Mansell v Beck

[1956] HCA 70

95 CLR 550

CONSOLIDATED PRESS LIMITED LEWIS Constitutional Law (Cth.)-Freedom of inter-State trade commerce and intercourse- 1956.

State statute-Foreign lotteries-Prohibition on publication of advertisements or display upon premises of notices relating to such lotteries-Acceptance of MELBOURNE,

money in respect of purchase of ticket in foreign lottery prohibited-Gambling- May 22, 23,

Validity of prohibitions-Whether imposed by reference to essential attribute of 24;

inter-State trade etc.-Whether - impediment to inter-State trade etc. of direct or Oct. 25.

indirect nature-Absence of discrimination as between foreign lotteries and lotteries conducted in State otherwise than by State-The Constitution (63 &64 Williams,

Vict. c. 12), 8. 92-Lotteries and Art Unions Act 1901-1944 (No. 34 of 1901 - No. 34 of 1944) (N.S.W.), 88. 3 (3), (4), 20, 21. Taylor JJ.

Section 3 (3) of the Lotteries and Art Unions Act 1901-1944 (N.S.W.) pro- vides that whosoever prints or publishes any advertisement information or notice relating in any way to any sale or disposition of property by lottery or chance, made or to be made shall be guilty of an offence. Sub-section 4 provides that whosoever sells or offers for sale any ticket or share in any lottery or raffle or accepts any money in respect of the purchase of any such ticket or share shall be liable to a penalty. Sections 20 and 21 of the Act provide as follows :-20. Whosoever prints or publishes any advertisement, notice, or information relating to a foreign lottery in furtherance of the conduct of the lottery or announcing its result or displays upon any premises in his

95 CLR 551

occupation any card, poster, or notice relating to a foreign lottery in further- ance of the conduct of the lottery or announcing its result shall be liable to a penalty not exceeding two hundred pounds. 21. Whosoever sells or offers for sale or accepts any money in respect of the purchase of any ticket or share in a foreign lottery shall be liable to a penalty not exceeding twenty pounds.

Held, that S. 20 did not infringe S. 92 of the Constitution on the ground per Dixon C.J., Williams, Webb, Fullagar, Kitto and Taylor JJ., that the acts prohibited were of an intra-State nature and the restriction was not imposed by reference to any essential element or attribute of inter-State trade, com- merce or intercourse and was not discriminatory, having regard to S. 3 (3), as between foreign lotteries and lotteries conducted in New South Wales otherwise than by the State per McTiernan J., that the acts prohibited were in the nature of gambling and could not in any event be within the protection of S. 92.

Held, further, by Dixon C.J., McTiernan, Williams, Webb, Fullagar and Taylor JJ., Kitto J. dissenting, that S. 21 did not infringe S. 92 of the Consti- tution on the grounds per Dixon C.J., Webb and Fullagar JJ. that assuming that the transaction beginning with acceptance of the money and ending with delivery of the lottery ticket possessed an inter-State character the law was valid because it applied generally, having regard to S. 3 (4), to foreign lotteries and lotteries conducted in New South Wales other than by the State and did not select any element or attribute of inter-State trade, commerce or inter- course as the basis of its operation per McTiernan J., that the acts prohibited were in the nature of gambling and for that reason were not within the pro- tection of S. 92; per Williams J., that the section was concerned only with intra-State transactions and any impediment to inter-State trade, commerce or intercourse was merely indirect and consequential per Taylor J., that activities involved in conducting lotteries were not trade or commerce and the section did not restrict rights of inter-State intercourse.

Per Kitto J. dissenting. Section 21 contravenes S. 92 of the Constitution in that it attaches a penal consequence to conduct by reason of its possessing the characteristic of participation in the movement of money inter-State, a characteristic essential to the conception of intercourse among the States.

R. v. Connare: Ex parte Wawn (1939) 61 C.L.R. 596 and R. v. Martin Ex parte Wawn (1939) 62 C.L.R. 457, considered and affirmed.

ON REMOVAL under S. 40 of the Judiciary Act 1903-1955 Mansell v. Beck.

By information dated 17th March 1955, Mervyn Lindsay Beck, Detective Constable of Police, as informant, charged George Stanley Mansell that on 1st October 1954 at Sydney in the State of New South Wales the defendant did accept money in respect of the purchase of a ticket in a foreign lottery, to wit, the seventh five shilling lottery, Tasmanian Lotteries, conducted outside the State of New

95 CLR 552

South Wales, that is to say, in the State of Tasmania, contrary to S. 21 of the Lotteries and Art Unions Act 1901-1944.

By a further information dated 1st December 1954 the informant charged the defendant that on 25th October 1954 at Sydney the defendant did display upon premises situated at 181 Hay Street, Sydney in his occupation a notice relating to a foreign lottery, to wit, Tasmanian Lotteries, announcing the result of the said lottery contrary to S. 20 of the Lotteries and Art Unions Act 1901-1944.

The informations were heard together before a stipendiary magis- trate, the defendant pleading not guilty to each. He was convicted on each information, and in respect of each was fined the sum of £1 with court costs 12s. Od. and professional costs £5 5s. Od. in default fourteen days hard labour. On the defendant's application the stipendiary magistrate stated a case for the opinion of the Supreme Court of New South Wales substantially as follows :-

1. It was admitted or proved in evidence before me that: (1) The defendant has conducted the business of a newsagent and stationer at a shop at 181 Hay Street, Sydney for five and one half years and in that shop he has carried on a business of acting for intending purchasers of tickets in the New South Wales lottery. (2) It is the practice common to newsagencies of a similar character in New South Wales to carry on an agency of that type for the New South Wales State Lottery. (3) On 25th October 1954 the defendant was acting in respect to the Tasmanian Lotteries similarly to that in which he was acting in respect to the New South Wales State Lottery. (4) As a newsagent he is the agent for the sale in the ordinary way of newspapers which are printed and publsihed in Queensland, Vic- toria and Tasmania. The results of lotteries conducted in those States are published in such newspapers and the defendant had Brisbane and Melbourne newspapers in his shop on 1st or 25th October 1954 containing such results. (5) The seventh five shilling lottery of the Tasmanian Lotteries is a foreign lottery within the meaning of S. 19 of the Act. (6) The said lottery is legal or lawful in the place where it is conducted, namely, Tasmania. (7) Tas- manian Lotteries is a lawful organisation entitled by the law of Tasmania to conduct lotteries of which the seventh five shilling lottery referred to in both informations is one of such lotteries. (8) In May 1954 the defendant had correspondence with Tasmanian Lotteries at Box 725E, G.P.O. Hobart and he received a letter dated 1st June 1954 appointing him a clients' agent in respect of Tasmanian Lotteries and he received printed matter for distributing to intending purchasers of tickets. The defendant was SO acting as a clients' agent at the time of the alleged offences. (9) On 1st October 1954

