 Law Ed 333) , and by Frankfurter J. in Central Greyhound Lines Inc. v. Mealey (1948) 334 US, at pp 657-660 (92 Law Ed, at pp 1638-1640) . (I will refer again later to the Lehigh Valley Case [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) ). In this Court in W. & A. McArthur Ltd. v. State of Queensland [1920] HCA 77; (1920) 28 CLR 530 , Knox C.J., Isaacs and Starke JJ. in a joint judgment said: "Commercial transactions are multiform, and each transaction that is said to be inter-State must be judged of by its substantial nature in order to ascertain whether and how far it is or is not of the character predicted. A given transaction which taken by itself would be domestic, as, for instance, transport between two points within a State, may in a particular instance be of an inter-State nature by reason of its association as part of a larger integer, having as a whole the distinctive character of commerce between States. On the other hand, a transaction which is inherently of an inter-State character, as passage of goods between two States, is none the less inter-State because a contract out of which it arises is itself a domestic contract" (1920) 28 CLR, at p 549 . The authority of this passage is in no way weakened by the decision of the Privy Council in James v. The Commonwealth [1936] HCA 32; (1936) AC 578; (1936) 55 CLR 1 . (at p589)
6. It follows from what has been said that the conviction of the defendant cannot be supported on the ground taken by the magistrate. It does not follow that it cannot be supported at all, but, in my opinion, the correct approach is almost the exact opposite of that which was adopted by his Worship. The question whether a given journey is to be characterized as inter-State or intra-State is to be determined by reference to all the circumstances of the case, of which the fact that the point of departure and the point of destination are in the same State may be one. But I would have no hesitation in saying that, if you have a single continuous journey which involves the crossing of a border between two States, then prima facie that journey is an inter-State journey, even though the point of departure and the point of destination are in the same State. It is to be remembered that the making of a journey is itself trade commerce or intercourse within the meaning of s. 92. On occasions in the past the view has been expressed that the transportation of goods for reward was an instrument whereby commerce was carried on, but was not itself commerce. That view has been rejected: see, e.g., Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29, esp at pp 81, 82 and Hughes & Vale Pty. Ltd. v. State of New South Wales [1953] HCA 14; (1953) 87 CLR 49, at pp 93, 94 . The journey in the present case being itself commerce within the meaning of s. 92, and the condition for breach of which the defendant was prosecuted being clearly an interference with the "freedom" of that commerce, the question which arises is whether that commerce was inter-State or intra-State. In such a case as the present the characteristic of inter-State commerce is - can only be - the physical fact of the crossing of a boundary between States. Here we have such a crossing, and it seems to me to follow that prima facie the commerce with which we are concerned was inter-State commerce, and therefore commerce protected by s. 92. (at p590)
7. Nor can I find anything in the circumstances of this case to justify
saying that that prima-facie conclusion is not the correct
conclusion. I have
already said that the mere fact that the points of departure and destination
were in the same State is not sufficient
of itself to deprive the journey of
its prima-facie inter-State character, though I am not prepared to deny that
it might be a relevant
consideration in conjunction with other circumstances.
It would be a misguided enterprise to attempt to set out all the circumstances
which might conceivably be thought to justify in any case a conclusion that a
journey which involved the crossing of a State border
or State borders was in
reality an intra-State journey for the purposes of s. 92, but I have tried to
think of arguments which might
possibly justify such a conclusion in such a
case as the present. I have only
been able to think of four, and only one of
them has
given me any difficulty. The second and third are perhaps, in the
last analysis,
only examples of the first.
(1) It might appear that what was put forward as a single journey consisted
in truth of two or more separate journeys, and that
the immediately relevant
journey did not involve any entry into another State. Such a position has been
held to exist in many cases
in the United States: see, e.g., Chicago,
Milwaukee & St. Paul Railway Co. v. Iowa [1914] USSC 125; (1914) 233 US 334 (58 Law Ed 988) .
