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High Court of Australia |
HARRIS v. WAGNER [1959] HCA 60; (1959) 103 CLR 452
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 - Inter-State character of transaction - Carriage of goods from one town in State to city in same State - Detour made from normal route between town and city to cross State border - Sole purpose of detour to endeavour to give inter-State character to what normally an intra-State transaction - Interception of vehicle prior to detour - Whether constitutional freedom attracted so as to absolve vehicle from compliance with State law - The Constitution (63 & 64 Vict. c. 12), s. 92 - The State Transport Facilities Acts 1946 to 1955 (Q.), s. 23.
HEARING
Sydney, 1959, August 24, 25; November 27. 27:11:1959DECISION
November 27.2. On 16th April 1956 a driver employed by Harris was carrying wool in a motor vehicle and trailer of his employer from Jandowae on such a journey. The contract of carriage with the consignor of the wool specified the route. The driver drove the vehicle within eight miles of his ultimate destination in Brisbane and then at Archerfield turned south to drive to Tweed Heads. Before he did so he was intercepted at Dinmore by a police constable. The vehicle and trailer were not, of course, licensed under Pt. III of The State Transport Facilities Acts 1946 to 1955 (Q.) and no permit thereunder for the carrying of the goods had been granted nor had it been authorized. The result was a charge before the Court of Petty Sessions at Ipswich for using on a road a vehicle for the carriage of goods otherwise than under and in accordance with Pt. III of the Acts. Harris was convicted of the offence and now appeals to this Court. (at p457)
3. Naturally in support of the appeal reliance is placed upon the decision of the Court in Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 But the present case differs markedly from that. For here the undisguised fact is that the carriage of goods to Brisbane from Jandowae was the service to be performed and there was no purpose to be served in contracting to carry them into New South Wales and back except to secure, if it would suffice to do it, the protection of s. 92 from the application to the transaction of Pt. III of The State Transport Facilities Acts 1946 to 1955 (Q.). But for that the vehicle would have taken the shortest practicable route and no contract to do otherwise would have been made. (at p457)
4. Now there are certain propositions about s. 92 which do not in this Court today admit of any doubt and one can be sure that in adopting the device with which we are now dealing for the purpose of escaping the application of Pt. III of The Transport Facilities Acts Harris, or those guiding him, believed that they had found a means of sheltering within the propositions at a cost in money and mileage which notwithstanding its apparent extravagance was nevertheless worthwhile. In the first place it is now clear enough that if you wish to drive a lorry across a State border you are free to do it notwithstanding a State law to the contrary. It is clear too that if you want to carry goods on the lorry you are free to do that even if State law says otherwise. There are qualifications about laws concerned with the safety of the vehicle, the danger of the freight, the behaviour of the driver and so on, but they can be put out of consideration in this case. Except for restraints which are inseparable from the regulation of traffic and the like you are free to cross the border. Your reasons do not matter. They may be imperative or they may be frivolous or silly. But you are free to cross. Next it is clear that to enable you to exercise this freedom of intercourse among the States, whether it be commercial in its nature or not, you must be free to do whatever is necessary or reasonably proper to the end. Then it is beyond doubt that the freedom is to go from any point in one State across the border to any point in the other State. Because you may do whatever is necessary or reasonably proper to effectuate this freedom State law cannot stop you using its roads in a manner for which they are designed. If there are goods at Tweed Heads in New South Wales and it is desired to carry them to Brisbane it is of course a commonplace that s. 92 ensures that it may be done, subject of course to compliance with traffic laws and other regulations compatible with a real freedom of inter-State commerce and intercourse. Because it is incidental to that purpose the goods may be carried upon roads of New South Wales and Queensland over the whole distance between the two places. But that is because to do so is properly incidental to the purpose for which the freedom is bestowed. If you take the facts of the present case and suppose that Harris has carried the goods in his truck down to Tweed Heads in New South Wales, it would be easy to imagine his reasoning that the goods being in New South Wales, no matter how or why they got there, and being destined for Brisbane, the foregoing principles operated to enable him to take them across the border and thence on to Brisbane. Doubtless such reasoning might well be right. But it assumes that the goods are in New South Wales. In fact there has been no denial in the present case of the right of Harris to drive the vehicle carrying the goods from Tweed Heads to Brisbane. The vehicle was stopped at Dinmore before the detour into New South Wales commenced. The dominant purpose of the journey was to get the goods to Brisbane. The use of the roads up to that point was to fulfil that purpose. It was not a necessary or proper incident of an inter-State transaction, whether of trade, commerce or intercourse. To say that before the long detour down to New South Wales began the journey was indivisible and was a journey into New South Wales is to confuse indivisibility with what happens simply to have been undivided and to overlook the fact that there was only one object in the journey and that was to transport the goods from Jandowae in Queensland to Brisbane in Queensland. The purpose of turning down into New South Wales was not to accomplish that object but to obtain, if it were possible, a freedom from State law in accomplishing it. But that was a freedom belonging only to the journey into New South Wales and the journey from Tweed Heads in New South Wales across the border to Queensland and perhaps on to Brisbane. The real question in the matter is why the use of the roads up to the turn-off at Archerfield to carry the goods should be protected as a necessary or proper incident of the commercial or other intercourse with New South Wales which was effected by crossing the border and proceeding to Tweed Heads. It is clear enough that in truth the use of the roads to Archerfield was not incidental to the journey to Tweed Heads; on the contrary the journey to Tweed Heads was undertaken as incidental to the carriage of the goods to Brisbane because of a belief that by undertaking it immunity from the State legislation could be obtained for the transportation of the goods to Brisbane. It may be repeated that s. 92 gives a complete freedom to go from a point in Queensland to a point in New South Wales for any purpose whatever; it does not matter that the formation of the purpose was influenced by the existence of the freedom. But that does not mean that what is nothing but an interruption of an essentially intra-State transaction of trade, commerce or intercourse, notwithstanding that the interruption is to make an incursion into another State, is enough to carry with it an incidental protection to the principal or intra-State transaction, a protection which is quite unnecessary to effectuate the freedom which s. 92 confers upon inter-State trade, commerce and intercourse. (at p459)