95 CLR 553

Constable Brodie entered the defendant's newsagency shop at 181 Hay Street, Sydney and paid the defendant six shillings and one penny for a five shilling lottery ticket in the seventh five shilling lottery, Tasmanian Lotteries. The defendant wrote the name, R. R. Brodie on a pad. (10) On 25th October 1954, the defendant handed Constable Brodie ticket No. 085138 in the said seventh lottery. (11) The defendant has conducted a lottery service at his shop from the time the Tasmanian Lotteries commenced. (12) That service is provided in the following manner: Applicants fill in a form of application for the tickets, hand the defendant the forms with the money required for the purchase together with a sum to cover the defendant's commission as their agent. The defendant writes the names of applicants on a printed remittance sheet, with any special requirements of the applicant such as for tickets of non-consecutive numbers, the syndicate name, name and private address of the person to be recognised as the rightful owner when it was drawn. The defendant retains a carbon copy of the sheet and forwards the original sheet and postal notes for five shillings for each ticket or for one pound for a ticket in the special lottery by registered air mail to G. A. Addison, Box 720E, G.P.O. Hobart. If requested by the applicant the application is sent immediately and direct to Addison singly or together with other applications but otherwise according to the circumstances of the transaction several applications are forwarded in the one envelope. If requested particularly by an inter-State client, the defendant will cause the ticket to be forwarded direct from Tasmania to the client by post instead of per medium of the defendant. (13) The defendant receives the tickets back from Tasmanian Lotteries about ten or fourteen days after the sheet is sent to G. A. Addison and he hands them to the clients when they call at his shop for them. The ticket was SO received by the defendant. (14) G. A. Addison has a differ- ent postal address to that of Tasmanian Lotteries but Tasmanian Lotteries instructed the defendant to send order forms and remit- tances to Addison to facilitate the handling of clients agents con- signments in the office of Tasmanian Lotteries. (15) The defendant retains one shilling and one penny being some remuneration for his services and disbursements. (16) Constable Brodie's name was entered on a sheet at the time of lodgment of his application. (17) On 25th October 1954, Constable Beck took possession of two notices which were attached to the wall of the defendant's shop announcing the result of lotteries drawn by Tasmanian Lotteries at Hobart on 30th June 1954 and 26th July 1954.

95 CLR 554

2. The grounds upon which I convicted the defendant were: 1 I was of the opinion that the acceptance of the money aforesaid, by the defendant, was part of an inter-State transaction but the defendant was not engaged in trade, commerce or intercourse in

SO accepting such money. (2) There was no element of inter- State trade in the displaying of notices of results of the Tasmanian Lotteries in the defendant's shop. (3) The acceptance of the money by the defendant in the circumstances referred to herein and the displaying of the notices of results of the Tasmanian Lotteries were breaches of the Lotteries and Art Unions Act 1901-1944. (4) The said Act is a valid enactment of the Parliament of New South Wales. The provisions of S. 21 of the said Act do not affect freedom of trade, commerce or intercourse between the States. Sections 19, 20 and 21 of the Act do not contravene the provisions of S. 92 of the Con- stitution.

3. The question for the determination of the Court is whether my said determinations convicting the defendant were erroneous in point of law. Consolidated Press Limited v. Lewis.

By information dated 1st December 1955, Colston Douglas Lewis, Sergeant of Police, charged Consolidated Press Ltd. that on 24th November 1955, at Sydney in the State of New South Wales the defendant, a company duly incorporated and having its registered office at 168-174 Castlereagh Street, Sydney, did publish an advertise- ment relating to a foreign lottery, to wit, Tasmanian Lotteries, in furtherance of the conduct of the said lottery, contrary to S. 20 of the Lotteries and Art Unions Act 1901-1944.

When the information came on for hearing before the stipendiary magistrate above-mentioned, the defendant entered a plea of not guilty thereto, but was convicted and fined the sum of £100 with costs of £10 10s. Od. to be paid within twenty-one days. On the defendant's application the stipendiary magistrate stated a case for the opinion of the Supreme Court of New South Wales sub- stantially as follows :-

1-1. It was admitted in evidence before me that the defendant is a company incorporated in the State of New South Wales having its registered office at 168-174 Castlereagh Street, Sydney. 2. The defendant carries on business in New South Wales and publishes daily in that State and elsewhere the Daily Telegraph newspaper. 4. The reference and the advertisement appearing on p. 37 of the Daily Telegraph newspaper dated 24th November 1955 to lotteries respectively called the Sportsmans Special £250,000 prize to be 95 CLR 555

allotted, £100 Tasmanian Lotteries, and the Prosperity Lottery £150,000 prize, £5 Tasmanian Lotteries are references to lotteries conducted outside the State of New South Wales and in the State of Tasmania. Such lotteries are foreign lotteries within the meaning of the Lotteries and Art Unions Act 1901-1944. 5. The advertise- ment appearing on p. 37 aforesaid was published by the defendant in furtherance of the conduct of the lotteries mentioned therein. 6. Such lotteries were lawfully conducted in the State of Tasmania and the organisation known as Tasmanian Lotteries is a lawful organisation according to the laws of the State of Tasmania. 7. The lottery of which the results were published in the advertisement was a lawful lottery according to the laws of the State of Tasmania. 8. The advertisement referred to in the information was printed and published pursuant to an agreement made between Tasmanian Lotteries and the defendant. 9. It was a term of that agreement that the defendant would by printing and publishing certain adver- tising material relating to lotteries conducted in Tasmania by Tasmanian Lotteries communicate information relating to such lotteries to members of the public in New South Wales. 10. It was a further term and condition of the agreement referred to that any advertisement printed and published by the defendant in furtherance of the conduct of any lottery conducted in Tasmania by Tasmanian Lotteries would consist only of material draft whereof and the copy for which was previously sent by Tasmanian Lotteries from its office in Hobart to the defendant at its office in Sydney for the purpose of being printed and published as aforesaid. 11. Pur- suant to the last mentioned term and condition of the said agree- ment the advertisement referred to in the information consisted solely of material a draft of and the copy for which was previously sent as aforesaid. 12. Except as to terms and conditions of the afore- said agreement relating solely to the remuneration payable to the defendant for the printing and publishing of the aforesaid advertise- ment the said agreement contained no terms other than those set out in the preceding admissions. 13. Among the purposes for which Tasmanian Lotteries arranged with the defendant for the printing and publishing of the advertisement referred to in the information were those of communicating to members of the public in New South Wales an invitation to subscribe for tickets in certain lotteries con- ducted in Tasmania and referred to in the said advertisement and of thereby increasing the volume of sales of tickets in the said lotteries to members of the public resident in New South Wales and the traffic in tickets in such lotteries between Tasmania and New

95 CLR 556

South Wales. 14. The printing and publishing of the said advertise- ment effectuated the aforesaid purposes. Such advertisements as the one referred to in the information are calculated to and do in fact increase the volume of sales of tickets in the said lotteries to members of the public resident in New South Wales and the traffic in tickets in such lotteries between Tasmania and New South Wales and the transmission of money from New South Wales to Tasmania in payment for the said tickets. 15. Another of the purposes for which Tasmanian Lotteries arranged with the defendant for the printing and publishing by the defendant of the advertisement referred to in the information was that of communicating to members of the public in New South Wales including members of the public who had subscribed money for tickets in the above-mentioned lotteries the results of such lotteries.

