Mansell v Beck

Section 20 provides that 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. A definition of the expression "foreign lottery" is contained in s. 19. It 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.

A provision corresponding with but less extensive than s. 20 is made by s. 3 (3). Section 3 relates to the sale or disposition of property, a term doubtless including money, by lottery or chance. Because of the express provisions concerning foreign lotteries, it has been assumed that the operation of s. 3 in all its sub-sections is confined to lotteries conducted in New South Wales. Sub-section (3) provides that whosoever prints or publishes any advertisement, information, or notice relating in any way to any such sale or disposition, made or to be made, shall be liable to a penalty not exceeding fifty pounds. In answer to the charge the defendant sets up s. 92 of the Constitution and maintains that s. 20 is void as an interference with the freedom of inter-State trade, commerce and intercourse and in any case the publication of the advertisement was the last step, and an inseverable, step, in a transaction of inter-State commerce arising in Hobart.

One might suppose that the publication in Sydney of a newspaper containing an advertisement of a given description was an intra-State transaction which it would be competent to the legislature to forbid, unless by reason of the nature of the advertisement coupled with some very special facts it was possible to say that the prohibition of publication reflected some prejudice back upon inter-State commerce or intercourse which would amount to a real interference with its freedom.

There are in effect three arguments advanced for the defendant by which it is sought to meet this prima-facie position.

Of these it is convenient to deal first with one which depends upon the view that s. 20 will be entirely invalid if any part of its intended operation involves an infringement upon s. 92. It is sought to show that so much of s. 20 as prohibits the publishing of any notice or information relating to a foreign lottery includes "publishings" which of necessity form part of inter-State communication. Thus it is said that if Tasmanian Lotteries were to send such a notice by post from Hobart to a prospective subscriber in Sydney the communication forming inter-State intercourse would not be complete until the recipient opened the missive; yet that would amount to "publication" in Sydney by the sender. This contention is based on an interpretation of s. 20 which gives to the word "publishes" the meaning and application which belongs to it in the law of libel. It might be enough to say that the provision does not appear to employ the word in that wide sense. But if the word were meant to extend so far, it would not follow that the provision failed. General words are not construed as exhibiting an intention to collide with s. 92 simply because they are capable of including imaginary cases protected by that constitutional provision. If such an imaginary case arises as a real one, the words may be understood as not attempting to invade the unconstitutional field in which the case has been discovered.

Of the three arguments advanced, a second, like that just considered, depended on the character of the provision made by s. 20. On its face the provision singles out foreign lotteries and prohibits the printing and publishing in New South Wales of information notices and advertisements relating to them. Thus the assumption on which the provision is based is that persons elsewhere will seek to communicate to persons in the State information of a particular description. It is evident that the lotteries outside the State which are most in mind are those conducted in other States. They are lawful under the law of the State where they exist. The advertisements, notices and information forbidden are those "in furtherance of the lottery" outside New South Wales, e.g. in another State. These features, it is suggested, show that s. 20 is a law which does more than affect inter-State trade, commerce and intercourse consequentially; the restriction upon advertisements etc. is imposed by reference to matters necessarily, or at all events generally, involving inter-State commerce or intercourse.

But what are the elements of inter-State trade, commerce and intercourse which arise out of the conduct of a lottery in another State and the publication in New South Wales of advertisements, notifications and information? Nothing but communication and the transmission of funds. It is doubtless necessary for the purposes of the business that those conducting the lottery should use these examples or instruments of trade commerce and intercourse between the two States; and s. 92 says that they shall be free to communicate across State boundaries. If s. 20 had anything to say against the use by the persons concerned of communications or of the facilities for the transmission of funds it is by no means clear that its validity would be saved by the fact that the business to which the communications and the transmission of funds are incidental is that of conducting a lottery. But s. 20 has nothing to say against inter-State communications, and it has nothing to say at all about any subject concerned with the transmission of funds. It takes two things, the lottery and the publication of advertisements, notifications and information. These it makes the basis of its operation. Neither of these things constitutes or forms part of inter-State commerce or intercourse. It may be true enough that without the use of inter-State and other communication the lottery could not be carried on or the advertisements authorised. But s. 92 does not say that all activities which must resort to inter-State commerce and intercourse in order to be effective are on that ground preserved from interference to the end that they may do so. That is to invert the meaning and purpose of the constitutional protection which s. 92 gives. The freedom it gives is to resort to inter-State trade, commerce and intercourse if for the purpose of any lawful activity there is occasion to do so.

It is unnecessary to repeat in this judgment what has been said in the reasons that have been given in Mansell v. Beck. In those reasons the grounds are given for saying that a provision which does not otherwise infringe upon s. 92 does not do so because it is directed against the conduct of a lottery. There too will be found a discussion of the relation of s. 3 (4) to s. 21. Those two sections complement one another more completely than do s. 3 (3) and s. 20, but a comparison of the two latter provisions will show that it has not been the object of the legislation to discriminate between foreign lotteries and lotteries conducted in New South Wales otherwise than by the State.

The third contention for the defendant depends in part upon the complexion which the facts of the case are said to bear and in part upon a conception of the extent of the protection given by s. 92.

Beginning with the thesis that communication from one State to another is protected by s. 92 and that the protection covers the communication of an advertisement from one State to another for publication in the second State so that the public may have information about a lottery in the first State, the argument proceeds to much more disputable ground. First it is said that the actual publication of the advertisement, that is to say the dissemination of the information it gives, is part of the communication amounting to inter-State intercourse, or if you like commerce, and is protected accordingly. The same result is claimed on the ground, which is somewhat different, that the advertisement is the end or purpose of the inter-State communication and is inseparable therefrom; it therefore is part of the inter-State transaction that is protected. Further, it is contended that even if the advertisement in itself be not a part of the inter-State transaction it is on the facts an incident, a contractual incident, in the inter-State operations of Tasmanian Lotteries and that s. 20 goes far beyond regulating the operation or business and cannot validly apply. The argument in these various forms is met by the considerations that have already been stated. However true it may be that you could not have the advertisement without an inter-State communication, that gives the advertisement no title to share in the protection which an inter-State communication may obtain as part of trade, commerce and intercourse among the States. It is simply not correct to say that an advertisement in Sydney based upon information obtained from Tasmania is part of an inter-State communication forming part of and enjoying the freedom of trade commerce and intercourse among the States. Nor does the conduct of the lottery from Tasmania and the offer of tickets in New South Wales in themselves constitute 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.

[Their Honours' judgments in this case have been printed with their judgments in Mansell v. Beck.]

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 conducted in Tasmania. The defendant invokes s. 92 of the Constitution. The act which constitutes the offence is an act which in itself involves no element of inter-State trade or commerce or intercourse, 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.