APPEAL from the Court of Petty Sessions at Launceston, Tasmania.

Barwick C.J. A magistrate sitting at Launceston in the State of Tasmania respondent used a trailer as a public vehicle whilst it was unregistered as such contrary to s. 24 of the Traffic Act 1925, as amended, (Tas.) (the Act). The relevant parts of that section are as follows:

"24. (1) No person shall drive or use or cause or permit to be driven or used as a public vehicle any vehicle -

. . .

(c) in respect of which a licence is not in force;

. . .

(e) with a trailer attached thereto unless a licence is in force in

respect of that trailer, except in a case of emergency occasioned by accident or breakdown;

2. Certain definitions in the Act to which attention may need to be paid are as follows:

"'motor vehicle' means any motor car, automobile, motor carriage, traction engine, tractor, motor cycle, or other carriage or vehicle propelled or capable of being propelled wholly or partly by any volatile spirit, steam, oil, or electricity, or by any means other than animal power, but does not include a vehicle constructed or adapted for propulsion on rails only;

'trailer' means a contrivance - (a) without motive power that is drawn or propelled or is capable of being drawn or propelled by a motor vehicle from which it is detachable; and

(b) that is equipped with wheels or revolving runners upon which it moves or

is moved,

but does not include -

(c) . . .

(d) a side-car or side-box attached to a motor cycle; or

(e) any other class of contrivance that is declared by the regulations

'vehicle' includes any description of vehicle designed to move or to be moved on one or more wheels or revolving runners, and any truck, barrow, or similar vehicle, but, except as may be expressly prescribed by regulations, does not include a vehicle constructed or adapted for propulsion on rails only."

A vehicle is a "public vehicle" which, amongst other uses, is used for the carriage of goods for any consideration, or is used for the carriage of goods in the course of a trade or business (s. 14 A B (2)). (at p128)

3. The trailer, the subject of the appellant's complaint, drawn by a prime mover registered as a public vehicle, was in fact unlicensed as a public vehicle and at the time to which the complaint referred was carrying on a public road a shipping container loaded with frozen lamb. (at p128)

4. A producer of lamb, whose name was Donaldson and whose grazing property was in Northern Tasmania, was also an exporter of lamb for which he held an export licence. Having no facilities for processing the lamb which he produced; he engaged a Tasmanian company, J. C. Hutton Pty Ltd. (Huttons) to process the lamb for export and to arrange on his behalf for its shipment to his agents in London for its disposal there. Huttons, in pursuance of this arrangement, slaughtered and dressed the lamb and froze and stored it pending shipment. (at p128)

5. The intention of Huttons was to despatch the lamb in refrigerated containers, the lamb occupying the whole of the containers. Arrangements accordingly were made for such transport of the lamb from Huttons' premises to London. These arrangements involved three or perhaps four companies or persons. Two were limited companies with similar names, ACTA (European Service) and ACTA Pty. Ltd., the latter incorporated in the Australian Capital Territory and the wholly owned subsidiary of the former. I will refer to the former as the European Service and the latter as the Australian company. (at p128)

6. The business of the European Service was concerned with overseas shipping and that of the Australian company with transport within Australia. It was said in evidence before the magistrate that the Australian company acted as agent for the European Service which meant, I think, that in arranging overseas transport from the Australian end, and, possibly, in engaging with Huttons to do so, the Australian company acted on behalf of the European Service. In using the abbreviation ACTA without the addition of the words (European Service) the evidence, in my opinion, refers to the Australian company which, in arranging transport of goods from Launceston to Melbourne, did not act as agent for its parent company but did so in the course of conducting a business of its own. The Australian company appointed W. D. Peacock & Co. Pty. Ltd. (Peacocks) its commercial representatives in Tasmania and the respondent its "operations contractor". These were the other two of the four persons, natural or juristic, involved in the arrangements to move the lamb from Huttons' premises to London. The function of the commercial agent, Peacocks, appears to have been to obtain or receive requests by exporters of containerized cargo for space on overseas shipping. The procedure would appear to have been for Peacocks, having received a request for space, to communicate the requirements to the Australian company which apparently had the means of knowing when and to what extent the request could be fulfilled. The exporter was then informed through Peacocks of the availability of space, including the number of containers which could be carried and the date or approximate date of the departure from Melbourne of the available ship. The respondent, who had been appointed the Australian company's operations contractor in Tasmania, would likewise be informed of the number of containers to be transported to Melbourne. Thereupon the responsibility for the carriage of the indicated number of containers from the premises of the exporter to Melbourne through a Tasmanian port devolved on the respondent. It was said to be the respondent's responsibility "as agent of ACTA Pty. Ltd. . . . to get the goods to Melbourne", that responsibility including the "making of arrangements for both transport by road and transport by sea to Melbourne". All Tasmanian cargoes with which the Australian company was concerned were to be moved "between Tasmania and the mainland in full container loads (FCL's) . . ."and "the principal point for centralization or distribution of containers will be Melbourne". The representative of the Australian company said in evidence that that company's responsibility "ceased when the goods reached Melbourne" which meant "upon receipt into the Terminal", i.e. the overseas container terminal at Melbourne. (at p130)

7. The procedure which I have described was, on the evidence, followed in the instant case. Space having been obtained or reserved on a container ship, the "Discovery Bay", ex Melbourne for Tilbury, London, the respondent, on a date suitable to commence the transport of the containers carrying Donaldson's lamb to Melbourne for transhipment to the "Discovery Bay", delivered to the premises of Huttons empty containers capable of maintaining refrigerating temperature. Huttons loaded them and thereafter the respondent moved them to its own depot at Rocherlea in Launceston. Thence they were taken on semi-trailers to Bell Bay and loaded on a vessel of the Australian National Line (A.N.L.), the "Sydney Trader", which took them to Melbourne. There they were moved, presumably by the Australian company, to the overseas terminal awaiting shipment on the "Discovery Bay". In due course they were shipped, their cargo intact, for Tilbury. (at p130)

8. Apparently there is what was called in the evidence a "rationalised freight charge" which provided the same freight rate for carriage of containers from various Australian ports to one or other of the ports able to handle overseas container traffic of which there are presently only three. Sydney, Melbourne and Fremantle. The total transportation charge from the place of initial receipt of the goods to the ultimate place of destination is collected at the outset, and the amount in due course distributed between those responsible for the various segments of the transport. In this case, on the evidence, I think that the payment of the total charge was made to the Australian company. Payment for the transport from Rocherlea to Bell Bay by the respondent was paid by the Australian company to the respondent. That company paid the freight charge of the A.N.L. for sea carriage from Bell Bay to Melbourne though the arrangements for that shipping were made by the respondent. The Australian company remitted to the European Service the amount appropriate to the freight from Melbourne to London and the handling charges at that port, retaining the amount of its own handling charges. (at p130)

9. It was said in the evidence that the shippers received "a bill of lading to their door and so technically that contract is with our principal". No through bill of lading was put in evidence and, in my opinion, it is not clear that such a bill of lading, Launceston to London, was issued or, indeed, contemplated. Either by document or by conduct, one of the ACTA companies - I think the balance is in favour of the view that it was the Australian company, partly as agent for the European Service and partly on its own account, accepted the obligation to effect the transport from Huttons' premises to London. Clearly the Australian company arranged through the respondent for transport from Rocherlea to Melbourne in the course of its own business. (at p131)

10. A document styled "Forwarding Instructions" and marked "Carter's copy" was put in evidence. It is a printed form which seems to have been filled in in order to enable the preparation of a bill of lading. According to that document, the shipper's name to appear on the bill was to be that of J. Donaldson: the name of the consignee was not filled in but the word "order" inserted. The party to be notified, presumably of arrival of the containers at their final destination, was to be McPherson Train & Co. Ltd. of a stated address in London. The "intended vessel" was named as the "Discovery Bay", the intended port of loading "Melbourne", and the intended port of discharge "London". ACTA (the Australian company) is to prepare a "shipped" bill of lading, the release port of the bill of lading being Launceston. The freight "Aust. zone" is said to have been paid. This I assume to refer to the freight Melbourne to London. At the foot of the form is a carter's receipt for the container (it is not clear to me whether more than one container is referred to in the forwarding instructions) noted as accepted at Launceston for delivery to Tilbury "for further instructions) . . . subject to the terms, conditions and exceptions contained in the Carrier's Combined Transport Bill of Lading". The signature is that of the respondent's carter "as Agent only", "for and on behalf of the carrier (as indicated above)". I am inclined to infer from other references in the document to the carrier, who is not specifically named, that it is the ship and those responsible for it to whom reference is made under the description "the carrier". But it may be that either or both of the ACTA companies as well as the ship is or are included in that description. The receipt would then be akin to that signed in the decided case of Bell Bros. Pty Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225, cf p 233 . It is said in the forwarding instructions that the "Interim Receipt (white)" is to be exchanged at the carrier's local office for the bill of lading. I conclude that a document in terms of the form at the foot of these forwarding instructions and marked for "Carter's use" is the interim receipt there referred to. (at p131)