5. That is why the plan adopted by Harris fails. The appeal should be dismissed. (at p459)
MCTIERNAN J. The conviction in this case was made by a stipendiary magistrate in the Ipswich Court of Petty Sessions. The offence was that the appellant used a motor truck on the Lockyer-Darling Downs Highway for carrying sixty-nine bales of wool without a permit under s. 24 (16) of The State Transport Facilities Acts 1946 to 1955 (Q.). It is an offence under s. 23 of the statute to use a motor vehicle on a road to carry goods except under the authority of one of its provisions. Section 3 (1) limits the application of the statute so as to make it consistent with the Constitution. The appellant's defence was that he had immunity under s. 92 of the Constitution from s. 23. The magistrate decided that the evidence did not support the defence. The appeal is brought pursuant to s. 35 of the Judiciary Act 1903-1955. (at p459)
2. The wool carried by the appellant was loaded on the truck at Kia Ora station in Queensland. It had not come to Queensland from another State. The owners of the wool gave the appellant a contract to carry it to Brisbane. The appellant required a permit under s. 24 (16) to carry it on the Queensland roads between Kia Ora station and Brisbane. The Lockyer-Darling Downs Highway is one of these roads. It would appear that the appellant hoped to relieve himself of the obligation to obtain a permit by directing his driver to follow an itinerary to which the owners of the wool agreed. The itinerary included a detour into New South Wales. When the motor vehicle was using the Lockyer-Darling Downs Highway it was not being driven directly to Brisbane. But a wool store in Brisbane was appointed by the contract of carriage as the end of the itinerary. Pursuant to the appellant's directions the driver called at Tweed Heads in New South Wales. He did not stop to unload, or to take on, any goods after crossing the border. The sixty-nine bales of wool loaded at Kia Ora station were the only goods which the vehicle carried. The appellant sought to prove that the wool was consigned to Tweed Heads and reconsigned to Brisbane. There is in evidence a "manifest" purporting to show that the wool was consigned by the owners to "Jandowae Carrying Co., Tweed Heads". The appellant carried on business in his own name at Jandowae in Queensland. He also carried on business under the name "Jandowae Carrying Company" which he registered in New South Wales. The firm had the use of premises called a depot, at Tweed Heads, but according to the evidence, there was no activity by the firm at the premises. The driver stopped the truck there, but nothing substantial was done in connexion with the transportation of the wool. It was part of the appellant's scheme to represent the carriage of the wool from Tweed Heads to Brisbane as a re-consignment of it and as a separate journey. But in fact the journey from Kia Ora station to Brisbane was a continuous one. Both the alleged consignment and re-consignment of the wool were purely nominal and not real transactions. I am of the opinion that the transportation of the wool by the motor vehicle in question on the Lockyer-Darling Downs Highway was not of the nature of trade commerce or intercourse among the States within the meaning of s. 92 of the Constitution. The crossing of the border into New South Wales was not made for any purpose pertaining to trade commerce or intercourse between Queensland and that State. The re-crossing of the border into Queensland was done for no other purpose than to complete the journey which had begun at Kia Ora station, and whose terminus was Brisbane. On the roads of Queensland, the character of the journey was intra-State commerce. There was merely a detour through New South Wales in the course of a continuous journey between two places in Queensland. In my opinion, a journey of that character is not trade, commerce or intercourse among the States within the meaning of s. 92. It is clear that the only purpose of crossing the border was to attempt to obtain immunity under s. 92 from the provisions of the Queensland statute mentioned above. Such a purpose in my opinion is not one pertaining to trade commerce or intercourse among the States. I would therefore dismiss the appeal. (at p461)
FULLAGAR J. This case reminds one of Chesterton and "the night we went to Bannockburn by way of Brighton Pier". It is an appeal by the defendant against a conviction in the Court of Petty Sessions at Ipswich, Queensland. The charge was that on 16th April 1958 he "did use on a road, namely the Lockyer-Darling Downs Highway, a motor vehicle for the carriage of goods, such goods not being at that time carried upon that vehicle under and in accordance with a provision of Part III" of The State Transport Facilities Acts 1946 to 1955 (Q.). The defence alleged that the "use" charged was a use of the vehicle for the purposes of, and in the course of, inter-State commerce and intercourse, and that it was for that reason protected by s. 92 of the Constitution. (at p461)
2. Section 23 of the Queensland statute, which is in Pt. III thereof, provides, so far as material, that a person shall not use on any road at any time a vehicle for the carriage of goods unless those goods are being carried upon that vehicle under and in accordance with a provision of Pt. III of the Act. Section 24, which is also in Pt. III, provides that "it shall be lawful to use upon any road any vehicle hereinafter in this section specified at any time when such vehicle is being used solely for a purpose herinafter in this section specified". Then follows a long list of vehicles specified in numbered paragraphs by reference to the purpose of their use. The defendant's vehicle did not at the material time fall within any of these paragraphs. He was in fact using it for the carriage of goods, and such use is made lawful only if the vehicle has a licence or permit under the Act. The defendant's vehicle had no licence or permit. The only other provision of the Act that needs to be noted is s. 3, which contains, in somewhat more elaborate form than usual, the familiar provision for construing the Act "so as not to exceed the legislative power of the State". This means, of course, inter alia, that s. 23 must be read as not applying to a use of a vehicle which is a use for the purposes of, or in the course of, inter-State commerce or intercourse. (at p462)