2 The grounds upon which I convicted the defendant were :-

I was of the opinion that:-1. The publication by the defendant of the advertisement was a breach of S. 20 of the Lotteries and Art Unions Act 1901-1944. 2. The said Act is a valid enactment of the New South Wales Parliament. 3. The provisions of SS. 20 and 21 of the said Act do not affect freedom of trade and commerce or inter- course between the States and they do not contravene the provisions of S. 92 of the Commonwealth of Australia Constitution. 4. The defendant in publishing the said advertisement was not engaged in inter-State trade, commerce or intercourse within the meaning of S. 92 of the Commonwealth of Australia Constitution.

(3) The question for the determination of the Court is whether my said determination convicting the defendant was erroneous in point of law.

On 18th April 1956 Fullagar J. ordered that each of the above- named causes pending in the Supreme Court of New South Wales be removed into the High Court.

B. P. Macfarlan Q.C. (with him J. A. Clapin), for the appellant Mansell. This Court has decided that S. 21 of the Lotteries and Art Unions Act 1901-1944 (N.S.W.) is valid: see R. v. Connare: Ex parte Wawn 1 and R. v. Martin Ex parte Wawn (2). Because of the divergence between the reasoning of the justices who formed the majority in those cases and because of decisions given on S. 92 since the dates of those cases it is desired to submit that the Court should review the question of the validity of S. 21.

[DIXON C.J. The Court will not restrict the argument in any way.]

2(1939) 62 C.L.R. 457. 1(1939) 61 C.L.R. 596. 95 CLR 557

The defendant was not an agent of Tasmanian Lotteries but a person whom Tasmanian Lotteries had stated that it would recognise as an agent, if appointed by a customer, to transmit the customer's money to Tasmania. The transaction is inter-State trade or com- merce. The commerce is initiated by the customer handing to the agent money for transmission by him to Tasmania for the purchase of a lottery ticket and for the transmission of the ticket to New South Wales. Alternatively the transaction is inter-State intercourse. The ticket is an article of trade or commerce which may be bought or sold. [He referred to Champion v. Ames 1.]

[DIXON C.J. referred to Ware &Leland v. Mobile County 2.] In R. v. Connare; Ex parte Wawn 3 Latham C.J. took the view that the buying and selling of lottery tickets can be the subject of trade and commerce. Rich J. took the view that the transaction was one of intercourse. The meaning of intercourse is discussed in Bank of New South Wales v. The Commonwealth 4. Intercourse between States may consist of a number of acts. To strike at one of those acts is to interfere with the intercourse. [He referred to Reg. v. Wilkinson; Ex parte Brazell, Garlick and Coy 5 Fer- gusson v. Stevenson 6.] In the present case the inter-State intercourse commenced when the money was delivered to the agent in Sydney and terminated when the money or remission of credit was received in Hobart. In R. v. Connare Ex parte Wawn (3) Starke J. placed his decision on the subject matter of the act in question being lotteries. The Commonwealth v. Bank of New South Wales 7 is authority for the proposition that an Act may infringe S. 92 no matter what its subject matter may be. Dixon J. held that the transaction was one of intra-State trade and commerce and that S. 21 of the Act did not offend against S. 92 of the Constitution because it was not discriminatory. In The Commonwealth v. Bank of New South Wales (7) the Privy Council laid down that the absence of discrimination is not decisive. Evatt J. based his judgment on the subject matter test the judgment of McTiernan J. proceeded on the same basis.

[McTIERNAN J. My judgment is founded on the view that the conduct of a lottery is not trade commerce or intercourse.

In R. v. Martin Ex parte Wawn 8 Dixon J. took the view that what was there involved was an act of inter-State trade or

1(1903) 188 U.S. 321, at pp. 353 2(1908) 209 U.S. 405, at pp. 411- 3(1939) 61 C.L.R. 596. 4(1948) 76 C.L.R. 1, at p. 381. et seq. [47 Law. Ed. 492, at pp. 5(1952) 85 C.L.R. 467. 500 et seq.]. 6(1951) 84 C.L.R. 421. 7(1950) A.C. 235 (1949) 79 C.L.R. 413 [52 Law. Ed. 855, at pp. 858, 859.] 8(1939) 62 C.L.R. 457. 95 CLR 558

commerce but that S. 21 of the Act did not offend against S. 92 because of the absence of discrimination. On the test of directness of operation laid down in The Commonwealth v. Bank of New South Wales 1 S. 21 of the Act does offend against S. 92. [He referred to Grannall v. Marrickville Margarine Pty. Ltd. 2.] Section 20 of the Act, in prohibiting display of a result notice, strikes at the last step of an act of inter-State trade and commerce or of intercourse and is invalid. [He referred to Fergusson v. Stevenson 3.] On this matter the appellant Mansell further adopts the argument to be put on behalf of Consolidated Press Limited.

A. D. G. Adam Q.C. (with him T. E. F. Hughes), for the appellant Consolidated Press Ltd. Section 20 of the Lotteries and Art Unions Act read with the definition of " foreign lottery " in S. 19 has involved in it the necessity for communication from the promoter of the lottery outside New South Wales of information to some person in New South Wales.

[DIXON C.J. referred to Dew v. Director of Public Prosecutions 4.] There is a ' publication " in New South Wales when a communi- cation containing the information is first opened and read in New South

Wales. [He referred to Bata v. Bata 5; Tozier v. Hawkins 6.] So read the section is invalid and not severable. [He referred to Bank of New South Wales v. The Commonwealth 7.] Publication of the advertisement in question was an act done in the course of commerce and intercourse among the States and S. 20 in SO far as it purports to apply to that publication is invalid under S. 92. The con- ception of commerce and intercourse among the States is wide enough to cover the transmission from one State to another of informa- tion for publication to the public of that other State either through the medium of the press of that State or other means. [He referred to Bank of New South Wales v. The Commonwealth 8.] The free- dom interfered with is that of both the transmitter of the information in Tasmania and the recipient of the information for publication in New South Wales. Even if the only freedom interfered with was that of the transmitter it is submitted that the recipient could invoke the protection of S. 92 on a prosecution of the nature in question here. Where a contract between residents of different States provides for the publication in one State by one of the parties

1(1950) A.C. 235, at pp. 308, 310 2(1955) 93 C.L.R. 55, at pp. 78, 80, 3(1951) 84 C.L.R. 421. 4(1920) 89 L.J.K.B. 1166. (1949) 79 C.L.R. 497, at pp. 637, 5(1948) W.N. 366. 6(1885) 15 Q.B.D. 650. 7(1948) 76 C.L.R. 1, at pp. 369 8(1948) 76 C.L.R., at p. 380. 95 CLR 559

of information to be supplied for that purpose by the other party, all essential steps in the entire transaction beginning with dispatch of the matter in one State and ending with publication in the other State, are within the concept of inter-State trade and commerce. [He referred to W. &A. McArthur Ltd. v. State of Queensland 1; Reg. v. Wilkinson; Ex parte Brazell, Garlick and Coy 2; Wragg V. State of New South Wales 3; Grannall v. C. Geo. Kellaway &Sons Pty. Ltd. 4; Hughes v. State of Tasmania 5; Blumenstock Bros. Ad. Agency v. Curtis Publishing Co. 6.] The protection of S. 92 extends to all stages of such a transaction including the publication itself in the other State. Alternatively, even if the publication does not itself form part of inter-State commerce or intercourse, where the matter transmitted for publication is for the purpose of advertising inter-State commerce or intercourse, the protection of S. 92 will extend to such advertising as a thing concomitant with or inseverable from such commerce or intercourse. [He referred to Wragg v. State of New South Wales 7.] A law which operates by way of prohibit- ing or penalising an act, which, although not in general a part of inter-State commerce or inteorcurse, is, on the facts of a particular case, part of such commerce or intercourse, is invalid under S. 92 unless it is of a regulatory character. Section 20 of the Lotteries and Art Unions Act is of a prohibitory and not a regulatory character.