11. But whatever the fact might be as to whether a through bill, Launceston to London, was in contemplation, there can be no doubt, in my opinion, that one entire transport operation of each container, Launceston to Melbourne, was in contemplation and did in fact occur. The containers were to be and were delivered to the ship at Bell Bay. No doubt it was also intended that on arrival at Melbourne the containers should be moved to the overseas container terminal to await shipment on the designated ship. In a sense, which I think is an irrelevant sense, there could be said to be on foot an operation of transportation of the container from Launceston to London: but it is largely on this circumstance that one of the appellant's principal arguments fastens. (at p132)

12. Upon my understanding of the evidence I would act on the footing that the Australian company on its own behalf assumed the obligation towards Huttons in the course of its business to arrange the transport of the loaded containers from Launceston to Melbourne. The consignment note issued by the A.N.L., I think, supports that view. In that document the Australian company was entered as consignor and as consignee. (at p132)

13. Because of its standing arrangements with the respondent as its Tasmanian operations contractor, the Australian company performed its obligations to effect the transport of the container to Melbourne through the respondent. Thus, as I think, the respondent vis-a-vis the Australian company undertook the obligation of the transport of the containers from Huttons' premises to Melbourne. It was the respondent who, in performance of its obligation, engaged the space with the A.N.L. through the Australian company paid therefor out of the total transportation charge paid to it by Huttons. It would be possible in this case to regard the respondent and the A.N.L. as jointly engaged in inter-State transport much as McTiernan J. regarded the appellant and the Adelaide Steamship Co. in Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR, cf p 233 . (at p132)

14. The clear intention of the owner of the lamb, of Huttons and of the Australian company was that, immediately on arrival in Melbourne, the containers would be moved by land transport from the A.N.L. terminal to the overseas container terminal whence they could be moved in due course to the ship for London. Though not directly evidenced, it may be taken that the respondent was aware of the ultimate destination of the containers. In this instance there were containers full of homogeneous cargo: and nothing would be done to them or their contents whilst in Melbourne, except of course the maintenance of the refrigerating temperature. But, of course, in container transport, a container may frequently contain mixed cargo of diverse ownership so that on arrival at the container terminal the container may be broached and its contents reassembled and repacked. Further, as is mentioned in the evidence, there may be regrouping of partly filled containers. (at p133)

15. It was the carriage of one of the containers the subject of all these arrangements on the respondent's semi-trailer from Rocherlea to Bell Bay which was the use of the trailer claimed by the appellant to be its use of the trailer as an unlicensed public vehicle and which is the subject of the appellant's complaint. (at p133)

16. The magistrate dismissed the complaint on the ground that by reason of s. 92 of the Australian Constitution, s. 24 of the Act was inoperative in respect of the use of the trailer to convey the container from Rocherlea to Bell Bay. (at p133)

17. I might at this point mention the unsatisfactory nature of the procedure adopted in this case as a vehicle for the decision of such substantial issues of law as have been raised in the argument of this appeal. The parties, as it seems to me, wanted a decision as to whether the fact that the goods were destined for London destroyed an immunity which otherwise, consistently with the decisions of the Court, would have attached to the respondent's carriage of the container to Bell Bay. Counsel then appearing for the appellant conceded that, had the container and the lamb it contained not been intended for transhipment at Melbourne for London, the respondent would have had the protection of s. 92. As will appear, the submissions now made range much more widely, the like concession not now being made. Evidence appropriate to some of these submissions was not led or examined before the learned magistrate; nor was he invited to consider what findings of fact he should make in the light of such submissions. But it is sought to rely in relation to the new submissions on findings of the magistrate made in relation to the matters argued before him. However, I do not think that what I have concluded was the course of business in relation to the transport of this container and the contractual obligations between the various parties is in any substantial point inconsistent with any conclusion of fact expressed by the magistrate in his reasons for judgment. But if in this I am in error, I would have no hesitation, because of the circumstances to which I have referred, in departing from these conclusions of fact and without having the benefit of any conclusion of the learned magistrate specifically directed to the new submissions, in acting upon my own conclusions. (at p133)

18. We were favoured in the hearing of this appeal with a vigorous examination of the differences of opinion which have been expressed in this Court upon the question whether the only law which can offend s. 92 is a law which takes as the criterion of its operation some aspect of inter-State trade or commerce. But the argument and its discussion were, in my opinion, clearly beside the point so far as this case is concerned. Here the law under challenge forbids carriage of goods for reward on roads within Tasmania, without the permission of the Tasmanian executive through one of its officers. On any view, however narrowly the test of validity be expressed, that law does take as its "criterion of operation" a central aspect or feature of commerce. (at p134)

19. We were also favoured with an examination of cases in which the question of directness or indirectness, direct or consequential effect, of the operation of a law in relation to the constitutional immunity has been discussed. But, again, the argument. in my opinion, subject to an alternative basis of immunity to which I will refer, was beside the point, for here the law operates directly on the carriage of goods for reward. Constitutionally it cannot do so upon inter-State carriage of goods for reward. (at p134)

20. The real question in the case, in my opinion, is whether the respondent in carrying the goods from Rocherlea to Bell Bay to place them on ship for Melbourne was engaged in inter-State trade, and entitled to be protected in that carriage by s. 92. After fluctuating emphasis and expression, counsel for the appellant, in answer to questions from the Bench, conceded that if the lamb had been intended for sale in mainland Australia, the transportation of the container from Rocherlea to Melbourne would have been an operation of inter-State trade or commerce, and the respondent protected in respect of his share of it in carrying the container to Bell Bay. But the basis of this concession is vital to one of the appellant's principal arguments. In the appellant's submission, transportation for reward across State lines is only protected by s. 92 if what is carried is itself the subject of inter-State trade. Oddly enough, counsel for the appellant conceded that the transportation for reward of lambs, partly by road and partly by sea, from Tasmania to Melbourne for agistment or depasturing in Victoria would be an activity of inter-State trade and commerce so that a carrier in the position of the respondent would be entitled to the constitutional immunity in the use of his vehicles on the Tasmanian roads in the transport of the lambs. But I am bound to say that counsel sought to make this concession consistent with his argument by submitting that depasturing the lambs for fattening for sale was itself a trading activity. (at p134)

21. I think the following list embraces all the submissions which the appellant made in support of the appeal:

1. that the "journey" on which the container was engaged was an international journey and not an inter-State journey;

2. that the "journey" on which the semi-trailer was engaged was an intra-State journey; and

3. that no trade or commerce between the States was involved in the transportation of the container and that s. 92 afforded the respondent no protection in relation to the Act: or, put another way, that s. 24 of the Act was fully operative in respect of the respondent's use of the trailer on the Tasmanian roads between Rocherlea and Bell Bay on the day and in the circumstances covered by the complaint, the operation of that section not being affected by s. 92 in the circumstances of the case. (at p135)

22. For these submissions several grounds were put forward, one of which I have already mentioned:

1. that the only protection which s. 92 gives a carrier effecting, or participating in, inter-State transport of goods for reward is derived from the inter-State trade of the person whose goods are being carried: or, put another way, unless the goods carried are themselves in the hands of their owner or possessor in the course of inter-State trade, their carrier inter-State has no immunity;

2. that the carriage from Rocherlea to Bell Bay was merely preparatory to the inter-State movement from Bell Bay to Melbourne and not part of an entire operation of transport inter-State;

3. that the operation of the Act upon any relevant trade of the respondent was indirect or consequential. (at p135)

23. In this connexion, the appellant submitted that the respondent's business in relation to the carriage of the container from Bell Bay to Melbourne was no more than that of a forwarding agent and that a prohibition on carriage of goods by commercial vehicles on the Tasmanian roads had no such direct effect on that business as to entitle the respondent to any immunity in respect thereof. (at p135)

24. The appellant further submitted that Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was well decided and governed the present case: and that to the extent that any subsequent decision of the Court is inconsistent with that case it should be overruled. (at p135)

25. The commencing point for the consideration of this case is the statement, now undoubted in my opinion, that transport for reward is itself trade and commerce, whether persons or goods are carried. It is the transit of the border, actual or in prospect, which gives such transport the quality of inter-State trade and commerce. The carrier whose business it is to engage in that transport is himself in respect of it engaged in inter-State trade and commerce. This is so, in my opinion, irrespective of the nature, origin or ultimate destination of the goods or persons which are being thus transported. Perhaps it is sufficient to refer in this connexion to the Court's decision in Naracoorte Transport Co. Pty. Ltd. v. Butler [1956] HCA 72; (1956) 95 CLR 455, at p 459 . The ultimate destination of what he carries is, in my opinion, irrelevant to the nature of the trade and commerce in which he is thus engaged, vis-a-vis the constitutional immunity. What he carries need not be itself the subject of inter-State trade in the hands of its owner or consignor, e.g., the carriage for reward of domestic furniture or personal belongings not intended for sale if effected over State boundaries is an exercise of inter-State trade and commerce. (at p136)