3. The defendant is a road haulier, who resides and carries on business in his own name at Jandowae, a small township near Dalby in Queensland. He has registered as a firm name under the Business Names Act (N.S.W.) the name "Jandowae Carrying Company". He is the sole member of the "firm" so described. In April 1958 the owner of a station property near Jandowae named Kia Ora desired to send sixty-nine bales of wool to the store of Dalgety & Co. in Brisbane, and the defendant entered into an agreement with him to carry the wool to Brisbane via Tweed Heads, a township in New South Wales about three miles from the Queensland border. Brisbane lies roughly east from Jandowae, and Tweed Heads roughly south from Brisbane. The distance from Jandowae to Brisbane is about 170 miles. The distance from Brisbane to Tweed Heads is about 70 miles. The defendant's agreement with the owner of Kia Ora provided for payment of freight at the rate of 7 pounds per ton from Kia Ora to Tweed Heads, and at the rate of 3 pounds per ton from Tweed Heads to Brisbane. The defendant instructed his driver as to the route to be taken, and issued to him two consignment notes in respect of the load. The one purported to consign the wool to the Jandowae Carrying Company at Tweed Heads. The other purported to consign it from the Jandowae Carrying Company at Tweed Heads to Dalgety & Co. in Brisbane. (at p462)
4. The driver, in accordance with his instructions and following the most direct route from Jandowae to Brisbane, drove the vehicle with its load of wool along a road known as the Western Highway from Dalby to Toowoomba, and from Toowoomba along a road known as the Lockyer-Darling Downs Highway (which I shall call for brevity the "Lockyer highway") towards Brisbane until he reached Archerfield, which is about eight miles from Dalgety's store in Brisbane. He then, instead of proceeding on to Brisbane, turned south and drove along a road known as the Pacific Highway to Tweed Heads. The defendant did not own or occupy any premises at Tweed Heads, but he had an arrangement with a firm named Worthingtons for the use of an open yard at that place, and he had also arranged with an accountant named Gilbert at that place that correspondence might be addressed to him at Gilbert's office. The driver, having reached Tweed Heads, parked the vehicle for about an hour in Worthingtons' yard, and then proceeded to drive the vehicle with its load of wool north to Dalgety's store in Brisbane. There was no handling of the wool at Tweed Heads and no delivery of it to any person at Tweed Heads. (at p462)
5. From the facts stated in outline above, the magistrate drew the obvious and uncontested inference that the detour to Tweed Heads was made for no commercial or practical reason, but was occasioned solely by the belief or hope that it would give to the total operation of the vehicle in travelling from Kia Ora to Brisbane the character of inter-State commerce or intercourse, and thus obtain under s. 92 immunity from s. 23 of the Queensland Act. In a sense, of course, the defendant's object was to "evade" the State Act, but it seems more accurate and less prejudicial to say that his object was so to arrange his business that the relevant provisions of the State Act would not apply to it. The question then is whether he has succeeded in his object. When the driver left Kia Ora, the commercial end in view was the delivery of the wool to Dalgety's store in Brisbane. If he had proceeded by the normal direct route, no State border would have been crossed, and it would have been impossible to suggest that s. 92 protected it at any point from the operation of the State Act. The deviation or detour was entirely unconnected with the commercial end for which the journey was undertaken. Its physical effect was simply to add about 140 unnecessary miles to the journey. But it did involve the crossing and recrossing of the border between two States. (at p463)
6. The case seems to call for recourse to first principles. The freedom guaranteed by s. 92 is "freedom at the frontier", and the most elementary application of the section is seen in R. v. Smithers ; Ex parte Benson (1912) 16 CLR 99 and Tasmania v Victoria [1935] HCA 4; (1935) 52 CLR 157 in which cases what was prohibited by the State Act was the actual entry - in the one case, of persons, and, in the other case, of goods - from one State into another. No State can, consistently with s. 92, prohibit or restrict or burden the actual entry of persons or goods from one State into another. Generally speaking, it matters nothing what may be the motive or ulterior purpose of the person seeking to cross the border or to send or take goods across the border. His freedom to cross the border or to send or take goods across the border is "absolute". (at p463)
7. So far the position is simple, because the crossing of the border is itself on its face an act of inter-State trade, commerce or intercourse, and any interference with that act is an obvious infringement of s. 92. But, if the protection of s. 92 extended to nothing but the actual crossing of a border - in other words, to nothing which was not itself an act of inter-State commerce or intercourse - the freedom which it purports to guarantee would be illusory. On that hypothesis a State would be left at liberty to impose a prohibition or restriction on some act which did not on its face possess any inter-State character, and it would be immaterial that it was one of a planned series of connected acts which included the crossing of a border. Accordingly it has never been supposed - except possibly in certain cases now overruled - that the protection of s. 92 was limited in such a way. It is sufficient to quote one well-known passage from the joint judgment of Knox C.J., Isaacs and Starke JJ. in W. & A. McArthur Ltd. v. State of Queensland [1920] HCA 77; (1920) 28 CLR 530 Their Honours said : "It is therefore impossible to limit 'trade and commerce' either 'among the States' or 'with other countries' to the mere act of transportation over the territorial frontier. The notion of a person or a thing, tangible or intangible, moving in some way from one State to another is no doubt a necessary part of the concept of 'trade, commerce, and intercourse among the States'. But all the commercial dealings and all the accessory methods in fact adopted by Australians to initiate, continue and effectuate the movement of persons and things from State to State are also parts of the concept, because they are essential for accomplishing the acknowledged end" (1920) 28 CLR, at p 549 (The italics are mine) (at p464)