So here
the
defendant would, I think, fail if the correct view of the facts
were that there
was one journey (or that there were two journeys)
from
Talyealye to a point reached immediately after the second crossing of the
border, and a second (or third) journey from that
point to Sydney - or if
there was one journey from Talyealye to Bourke, and another
from Bourke to
Sydney. But the facts here do
not admit of any such analysis. The journey
referred to in the information is a journey
from Talyealye to Sydney, and no
amendment
of the information could help the informant. The defendant, having
picked up the wool
on Talyealye, set out from there with the intention
of
proceeding by the most direct route possible to Sydney, where the wool was
to
be delivered, and no break can be found anywhere
in the continuity of his
travel from the one place to the other.
(2) It might appear that the crossing of the State border was not made bona
fide for the real purpose of the journey, but for the
mere purpose of evading
some State law. Whether a finding to this effect would suffice to deprive the
journey of an inter-State character
is a question which might arise in a
variety of circumstances, and I leave it as an open question, observing merely
that a detour
entirely unconnected with the true purpose of the journey seems
at least capable of being regarded as a separate and distinct journey
-
itself, of course, protected by s. 92, but not affecting the character of the
larger journey immediately in question. In Western
Union Telegraph Co. v.
Speight (1920)
254 US, (65 Law Ed 104) , Holmes J. said that "motive could not
have made the business intra-State"
(1920) 254 US, at p 19 (65 Law
Ed, at p
105) , and the decision might seem to support a negative answer to the
question. On the other
hand, in Missouri Pacific
Railroad Co. v. Stroud [1925] USSC 63; (1925)
267 US 404 (69 Law Ed 683) the company had a choice between a route lying
entirely in Missouri and
a route running partly
through Illinois, and it seems
to have been regarded as a material fact that it chose
the latter "as a matter
of operating convenience
and economy": see also Eichholz v. Public Service
Commission of Missouri [1939] USSC 42; (1939)
306 US 268 (83 Law Ed 641)
. In the present case
the entry into Queensland was a matter of actual necessity. The defendant
could
not have got the wool out of
Talyealye and into New South Wales except
by going into and out of Queensland in the way he did.
(3) It might appear for some other reason that the entry into and passage
through the other State was not truly incidental to,
or a part of, the journey
actually in question. For example, a servant, driving his master's vehicle for
the carriage of goods from
Melbourne to Mildura, might - proceeding "on a
frolic of his own" - deviate from the normal route and cross and re-cross a
State
border to visit a relative. In such a case I should suppose that the
deviation could not be considered to be really a part of the
journey from
Melbourne to Mildura. But again no such element exists in the present case.
(4) It might appear that the crossing of the State border and the temporary
presence of the vehicle in the other State were such
brief and trivial
incidents or accidents of a total journey that they ought not to be regarded
as capable of characterising that
total journey. It is this last point which
has caused me to feel the difficulty which I have felt about this case. The
total distance
travelled on the whole journey was some six hundred and fifty
miles. The exact distance travelled in Queensland does not, I think,
appear,
but one would infer that it was about twenty miles. What we are concerned with
is the essential nature of the total journey.