26. Where the carriage is by a single means of transport crossing State boundaries, little difficulty arises in connexion with these propositions. However, where, as in the case of Tasmania, the land margins of the one State and the land margins of the other are separated by an area of sea, carriage by surface transport from a place within one such State, not being at the land margin, across its boundary with another State cannot be carried out by a single means of transport. The same situation may arise where more than one form of transport is used to carry goods from a place within one State on the Australian mainland, e.g. Western Australia, to a place within another mainland State, e.g. Queensland, particularly where sea transport is employed for part of the carriage: and, as was observed in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177, at p 183 , other instances of a combination of transport services in mainland transportation may exist. (at p136)

27. In these cases, carriers engaged in different forms of land, sea or air transport co-operate to transport goods across State boundaries. As all such carriers do not carry the goods across State lines it has been necessary to develop doctrines appropriate to such situations so as to give effect to the constitutional guarantee for the freedom of transportation across State lines which is central to the freedom of trade and commerce. The doctrine which, in my opinion, has ultimately found favour and which, in my opinion, is constitutionally correct is that where the segments of the carriage of goods (no case having as yet raised the question in connexion with segmented transport or movement of persons) from a place in one State to a place in another State in truth form part of an entire transport operation crossing State lines, the operator carrying cargo for reward in each such segment is entitled to the constitional immunity. The immunity is derived from the fact that he is engaged in carrying out what is in reality transportation for reward across State lines. (at p137)

28. Perhaps the use of the expressions "single journey" or "continuous journey" in this area of discourse, though convenient to convey the idea of one entire transport operation, though performed in segments, is apt to lead to confusion. It may be that the cargo takes a journey which may be irrelevant to the relevant nature of the transportation. The principle which in my opinion has been accepted can adequately be expressed by saying that a carrier co-operating in the course of his business with other carriers in an entire transport operation across State boundaries is entitled to the protection of s. 92 in respect of the performance of his part of that transport though his activity is confined within the State, provided that his vehicle is used exclusively, or perhaps predominantly, for the performance of the particular inter-State transportation. Where such a transport operation is continuous except for the exigencies of actual transhipment from one form of transport to another, little difficulty arises in the application of this principle. Again, where a through bill of lading or other contract of carriage exists covering transportation over State boundaries, the conclusion is readily drawn that an entire transport operation is contemplated and that the various carriers participating in the performance of the carriage which that contract requires are themselves in inter-State trade. The fact to be established, if immunity is to attach, is whether the transportation of the goods is an entire operation crossing State lines. The existence of the contractual obligation may be evidentiary, or even conclusive, of that fact. Of course, cases have arisen where the transport operation across State boundaries is not physically continuous. Pauses may occur in that movement because of economic or physical circumstances which may not in the nature of things deny the conclusion that none the less the transportation was an entire transport operation over State boundaries. Lack of physical continuity in the transport of goods may lead to the conclusion that there are in truth two separate transport operations, the one no more than a prelude to the other. On the other hand, practical and economic reasons for the lack of physical continuity may result in the conclusion that notwithstanding the break in continuity there was one entire operation of inter-State transportation. Differences may occur in the interpretation of the facts of a case in this respect. Tamar Timber Trading Co Pty Ltd v. Pilkington [1968] HCA 15; (1968) 117 CLR 353 and Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 are examples of the two classes of case. But given that in fact there was an entire operation of inter-State transportation, the co-operators are each entitled to constitutional immunity. (at p138)

29. Since the decision in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 there has been a developing line of decision in this Court which, in my opinion, supports the view I have stated, namely, that each carrier for reward co-operating in the movement across State boundaries in an entire transport operation is entitled to the protection of s. 92 in respect of that part of that operation which he has performed although his activities are wholly confined within one State. He can be held to co-operate in a single operation though he may not be in contractual relationship with those other carriers who perform other segments of the operation. For example, and with no intention of exhausting the possibilities, I instance the case of a person who, having undertaken the entire transport of goods from a place in one State to a place in another, subcontracts each segment of that transport to different carriers none of whom may even be aware of the arrangements made, or the activities or identity of the other or others of them or of the existence of a contract for the entire transport. Yet all may in fact be co-operators in a single or entire transport operation. But, of course, the existence of a through bill of lading or a contractual equivalent, or of evidence of mutual knowledge on the part of the several carriers materially aids the conclusion that the performance of the obligation of the bill or arrangement involves an entire transport operation. (at p138)

30. I have confined my remarks to the case of the carrier of goods for reward. Because we are here concerned with such a carrier, I do not need to deal with the case of the owner of the goods who himself participates in such an inter-State transport operation. Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 is illustrative of such a case. The owner, in respect of the carriage of his own goods as part of an operation inter-State, was held to be entitled to the constitutional immunity. Nor have I any present need to refer to the immunity which may attach to the owner of the goods being transported in respect of his inter-State trade in the goods, except in so far as in the cases in which the constitutional doctrine has been developed, such a trade in goods has been present and has in some cases played a part in the formation of the conclusion. Further, I have no need in this case to consider the scope of the word "intercourse" in the collocation "trade, commerce and intercourse". (at p138)

31. In the decided cases, where the goods being carried have themselves been the subject of inter-State trade and commerce, the interference with the trade in the goods has been open as a ground of immunity both for the owner of the goods and of the carrier. But, as I think, the Court in its decisions has moved progressively to place the immunity of the carrier from inhibiting road legislation also and ultimately, as I think, solely upon the interference with the carrier's own trade constituted by his carriage of goods for reward. Consequently, where there is participation in an entire operation of inter-State transportation the result would have been the same, in my opinion, had the load or cargo been personal baggage or household effects being carried for its or their owner, not being themselves the subject of inter-State trade. The fact that there was an entire operation of transportation across State boundaries may be established without the existence of contractual arrangements covering the entire operation. Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 was such a case. It was decided in April 1957. There, a wholesale fruit merchant carrying on business in Launceston, Tasmania, imported fruit from the mainland which had been purchased from a merchant in Melbourne. The fruit when ordered by the Tasmanian merchant was carried by the Victorian merchant to Port Melbourne and there placed on board ship under a bill of lading consigned to the Tasmanian merchant at Burnie. On arrival at Burnie, the fruit was cleared by shipping agents and loaded on the Tasmanian merchant's lorry for carriage to Launceston, no other goods being placed on the lorry. The lorry bearing the fruit was driven by that merchant's servant from Burnie to Launceston, some small amount of the fruit being delivered at intervening towns. It was held that that carriage was part of the inter-State transportation of the fruit. No contract for through carriage from the Victoria Market to Launceston existed. But from the course of dealing it was concluded that "The intended destination of the fruit, when it left the Victoria Market, was Launceston. Deacon" (the Victorian merchant) "was responsible for part of the journey which the fruit had to make, and Walters" (the Launceston merchant) "was responsible for the rest of that journey, but it was a single journey that was in contemplation": (1957) 96 CLR, at p 184 . For my part, I would now, in the interest of clarity, substitute transportation for journey and, preferably, entire for single. But, however described, the inter-Stateness of the transport was not derived from any contractual obligation to deliver the goods across State lines. It was derived from intended transport across State lines in an entire operation. (at p139)

32. A brief recital of some of the cases since Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 may not be out of place as illustrative of the developing view as to the constitutional protection of segmented transportation across the boundary of a State. Also the reliance by the appellant on Hughes v. Tasmania, though somewhat ambivalent in argument, warrants such a course. (at p140)

33. Simms v. West [1961] HCA 62; (1961) 107 CLR 157 was decided in October 1961. An agent to purchase sawn timber in Queensland for a principal in Sydney accepted the obligation to transport the timber which he purchased from the place of purchase, namely, the inland town of Ravenshoe, to a shipping agent at Cairns for shipment to Sydney. The agent, by its employees, carried the timber in a hired truck from Ravenshoe to Cairns. He was held entitled to the constitutional immunity. The carrier had not accepted the obligation to transport or arrange the transport of the timber to Sydney. There was still nothing to correspond with a through bill. "The carriage of the timber from the mills at Ravenshoe to the wharf and thence to Sydney by ship must be considered a continuous inter-State operation in the carriage of the goods. Any interference which prevents the operation must be outside the application of" the State Transport Facilities Acts, 1946-1959 (Q.), per Dixon C. J. (1961) 107 CLR, at p 162 . But earlier it was said that it was the trade of the Sydney merchant which attracted the immunity. This basis is seen in the reasons for Taylor J. who said "But if the provisions of the State Transport Facilities Acts applied with full force in such circumstances, then the Act must be taken to have forbidden the purchaser, except at the uncontrolled discretion of the Commissioner, to use any form of road transport to take his timber to the seaboard for shipment. Such a prohibition, operating in circumstances such as those disclosed by the evidence, is clearly obnoxious to the provisions of s. 92 of the Constitution" (1961) 107 CLR, at p 166 . (at p140)