8. All that has been so far said is no doubt elementary enough. In the particular case it means merely that the travelling of the defendant's vehicle on the Lockyer Highway, which lies wholly in the State of Queensland, may prove, on an examination of all the facts, to possess such an inter-State character as will, by virtue of s. 92, exempt it from the application of s. 23. Its character depends upon its purpose. There is one other point to be noted. The travelling of a vehicle on a road may possess more than one relevant aspect or character. That is to say, it may be that the vehicle is travelling both for a purpose which possesses the character of inter-State commerce or intercourse and for a purpose which does not possess that character. For example, a vehicle travelling on a road in Queensland may be carrying both goods from Brisbane for delivery at Wallangarra and goods from Brisbane for delivery in Sydney. The position in such a case is this. A Queensland law could not, consistently with s. 92, penalize at any stage the carriage from Brisbane to Wallangarra of the goods which were destined for Sydney. This is because the carriage of goods from Brisbane to Sydney is inter-State commerce, and the travelling of the vehicle from Brisbane to Wallangarra is an integral part of that commerce. But a Queensland law could, consistently with s. 92, penalize at any stage the carrying on the same journey of goods from Brisbane for delivery at Wallangarra, because that carrying is a separate and distinct activity which does not possess the character of inter-State commerce or intercourse. On a prosecution for breach of a law forbidding that activity the fact that the vehicle was going on to Sydney with or without other goods would be simply irrelevant: cf. Pioneer Express Pty. Ltd. v. Hotchkiss [1958] HCA 45; (1958) 101 CLR 536 (at p465)
9. It is in the light of these considerations that the present case must be approached. A Queensland law could not, consistently with s. 92, penalize the carrying of wool from Jandowae to Tweed Heads or from Tweed Heads to Brisbane. Nor could it, consistently with s. 92, penalize the journey of the vehicle from Jandowae to Tweed Heads or from Tweed Heads to Brisbane. To do any of these things would be to deny freedom to inter-State commerce or intercourse. But the defendant was not charged with carrying wool from Jandowae to Tweed Heads or from Tweed Heads to Brisbane, although he was doing both those things. Nor was he charged with causing his vehicle to make a journey from Jandowae to Tweed Heads or from Tweed Heads to Brisbane, although he did those things also. He was charged with another thing that he did, viz. using his vehicle on the Lockyer Highway for the carriage of goods. That is a separate and distinct activity which, of itself and as such, does not possess the character of inter-State commerce and intercourse, for the Lockyer Highway runs direct from Toowoomba to Brisbane, and does not approach - much less cross - any State border. (at p465)
10. But the defendant relies, of course, on the principle laid down in the passage quoted above from McArthur's Case [1920] HCA 77; (1920) 28 CLR 530, at p 549 He says that the use of the vehicle on the Lockyer Highway was merely part of a total planned operation of the vehicle which involved the crossing of a State border. So, in a sense, it was. But the principle invoked, as the very terms of its statement in McArthur's Case [1920] HCA 77; (1920) 28 CLR 530 show, cannot help the defendant here. When the carriage of goods by road between two points in the State is protected by s. 92, it can only be because that carriage is undertaken as an essential - that is to say, a necessary, or at least natural and appropriate - means of performing a larger operation which possesses the character of inter-State commerce. In the everyday case the point of commencement of that larger operation will be found in one State and the point of completion in another State, and the position will generally be clear enough. If goods are being carried from Sydney for delivery in Melbourne, it is quite clear that the carriage between Holbrook and Albury is immune from interference by the State of New South Wales, and that the passage between Wodonga and Benalla is immune from interference by the State of Victoria. But this is because, and only because, each of those passages is an essential means for the performance of a single inter-State operation. In the much less common case (such as Golden v. Hotchkiss (1959) 101 CLR 568) where immunity is claimed for the carriage of goods between two points in the same State, and both the point of commencement of the carriage and the intended point of completion of the carriage are in that State, the position is not quite the same. It is still a matter of essential means and ultimate object, but the case is in a sense the converse of the case where commencement and completion take place in different States. For in the latter case the question whether s. 92 confers immunity on travel between two points in a State depends on whether the part derives a character from the whole. In the former case it depends on whether the whole derives a character from the part. Obviously the part cannot characterize the whole unless it is (as it was in Golden v. Hotchkiss (1959) 101 CLR 568) an essential means of achieving the whole. This means, in its application to the present case, where the point of commencement and point of intended completion were in the same State, that the crossing and recrossing of the border between Queensland and New South Wales cannot give the character of inter-State commerce to the carrying of the goods along the Lockyer Highway unless the crossing and recrossing were means essential for the completion of a single operation - unless, in other words, they were steps really taken in furtherance of the object of getting the goods to their predetermined final destination. (at p466)
11. In the present case the excursion to Tweed Heads was not undertaken in furtherance of the object of getting the goods to Brisbane. Actually it operated against the attainment of that object, for, as has been pointed out, it involved carrying the goods away from Brisbane for an entirely unnecessary distance of about 70 miles. But, be that as it may, it was not undertaken for the purpose of furthering or facilitating the carriage of the goods to their predetermined destination. It was an independent enterprise designed not to further the commercial object in hand but to give a false colour to the pursuit of that object. It follows that, although it involved itself commerce or intercourse between States, it could not give the character of inter-State commerce or intercourse to the passage of the vehicle with the goods along the Lockyer Highway. The effect of the Queensland law in the particular case is to prohibit the use of the vehicle on the Lockyer Highway for the carriage of goods from Toowoomba to Brisbane. That is what the defendant was doing, it is the only relevant thing that he was doing, and there is no element of inter-State commerce or intercourse in it. (at p467)
12. For these reasons the appeal should be dismissed. (at p467)