Can we properly determine its
essential nature by reference to such an intrinsically insignificant part of
it? The answer is, I think,
that it is not a matter of comparative distances,
and that the travelling through a part of Queensland in the present case was
not
a mere incident or accident of the total journey - as might be, for
example, a brief detour across a State border for the purpose
of obtaining
petrol. It was an integral part of that total journey - undertaken bona fide
and of practical necessity, and essential
to its completeness as a single
journey. (at p592)
8. In Lehigh Valley Railroad Co. v. Pennsylvania [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) (upon which, as has been said, Mr. Wallace relied) the relevant railroad lay wholly within Pennsylvania except that it seems to have crossed an "interstate bridge" to and from a town on the bank of the river on the New Jersey side. What was challenged in the case was the validity of a State tax. The State sought to impose its tax only in respect of that proportion of the total length of the railroad in question which lay within Pennsylvania. The tax was held to be valid. In delivering the opinion of the Court Fuller C.J. said: - "The tax under consideration here was determined in respect of receipts for the proportion of the transportation within the State, but the contention is that this could not be done because the transportation was an entire thing, and in its course passed through another State than that of the origin and destination of the particular freight and passengers. There was no breaking of bulk or transfer of passengers in New Jersey. The point of departure and the point of arrival were alike in Pennsylvania. The intercourse was between those points and not between any other points. Is such intercourse, consisting of continuous transportation between two points in the same State, made interstate because in its accomplishment some portion of another State may be traversed? Is the transmission of freight or messages between two places in the same State made interstate business by the deviation of the railroad or telegraph line on to the soil of another State?" (1892) 145 US, at p 201 (36 Law Ed, at p 675) . And he answered these questions in the negative. This case might well be thought at first sight to support the view that the journey from Talyealye to Sydney ought to be regarded as an intra-State journey for the purposes of s. 92. But the Lehigh Valley Case [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) was, I think, placed on its true basis, and the passage quoted above deprived of any authoritative effect, by Frankfurter J. in delivering the opinion of the Court in Central Greyhound Lines Inc. v. Mealey [1948] USSC 83; (1948) 334 US 653 (92 Law Ed 1633) . The learned judge said : - "It was reasonable enough to disregard the short distance in which the transportation in the Lehigh Valley Case went over the interstate bridge on the Delaware River but otherwise was wholly in Pennsylvania, and to treat it as de minimis when the railroad's accounting itself treated the receipts as proportioned. 'Regulation and commerce among the States both are practical rather than technical conceptions, and, naturally their limits must be fixed by practical lines.' Galveston, Harrisburg and San Antonio Railway Co. v. Texas [1908] USSC 117; (1908) 210 US 217, at p 225 (52 Law Ed 1031, at p 1036) . But to label transportation across an interstate stream 'local commerce' for some purposes when it is 'inter-State commerce' in other relations, see, e.g., Covington & Cincinnati Bridge Co. v. Kentucky [1894] USSC 192; (1894) 154 US 204 (38 Law Ed 962) , is to use loosely terms having connotations of constitutional significance. To call commerce in fact interstate 'local commerce' because under a given set of circumstances, as in the Lehigh Valley Case [1892] USSC 156; (1892) 145 US 192 (36 Law Ed 672) , a particular exertion of State power is not rendered invalid by the Commerce Clause is to indulge in a fiction. Especially in the disposition of constitutional issues are legal fictions hazardous, because of the risk of confounding users and not merely readers. The kind of confusion to which the Lehigh Valley (1) opinion has given rise results from employing a needless fiction - calling commerce local which in fact is interstate - as a manner of stating that a particular exercise of State power is not invalid even though it affects inter-State commerce. The difficult task of determining whether a phase of commerce, concededly interstate, is subject to a particular incidence of State regulation, through taxation or otherwise, is not lessened by calling interstate commerce local commerce in order to sustain its local control. To state this persistent and protean problem of our federalism in the form of a question-begging fiction, is not to answer it" (2). Frankfurter J. said a little later: - "We are not dealing with a necessary deviation or a calculated detour" (3). But I would not regard the Queensland part of the journey in the present case as either a deviation or a detour. (at p594)