34. It may thus fairly be said that, to some extent as I think under the influence of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 as understood by the members of the Court deciding Simms v. West [1961] HCA 62; (1961) 107 CLR 157 , the immunity of the carrier was placed on the inter-State trade of the owner of the goods being carried, rather than directly upon the trade of the carrier himself. It is of passing interest that on this view the prohibition of road transport was considered directly to affect the trade of the Sydney purchaser of the timber (1961) 107 CLR, at p 162 . (at p140)

35. In Bell Bros. Pty Ltd v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 , the appellant was a carrier in business as such in Western Australia. The majority of the Court concluded that it contracted to carry timber for the Kauri Company from Nannup to Melbourne. It arranged with a shipping company to carry the timber by sea from Fremantle to Melbourne. It carried the timber on its own lorry from Nannup to Fremantle. It was sought to subject the appellant in respect of this use of its vehicle to the provisions of the State Transport Co-ordination Act, 1933-1961 (W.A.) which, for such use, required a licence the grant of which was in the discretion of an official. The majority of the Justices were of opinion that the appellant's use of its vehicle was in the course of the appellant's inter-State trade and commerce. Dixon C.J. (1963) 109 CLR, at p 228 said of the appellant's activity in carrying the timber to the port of shipment: "In my opinion, the carriage by land was portion of a continuous journey of an inter-State character". McTiernan J. (1963) 109 CLR, at p 231 thought that the appellant and the steamship company "were joint inter-State carriers in relation to the whole journey from Nannup to South Melbourne" and considered that the appellant was protected by s. 92 in respect of their transportation from Nannup to Fremantle. Menzies J. said (1963) 109 CLR, at p 235 that he was satisfied "that the appellant was party to a contract for continuous carriage of the timber from Nannup Mill to Lorimer Street and that in part performance of that contract it picked up the timber and carried it to North Fremantle where it handed over the timber and the documents so that the contract would be fully performed. From this it would follow that in carrying the timber as it did between Nannup and North Fremantle, the appellant was itself engaged in inter-State trade". And on this ground the appellant was immune from the provisions of the Western Australian requirement of possession of a licence to use its vehicles for that carriage of the timber. (at p141)

36. It is of interest that the majority of the Court considered that Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and Simms v. West [1961] HCA 62; (1961) 107 CLR 157 provided authority for these conclusions. It was the carrier's trade which attracted immunity because it was part of an entire operation of inter-State transportation. But no reference is made to the trade of the mill owner and the contract for through carriage is, in my opinion, used as evidence of an entire though segmented operation of inter-State transport. (at p141)

37. Brambles Holdings Ltd. v. Pilkington [1972] HCA 6; (1972) 126 CLR 524 and Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 were decided in February 1972. In the former case, as the Court took the facts to be, the appellant contracted to transport goods manufactured at Wesley Vale Mills, Devonport, Tasmania, to consignees in Sydney, New South Wales. The appellant, in performance of this obligation, carried the goods in its own vehicles from the mill to the railyard at Devonport where they were loaded in a railway container and carried by the Government Railways of Tasmania to Hobart. The goods on arrival in Hobart were removed from the railway container, which was unsuitable for sea transport, and placed in a shipping container, along with other goods, for despatch by sea to Sydney. It was held that the appellant was protected by s. 92 in respect of the carriage of the goods within Tasmania. "In our opinion the carriage of the goods by the appellant from the mill to the rail at Devonport was in the course of inter-State trade and commerce. It was none the less so because for the commercial reasons we have mentioned the goods, at a later stage in their movement to their inter-State destination, had to be removed from the railway container and placed in the shipping container . . ." (1972) 126 CLR, at p 528 . They rejected a submission that the inter-State transportation did not commence until the goods were placed at the disposal of the ship, the carriage from the mill being merely preparatory to and separate from the inter-State transport. (at p142)

38. In Holloway v. Pilkington (1972) 127 CLR, at p 391 a carrier at Burnie, Tasmania, was an agent for a Victorian carrier who was engaged in the transport of goods to and from the Australian mainland from and to various points in Tasmania. He was instructed by his Victorian principal to take up two shipments of plant and equipment on arrival at Burnie from Melbourne and to deliver the plant and equipment to Stanley in North Western Tasmania. Part of the plant and equipment arrived at Burnie in a container which contained other goods. It was taken by the carrier to his depot at Wivenhoe where its contents were sorted to allow of delivery of its several contents to various consignees in Tasmania. The carrier's vehicle, as it was en route to Stanley carrying part of the plant and equipment following the handling of it in the carrier's depot, was intercepted on the Bass Highway by State officers claiming that as it was unlicensed under Tasmanian legislation for use at the place of interception, that use was an offence against that legislation. The Court held the use of the vehicle, though confined to the State, to be protected by the Constitution as an operation in the course of inter-State trade or commerce. "The appellant's vehicle was being used at the relevant time to complete the journey of the goods which began in Victoria and ended in Stanley." (1972) 127 CLR, at p 394 (at p142)

39. In these two cases the contract for carriage of the goods from one State to another established the intended inter-State movement of the goods and the entirety of the transport operation which, though segmented and perhaps subject to interruption for commercial or practical reasons, moved goods from State to State. Apart from the fact that I was party to the last two decisions, which in turn approved the first two decisions to which I have referred, I am of opinion on reconsideration of all of them that their results are in accordance with the Constitution. (at p143)

40. Applying the constitutional views to which I have referred and which were applied in the cases to which I have made reference, it is, in my opinion, quite clear that the respondent's participation in this case in the carriage of the container from Rocherlea to Melbourne, subject to the effect, if any, of the ultimate destination of the container being London, was part of inter-State trade and commerce affording the respondent immunity from the operation of s. 24 of the Act. In the light of that conclusion and those decisions it is quite erroneous, in my opinion, to speak of his use of his transport vehicles from Rocherlea to Bell Bay as merely an intra-State "journey" as if that use were divorced from and not an integral part of the continuing transport of the container from Rocherlea to Melbourne or as if it were merely preparatory to an inter-State carriage commencing at Bell Bay. (at p143)

41. This conclusion does not depend, in my opinion, upon the existence of an obligation by the respondent to carry or arrange the carriage of the container from Rocherlea to Melbourne. It depends upon the fact, undoubtedly established, in my opinion, that there was in fact an entire operation of transportation of the container from Rocherlea to Melbourne and that the respondent, in the course of his business, was participating in part of that entire transportation for reward. (at p143)

42. However, I would conclude from the material in the case that the respondent, as the Australian company's operations contractor in Tasmania, had accepted an obligation to transport the container from Rocherlea to Melbourne - an obligation capable of performance partly by carriage in his own vehicles and partly by ship in which he could secure appropriate space. Further, I would conclude that such an obligation was accepted by the respondent in the course of its transportation business in which it undertook the transportation of goods at the direction of the Australian company from Tasmania to the Australian mainland. To forbid the use of his vehicles on Tasmanian roads, in my opinion, directly burdened and hindered that business contrary to s. 92. The directness of the operation of the Act upon the business was akin to the directness of the State Transport Facilities Acts, 1946-1959 upon the trade of the Sydney purchaser - Simms v. West [1961] HCA 62; (1961) 107 CLR 157 . Thus, my conclusion as to the contractual obligation of the respondent provides in this case not only evidence to support a conclusion that an entire, though segmented, operation of inter-State transportation was in fact on foot, but also a separate and independent ground of immunity from the operation of the Act. (at p144)

43. The remaining question is whether none the less that use of the respondent's vehicles was not part of an inter-State transport operation because the goods being carried were intended for transhipment in Melbourne to a vessel bound for London. But before turning to consider whether in this case the circumstance that the container and its contents were destined for London requires the conclusion that the respondent in co-operating in the transport of the container from Rocherlea to Melbourne was not engaged in inter-State trade, I shall deal with the submission that Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 is to be preferred to the course of decision to which I have referred and that its application to the facts of this case should result in the conviction of the respondent. (at p144)

44. Hughes v. Tasmania was decided in June 1955. A fruit merchant carrying on retail business in Hobart, Tasmania, bought fruit from fruit merchants on the mainland of Australia. Though the contracts of sale of the fruit did not impose an obligation on the mainland merchants to deliver the fruit in Hobart or even in Tasmania, the course of business followed by the parties was that the mainland merchants did place the purchased fruit in transit to a Northern Tasmanian port, consigned either to the buyer or to his agent, Hughes, as consignee. Hughes carried on business both as a shipping agent and as a carrier. Under arrangements with the Hobart merchants he received and cleared the fruit on arrival at the Tasmanian port and carried it to Hobart on lorries in fact devoted exclusively to this purpose. The Transport Act 1938-1953 (Tas.) and the Traffic Act 1925-1954 (Tas.) and regulations made thereunder, if applicable to the circumstances forbade the use of those lorries in the carriage of goods to Hobart without a permit, the grant of which by an official was discretionary, and the conditions of which, if granted, included the payment of a charge related to the tare of the lorry and the mileage travelled. In respect of fruit carried by him to Hobart up to the time of the commencement of the suit to which I shall refer, Hughes obtained a permit under the said Acts and regulations and paid the charge for which the licence called. The amount of the charge was passed on to his principal in Hobart as part of the costs of the carriage of the fruit. (at p145)

45. However, he brought suit in this Court claiming declarations that in the circumstances which I have set out the provisions of the said Acts and regulations could not lawfully apply to the use of his lorries to transport the fruit from the Northern Tasmanian port to Hobart. A special case was stated by the parties for the opinion of a Full Court. Two questions were raised:

(a) Whether the plaintiff's vehicles whilst carrying fruit in the circumstances stated herein are being operated in the course of and for the purposes of trade, commerce or intercourse among the States within the meaning of s. 92 of the Commonwealth Constitution.