KITTO J. It is clear that a statutory burden the immediate incidence of which is upon a movement taking place at a point remote from a boundary between States may nevertheless be held to prevent or impede an example of trade, commerce, or intercourse among the States. The reason is, I think, easily seen when the fact is recognized that what makes an activity trade, commerce, or intercourse is the existence of a particular kind of purpose. A movement which is the immediate subject of a burden may form a part of a planned course of activity of which a crossing of a boundary between States forms another part; and the planned activity may possess a purpose governing the whole of it and making it a single enterprise of trade, commerce, or intercourse. Where that is so, a burden upon any part of the activity is a burden upon the whole enterprise, and therefore upon every other part of it, including the crossing of the border. (at p467)
2. In the present case the appellant, (of whom I shall speak as if he had himself been the driver of his vehicle) had as his ultimate objective the getting of certain wool from Jandowae to Brisbane, but he planned an itinerary not confined to that objective. It was to take him on the normal route leading towards Brisbane, but as far only as Archerfield; then he was to turn aside and go in a generally southerly direction - that is to say in the opposite direction from Brisbane - to Tweed Heads, just over the border in New South Wales; and at Tweed Heads he was to turn north again, and proceed to Brisbane. It would clearly not be correct to describe the whole of the travelling which he thus contemplated as being governed by a single purpose of transporting the wool from Jandowae to Brisbane. The travelling to Archerfield had the limited purpose of transporting the wool a part of the distance to Brisbane, but only a part. The travelling from Archerfield to Tweed Heads had the completely different purpose of transporting the wool across the border into New South Wales, not at all as a step towards getting it to Brisbane, but wholly and solely in order to provide a foundation of fact for a constitutional argument. The travelling from Tweed Heads to Brisbane, alone of the three had the purpose of delivering the wool at Brisbane. There were thus to be three different purposes of transportation each governing one of the three successive stages of the travelling. The first and third stages would contribute to the ultimate objective, but they were separated by the second which would not. It is true that the second was planned for a financial purpose connected with the getting of the wool to Brisbane, but its purpose of transportation, which purpose alone made it an example of trade, commerce or intercourse, was extraneous to the getting of the wool to Brisbane. (at p468)
3. It can only confuse the issue to say that to stop the appellant at Dinmore was to prevent him from proceeding across the border to Tweed Heads. In a sense the statement is true, just as it is true that to stop a person from going to London is to stop him from making every trip from London that he would make if he could get there. But it is trite law now that the only burden which s. 92 precludes is a burden operating directly, as distinguished from consequentially, upon a course of conduct within the descriptive words of the section. A burden on the movement in which the appellant was found to be engaged at Dinmore was a direct burden on a self-contained piece of trade, commerce or intercourse the extent of which was determined by the purpose of the activity then in course of being carried out; and its effect in relation to the appellant's plan to go on from Archerfield in a different direction and for a different purpose was merely consequential. The prohibition did not burden any trade, commerce, or intercourse between Queensland and New South Wales; for although the use of the vehicle on the Jandowae-Archerfield road was preparatory to a contemplated movement into New South Wales the two things were not integral parts of an inseverable piece of trade, commerce or intercourse: considered as trade, commerce or intercourse, and not merely as movement, they were quite clearly disjoined from one another and from the ultimate movement to Brisbane. (at p468)
4. I agree that the appeal should be dismissed. (at p468)
TAYLOR J. On 14th January 1959, the appellant was convicted of an offence constituted by the contravention of s. 23 of The State Transport Facilities Acts 1946 to 1955 (Q.), in that on 16th April 1958, he used a motor vehicle on the Lockyer-Darling Downs Highway for the carriage of goods "such goods not being at that time carried upon the vehicle under and in accordance with a provision of Pt. III of the said Acts". One effect of s. 23 of the Acts is to prohibit the use of a vehicle on any road at any time for the carriage of goods unless the goods are being carried under and in accordance with some provision of Pt. III and, in substance, the complaint made against the appellant was that there was no licence or permit in existence authorizing the use of the vehicle in the manner alleged. The only answer made by the appellant to the charge was that, at the material time, the vehicle was being used in the course of trade, commerce or intercourse among the States and that, in the circumstances, the statutory prohibition did not apply. (Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 1) (1955) AC 241; (1954) 93 CLR 1 and Beach v. Wagner [1959] HCA 24; [1959] HCA 24; (1959) 101 CLR 604) (at p469)
2. At the time of the alleged offence the defendant's employee, one Robinson, was engaged in transporting a consigment of sixty-nine bales of wool from a station property some eight or ten miles from Jandowae, in Queensland, to Brisbane. Jandowae lies in a general north-westerly direction from Brisbane and the distance by road between the two places is nearly one hundred and eighty miles. The most direct route by road from Jandowae to Brisbane is through Dalby, Toowoomba and Ipswich and up to a point, this is the route which the appellant's vehicle took. Indeed, it was on this route when it was intercepted by a police officer on the Lockyer-Darling Downs Highway at Dinmore, a small town not far from Brisbane. But, although the appellant intended that his vehicle should take the course which it did up to the point of interception, he had no intention that it should continue directly on to Brisbane; it was his intention that at a point about eight miles from Brisbane his vehicle should leave the direct route and, having gained the Pacific Highway, should turn south and proceed about sixty or seventy miles to Tweed Heads, a town immediately to the south of the boundary between Queensland and New South Wales. There it was to turn about and retrace its route along the Pacific Highway to Brisbane. In fact this is the course upon which the vehicle proceeded after it had been intercepted and then allowed to continue its journey. It crossed into New South Wales shortly after 9.0 a.m. and then recrossed into Queensland about 10.30 a.m. There is no suggestion that the short interruption to the journey which occurred whilst the vehicle was at Tweed Heads was for any purpose recognizable as trade, commerce or intercourse. Nor is there any suggestion that, in undertaking the journey in such a round-about way, any purpose was to be served other than to enable the appellant to contend that, as a carrier of goods for reward, he was engaged in trade, commerce and intercourse among the States and, therefore, unaffected by the licensing provisions of the legislation referred to and exempt from the licensing fees which those provisions authorized. It should be added that it appears that the appellant and the owner of the wool had agreed that it should be carried along this route to Brisbane, the stipulated charges being 7 pounds per ton to Tweed Heads and 3 pounds per ton from Tweed Heads to Brisbane. (at p470)