G. Wallace Q.C. (with him D. Staff), for the respondent in each appeal. The acts prohibited by SS. 20, 21 of the Lotteries and Art Unions Act are of a gambling nature and are not trade, commerce or intercourse. [He referred to R. v. Connare; Ex parte Wawn 8.] That case is correctly decided. In any event a mere contract is not trade or commerce or intercourse. [He referred to Hospital Provident Fund Pty. Ltd. v. State of Victoria 9; Ware &Leland V. Mobile County 10.] The only elements of inter-State activity in the transactions is the movement of the application form from New South Wales to Tasmania and the return of the ticket. The Act does not prohibit these elements. In Fergusson v. Stevenson 11 and Reg. v. Wilkinson Ex parte Brazell, Garlick and Coy 12 an

1(1920) 28 C.L.R. 530, at p. 549. 2(1952) 85 C.L.R. 467, at pp. 483, 3(1953) 88 C.L.R. 353, at pp. 385- 4(1955) 93 C.L.R. 36, at pp. 51, 5(1955) 93 C.L.R. 113, at pp. 123, 6(1920) 252 U.S. 436, at p. 442 [64 Law. Ed. 649, at p. 653]. 7(1953) 88 C.L.R. 353, at pp. 398, 8(1939) 61 C.L.R. 596. 9(1953) 87 C.L.R. 1, at pp. 14 et 10(1908) 209 U.S. 405, at p. 411 [52 Law. Ed. 855, at p. 858]. 11(1951) 84 C.L.R. 421. 124, 125, 126. 12(1952) 85 C.L.R. 467. 95 CLR 560

OF integral and essential step in inter-State trade was in question.

[He referred to R. v. Martin Ex parte Wawn 1 Grannall V. Marrickville Margarine Pty. Ltd. 2; Hughes &Vale Pty. Ltd. V. State of New South Wales [No. 2] 3.] Section 20 of the Lotteries and Art Unions Act is valid. It deals with matters only ancillary to a transaction of trade and commerce. [He referred to Grannall v. Marrickville Margarine Pty. Ltd. 4; Hughes v. State of Tasmania 5; Grannall v. C. Geo. Kellaway &Sons Pty. Ltd. 6 Carter v. Potato Marketing Board 7 Wilcox Mofflin Ltd. V. State of New South Wales 8.]

B. P. Macfarlan Q.C., in reply. T. E. F. Hughes, in reply.

Cur. adv. vult. The following written judgments were delivered :- Mansell v. Beck.

DIXON C.J. AND WEBB J. A stipendiary magistrate convicted the defendant of two offences against the Lotteries and Art Unions Act 1901-1944 (N.S.W.). One offence was that on 1st October 1954 at Sydney the defendant did accept money in respect of the purchase of a ticket in a foreign lottery. The foreign lottery was specified in the conviction as the seventh five shilling lottery of " Tasmanian Lotteries conducted in Tasmania. The provision relied upon by the informant as creating the offence is S. 21 of the Act. The other offence of which the defendant was convicted was for that on 25th October 1954 he did display upon premises in his occupation a notice relating to a foreign lottery, namely Tasmanian Lotteries, announcing the result of the lottery. Section 20 is the provision creating the latter offence. From these convictions the defendant appealed by way of case stated to the Supreme Court. The ground of the appeal is that the provisions in question can have no valid operation to penalise the conduct of the defendant on which the convictions are based because that would amount to an invasion of the freedom of trade, commerce and intercourse assured by S. 92 of the Constitution. On the application of the Attorney-General of

1(1939) 62 C.L.R. 457, at p. 462. 2(1955) 93 C.L.R. 55, at pp. 78, 79. 3(1955) 93 C.L.R. 127, at pp. 162, 4(1955) 93 C.L.R. 55, at pp. 79, 5(1955) 93 C.L.R. 113, at p. 124. 6(1955) 93 C.L.R. 36, at pp. 50-52. 7(1951) 84 C.L.R. 460, at pp. 485, 205 et seq., 217. 8(1952) 85 C.L.R. 488, at p. 519. 81, 82. 95 CLR 561

New South Wales to this Court under S. 40 of the Judiciary Act 1903- H. 1955 the appeals by case stated were removed here and are now before us for determination.

The facts are simple enough. The defendant is a newsagent and stationer whose shop is in Hay Street, Sydney. Apparently he is an agent for the sale of tickets in the State Lotteries of New South Wales conducted in pursuance of the State Lotteries Act 1930 of that State. In June 1954 he was appointed by Tasmanian Lotteries to be what is described as a clients' agent. Tasmanian Lotteries are conducted under a licence issued in pursuance of S. 85 of the Racing and Gaming Act 1952 (Tas.). The appointment was made by letter from Hobart and the defendant received by post some printed matter for distribution to intending purchasers of tickets in Tas- manian Lotteries and some instructions. The printed matter bears the heading Operating under Government Licence and Drawn under Government Supervision Tasmanian Lotteries '' Under this heading the lotteries are described and it is stated that prizes are offered in each of them and some information concerning the procedure for obtaining tickets is given. What is material for present purposes is expressed as follows "This form has been handed on to you by your local agent through whom you may order tickets in the Tasmanian Lotteries, in any manner you desire, one or more at a time in either the 5/- or the £1 lotteries, or you may open an account with us by depositing with him say £5 for the issue of a ticket per week or per lottery to suit your individual requirements. Your agent, who makes a small charge for his services, is in the position to ensure the prompt return of your tickets and results, and effects a saving to you in the cost of remittances, and the postage necessary to forward same to us." The instructions are headed Procedure for clients' agents Detailed directions are given for the use of what are called ' consignment sheets" which are supplied to the clients' agents. They are forms in which the purchasers of tickets in each lottery are to be listed with the necessary information as to the number of tickets they respectively require and their indentifi- cation and postal addresses. For a five shilling ticket the "client" is to be charged 6s. 1d. of which sixpence forms the "clients' agent's" commission and sevenpence represents postage first of the ticket and then of the result. The agent retains the sixpence commission. He is to add up the other payments in the list and remit the amount by bank draft or money order to an address in Hobart, which is supplied.