(b) Whether the provisions of the Transport Act 1938-1953 and the Traffic Act 1925-1954, the regulations made thereunder and the administrative determination made by the defendant commission thereunder hereinbefore mentioned so far as they affect the plaintiff in the circumstances herein stated whilst operating his said motor vehicles contravene s. 92 of the Commonwealth Constitution and are inapplicable to the plaintiff whilst so operating his vehicles. (at p145)

46. In a joint judgment of the Chief Justice and a number of Justices it was decided:

(i) that the inter-State journey of the fruit terminated on its discharge from the ship at the Northern Tasmanian port, though it was conceded in the Court's reasons that it was "part of the regular course of trade to bring the fruit from the ship's side to Hobart" (1955) 93 CLR, at p 123 ;

(ii) the only constitutional immunity which Hughes could properly claim was to be derived from his principal's inter-State trade in the fruit;

(iii) the foundation of Hughes' complaint was that the charges paid under the licence constituted a burden upon an inter-State transaction which he carried out;

(iv) the only transaction in which Hughes was concerned was the loading and discharge of his lorries and the journey they performed;

(v) he was not prevented by the legislation from performing that service to the inter-State trader, that is, to the fruit merchant in Hobart;

(vi) there was no interference in the performance of a service essential to the completion of the inter-State journey. (at p146)

47. Consequently, it was held by those members of the court that Hughes was not operating his vehicles so as to obtain any immunity from the application of the Traffic Act and the Transport Act and that those Acts and the regulations made under them so far as they affected the plaintiff whilst operating his vehicle in the abovementioned circumsances did not contravene s. 92. (at p146)

48. Fullagher J. said (1955) 93 CLR, at p 125 that the activities by Hughes consisted "simply in the carriage of goods from one place in Tasmania to another place in Tasmania. It may be true that that carriage represents a service rendered in the course of the carrying out of an inter-State transaction which consists in the sale and delivery of fruit. But to that transaction" he was "a complete stranger". Consequently in his Honour's view what Hughes was doing was outside the scope of s. 92. (at p146)

49. Kitto J. said that the Hobart merchants in engaging Hughes to transport the fruit to Hobart were "adopting a means for completing their act of inter-State transportation" (1955) 93 CLR, at p 125 . His Honour's view was that the legislation deprived the merchants of the plaintiff's services for the purpose of their inter-State transportation except upon payment of a charge and rendered them guilty of an offence if they persuaded Hughes to carry their fruit in the course of their inter-State transportation in contravention of the legislation: but he said that "neither of these effects" of the legislation "is a detraction from the freedom which s. 92 preserves. The first is merely a practical consequence to the merchants of what the relvant legislation does to" Hughes (1955) 93 CLR, at pp 125-126 . (at p146)

50. It is proper, having regard to these expressions, that I should immediately point out that the legislation under consideration in the case forbade the use of a vehicle to carry the goods from the Northern Port to Hobart except with the permission of the State and upon payment to it of a monetary exaction. It could make no significant difference whether the vehicle was being used for that purpose by the owner of the goods, his servants or his agents or by carriers employed by the owner to do so. Taylor J. in Simms v. West (1961) 107 CLR, at p 166 said of the carrier's use of his vehicle in that case "Indeed, consistently with Russell v. Walters [1957] HCA 21; (1957) 96 CLR, 177 the respondent was prepared to concede that the provisions of the Act could not operate so as to prevent the servants of the purchaser from transporting his timber to the seaboard. But for some reason which did not clearly appear he maintained that the contrary view should be entertained in the case where the carriage was undertaken, not by the servants, but by the agents of the purchaser. We have no doubt that no such distinction can validly be made and that the provisions of the State Transport Facilities Acts had no application to the journey in question." If one pays regard to the inter-State trade of the Hobart merchant in the fruit purchased from the mainland, clearly that legislation could not have prevented the Hobart merchant himself from carrying the fruit from that port to Hobart. So much was indicated subsequently in Russell v. Walters. It was there said (1957) 96 CLR, at p 185 : "It is to be noted indeed that, if the informant is right in this case, the position would not (apart from the accidental fact that Walter's vehicle happened to be licensed for the area in which Burnie lies) have been different if Walter's depot had happened to be not in Launceston but in Burnie. Walters could not have taken the fruit from the wharf to his depot in Burnie except by a vehicle licensed under the Traffic Act". In Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR, 225 , where the carriage to the port of shipment was not by the owner of the goods but by an agent, Menzies J. said (1963) 109 CLR, at p 236 "Even, however, on the magistrate's view that the appellant itself did no more than carry the timber from Nannup to North Fremantle for reward, I think, with respect, that the conviction of the appellant was wrong. The movement of the timber from Nannup through North Fremantle and Melbourne to Lorimer Street, South Melbourne, was an inter-State operation and to prevent the appellant from carrying out part of that inter-State movement unless it had obtained a licence under the Act authorizing the use of its vehicle for that purpose would, in my opinion, amount to an unconstitutional interference with the freedom of inter-State trade upon which the appellant could rely to have the Act read down to constitutional limits. I regard this as established by Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and Simms v. West [1961] HCA 62; (1961) 107 CLR 157 ". (at p147)

51. In Simms v. West, in addition to the passage which I have already quoted from the reasons for judgment of Dixon C.J., his Honour said (1961) 107 CLR, at p 162 "The case depends on the interference with the consignee's inter-State trade. It is one where a Sydney purchaser from an inland source of production in Queensland has bought goods for delivery into New South Wales and is entitled to have his goods delivered by road as well as by ship in the course of his inter-State transaction". So, it seems to me, was the Hobart merchant in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 . He had bought goods on the mainland for delivery into Tasmania, precisely as the Launceston merchant in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 . Surely he was entitled to have them delivered by road as well as by ship in the course of his inter-State transaction - in which evidently all members of the Court in Hughes v. Tasmania thought he was engaged in his dealing in and with the fruit. (at p148)

52. In the passage I have lately quoted from the reasons of Dixon C.J. in Simms v. West (1961) 107 CLR, at p 162 it would seem that it was the immunity of the owner of the goods which his Honour regarded as being infringed by the requirement of a licence under the State Transport Facilities Acts (Q.). Thus, even if contrary to my own view and as I think of subsequent decisions of the Court, the carrier were to be limited, so far as s. 92 is concerned, to taking the benefit of the trader's immunity in relation to the goods being carried, Hughes on the basis of the decision in Simms v. West would have been entitled to the constitutional immunity. The immunity of the Hobart merchant was being infringed by the requirement of a licence under the Transport Act and Traffic Act (Tas.). This situation was recognized by Menzies J. in Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR, at p 238 , " . . . if it is implicit in that case" (Hughes v. Tasmania) "that in the circumstances here the appellant, if not itself engaged in the operation of inter-State trade, cannot rely upon the burden imposed upon it by the Act as involving an unconstitutional interference with the inter-State trade of others, then . . . a different decision has already been given in the later case of Simms v. West". (at p148)

53. However, as I have indicated, the carrier himself, in my opinion, attracts the constitutional immunity if he participates in the inter-State transportation of the goods by an entire operation of transport. It is not, in my opinion, that he shares the immunity of the owner of the goods who is dealing with them by a transaction of inter-State trade or commerce. On that footing, Hughes was clearly a participant in a continuous inter-State movement of the fruit and thus protected by s. 92 in respect of that participation. (at p148)

54. In Holloway v. Pilkington the Court said (1972) 127 CLR, at p 395 : "However, we were pressed by counsel for the respondent with the decision of this Court in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 . The plaintiff in that case, unlike the appellant in this case, was not the agent of a carrier who had an obligation of through carriage of the goods. He was the agent of a purchaser who, having purchased fruit to be brought from the mainland to the Tasmanian coast, was bringing his goods to his place of business in Hobart. Whether or not that difference in the facts is sufficient to distinguish that case from this need not be decided in order to dispose of this case. It is sufficient to say that this case is indistinguishable from Simms v. West [1961] HCA 62; (1961) 107 CLR 157 and Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 . In the light of those decisions, we are of opinion that Hughes v. Tasmania cannot be used in support of the respondent's contention in this case." Having regard to Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and the matters of principle to which I have earlier referred, the difference in the facts of Hughes v. Tasmania and those of Holloway v. Pilkington does not constitute in my opinion any ground of distinction between those two cases; or for that matter between Hughes v. Tasmania and either Simms v. West or Bell Bros. Pty. Ltd. v. Rathbone. Indeed if one compares the list of conclusions which I have extracted from the judgments in Hughes v. Tasmania with the facts and the decisions in the subsequent cases to which I have referred, I think it can fairly be said that each of those conclusions is departed from if not expressly denied in those cases. (at p149)