3. The question in the case is whether the facts show that the appellant was, in truth, engaged in inter-State trade or commerce at the relevant time. It is, of course, beyond question that the goods which he carried were not the subject of inter-State trade or commerce. But this circumstance does not, of itself, mean that the journey which the appellant undertook to make and which he, in fact, made could not answer that description. (Golden v. Hotchkiss (1959) 101 CLR 568 and Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604) In neither of these cases were the goods which were carried the subject of inter-State trade and commerce yet, nevertheless, the journey which each of the appellants made answered that description. In the earlier case it appeared that the only route available for the transport of goods lay, first of all, along public roads in Queensland and then, after crossing the border into New South Wales, along public roads in that State. In those circumstances, carriage from the point of origin to the point of discharge could not be accomplished without carriage from one State to another. In the later case the circumstances were different but, although the goods carried on that occasion might have been carried to Brisbane along the internal roads of Queensland, the fact was that the appellant maintained a depot in New South Wales where it was his practice to accumulate freight from outlying districts both in Queensland and in New South Wales. From this point, freight entrusted to him was carried to Brisbane by semi-trailer. A perusal of the Court's reasons shows that the journeys which were made took place in the ordinary course of the appellant's business and there was no reason to deny either to the journey into New South Wales or from New South Wales to Brisbane, the character of inter-State trade or commerce. As will be observed there are substantial grounds, on the facts, for distinguishing the present case from these earlier cases. But the question remains whether the factual differences to be found in the present case are of vital significance in seeking to determine whether the appellant was, on the occasion in question, engaged in such trade and commerce. (at p470)
4. In my view they are and I shall attempt to explain briefly my reasons for this conclusion. At one time opinion was divided on the question whether the carriage of goods from one State to another was, itself, trade and commerce among the States, or, whether it should be regarded merely as an operation by means of which such trade and commerce was carried on (Willard v. Rawson [1933] HCA 12; (1933) 48 C.L.R. 316. ; R. v. Vizzard; Ex parte Hill [1933] HCA 62; (1933) 50 CLR 30 and Riverina Transport Pty Ltd. v. Victoria [1937] HCA 33; (1937) 57 CLR 327 ) But even if the question had not been disposed of earlier it was finally laid to rest in Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 The view shortly expressed by Latham C.J., after consideration of the earlier cases was "that inter-State transportation, certainly when conducted for profit, is itself inter-State trade and commerce" (1945) 71 CLR, at p 56 As Fullagar J observed in Hughes and Vale Pty. Ltd. v. State of New South Wales [1953] HCA 14; (1953) 87 C.L.R. 49. : "The contrary view was rejected by this Court in Australian National Airways Pty. Ltd. v. Commonwealth (4) and the accepted view is now that expressed by Dixon J. in R. v. Vizzard; Ex parte Hill [1933] HCA 62; (1933) 50 CLR 30, at p 59. . His Honour there said: 'There is, I think, no act or transaction which better answers the description trade, commerce, and intercourse between the States than the carriage of merchandise from a place in one State across the border to a place in a neighbouring State'" (1953) 87 CLR, at pp 93, 94 Since the Airways Case [1945] HCA 41; (1945) 71 CLR 29 these generally expressed views have, of course, received universal assent in this Court. But it is necessary to remember that what has been said on this point from time to time has been said in denial of the proposition that inter-State transportation is not, itself, inter-State trade or commerce and not in an attempt to specify, exhaustively, those operations which constitute inter-State transportation. It has, however, been generally assumed that whenever the commercial carriage of goods involves a journey from one State to another, it is proper to conclude that the carrier, pro tanto, engages in trade and commerce among the States. As a general proposition this is undoubtedly true and I would not wish to deny it. But the conclusion follows because of the character of such a journey and the character of the journey is, in general fixed by the fact that it involves the crossing of an inter-State border. I say "in general" because usually the inter-State element in the journey presents itself, if not as an indispensible element, then as an ordinary or usual incident of the journey and it is this factor which gives to the journey its inter-State character. But is the same conclusion justified when an inter-State element is introduced artificially and merely for the purpose of giving to a journey a character which it would not otherwise possess? For instance, would it be proper to conclude that a carrier had entered the field of inter-State trade merely because, in pursuance of an agreement with an owner of goods, he carries them from Albury to Sydney after first crossing and then recrossing the Murray River bridges? In substance, the journey would be a journey from Albury to Sydney, in substance its character would be intra-State and, in my view, its character would remain unaltered by the requirement that the carrier should, first of all, cross the border and then recross and proceed to Sydney. In those circumstances such a requirement would amount to no more than an artifice introduced in an attempt to give to the journey a colour completely foreign to its real character. No case decided in this Court has gone so far as to suggest that the making of such a journey would constitute inter-State trade or commerce and the general statements that inter-State transportation is, itself, inter-State trade and commerce, carry no such implication. Nor, in my view, should the Court now decide. (at p472)