On 1st October 1954 a purported "client" who in fact was a member of the police force entered the defendant's shop and asked

95 CLR 562

the defendant to let him have a ticket in an inter-State lottery. defendant suggested the Tasmanian Lottery and told the sup- posed "client" that the cost for 'the small one was 6s. 1d. for a five shilling ticket. The "client" paid the money and wrote his name on a pad. He asked when the ticket would be available and was told that it would be back in about ten days or a fortnight. On 25th October the policeman returned, gave his name and obtained the ticket.

On the wall were certain lists of prize winners in Tasmanian Lotteries that had already been drawn. It is the exhibition of these lists that forms the basis of the second conviction.

The Lotteries and Art Unions Act 1901-1944 as it now stands may not unfairly be described as an agglutinative measure but, not- withstanding the reliance which, on the defendant's part, was placed for some purposes on the history of the development of the legislation, it seems clear enough that the question whether its intended operation is inconsistent in a material respect with S. 92 must be determined upon the provisions of the Act as it now exists. Section 3 of the Act contains a number of provisions tending to the prevention or suppression of lotteries which are all framed without express reference to the place where the lottery is conducted. No doubt the defendant would say that because of the presence in the Act of express provisions with reference to foreign lotteries, S. 3 should be interpreted as relating only to lotteries conducted in New South Wales. Sub-section (4) of S. 3 provides that whosoever sells or offers for sale any ticket or share in any lottery or raffle or accepts any money in respect of the purchase of any such ticket or share shall be liable to a penalty not exceeding five pounds. Unless S. 3 (4) is confined to lotteries conducted in New South Wales there seems to be no reason, unless one is found in S. 92 of the Constitution, why the defendant should not have been charged and convicted under the provisions of that sub-section for accepting money in respect of the purchase of a ticket in a lottery. Section 21, under which the defendant was actually charged and convicted, follows the language of S. 3 (4) but relates to a foreign lottery. It is the third of three sections (ss. 19-21) which are placed under the heading 'Foreign Lotteries '. By S. 19 the expression foreign lottery' " is defined to mean any lottery conducted or to be conducted outside the State of New South Wales and whether legal in the place where it is conducted or not, or whether it is described as a lottery, or as a sweep, consultation, or golden casket, or called by any other name or designation. It is evident that the words " golden casket" are included because that is the title of the lotteries conducted in

95 CLR 563

Queensland under the retrospective and prospective authority of S. 53 of the Vagrants, Gaming, and Other Offences Act of 1931 of that State. The word "consultation" possibly refers to the Tattersalls Sweep Consultations formerly carried on in Hobart (cf. Blair v. Curran 1 and now carried on in Melbourne in pursuance of the Tattersalls Consultations Act 1953 (No. 5705) of Victoria.

Section 20 of the New South Wales Act deals with advertising in connexion with a foreign lottery. Section 21 is as follows

Whosoever sells or offers for sale or accepts any money in respect of the purchase of any ticket or share in a foreign lottery shall be liable to a penalty not exceeding twenty pounds."

The defendant falls within the intended operation of this pro- vision because he accepted from the policeman who came as a so-called ' client " the amount of 6s. 1d. for the purchase of a ticket which in fact he delivered to the "client" some three weeks later.

This payment to the defendant is, of course, essential to the charge. But the defendant claims that it forms an inseparable part of a trans- action of inter-State commerce. The transaction consists, it is said, of the transmission at the instance of the client of money to Tas- manian Lotteries in Hobart and of the consequent transmission of the ticket by Tasmanian Lotteries in Hobart to the defendant in Sydney for delivery to the client. It was for the purpose and as part of this transaction that the money was paid or entrusted to the defendant by the client.

It is argued that such a transaction of inter-State commerce must be protected by S. 92 from the interference which results from the prohibition by State law of the acceptance of the payment with which it must commence. It is no doubt, to say the least of it, permissible to view with scepticism the attempt to place the so- called clients' agent " in any other situation than that of agent for Tasmanian Lotteries to receive the money from the client " But even if the defendant accepted the money as agent for the Tasmanian Lotteries it does not necessarily follow that its "accept- ance" by the defendant cannot be considered to be part of an inter-State transaction. Having regard to his duty to transmit the money to obtain a ticket and to deliver it to the client it may be proper to treat the initial receipt of the money by the defendant on behalf of Tasmanian Lotteries as forming part of the inter-State transaction. For all these steps are involved in the terms upon which the defendant accepts the payment, even if no privity of contract exists between him and the client ". But to concede that the transmission of money from one State

1(1939) 62 C.L.R. 464, at pp. 467, 470. 95 CLR 564

to another and the consequent transmission of a "ticket" the first State from the second forms inter-State trade within the meaning of S. 92 carries the defendant but a short distance. To concede that the two incidental steps, namely the acceptance of the money for the purpose and the delivery of the ticket as a result, may in the given case be inseparable from, though incidents of, the inter-State transaction, may carry him further, but not far enough. The first of these concessions simply illustrates the view that it was part of the purpose of S. 92 to remove from the possibility of legislative and governmental restriction activities conducted across State boundaries and to do SO rather because of their inter- State character than of any special claim to immunity from inter- ference that particular activities might have except for their inter- State character; the view, that is to say, that it was the intention to include all forms and variety of inter-State transaction whether by way of commercial dealing or of personal converse or passage. See Bank of New South Wales v. The Commonwealth 1. The second con- cession in its application to the facts is possibly of more doubtful validity but it does no more than assume the applicability to the cir- cumstances of the principle that an inseparable or indispensable con- comitant or consequence of an inter-State transaction forms part of the transaction and takes on itself an inter-State character. Cf. Fergusson v. Stevenson 2 Reg. v. Wilkinson; Ex parte Brazell, Garlick and Coy 3, and contrast Carter v. Potato Marketing Board 4 Wragg v. State of New South Wales 5 and Grannall V. Marrickville Margarine Pty. Ltd. 6.

The fact that the "transaction" beginning with the acceptance of the money and ending with the delivery of the ticket may possess an inter-State character does not take the defendant far enough for a reason arising from the operation of S. 92 as it has now come to be applied. The reason is that it still remains to consider whether the provision impugned, notwithstanding that in this particular case its effect is to penalise the acceptance of money with which the trans- action begins, is in truth a law impairing the freedom which is consti- tutionally assured by S. 92. To give a law that character it is not enough that there are or may be transactions of inter-State trade, commerce or intercourse that are adversely affected by the operation of the law. That may be a consequence of a law which is not con- cerned with any fact, matter or thing forming part of inter-State trade, commerce or intercourse but takes for its operation events