55. However, others have found and expressed grounds of distinction between Hughes v. Tasmania and the case then under consideration. In Russell v. Walters the Court appears to have regarded the fact that the Launceston merchant was carrying his goods on his own vehicle as the disinguishing circumstance. But the reasons for judgment in the portion I firstly quoted from that case seem to concede that the carrier on the mainland who was not carrying his own goods - for it was regarded as possible that the property in the fruit had passed sooner than their delivery to the ship - was "contributing to the single end" of a transport of goods from Victoria Market to Launceston. Why that carrier and not the carrier from the Tasmanian port should be so regarded, I fail to understand. Each of course was, in a sense, carrying the goods from and to a terminus within a State. But each was contributing to the performance of "a single journey in contemplation" - though not, as I have already noted, an operation which any single person was contractually bound to perform. Also I have already called attention to the observation of Taylor J. in Simms v. West (1961) 107 CLR, at p 164 . (at p149)

56. In Simms v. West (1961) 107 CLR, at p 162 Dixon C.J. found the point of distinction of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 in the circumstance "that the burden in that case of which the carrier complained was nothing but a financial exaction from him: one which did not interfere with the inter-State trade of the merchant whose fruit he carried". So also Taylor J. found the distinction in the fact that Hughes' "only complaint, was that the charges which, by the conditions of his permit, he was required to pay, constituted an interference with the freedom of trade and commerce among the States" (1961) 107 CLR, at p 165 . But, with every respect to these distinguished members of the Court, Hughes' complaint in the suit was that the legislation forbade him - and, for that matter, the owner of the fruit - from using a vehicle to carry the fruit to Hobart except with the permission of the State. Indeed, it could not be moved from the wharf except by such permission. It was such an operation of the legislation which the Court found obnoxious to s. 92 in that very case, i.e. Simms v. West and in the subsequent cases. (at p150)

57. Kitto J. in Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR, at p 232 said "in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 the Chief Justice explained Hughes' Case [1955] HCA 30; (1955) 93 CLR 113 by saying that the burden of which the carrier there complained was nothing but a financial exaction upon him: one which did not interfere with the inter-State trade of the merchant whose fruit he carried. Taylor J. expressed himself similarly, and I agreed. Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 is therefore to be taken as applying only where the established fact is that a burden which a provision places upon a carrier is not also a burden upon the customer whose goods are carried. The Court decided that in such a case a carrier whose conveyance of goods is wholly within one State derives no protection under s. 92 of the Constitution from the fact that his intra-State carrying forms part of an inter-State movement of the goods on the part of the customer." But the financial exaction was passed on to the owner of the fruit. Again, I point out that the attack in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was upon the legislation which required a discretionary licence, as well as a payment therefor. But, further, both in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 and in Bell Bros. Pty Ltd. v. Rathbone (1963) [1963] HCA 7; 109 CLR 225 the Court decided that a carrier whose "intra-State carrying forms part of an inter-State movement of goods" does attract the constitutional immunity in respect of that carriage. Indeed Kitto J. followed the passage that I have just quoted with the words "Simms v. West [1961] HCA 62; (1961) 107 CLR 157 however, establishes that the burden of a provision prohibiting carriage (as distinguished from regulating it) is not of this kind. It decides that such a provision burdens by its direct operation the customer who desires his goods carried as well as the carrier, and that therefore s. 92 prevents the prohibition from applying, as against either the carrier or the customer, to any carriage, intra-State though it be, which is an integral part of an inter-State movement of goods." (1963) 109 CLR, at p 232 (at p151)

58. There was, in my opinion, no substantial relevant distinction between the Tasmanian legislation of which Hughes complained and the Western Australian legislation dealt with in Bell Bros. Pty. Ltd. v. Rathbone or, for that matter, the Queensland legislation with which Simms v. West was concerned. (at p151)

59. Thus it seems to me that the suggested distinction of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 from the subsequent cases is, with every respect, founded upon a misdescription of what was the real matter in suit in Hughes v. Tasmania. The questions asked in the special case and the arguments submitted on behalf of Hughes as recorded in the report clearly indicated that the scope of the case was not limited as is suggested in the passages I have quoted: see the argument in chief for the plaintiff (1955) 93 CLR, at p 118 . (at p151)

60. I am of the opinion that neither the actual decision nor the reasons given therefor in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 are now supportable. The decision and the reasons are, in my opinion, quite inconsistent with the later decisions to which I have referred and the reasons which support them: and in my respectful opinion are not in accordance with the Constitution. It is now appropriate, in my opinion, that the case be expressly overruled. The appellant's argument founded on it should be rejected. (at p151)

61. It remains to consider whether the intention of the owner of the lamb and of the Australian company that the container on arrival at Melbourne from Bell Bay should be transhipped for carriage by sea to London denies an inter-State character to the carriage of the goods from Rocherlea to Melbourne and presumably to the carriage by ship from Bell Bay to Melbourne. As I have earlier indicated, transport for reward is itself trade and commerce irrespective of the nature of what is carried. It is the transport across State boundaries which gives the transportation its inter-State character. That character is not only derived, in my opinion, from the nature of the trade in which the owner of the goods is engaged: nor from the nature of the journey on which the goods have been launched. The inter-State character of the transportation is not dependent on the intentions of the owner of what is carried and in particular where he intends ultimately to send them: cf. Naracoorte Transport Co. Pty. Ltd. v. Butler [1956] HCA 72; (1956) 95 CLR 455, at p 459 . In particular, it is not confined to transportation across State lines of goods which finally come to rest in the second State so far as the intention of their owner is concerned. It is sufficient, in my opinion, that State lines are crossed in the course of the transportation, being of course transportation for reward. Or, put another way, the inter-State character of such transportation derived from the crossing of State lines is not lessened because the goods so carried are intended to be carried out of the second State to a place beyond Australia: or, for that matter, that the vehicle employed in the inter-State transportation is intended to be exported along with its load, as, for example, in a roll-on-roll-off ship. The submission in this case was that such an intention would make the "trade" international and not inter-State trade and the "journey" an international and not an inter-State journey. But the submission misconceives, in my opinion, the quality given to transportation by the crossing of the State boundaries. I am content to say for myself that I can perceive no principle on which the inter-State nature of transportation of goods for reward over State boundaries can be affected by the intention of the owner of the goods that they should not remain in the second State but go beyond the limits of Australia, whether immediately or after a break in time. Nor can I accept the view that such an intention on the part of the owner of goods or of the carrier would transform the relevant nature of the transport operation which he was conducting or in which he was co-operating. In either case, in my opinion, the knowledge of the carrier of the owner's intention would be irrelevant. The definitive circumstance is participation in the movement across State lines. (at p152)

62. Just as the ultimate destination of the goods carried by a carrier in his own vehicles across State boundaries is irrelevant to the question whether his activity in transport is an activity of inter-State trade and commerce, so in the case of an entire operation of transport crossing State boundaries, though consisting of segments, the ultimate destination of the goods is irrelevant to the nature of the several transport operations forming part of the entire transport operation. A carrier transporting goods for reward from Melbourne to Canberra is, in crossing the boundary of the States of Victoria and New South Wales and, in my opinion, by that very fact, in inter-State trade; none the less so because what he carries is destined for Canberra in the Australian Capital Territory. If, in order to transport goods from Melbourne to Canberra, it were necessary to use more than one form of transport so that the transportation, though in substance a continuous operation, was composed of segments, say from Melbourne to Wodonga and Wodonga to Canberra, the fact that the ultimate destination of the goods carried and the terminal of the transport operation as a whole, was Canberra and not limited to the State of New South Wales would, in my opinion, be irrelevant to the conclusion that, there being an entire transport operation from Melbourne across the Victorian and New South Wales border, the carriers co-operating in that transportation were engaged in inter-State trade. The matter may further be illustrated by the case of wool consigned from the Riverina in New South Wales to London and carried, in the one instance, direct from that area in the same vehicle to Melbourne for immediate transhipment to a London-bound vessel and, in the other instance, carried by transport to Albury to be transhipped to a transport for Melbourne and then to be further transhipped for London. In each case, the latter if it is substantially an entire transport operation across State boundaries, the transportation would be inter-State transportation and the carriers co-operating in it would be engaged in inter-State trade. In each case the ultimate destination of the wool would, in my opinion, be irrelevant to the conclusion. (at p153)

63. The question is not one of characterising a transport operation so as to put it into one of these categories, intra-State, inter-State or overseas or foreign. It is the trade of the carrier which is characterised. That trade, i.e., transport for reward, is interstate trade if the crossing of a State boundary is involved, border hopping apart. The fact that the crossing of the border is only part of some operation which is to go beyond Australia does not affect, in my opinion, the conclusion that that crossing gave the character of inter-State trade to the trade of the carriers performing or co-operating to perform the inter-State movement. (at p153)