9. I do not think in any case that the Lehigh Valley Case (1) can be applied to a problem arising under our s. 92. An attempt might be made to use it to support an argument that the State law imposed a burden (it is really a tax) only after the vehicle had left Bourke, and did not interfere with or touch in any way its progress into and out of Queensland. But this would be really only another way of saying that the journey could be broken up into parts, and this cannot be done in the present case. Here we have one entire journey, of which the transit through Queensland and the passage from Bourke to Sydney are essential and inseverable elements, and to burden one essential and inseverable element is to burden the whole. (at p594)
10. I am of opinion, for the reasons given, that the question asked by the case stated should be answered favourably to the defendant. (at p594)
KITTO J. Under an order of removal made pursuant to s. 40 of the Judiciary Act 1903-1955 (Cth), there is before us a part of a case stated by a magistrate to the Supreme Court of New South Wales. The case was stated in respect of a conviction of the defendant (the appellant now) on a charge, under s. 28 of the State Transport (Co-ordination) Act 1931-1956 (N.S.W.), that he did operate as a public motor vehicle a motor vehicle to wit a specified motor lorry, such vehicle not then being used in conformity with the licence issued for it under the Act, in that it was operated for the carriage of goods on a journey which for a distance exceeding fifty miles was competitive with the railways, to wit on a journey between Talyealye station and Sydney in the State of New South Wales. (at p595)
2. The section purports to make it an offence to operate a licensed public motor vehicle if it is not being used in conformity with its licence. The evidence established that the appellant's motor lorry was a licensed public motor vehicle, and that its licence contained a special condition in these terms: "The within-mentioned vehicle is authorised to operate as a goods motor vehicle on or in routes, roads, areas, or districts within the State of New South Wales on journeys none of which, for a distance exceeding fifty (50) miles, is competitive with the railways or tramways". On the occasion in question, the vehicle was being used as a goods motor vehicle, and was on its way, carrying a load of wool, from a station property called Talyealye to Sydney. Talyealye lies some one hundred and fifty miles north of Bourke. It is wholly within New South Wales, but its northern boundary is the border between that State and Queensland. The route followed from the station woolshed lay along the only road which such a vehicle as the appellant's could take in order to reach Bourke and proceed thence to Sydney. That is a road which travels north from the woolshed and across the border to the Queensland town of Hungerford, and then turns south into New South Wales again, and on to Bourke. As far as Bourke, the road is not competitive with the railways; but from Bourke to Sydney it may be, and for the purposes of the present discussion we must assume that it is. (at p595)
3. The question asked in the stated case was whether the magistrate's determination to convict the appellant was erroneous in point of law. In support of an affirmative answer, the appellant put forward a contention that s. 28 could not validly apply in respect of his vehicle, on the occasion to which the charge referred, without detracting from the freedom of trade, commerce, and intercourse among the States which s. 92 of the Constitution guaranteed him, and that accordingly it must be held not to have applied to the vehicle on that occasion. So much only of the stated case as relates to the question so raised is the subject of the order of removal to this Court. (at p595)
4. I do not think that the condition of the licence should be so construed that, upon the appellant's using, at a late stage of his journey only, a road which was competitive with the railways, the whole of his journey must be considered to have been in disconformity with the licence. So to construe it would mean that although the journey from Talyealye to Bourke was within the terms of the licence at the time when it was performed, and although some change of mind or of circumstances might have led to its ending there or being continued by a route not competitive with the railways, it became retrospectively unauthorized by the licence, and therefore an offence according to the terms of s. 28, at the moment when the appellant passed the fifty-mile post on the Bourke-Sydney road. The condition is rather clumsily drawn, but I do not read it as meaning more than that the permission given for operation of the vehicle does not extend to using roads etc. of New South Wales competitively with the railways for a distance of more than fifty miles in the aggregate on any one journey. It is in the same sense, I think, that the charge preferred against the appellant should be understood, and I proceed to consider the case on that footing. (at p596)