5. The present case, in my view, is not substantially different from the hypothetical case just mentioned. The facts show not only that the wool was to be carried from Jandowae to Brisbane but also that it was to be carried by the usual internal route until it had practically reached the outskirts of Brisbane and that, at that stage, a diversion was to be made for some sixty or seventy miles to the south merely for the purpose of crossing and recrossing the border in an attempt to give to the whole journey the complexion of inter-State trade. But it would be quite unreal to treat this diversionary incident, artificial in the extreme as it was, as capable of giving a colour to the whole journey. To me it appears merely as a superficial excrescence on the journey and not as a factor capable of transforming its real character. No doubt the appellant or his driver, was free to cross and recross the border if they so wished. But to hold that, in the circumstances, this factor determined the true character of the journey which the vehicle made would be equivalent to subscribing to the theory that it is the tail that wags the dog. Nor, in my view, is it of any consequence that the owner of the wool agreed that this diversion should be made for this was not a case where the contracting parties, for reasons of their own, selected one of alternative or several routes available; on the contrary, subject only to the diversion mentioned, the route chosen lay along the usual internal road. (at p472)
6. For these reasons I am of the opinion that the correct conclusion on the facts is that the appellant was not at the material time engaged in inter-State trade or commerce and that, therefore, the appeal should be dismissed. (at p472)
MENZIES J. The appellant, Albert James Harris, was convicted of an offence under The State Transport Facilities Acts 1946 to 1955 (Q.) for using on the Lockyer-Darling Downs Highway at Dinmore a motor truck "for the carriage of goods such goods not being at that time carried upon that vehicle under and in accordance with a provision of Part III of the said Acts". His only ground of defence and his only ground for challenging his conviction is his claim that at the time and place of the offence alleged, the motor truck was being used in the course of and for the purposes of inter-State trade so that he fell under the protection of s. 92 of the Constitution and the provisions of the Acts were not applicable to him: Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 (at p473)
2. The facts are that the wool with which the vehicle was loaded was being carried for Curd and Sons from their "Kia Ora" station, Jandowae, in Queensland to Dalgety's wool store, Brisbane. It was driven by an employee of the appellant. The distance between Jandowae and Brisbane, as the Lockyer-Darling Downs Highway runs, is about 170 miles, but, in order to give the operation of carrying the wool between the two points in Queensland the character of inter-State trade, commerce or intercourse, it was stipulated that the route to be followed should be across the border into New South Wales. This route, which was in fact taken, made the journey about 290 miles. The extra 120 miles was made up of the distance between the Lockyer-Darling Downs Highway at the Archerfield turn-off to the point where the motor truck entered the Pacific Highway and thence south to Tweed Heads along the Pacific Highway, in all a distance of some 60 miles, and then returning north along the Pacific Highway to the point of entry. (at p473)
3. Upon reaching Tweed Heads, the motor truck stopped for about an hour at Worthingtons' Depot, which the appellant had the right to use, but nothing was done to the vehicle or to the load. It left as it came. To give some further inter-State colour to what was being done, the appellant had registered "Jandowae Carrying Co." as his trade name in New South Wales and issued to the driver of the motor truck what was described as a "manifest" for the conveyance of 69 bales of wool from Curd and Sons, Jandowae, to the Jandowae Carrying Co., Tweed Heads, and another for the conveyance of the wool from the Jandowae Carrying Co., Tweed Heads, to Dalgety's, Brisbane. The driver was armed with both these documents before leaving Jandowae. A further refinement was that Curd and Sons were to pay the freight to the Jandowae Carrying Co., which, according to the appellant, would then pay him. The magistrate found: "The relevant 69 bales of wool was the property of Curd and Sons and the terms of the contract of carriage between Curd and Sons and defendant were: - (a) That the wool would be loaded at Kia Ora Queensland and unloaded and delivered to Dalgety and Co. of Brisbane in the State of Queensland; (b) That the route travelled in the carriage would be Jandowae to Tweed Heads and then Tweed Heads to Brisbane; (c) That Curd and Sons would pay defendant a haulage freight of 10 pounds per ton assessed at 7 pounds per ton from Jandowae to Tweed Heads and 3 pounds per ton from Tweed Heads to Brisbane". It remains to be stated that Dinmore, where the offence was alleged to have been committed, is situated on the Lockyer-Darling Downs Highway near Ipswich and between Jandowae and the Archerfield turn-off. (at p474)
4. It is obvious enough that the whole object of agreeing to take, and taking, a route which took the vehicle and wool across the New South Wales border was to give the transaction the character of inter-State trade, commerce or intercourse so as to bring it within the protection of s. 92. In determining whether or not what was attempted succeeded, two questions seem to me to arise: the first, whether at Dinmore the vehicle was being used in the course of trade, commerce or intercourse among the States; and the second, if so, was that use within the protection of s. 92? (at p474)
5. It is well established that a journey from a point in one State to a point in another State is protected by s. 92 not merely at the border but throughout the whole journey. The whole journey is of an inter-State character and s. 92 applies at all points to protect passage out of or into a State. Furthermore, it seems to me impossible to subdivide the journey here in question, namely, from Jandowae to Brisbane via Tweed Heads, into a number of shorter journeys, some intra-State and one or more inter-State. (at p474)
6. The element of this journey that raises the question whether it was as a whole an inter-State journey and whether, if it was, it was as a whole within the protection of s. 92, is that not only did the journey by the stipulated route entail crossing the border, it entailed also recrossing the border, both for no purpose other than to get from Jandowae in Queensland to Brisbane in Queensland by way of New South Wales in the course of carrying wool from Jandowae to Brisbane. It is, of course, beyond question that both border crossings were within the protection of s. 92, but the problem is whether these incidents of crossing and recrossing the border can be regarded as giving the whole journey an inter-State character and of ensuring the protection of s. 92 to every stage of the journey. (at p474)