64. However, the matter has received some attention in this Court. In Fergusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 , a case involving the possession of certain kangaroo and wallaroo skins, it was submitted that the circumstance that the skins, though received in fulfilment of a transaction of trade, which otherwise was a transaction of inter-State trade, were destined for, and indeed brought into the State for, export beyond Australia, precluded the dealing with them being relevantly part of trade and commerce between the States. Of this submission the Court said (1951) 84 CLR, at p 433 : "A suggestion was made that such a transaction is not within the protection of s. 92 because of the purpose of receiving the skins in Sydney was to ship them abroad. As an observation of fact, it may be remarked that the purpose of sorting them in Sydney according to size, weight, type and quality, involves a substantial commercial operation. But in any case the suggestion is without any foundation. Inter-State trade and commerce protected by s. 92 must include the transport of goods from one State to the ports of export of another for the purpose of shipment abroad." I respectfully agree with these observations. They were intended to be of general application and were not confined to the facts and circumstances of the case. (at p154)

65. Accordingly, in my opinion, the fact that the producer and the processor of the lamb and the Australian company all intended that the container which the respondent was carrying from Rocherlea to Bell Bay should be sent to London does not in any respect detract from the effect which the respondent's co-operation in the carriage of that container to Melbourne has upon the respondent's constitutional rights. His carrying of the container in the course of his business on a segment of a single transport operation moving the container from Rocherlea to Melbourne was itself an activity of inter-State trade and commerce and as such protected by s. 92. The Magistrate rightly dismissed the appellant's complaint. (at p154)

McTIERNAN J. This appeal was brought in pursuance of s. 39 of the Judiciary Act 1903-1969 (Cth). (at p154)

2. In my opinion the defendant ought to have been convicted of the offence charged. (at p154)

3. The only question argued was whether the defendant used the vehicle in respect of which the complaint was laid, on the occasion alleged in the complaint, for the purpose of inter-State commerce. The only use the defendant made of the vehicle, which is the basis of the complaint, was to carry a shipping container, the contents of which were packages of frozen lamb, from St. Leonards to Bell Bay. These places are in Tasmania. The frozen lamb was produce of Tasmania. It has not been outside Tasmania. (at p154)

4. The learned stipendiary magistrate, before whom the trial took place, made a statement of his findings in the judgment, the subject of the appeal. The whole of the statement is important. I think that it is sufficient for present purposes to make the following quotations from the statement:

"At the material time J. Donaldson was a Northern Tasmanian producer of lambs. So as to explain his absence as a witness it should be noted that Mr. Donaldson died some months before the hearing. He held an export licence but did not have the facilities to process or ship his products. Mr. Donaldson therefore made arrangements with a Tasmanian company. J. C. Hutton Pty. Ltd., for that company to act on his behalf in the processing and transshipment of his meat. Pursuant to this arrangement the company would receive Mr. Donaldson's stock and slaughter, prepare, freeze and store the carcases. Through the Tasmanian commercial agents of ACTA Pty. Ltd., a company incorporated in the A.C.T., J. C. Hutton Pty. Ltd. on behalf of Mr Donaldson would then contract with ACTA Pty. Ltd. for the transport of the frozen lamb from the premises of J. C. Hutton Pty. Ltd. in St. Leonards to London. To perform part of this contract ACTA Pty. Ltd. contracted with the defendant company to take the goods from St. Leonards to the nearest container port at Bell Bay by road and contracted with the Australian National Line to ship the container from Bell Bay to Melbourne where in the normal course of events the goods would be transferred almost immediately to an overseas ship for shipment to London.

In accordance with this course of dealing on 7th December 1970 the defendant's driver Watts drove a prime mover towing a trailer upon which was loaded the empty container No. S 2004417 to the premises of J. C. Hutton Pty. Ltd. at St. Leonards. In his presence employees of J. C. Hutton Pty Ltd. loaded the container with Mr. Donaldson's frozen lamb carcases and the container was then sealed. I was informed that the purpose of this sealing was to ensure security and that the seals were not normally broken until receipt by the consignee in London. The defendant's employee drove the prime mover and container containing the now loaded container to the defendant's depot at Rocherlea and after attaching a cooling unit to the container left it overnight and the next day, 8th December, drove it to the port of Bell Bay for loading on to the A.N.L. vessel, the Sydney Trader.

On the evidence it is clear that the ultimate intended destination of the goods was London. I had evidence which I accept that there are only three what are described as 'Terminal Ports' in Australia suitable for the reception and trans-shipment of containerised cargo overseas, namely Fremantle, Sydney and Melbourne. To enable the goods to be shipped to London it was therefore essential for Mr. Donaldson and his shippers, J. C. Hutton Pty. Ltd., to transport the container from St. Leonards to Melbourne.

The defendant company itself was only engaged in carrying the goods intra-State from St. Leonards to Bell Bay but in doing so it was acting on behalf of or in contractual relationship with principals who were concerned with transporting the container from St. Leonards to Melbourne . . ." (at p155)

5. It appears from what I have quoted that ACTA Pty. Ltd. and J. C. Hutton Pty. Ltd. were concerned each in its own way with the transportation of the container and its contents to London. In my opinion, the transportation within Tasmania was an integral part of the transportation from St. Leonards to London. Such transportation was not merely a part of a transaction of inter-State commerce. (at p156)

6. In W. & A. McArthur Limited v. Queensland [1920] HCA 77; (1920) 28 CLR 530, at pp 548, 549 , Knox C.J., Isaacs J. and Starke J. approved of the view, expressed in the case of Public Utilities Commission v. Landon [1919] USSC 80; (1919) 249 US 236, at p 245 (63 Law Ed 577, at p 586) of the conception of "inter-State commerce", by quoting it in their judgment. The quotation is: "Inter-State commerce is a practical conception and what falls within it must be determined upon consideration of established facts and known commercial methods". Their Honours said in the same case (1920) 28 CLR, at p 549 : "Commercial transactions are multiform, and each transaction that is said to be inter-State must be judged of by its substantial nature in order to ascertain whether and how far it is or is not of the character predicated. A given transaction which taken by itself would be domestic, as, for instance, transport between two points within a State, may in a particular instance be of an inter-State nature by reason of its association as part of a larger integer, having as a whole the distinctive character of commerce between States." This test is not applicable to this case. In the view I take of the transportation as a whole, it embraced road transport within Tasmania of which the defendant's vehicle was the instrument, the completion of that transport by trans-shipment of the container and its contents to Melbourne, and the further trans-shipment of them to London. This was a continuous and unbroken course of commerce. I think that upon the facts found by the learned stipendiary magistrate the right conclusion is that the defendant used its trailer as an instrument of commerce between Tasmania and the United Kingdom. I think that it is not a practical or sound conclusion that the use of the trailer on this particular occasion can be considered as a use for commerce among the States of Tasmania and Victoria. (at p156)

7. There is no inconsistency in saying that a vehicle carrying goods within one State only, consigned to a port overseas, is involved in commerce with other countries (cf. Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General (Cth) [1921] HCA 31; (1921) 29 CLR 357, at p 366 . In the view I take that the transportation within Tasmania was a component of a transaction of foreign trade, it would have been within the power of the Parliament of the Commonwealth under s. 51(i), as it was of the Parliament of the State, to legislate with respect to that transportation. The transportation is not covered by s. 92. No law of the Commonwealth applicable to the transportation has been cited. Section 24(1)(c) of the Traffic Act 1925 (Tas.) therefore applied to it. The Supreme Court of the United States indicated in Buttfield v. Stranahan [1904] USSC 36; (1903) 192 US 470 with regard to foreign commerce that Congress might act free from limitations that would apply to inter-State commerce. (at p157)

8. I do not derive any reason for dismissing this appeal from the alleged "border hopping" cases. (at p157)

9. The learned stipendiary magistrate referred to Vacuum Oil Co. Pty. Ltd. v. Queensland [1934] HCA 5; (1934) 51 CLR 108 and Fergusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 . (at p157)

10. I think that nothing said in the former case is of real assistance in determining whether the obligation to licence the trailer was a restraint on inter-State commerce, because it is not proved here that the frozen lamb was in fact of the nature of an import, as far as Victoria was concerned. (at p157)

11. As regards Fergusson v. Stevenson (1951) 84 CLR, at p 433 - the following dictum in the judgment of the majority is quoted by the learned magistrate: "Inter-State trade and commerce protected by s. 92 must include the transport of goods from one State to the ports of export of another for the purpose of shipment abroad". The port of export in this case was Bell Bay, Tasmania - not Melbourne. The container and its contents were imported into the United Kingdom by a continuous course of transportation from Tasmania. The continuity of the transportation from Bell Bay to London was not broken by the transfer of the container and its contents from the ship that carried this cargo to Melbourne to the ship intended to carry the cargo to London. That the "shipment abroad" of the container and its contents took place at Bell Bay cannot, on the proved facts, be doubted. The words "shipment abroad" are taken from the dictum quoted above. In my opinion the dictum does not avail the defendant in this case in maintaining its defence founded upon s. 92. I arrive at the conclusion that the use of the trailer on the occasion alleged in the complaint cannot be considered to have involved inter-State commerce by reason of its relation to the transportation from Bell Bay to Melbourne. In my judgment s. 92 did not guarantee the defendant immunity from prosecution for disregarding the licensing provisions of the Act in respect of the trailer. (at p158)