5. The offence charged consisted, then, in operating the vehicle for more than fifty miles on the Bourke-Sydney road in the course of the journey from Talyealye station to Sydney. If the conclusion is to be reached that s. 28 could not forbid that operation of the vehicle without colliding with s. 92 of the Constitution, it must be for one of two reasons: either that the journey as a whole, because of the crossing and re-crossing of the Queensland border which occurred in the course of it, constituted an example of trade, commerce, or intercourse among the States within the meaning of s. 92, and as a whole was burdened by the prohibition placed upon a part of it; or else that the crossing into and out of Queensland and the travel within Queensland, constituting as it clearly did an example of inter-State intercourse (even if not inter-State trade or commerce), was burdened by the prohibition placed upon a later part of the journey. (at p596)
6. The first question to be decided, then, is whether the incursion into Queensland should be held to have attracted the protection of s. 92 to the entire transportation from Talyealye to Sydney. The appellant contends that it should, and he asks what difference it makes on this question that Talyealye lay south of Hungerford instead of north of it. The necessity of traversing Queensland roads and crossing the frontier between the two States was there just the same: why, then, do not both journeys fall equally within the protection of s. 92? Again, if the appellant had picked up the wool at Hungerford instead of at the shearing shed, some other carrier having taken it to Hungerford from Talyealye, the operation of conveying it to Sydney would plainly have been protected by s. 92 as being an operation in inter-State trade: Naracoorte Transport Co. Pty. Ltd. v. Butler [1956] HCA 72; (1956) 95 CLR 455 . Is there any difference in principle between that case and this? A warning against giving too hastily the answer which the appellant desires may be found in the reflection that if his conveyance of wool from a place in New South Wales to another place in the same State is to be regarded as inter-State trade simply because the only trafficable road took him across the border into Queensland and back again, it is not easy to see why any conveyance of goods from one place to another in the same State may not be given the protection of s. 92 artificially, by the expedient of running into another State and back for the sole purpose of giving the enterprise an inter-State complexion. Yet one instinctively rejects the notion as having something fundamentally wrong with it. (at p597)
7. We are accustomed to speak of laws which prohibit or burden the use of roads as being void for inconsistency with s. 92 in their application to journeys in the course or for the purposes of inter-State trade. This form of words recognizes that the freedom which s. 92 gives in respect of an inter-State journey is not only a freedom for the crossing of the border, but is a freedom for the whole affair of sending, taking or attaining from a location in one State to a location in another State. But it must be a unified affair. This involves, as I see it, that there must be a purpose uniting the crossing of the border with any movement for which the protection of s. 92 is invoked, and the purpose must be within the practical conception of trade, commerce, or intercourse. So long as the movement is directed towards a State other than that in which it is taking place, and a purpose of entering that other State exists, it is clear that the protection of s. 92 applies, because any interference with the movement is a burden upon the fulfilment of a purpose of transposing someone or something from the one State to the other. But when the State of ultimate destination has been entered, the question whether the remainder of the journey is also within the protection of s. 92 must, I think, depend upon whether the journey as a whole is characterized, because it was characterized from the start, by a purpose of transposing someone or something from one State to another. If it is, the imposition of a burden upon the movement at that stage is clearly inconsistent with s. 92, because it burdens the fulfilment of that purpose, and therefore burdens the whole journey in its aspect of inter-State trade. But if any purpose of inter-State transposition which existed at an earlier stage of the journey was only incidental and ancillary to the main purpose, and the latter was a purpose of transposition from one location to another in the same State, it seems to me that s. 92 has no application; it is only the fulfilment of the main purpose which can be said to be burdened, for the burden falls when the ancillary purpose has been fully and freely performed and has ceased to be a purpose characterizing the movement. (at p597)
