McCarter v Brodie

In the High Court of Australia, Francis Clemes McCarter and Reginald Alfred Gough (the appellants) appealed against their convictions in a Victorian Court of Petty Sessions. The appellants were charged with operating a commercial goods vehicle without a licence, contrary to the Transport Regulation Act 1933 (Vict.). The vehicle was carrying goods from South Australia through Victoria to New South Wales, constituting inter-State trade. The appellants argued that the Act, if applied to their inter-State operations, contravened section 92 of the Commonwealth Constitution, which guarantees the freedom of inter-State trade, commerce, and intercourse.

The central legal issue before the High Court was whether the Victorian Transport Regulation Act 1933, as amended, was invalid by reason of its application to inter-State trade and commerce, thereby infringing section 92 of the Constitution. This required the Court to determine whether the licensing and regulatory scheme established by the Act constituted an impermissible burden or prohibition on inter-State commerce, particularly in light of recent Privy Council decisions.

A majority of the High Court, comprising Latham C.J., McTiernan, Williams, and Webb JJ., held that the Act did not contravene section 92 of the Constitution. Their Honours followed the precedent set in *Riverina Transport Pty. Ltd. v. Victoria*, which had previously upheld the validity of the same Act. The majority reasoned that the Act was a genuine regulatory measure aimed at controlling road transport in the public interest, rather than a prohibition on inter-State trade. They considered that the licensing system, while discretionary, was designed to ensure the orderly provision of transport services and to coordinate road transport with other forms of transport, such as railways. The amendments to the Act since the *Riverina Transport* decision were not considered to have altered its fundamental character or its compliance with section 92.

The Court dismissed the appeals, upholding the convictions of the appellants. Dixon and Fullagar JJ. dissented, finding that the Act, in its licensing and discretionary powers, imposed an impermissible restriction on inter-State trade and commerce, contrary to section 92 of the Constitution.