7. The recent decision in Golden v. Hotchkiss. (1959) 101 CLR 568 was that when in order to get from one place in New South Wales to another place in New South Wales it is necessary to enter and leave Queensland, the whole journey is inter-State. In that case it was not, in my opinion, possible to describe the crossing and recrossing as a mere incident of the journey in respect of which the actual charge was laid, that is, from Talyealye to Sydney, when the vehicle could not have travelled that journey otherwise than by making the crossings. In this case, however, I think it is proper to describe the crossing and the recrossing of the States' border as incidents of a journey from Jandowae to Brisbane and I think it would be going beyond any decided case to hold that, because of these incidents, the vehicle at Dinmore was using the road in the course of inter-State trade, commerce or intercourse. In Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 the defendant was carrying wool from Bungunya in Queensland to Boggabilla in New South Wales to load upon a larger vehicle for transport to Brisbane. Again, the crossing of the border could not properly be regarded merely as an incident of the journey. (at p475)
8. If a person carries on a business which is inter-State trade or commerce, it matters not that he has organized his business as inter-State trade or commerce to obtain the protection of s. 92, but it seems to me that it is not necessary to say that when a carrier of goods goes out of his way to cross and recross the border while making a journey from one place to another in one State, the whole of his carrying of the goods is inter-State trade or commerce or that the whole of his journey is intercourse between the States. The real character of what is being done cannot be made to depend upon mere "border hopping"; it depends essentially upon the purpose of the whole journey. (at p475)
9. The element in this case that has given me most concern is that the appellant contracted to carry the goods from Jandowae to Brisbane by a route which took him into New South Wales and that the consideration payable for the carriage of the goods was apportioned in a manner already set out. It is a possible view that such a contract should be regarded as making the whole journey inter-State in the same way as did practical necessity in Golden v. Hotchkiss (1959) 101 CLR 568 The conclusion I have come to is, however, that the question whether the appellant's carriage of the goods from Jandowae to Brisbane was inter-State trade is to be determined upon the facts as a whole - and, when attention is paid to the starting point ; the destination ; the farce of the appellant's attempt to alter his identity in New South Wales by registering a business name there ; the issuing of manifests to his driver ; the journeying to and fro upon the Pacific Highway ; the pointless pause at Tweed Heads ; then the contract and the crossing and recrossing of the border pursuant thereto appear as incidents protected in themselves by s. 92 but insufficient to give the use of the vehicle at Dinmore the character of inter-State trade, commerce or intercourse. In the South Australian case of Ridland v. Dyson (1959) SASR 72, Napier CJ, in holding that a journey from Mount Gambier to Port Adelaide by way of Dartmoor in Victoria was not as a whole within the protection of s. 92, did lay stress upon the absence of any contractual obligation to follow that devious route ; but, for the reasons I have already given, I have reached the conclusion in this case that the existence of a contractual obligation to travel from Jandowae to Brisbane by way of Tweed Heads is not to be regarded as decisive in favour of the appellant. (at p476)
10. This conclusion makes it unnecessary to consider whether the use of the vehicle at Dinmore, if it had been in the course of inter-State trade, commerce or intercourse, was within the protection of s. 92. (at p476)
11. I think the appeal should be dismissed. (at p476)
WINDEYER J. In the hope that freedom would slowly broaden down from precedent to precedent, the appellant contends that earlier decisions of this Court freed him in this case from the restrictions of the law of Queensland. By making a detour into and out of New South Wales in the course of carrying goods from one place in Queensland to another place in Queensland he sought to avoid the need under Queensland law of a permit to carry those goods on Queensland roads. This contention is, in my view, based on a fundamental misconception of the effect of s. 92, and indeed involves an inversion of its true purpose and proper application. Section 92 guarantees and protects freedom of trade, commerce and intercourse among the States. It expressly refers to internal carriage as one of the means of inter-State trade and commerce. Cases in this Court have demonstrated that the physical act of travelling in the course of inter-State trade and commerce, or for the purpose of intercourse among the States, is not to be impeded either at a State border or beyond it. The effect for the Australian economy which s. 92 was designed to secure is that, for purposes of trade, commerce and intercourse State, boundaries should not exist. For the flow of trade and commerce among the States, Australia is one place, and in their comings and goings among the States Australians are one people. In this sense and for these purposes s. 92 obliterates State boundaries. It does not, as the appellant suggests, constitute the State border a kind of Mason-Dixon line - by the mere crossing of which freedom can be acquired. This would be a narrow mechanistic interpretation of s. 92, quite unwarranted, I think, by its large words. Philosophically considered, s. 92 does not call something into existence to confer freedom on it. It operates in relation to something antecedently existing and states that it shall be free. It would be a mockery of the Constitution to suppose that by making a journey, whether long or short, simply to breathe the air of New South Wales, a person engaged in commerce within Queensland gained rights which he did not previously have. Of course, he could not be prevented from making such a jaunt. But he would not escape his obligations under Queensland law by turning south in search of freedom. And, having made his jaunt, he could not on returning to Queensland proclaim himself to be in enjoyment there of a new-found freedom. (at p477)
2. It may well be that in some cases the effect of s. 92 in relation to traffic across State borders cannot easily be determined. But that is because the facts may not always be readily discoverable. The application of the vague and general terms of s. 92 to particular facts will continue to raise problems. They can only be solved by bearing in mind, as well as the language of the Constitution, the particular facts in relation to which its protection is sought. But the protection and the guarantee given by s. 92 can only be invoked when there is truly in existence the thing the freedom of which is assured. (at p477)
ORDER
Appeal dismissed with costs.
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