8. So, if it were in accordance with the reality of the present case to say that the appellant was transporting wool from Hungerford to Sydney when the State Transport (Co-ordination) Act purported to interfere with his progress, the interference would certainly be void by virtue of s. 92. It would make no difference that the point of the Act's application was two hundred miles or so south of the border, because the appellant would still have been pursuing at that point the purpose of the entire journey, and it was a purpose which, since it related to a point of departure in Queensland and a destination in New South Wales, characterized the journey as inter-State. But in fact he was not transporting wool from Hungerford to Sydney. He was transporting it from Talyealye to Sydney. His route had taken him through a portion of Queensland, and it is true that while he was actually moving towards, through, and out of Queensland his travelling had a purpose of getting from one State to another and therefore was inter-State in character. But that purpose was not a purpose of the journey as a whole. It was an ancillary purpose characterizing only a section of the journey. So long as it continued, s. 92 undoubtedly gave protection for its fulfilment. But once the appellant had regained New South Wales, he was no more on a journey inter-State in character than he would have been if he had remained throughout on the New South Wales side of the border. He had not come from any place in Queensland which had any relevance to his current purpose. No one speaking the language of practical affairs, and concerned to describe what the appellant was then doing, would have siad that he was transporting wool from Queensland to Sydney. He had traversed Queensland roads as a means of getting from one New South Wales road to another, and that is all. His journey was from Talyealye to Sydney. (at p598)
9. I would not myself yield to the argument that as a journey from Talyealye to Hungerford would have been inter-State and a journey from Hungerford to Sydney would have been inter-State, so a combination of the two must be regarded as inter-State. I prefer to take facts as they are. There was one journey, not two; and by the time the burden of the State Transport (Co-ordination) Act fell upon that one journey it was a journey with a single purpose - the purpose of getting wool, not from somewhere in Queensland to Sydney, but from Talyealye in New South Wales to Sydney. To let go that fact, and to call the journey at that stage an inter-State journey, simply because at an earlier stage it passed through a portion of Queensland, is, to my mind, to desert the essentially practical conception of trade, commerce, and intercourse among the States, and to put in place of s. 92 a doctrine wider than either the language or the philosophy of the section supports. (at p598)
10. In my opinion, therefore, the appellant's operation of his vehicle was not protected by s. 92 at the point at which the respondent asserts that it became an offence against the State Transport (Co-ordination) Act. (at p599)
11. The second question presents, I think, no difficulty at all. It is whether the inter-State portion of the appellant's journey, considered separately, was burdened by the operation of the Act in respect of the operation of the vehicle on the Bourke-Sydney road. The most that can be said is that as a practical consequence of that operation the value to the appellant of the Queensland portion of the journey was diminished. Such a consequence is no infringement of the freedom which s. 92 guarantees. (at p599)
12. For these reasons, I would remit so much of the case as is before us to the Supreme Court, with a declaration that the magistrate's determination was not erroneous in point of law for any reason depending upon s. 92 of the Constitution. (at p599)
TAYLOR J. It is apparent from the decision in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) [1954] UKPCHCA 5; (1955) AC 241 ; (1954) 93 CLR 1 that s. 28 of the State Transport (Co-ordination) Act 1931-1956 has no application to any vehicle whilst it is being operated exclusively in the course of inter-State trade and commerce. Accordingly if the appellant can make good the assertion that his vehicle was being so operated at the relevant time the conviction under appeal cannot stand. (at p599)
2. In dealing with this question it is as well to remember that the carriage of goods for reward between the various States of the Commonwealth answers the description of trade and commerce among the States and that this is so even if the goods carried have not become the subject of any commercial transaction which, itself, answers that description. I stress this proposition because during the argument much was made of the fact that the appellant's vehicle was engaged in transporting wool from one place in New South Wales to another place in the same State. As already appears the actual transportation commenced at the woolshed on Talyealye station and terminated at Sydney but in the course of its operation the vehicle travelled from New South Wales into Queensland and then back again into New South Wales. The making of such a journey does not, it is contended, constitute inter-State trade or commerce though it is conceded that s. 92 of the Constitution ensured that, in making it, the defendant should be free to cross and re-cross the border between these two States. (at p599)