1(1948) 76 C.L.R. 1, at pp. 381, 2(1951) 84 C.L.R. 421, at p. 435. 3(1952) 85 C.L.R. 467, at p. 480. 4(1951) 84 C.L.R. 460, at pp. 485, 5(1953) 88 C.L.R. 353. 6(1955) 93 C.L.R. 55, at p. 79. 95 CLR 565

or circumstances or conduct which of their own nature do not fall within that conception and do not constitute or necessarily include any essential element or attribute of trade, commerce and inter- course among the States. A law which imposes restrictions or burdens upon some description of act matter or thing not of its own nature forming part of inter-State trade, commerce or intercourse and does SO because of some characteristic which is independent of any element entering into that conception is very unlikely to be found to destroy impair or detract from the freedom secured by S. 92. It may conceivably do SO if upon examination of the facts and scrutiny of its intended operation it appears that in spite of the prima-facie absence of any but an accidental interference with inter- State trade, commerce and intercourse the law is but a circuitous means of burdening, restricting or impeding operations of a kind which S. 92 protects. But no such vice can be imputed to the enact- ment under discussion and the qualification which the possibility demands may be ignored in considering the true relation of the pro- hibition contained in S. 21 of inter-State trade. The basis of the prohibition is the existence of a lottery. If the legislation had taken this basal conception and independently of the place where or whence the lottery was conducted had prohibited the selling of tickets and the acceptance of money for the purchase of tickets there would be little difficulty in regarding the case as one in which a law taking no aspect of trade, commerce or intercourse among the States and no attribute of that conception as the criterion of its operation, produced an incidental effect upon given transactions of inter-State trade, com- merce or intercourse. Indeed on that hypothesis the case would fall within the simple but broad statement made by Fullagar J. in Hospital Provident Fund Pty. Ltd. v. State of Victoria 1: "But one thing, I think, is well established. Legislation, which imposes restraints upon conduct without reference or regard to acts of inter- State commerce or intercourse, will not be held to be struck by S. 92 merely because it involves the accidental consequence that acts of inter-State commerce or intercourse, which have previously taken place, will or may cease" 2; further Grannall v. Marrickville Margarine Pty. Ltd. 3 and Hospital Provident Fund Pty. Ltd. V. State of Victoria 4.

The essence of a lottery is the distribution of prizes among sub- scribers by lot or chance. If the statute were of the character sup- posed, that which it would seize on would simply be the incidents of

1(1953) 87 C.L.R. 1. 2(1953) 87 C.L.R., at p. 36. 3(1955) 93 C.L.R. 55, at pp. 78, 79, 4(1953) 87 C.L.R. 1, at pp. 17, 18, 95 CLR 566

subscribing for tickets and collecting the stake. It is more than two centuries and a half since the legislature, because of mischievous effects they were considered to produce, declared lotteries to be common and public nuisances and all grants, patents or licences BECK.

(scil. from the Crown) to be void: 10 Will. III, C. 23. This was on a basis to which all the factors are irrelevant that could conceiv- ably be relied upon as forming part of or otherwise being character- istic of trade, commerce or intercourse such as the collection, payment and receipt of money and the communications between parties that may necessarily be involved, whether consisting in the issue of tickets or of notices or notifications. The collection and receipt of money considered by itself may be commerce; the communication of the record of a contract, as a ticket is, or of information may be commerce or intercourse. But these are acci- dental characteristics with which the suppression of lotteries as nuisances had no concern. In the same way, if a law which without regard to the locality of the lottery prohibits the sale, that is the issue for money, of a ticket in a lottery or the receipt of money on account of its purchase, it is evident that the law takes the aleatory nature of these simple " transactions" as the basis of its operation.

To seize upon the general and abstract truth that communi- cations and payments of money from one State to another fall within the description trade, commerce or intercourse is to disregard the fact that in no such aspect are these things dealt with by such a provision. If the Federal Parliament were to enact that none of the means of communication or of paying money between States was to be employed for, or in furtherance of the conduct of, a lottery, then an attack upon the enactment upon the ground that it infringed S. 92 might be expected to fail. Indeed it may be supposed that the question would rather be whether in spite of Champion v. Ames 1, it should be regarded as a law with respect to trade and commerce within S. 51 (1). But to say that it was such a law would not mean that by consequence it necessarily worked an impairment of the freedom of trade, commerce and intercourse among the States. However no such question would arise on the kind of State law assumed. For it would operate, not by reference to inter-State commerce, but quite independently of the inter-State or commercial character of what was done. Such a law can perhaps be aptly illustrated by supposing that S. 3 (4) of the Lotteries and Art Unions Act ought, after all, to be construed as covering shares and tickets in lotteries wherever such lotteries might be conducted. On that footing it would be wrong to treat the provision as invalidated

1(1903) 188 U.S. 321 [47 Law. Ed. 492]. 95 CLR 567

(whether in toto or pro tanto) by the possibility that in particular cases it would prevent the transmission of a ticket to New South Wales from another State or of a sum of money to another State from New South Wales. These would be but consequences inci- dental to the operation of a general law dealing with another subject

Clearly enough the fact that a particular transaction takes place in the course of inter-State trade or forms part of inter-State trade is not enough to exclude the persons engaging in it from the oper- ation of the provisions of public and private law which otherwise would apply': Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1.

But S. 3 (4), even when SO interpreted, is free from an objection to which the form of S. 21 at first sight lays the latter section open. The objection is that S. 21 is SO framed as to apply only to foreign lotteries, an expression necessarily referring to lotteries in other States as well as abroad. Accordingly one of the very conditions on which the application of S. 21 is expressly made to depend involves or includes,

SO it is said, a discrimination against lotteries in other States. In support of this objection reliance is placed upon the direct reference, in S. 19, to the golden casket, the name of the Queensland State lottery.

But does it really mean that the legislation takes, as a ground for penalising the issue of a ticket, the fact that it comes from another State or from abroad, or, as a ground for penalising the acceptance of a payment, the fact that the payment is made for such a ticket and therefore presumptively is made for transmission to that other State or to the place abroad ? If it was intended to pick out, as the basis of the prohibition, the fact that it was a transaction over the boundary of New South Wales, it would give support for the view that it involved a direct restriction upon inter-State commerce or intercourse. But that conclusion could be justified only upon a consideration of the legislation as a whole. When the legislation is regarded as a whole, it is seen that the provisions directed against foreign lotteries are simply the counterpart of the provisions directed against lotteries in general, provisions presumed to operate only upon lotteries conducted in New South Wales. The provisions are complementary one to another. The history of the legislation against lotteries shows that from an early time foreign and domestic lotteries were dealt with by separate provisions. In the beginning this may be accounted for by what appears to have been the inter- pretation placed upon the reference in 10 Will. III, C. 23 to grants, patents and licences. It seems that the words were read as referring

1(1955) 93 C.L.R. 127, at p. 160. 95 CLR 568

only to grants, patents and licences from the British Crown. Accord- ing to a recital made by S. 4 of 9 Geo. I, C. 19 " in order to elude the many good laws made for suppressing unlawful lotteries several evil disposed persons have of late presumed to erect and carry on several lotteries upon pretence and colour of some grant or authority given by foreign princes or States" The section, which then went on to prohibit foreign lotteries, was the first of many enactments.