3. The only public road connecting Talyealye station with the road system of New South Wales is one which runs from a gate on the northern boundary of the property to Hungerford and thence into New South Wales. The northern boundary of the property coincides with part of the boundary between New South Wales and Queensland and Hungerford is in the latter State. Therefore, in order to make a journey by road from Talyealye to some place in New South Wales it is necessary to leave the property by this gate and thereafter to traverse Queensland roads before entering New South Wales. There is, of course, no doubt that the journey which the vehicle made by public roads commenced in Queensland and terminated in New South Wales, and, so far as it traversed public roads, it was indistinguishable in character from the journey between any station property situated wholly in Queensland and some place in New South Wales. But the fact that the act of transportation commenced at the woolshed at Talyealye - which was some little distance south of the border - was relied upon to found the contention that the carriage of goods from that point to Sydney was not inter-State trade or commerce. For my own part I can see no reason why this contention should be accepted. The position was that in order to reach Sydney it was necessary for the vehicle to leave the property by the only road exit and then to proceed from a point in Queensland to its destination in New South Wales. To my mind there can be no real question that, although the wool which the vehicle was carrying had not found its way into inter-State trade, the journey which the vehicle necessarily made was truly an inter-State journey and that in undertaking and making it the appellant engaged in trade commerce and intercourse among the States. The problem in the case may, however, be tested by asking what, in the circumstances of this case, was forbidden by s. 28. In effect the defendant was forbidden to make a journey by public roads from Talyealye station to Sydney if the journey should for a distance exceeding fifty miles in New South Wales be competitive with the railways or tramways. Such a conditional prohibition extended to the whole of the journey and forbade every part of it including transit from Queensland into New South Wales. Indeed if, as I imagine, it is impossible to make the journey to Sydney without competing with the railways during the later stages for such a distance, it forbids the journey absolutely. In these circumstances the question whether s. 28 of the Act validly applied to the appellant's vehicle upon the journey upon which it was engaged should be answered in the negative. (at p600)
MENZIES J. This is the hearing of so much of a case stated pending in the Supreme Court of New South Wales as concerns the question whether s. 28 of the State Transport (Co-ordination) Act 1931-1956 applied to the appellant's vehicle upon a commercial journey which began at Talyealye station which is in New South Wales on the Queensland border and ended in Sydney, and in the course of which the vehicle upon leaving Talyealye entered Queensland and travelled on Queensland roads through Hungerford for a distance of approximately ten miles, re-entered New South Wales, then travelled to Bourke, the nearest railhead, a distance of about one hundred and fifty miles, and so on to Sydney, a further four hundred and twenty-eight miles. The only way by which the vehicle, loaded as it was with seventy-five bales of wool, could reach the road to Bourke was by entering and leaving Queensland as it did. (at p601)
2. The offence alleged was operating the vehicle as a public motor vehicle otherwise than in accordance with the licence issued for it under the Act, in that that part of the journey between Bourke and Sydney, so it was said, was competitive with the railways. It was a condition of the licence that it should not operate on any journey which for a distance exceeding fifty miles is competitive with the railways. (at p601)
3. The question seems to me to be whether the vehicle was for the whole of the journey from Talyealye station to Sydney being operated in the course of inter-State trade. If it was, the licensing provisions of the Act could have no application to any part of its operation : Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) [1954] UKPCHCA 5; (1955) AC 241; (1954) 93 CLR 1 in which the Privy Council decided that the licensing provisions of the Act have no application to vehicles while being operated in the course and for the purposes of inter-State trade. (at p601)
4. There can be no doubt that a commercial goods vehicle beginning its journey at Hungerford in Queensland and finishing it at Sydney in New South Wales would for the whole of the journey be operated in the course and for the purposes of inter-State trade. It would not be possible to treat the inter-State journey as coming to an end upon the crossing of the New South Wales border or at Bourke or at any other intermediate point. Does it make any difference that the journey here began at Talyealye station in New South Wales and that the vehicle entered Queensland merely for the purpose of getting on to the road to Bourke? I think not. To travel from Talyealye station to Hungerford as a destination would be inter-State trade. To travel from Hungerford to Sydney would be inter-State trade. I cannot think that to combine the two journeys into one has the consequence that the journey from Talyealye station to Sydney is not inter-State trade. I cannot escape the conclusion that some part of this journey must have been an operation in the course of inter-State trade and I cannot find any point at which it can be said that the operation of the vehicle lost its character as inter-State trade. The information alleged that the vehicle "was operated for the carriage of goods on a journey . . . to wit, on a journey between Talyealye station and Sydney". This journey included the passing from New South Wales into Queensland, the travelling of a distance of ten miles or so in Queensland and the passing from Queensland into New South Wales. In my judgment any one journey which is of necessity partly in one State and partly in another is an inter-State journey and when the only operation of a commercial goods vehicle is to carry goods for hire for the whole of that inter-State journey, the vehicle is at all times being operated in inter-State trade and in nothing but inter-State trade. (at p602)
5. It is to my mind immaterial that had the journey ended at Bourke there would not have been any breach of the condition of the licence or, what is perhaps saying the same thing in another way, that it was only by virtue of that part of the journey between Bourke and Sydney that an element essential to liability can be established, that is, competition with the railways. The case against the appellant was that the whole of the journey from Talyealye to Sydney was an unlawful operation of the vehicle but that journey, for the reasons that I have already given, was a journey in the course of inter-State trade. (at p602)
6. This conclusion is in line with American authority when the question has been whether movement between two points in one State through another State is inter-State or local trade, e.g. Hanley v. Kansas City Southern Railway Co. [1903] USSC 7; (1903) 187 US 617 (47 Law Ed 333) ; Western Union Telegraph Co. v. Speight [1920] USSC 148; (1920) 254 US 17 (65 Law Ed 104) , and Central Greyhound Lines Inc. v. Mealey [1948] USSC 83; (1948) 334 US 653 (92 Law Ed 1633) . In the case last cited Frankfurter J., speaking for the Court said : "It is too late in the day to deny that transportation which leaves a State and enters another State is 'Commerce . . . among the several States' simply because the points from and to are in the same State". (1948) 334 US, at pp 655, 656 (92 Law Ed, at pp 1637, 1638) Later he said that Congress did not exceed its power to regulate inter-State commerce when in the Motor Carrier Act it defined "inter-State commerce" to include "commerce . . . between places in the same State through another State" (1948) 334 US, at p 661 (92 Law Ed, at pp 1640 . (at p602)
7. It follows that in my opinion the conviction of the defendant was erroneous in point of law because s. 28 of the Act did not apply to his vehicle upon the journey to which the information relates. (at p602)
WINDEYER J. I have had the advantage of reading the judgment of my brother Menzies. I agree with his conclusion and with his reasons. (at p602)
2. The relevant facts are set out in the stated case. The appellant was a carrier. In the course of his business he regularly carried goods from Queensland to New South Wales by motor vehicle. On the journey in question he carried seventy-five bales of wool from a woolshed on Talyealye station to Sydney. The Talyealye run lies wholly in New South Wales, its northern boundary being, for about forty miles, the boundary fence between Queensland and New South Wales. The woolshed is about ten miles south of the border. The way of access to the station, and in particular to the woolshed, is by a public road from Hungerford in Queensland to the station boundary. The only route the appellant's motor lorry could have followed in bringing the wool from the station woolshed to Sydney was the one actually taken, namely, from the woolshed to the station boundary thence upon a Queensland road to Hungerford, thence across the border into New South Wales and on New South Wales roads to Bourke and thence to Sydney. This journey was an inter-State journey ; and necessarily so. Its commercial purpose could not have been achieved in any other way. I do not express any opinion upon what would be the position if a vehicle, in making a journey from a place in New South Wales to another place in New South Wales, were to make an excursion across a State boundary for the purpose only of giving an inter-State character or complexion to the journey. The whole trip might not get any protection from s. 92, except for the actual excursion into and from the neighbouring State. Section 92 would ensure that the making of the jaunt could not be impeded ; but it might not give a continuing consequence to it. That question, however, can wait till it arises. It does not arise here. (at p603)
ORDER
This cause having been removed into this Court in so far as it concerns the question whether s. 28 of the State Transport (Co-ordination) Act 1931-1956 validly applied to the defendant appellant's vehicle upon the journey upon which it was engaged, order that the appeal to the Supreme Court by special case so removed be allowed and that the conviction and the order of the Court of Petty Sessions that the defendant appellant pay the sum of 109 pounds 16s. 0d. to the Commissioner of Motor Transport be quashed. Order that the informant respondent pay the defendant appellant's costs of the appeal in the Supreme Court and in this Court, including costs of the order of removal into this Court.