The question whether legislation infringes upon S. 92 is in one sense a question of the exercise of constitutional power, the power which S. 92 leaves unrestricted. The true content of the State law must be ascertained to see whether the law that results from the whole impairs the freedom which S. 92 protects and SO goes beyond the legislative power. If S. 3 (4) and S. 21 are read together they amount to a prohibition of the sale of tickets in lotteries or the acceptance of money in respect of the purchase of any such ticket covering lotteries conducted within and lotteries conducted outside the State. This is the content of the law. Viewed in this way the law does not select any element or attribute of inter-State trade, commerce or intercourse as the basis of its operation and is concerned only with penalising certain incidents of lotteries because of their aleatory nature. The fact that differing penalties are affixed for breach of the provisions cannot alter the character of the sub- stantive provisions and that is the matter in question here, not the penalties.

It is nothing to the point to suggest that legislation of this kind proceeds upon a policy inconsistent with that of the State Lotteries Act 1930 or that the real interest of New South Wales is to protect the lottery conducted under that Act. The question simply is whether the freedom has been infringed of inter-State trade, com- merce and intercourse. But in any case it should be noted that throughout the eighteenth century, when lotteries formerly were in favour, the policy of the British legislation ran upon similar lines. Lotteries not conducted under the authority of government were suppressed as pernicious. The legislation the validity of which is now in question is, in other words, of a traditional kind directed against lotteries as such independently altogether of trade, commerce and intercourse between States.

It follows from the reasons that have been given that the validity of S. 21 should be upheld. It might have sufficed in this case simply to say that no adequate reason appeared for refusing to act upon the authority of the decisions of this Court in R. v. Connare: Ex parte Wawn 1 and R. v. Martin Ex parte Wawn 2. But

1(1939) 61 C.L.R. 596. 2(1939) 62 C.L.R. 457. 95 CLR 569

having regard to the consideration which, since the date of those cases, S. 92 has received both in the Privy Council and in this Court, it seemed better to restate the reasons for the conclusion that S. 21 is valid.

Of the conviction for an offence against S. 20 little need be said. An attack upon that provision was made in the case argued together with the present, namely Consolidated Press Ltd. v. Lewis, and in the judgment given in that case the validity of the provision is upheld. There is nothing to add to the reasons contained in that judgment in support of the conclusion that S. 20 does not infringe S. 92 of the Constitution. It is enough to say that the offence with which the defendant was charged, namely displaying a notice announcing the result of the lottery, was proved by the evidence and that it was not denied that if S. 20 is valid the conviction was warranted.

For the foregoing reasons the appeals should be dismissed.

McTIERNAN J. In the first case there were two prosecutions. One was under that provision of S. 21 of the Lotteries and Art Unions Act which says that whosoever accepts any money in respect of the purchase of any ticket or share in a foreign lottery shall be liable to a penalty not exceeding twenty pounds. The second prosecution was under that provision of S. 20 which says that whosoever dis- plays upon any premises in his occupation any notice relating to a foreign lottery in furtherance of the conduct of the lottery shall be liable to a penalty not exceeding two hundred pounds. The pro- secution in the second case was under another provision of S. 20. It is the provision which imposes a similar penalty upon any person who publishes an advertisement relating to a foreign lottery in furtherance of the conduct of the lottery. The lottery to which each information referred was a lottery conducted or to be conducted in Tasmania and it was a foreign lottery within the meaning of each of these sections. "It is well settled said Knox C.J., Gavan Duffy J. and Starke J., "that the word lottery imports a distribution by chance and nothing but chance that is by doing that which is equiva- lent to drawing lots" Automatic Totalisators Ltd. v. Federal Commissioner of Taxation 1. This definition is applicable to those activities described in the Act as "foreign lotteries". In each of the present cases, the defendant claimed freedom under S. 92 to do the act charged by the information in the case. This plea cannot be

1(1920) 27 C.L.R. 513, at p. 518. 95 CLR 570

A. sustained unless the matter charged belonged to trade, commerce and

intercourse among the States. I adhere to the opinion which I stated in Connare's Case 1 and re-affirmed in Martin's Case 2, that an activity conducted across a State border, which is truly of the nature of gambling, is not trade, commerce and intercourse J. among the States on either side of the border. For that reason I

decided that S. 21 of the Lotteries and Art Unions Act did not offend against S. 92 of the Constitution. The provision of S. 21 which is now in question makes it an offence to accept any money in respect of the purchase of any ticket or share in a foreign lottery. This prohibition puts a legal obstacle in the way of any person who wishes to outlay money on the chance of winning a prize in a foreign lottery because it would render any person who accepted the money from him in New South Wales liable to a penalty. But for the reason which I have stated the obstacle is a restriction upon freedom to gamble but not upon freedom to engage in commerce or intercourse across the borders of New South Wales.

Section 21 uses commercial terms to describe what it intends to prohibit. The matters prohibited, however, pertain to the conduct of a lottery or are incidents of it. The use of these terms cannot bring within the protection of S. 92 an activity which by its nature is not trade, commerce and intercourse among the States. Compare Wilkinson, v. Rahrer 3. As I have said the conduct of a lottery is not trade, commerce or intercourse. The fact that a lottery is conducted by a State or made lawful by its law does not deprive the lottery of its gambling character and make S. 92 apply to it or the sale or purchase of tickets therein. It is important to observe the distinction that gambling is not trade, commerce or intercourse within the meaning of S. 92 otherwise the control of gambling in Australia would be attended with constitutional diffi- culties.

The provision under which the second charge in the first case was brought against the appellant makes "the furtherance of the conduct of the lottery" an essential ingredient of the offence. The provision under which the appellant was charged, in the second case, does likewise. Neither provision operates against trade, com- merce or intercourse among the States. Each provision suppresses things incidental to gambling which is an activity of a different character from any given protection by S. 92.

In my opinion the appeals should be dismissed.

1(1939) 61 C.L.R. 596. 2(1939) 62 C.L.R. 457. [35 Law. Ed. 572, at p. 575]. 3(1891) 140 U.S. 545, at p. 558 95 CLR 571

WILLIAMS J. It was found to be convenient to have these two appeals argued together and it will be equally convenient to dispose of them in the one judgment. They both arise from convictions of the appellants for offences under the provisions of the Lotteries and Art Unions Act 1901-1944 (N.S.W.), SS. 19-21, relating to foreign lotteries. The first appellant, Mansell, conducts the business of a newsagent and stationer at 181 Hay Street, Sydney. He was convicted of two offences, one under S. 20 and the other under S. 21 of that Act. The second appellant, Consolidated Press Limited, publishes a daily newspaper, "The Daily Telegraph", in New South Wales and elsewhere. It was convicted of an offence under S. 20 of that Act. The contention of both appellants is that the provisions of the sections under which they were respectively convicted are void because they offend against S. 92 of the Constitution. The text of that section has been set out SO often in previous judgments of this Court and of the Privy Council that it would be otiose to set it out again. But it may assist to set out the texts of SS. 19, 20 and 21 of the Lotteries and Art Unions Act. They are as follows: :- 19. The expression foreign lottery in this Act means any lottery conducted or to be conducted outside the State of New South Wales and whether legal in the place where it is conducted or not, or whether it is described as a lottery, or as a sweep, consultation, or golden casket, or called by any other name or designation. 20. Whosoever prints or publishes any advertisement, notice, or information relating to a foreign lottery in furtherance of the conduct of the lottery or announcing its result or displays upon any premises in his occupation any card, poster, or notice relating to a foreign lottery in furtherance of the conduct of the lottery or announcing its result shall be liable to a penalty not exceeding two hundred pounds. Whosoever sells or offers for sale or accepts any money in respect of the purchase of any ticket or share in a foreign lottery shall be liable to a penalty not exceeding twenty pounds.

Part of the business of the first appellant is to receive applications from members of the public in New South Wales for tickets in a lottery lawfully conducted at Hobart in Tasmania under the laws of that State called Tasmanian Lotteries. It is also part of his business to act as agent for the sale of newspapers that are published in Queensland, Victoria and Tasmania. Lotteries may be lawfully conducted in Queensland and Victoria as well as Tasmania and the newspapers printed and published in these States contain advertise- ments relating to the conduct and result of the lotteries there conducted. The sale of these newspapers is not attacked. But

95 CLR 572

this appellant also displays notices on the walls of his shop announc-

ing the result of the lotteries drawn by Tasmanian Lotteries, and this is attacked. He was prosecuted and convicted (i) for accepting money in respect of the purchase of a ticket in a foreign lottery, to wit, the seventh five shilling lottery, Tasmanian Lotteries, conducted outside the State of New South Wales, that is to say, in the State of Tasmania, contrary to the Act in such case made and pro- vided (or in other words contrary to the relevant provisions of S. 21 of the Lotteries and Art Unions Act); and (ii) for displaying upon his premises at 181 Hay Street, Sydney, in his occupation a notice relating to a foreign lottery, to wit, Tasmanian Lotteries, announcing the result of that lottery, contrary to the Act in such case made and provided (or in other words contrary to the relevant provisions of S. 20 of that Act). The second appellant publishes in "The Daily Telegraph advertisements containing the results of the lotteries conducted by Tasmanian Lotteries. It was prosecuted and convicted for publishing an advertisement relating to a foreign lottery, to wit, Tasmanian Lotteries, in furtherance of the conduct of that lottery contrary to the Act in such case made and provided (or in other words contrary to the relevant provisions of S. 20 of that Act).

The relevant facts have already been stated in the joint judgment of the Chief Justice and Webb J. and need not be repeated. By a legal stratagem Tasmanian Lotteries have sought to make their representatives in New South Wales (including the first appellant) the agents not of themselves but of the purchaser of their lottery tickets. But the question whether these representatives are their agents or the agents of the purchasers does not appear to be very material. Accepting the position that they are the agents of the purchasers, the transaction which takes place includes the applica- tion for the ticket, the transmission of the application and the purchase money to Tasmania by the agent of the purchaser, the transmission of the ticket from Tasmania to that agent in New South Wales, the handing of the ticket to the purchaser by his agent in New South Wales, and the communication of the result of the drawing to the purchaser by his agent or otherwise. In the case of the second appellant, the transaction includes an agreement which provides that Tasmanian Lotteries will send to the appellant certain information relating to the conduct of its lotteries, including the results of the drawings, and that the appellant will print and publish the material sent to it in "The Daily Telegraph" the object being to communicate information relating to such lotteries to the members of the public in New South Wales. To the extent to which, in order

95 CLR 573

to effectuate these transactions, money or documents or other communications have to pass between New South Wales and Tas- mania, the inter-State elements are clear enough. Section 92 provides that trade, commerce and intercourse among the States shall be absolutely free. It may be that there can be inter-State commerce in respect of lottery tickets. But it is unnecessary to express any final opinion on this point. For there can be at least inter-State intercourse. The first appellant could not be prevented by New South Wales law from applying for tickets in Tasmania in Tasmanian Lotteries or from forwarding the purchase money for them to Tasmania, and Tasmanian Lotteries could not be pre- vented from forwarding the tickets to that appellant in New South Wales on behalf of the applicants or from communicating to its ticket-holders in New South Wales through their agent or personally the result of the drawings. In a similar manner, Tasmanian Lotteries could not be prevented from communicating information to the second appellant relating to the lotteries, or the second appel- lant from receiving it.

95 CLR 603

and the offer of tickets in New South Wales in themselves consti- tute an inter-State transaction the incidents of which are protected by S. 92.

It follows that S. 20 validly operates to forbid the publication of the advertisement.

The appeal should be dismissed.

McTIERNAN AND WILLIAMS JJ. [Their Honours' judgments in this case have been printed with their judgments in Mansell V. Beck.]

FULLAGAR J. In this case the charge against the defendant was laid under S. 20 of the Lotteries and Art Unions Act 1901-1944 (N.S.W.). The substance of the offence charged is the publication in New South Wales of an advertisement relating to a lottery con- ducted in Tasmania. The defendant invokes S. 92 of the Consti- tution. The act which constitutes the offence is an act which in itself involves no element of inter-State trade or commerce or inter- course, but it does not necessarily follow from that mere fact that S. 92 does not protect the defendant. I would think it clear that a prohibition of advertising might in some cases be properly held to infringe S. 92. Advertisement is at the present day a normal and more or less necessary means of finding purchasers for goods. A manufacturer in Tasmania of an ordinary article of commerce, who wished to sell that article to persons in New South Wales, could not

I should think, be lawfully precluded by a statute of New South Wales from advertising that article in New South Wales. Such a law would restrict and hamper the Tasmanian manufacturer in the carrying on of trade between two States. In the present case, however, the enactment in question is not concerned with commerce as such, but is ancillary to a general prohibition of a particular kind of gaming. It follows, for the reasons which I have given in Mansell v. Beck, that the defence based on S. 92 fails. The appeal should be dismissed.

Mansell v. Beck.

Appeals to the Supreme Court of New South Wales

(removed into this Court) dismissed. In so far as the costs of the defendant appellant have been increased by reason of the transfer of the cause to Melbourne for hearing and of the cause being heard in Melbourne, the costs are to be paid to the defendant appellant by the informant

95 CLR 604

respondent. The costs of the appeals otherwise are to be paid by the defendant appellant to the informant respondent. Costs to be set off. BECK.

Consolidated Press Ltd. v. Lewis.

Appeal to the Supreme Court of New South Wales

(removed into this Court) dismissed. In SO far as the costs of the defendant appellant have been increased by reason of the transfer of the cause to Melbourne for hearing and of the cause being heard in Melbourne, the costs are to be paid to the defendant appellant by the informant respondent. The costs of the appeal otherwise are to be paid by the defendant appellant to the informant respondent. Costs to be set off. Solicitors for the appellant Mansell, Colquhoun &King, Sydney, by Hulbert A. Greening &Bennett.

Solicitors for the appellant Consolidated Press Ltd., Allen. Allen &Hemsley, Sydney, by Malleson Stewart &Co.

Solicitors for the respondent in each appeal, F. P. McRae, Crown Solicitor for the State of New South Wales by Thomas F. Mornane, Crown Solicitor for the State of Victoria.