12. I would allow the appeal, make a determination that the defendant is guilty of the offence charged by the complaint and remit the case to the Court of Petty Sessions to impose such penalty within its jurisdiction as the learned magistrate constituting the Court thinks it is right to impose. (at p158)

MENZIES J. This is another in a long line of transport cases where, although the operation of s. 92 of the Constitution is in question, the decision must turn upon the particular facts of the case. The appeal is from the order of the magistrate dismissing a charge against Frank Hammond Pty. Ltd. (Hammonds) that it committed an offence against s. 24 (1) (c) of the Traffic Act 1925 (Tas.) in using as a public vehicle upon a public street a trailer which was not licensed as a public vehicle. The defence was that the trailer was being used to carry a sealed shipping container in which were packed lambs, and that the carriage of the container was in the course of inter-State trade. This defence succeeded, the magistrate holding that although Hammonds was only engaged in carrying the container intra-State from St Leonards to Bell Bay, in doing so it was acting on behalf of, or in contractual relationships with, principals who were concerned with transporting the container from St Leonards to Melbourne. (at p158)

2. The lambs were grown by one Donaldson who held an export licence. Donaldson was exporting the lambs to McPherson Train & Co. Ltd. in London. Donaldson employed J. C. Hutton Pty. Ltd. (Huttons) to kill the lambs and prepare them for export at its premises at St. Leonards near Launceston, and to arrange for their carriage overseas. Huttons made arrangements for this carriage with ACTA Pty. Ltd., a company incorporated in the Australian Capital Territory as agent for its parent company, Associated Container Transportation (Australia) Ltd. ACTA engaged Hammonds to deliver an empty container to Huttons' premises to be filled and carried, first to Hammonds' premises at Rocherlea and then to Bell Bay for shipment to Melbourne. Hammonds was to and did receive $60.00 for the delivery of the empty container to Huttons and for carrying the filled container to Bell Bay. ACTA also arranged for the container to be carried by the Australian National Line to Melbourne. The consignment note was from ACTA Launceston to ACTA Melbourne and the freight was payable and was paid by ACTA. The cargo was to be received at Bell Bay, which was described as the "Place of Despatch". Either ACTA or Associated Container Transportation (Australia) Ltd. also arranged for the carriage of the container on the ship "Discovery Bay" from Melbourne to London. In accordance with the arrangements which were made, the lambs were packed in a container at Huttons and the container was marked with two seals: DPI Seal No. 018549 and ACTA Seal No. 009721. Hammonds then carried the container to its premises at Rocherlea and on the next day carried it to Bell Bay. The offence was alleged to have occurred while Hammonds' vehicle was travelling on the road between Rocherlea and Bell Bay. (at p159)

3. Before examining the transaction more closely, it is, I think, worthwhile indicating that here we are concerned with what seems to be to be an intermediate case between extremes which are plain enough. To carry goods to London from Launceston on a vessel trading between those places but calling on route at Melbourne would not be to engage in inter-State trade so far as any part of the carriage of those goods is concerned. To carry goods from Launceston to Melbourne for delivery there would be inter-State trade, notwithstanding that after such delivery the goods were to be carried from Melbourne to London. Between these clear instances, however, there is room for differences of opinion whether or not a person who participates in the carriage of goods beyond Tasmania by carrying them from one place in Tasmania to another place in Tasmania is engaged in inter-State trade if the goods are moved from one State to another. The carriage of the goods in question by the Australian National Line from Bell Bay to Melbourne, was, of course, inter-State carriage because it was simply carriage from a place on one State to a place in another State, in which there was no intra-State element at all. It is clear, therefore, that there may be an element of inter-State trade in the carriage of goods from St Leonards in Tasmania to London. Here, however, Hammonds dis not carry the goods except in Tasmania and, prima facie, in doing so it was engaged in intra-State trade. The critical question, as I see it, is whether the on-carriage of the goods by the Australian National Line gave to the earlier carriage by Hammonds the character of inter-State trade. (at p159)

4. In determining some cases where intra-State carriage either precedes or follows inter-State carriage it may be necessary to look, not only at the trade of the carrier but, to the trade of the person for whom the goods are being carried, for sometimes the freedom which s. 92 gives is available to a person who is not himself engaged in inter-State trade. This, however, is not such a case. Here the only trade in the lambs that were being carried was overseas trade between Donaldson and McPherson Train & Co. Ltd. (at p160)

5. Here there are three possibilities in relation to the carriage of the container by Hammonds from St. Leonards, via Rocherlea, to Bell Bay. First, that it should be regarded as a carriage that can be separated from the rest of the transport to London and, as such, stand simply as trade within Tasmania. Secondly, that it should be regarded simply as part of the carriage of the goods from St. Leonards to London, and should bear the character of overseas trade. And thirdly, that it should be regarded as a part of the carriage from St. Leonards to Melbourne. The adoption of the third possibility would entitle the defendant to the immunity for which s. 92 provides. (at p160)

6. The magistrate, in determining the character of Hammonds' trade, pointed out that the documentation for the transactions, upon which the defendant relied to establish its defence, was not complete. The most significant omission was the bill of lading, and it is, I think, necessary, by an examination of the documentation that there was, to determine the character of the bill of lading. For this purpose I turn to examine the document described as "Forwarding Instruction" dated 7th December 1970. The shipper whose name was to appear on the bill of lading was "J. Donaldson Esq., Launceston, Tasmania". The consignee was to be "Messrs. McPherson Train & Co. Ltd., 90-93 Coweross Street, London, E.C.3". The bill of lading was to be released at Launceston, which was described as the place of acceptance. The place of delivery was Tilbury. The bill was to be a combined transport bill of lading and the carrier was to be Associated Container Transportation (Australia) Ltd. The forwarding instruction itself does not indicate how the goods were to be carried from Launceston to Melbourne but it does show that they were to be carried from Melbourne to London by the ship "Discovery Bay", and Melbourne was specified as the intended port of the loading of that ship. The forwarding instruction has no reference to the carriage of the goods to Launceston and it is clear that the bill of lading, which was to be released at Launceston, would have no reference to that carriage. The combined transport covered by the bill of lading was clearly enough from Launceston to Melbourne and from Melbourne to London. The forwarding instruction was signed by one D. Watts, who was Hammonds' carter, but his signature followed these words: "Accepted the above mentioned cargo/container(s) in apparent good order and condition subject to the terms conditions and exceptions contained in the Carrier's Combined Transport Bill of Lading. For and on behalf of the carrier (as indicated above)." The carrier indicated above was, it appears to me, Associated Container Transportation (Australia) Ltd. It was certainly not Hammonds, to whom there is no reference whatever. The bill of lading was to be prepared by ACTA. There was another document in evidence, a consignment note dated 8th December 1970. This was the document of the Australian National Line and it showed that that line was carrying from ACTA Launceston to ACTA Melbourne. The consignment note was apparently signed by somebody on behalf of ACTA. (at p161)

7. The two documents to which I have referred satisfy me that there was an arrangement, independent altogether of the transactions to which they relate, for the carriage of the goods from Huttons' premises at St Leonards to Bell Bay via Rocherlea. This arrangement was made with Hammonds. The learned magistrate found:

"At the material time J. Donaldson was a Northern Tasmanian producer of lambs. So as to explain his absence as a witness it should be noted that Mr Donaldson died some months before the hearing. He held an export licence but did not have the facilities to process or ship his products. Mr Donaldson therefore made arrangements with a Tasmanian company, J. C. Hutton Pty Ltd, for that company to act on his behalf in the processing and transhipment of his meat. Pursuant to this arrangement the company would receive Mr Donaldson's stock and slaughter, prepare, freeze and store the carcases. Through the Tasmanian commercial agents of ACTA Pty Ltd, a company incorporated in the A.C.T., J. C. Hutton Pty Ltd on behalf of Mr Donaldson would then contract with ACTA for the transport of the frozen lamb from the premises of J. C. Hutton Pty Ltd in St. Leonards to London. To perform part of this contract ACTA Pty Ltd contracted with the defendant company to take the goods from St Leonards to the nearest container port at Bell Bay by road and contracted with the Australian National Line to ship the containers from Bell Bay to Melbourne where in the normal course of events the goods would be transferred almost immediately to an overseas ship for shipment to London.

In accordance with this course of dealing on 7th December, 1970 the defendant's driver Watts drove a prime mover towing a traier upon which was loaded the empty container No. S2 004417 to the premises of J. C. Hutton Pty Ltd at St Leonards. In his presence employees of J. C. Hutton Pty Ltd loaded the container with Mr Donaldson's frozen lamb carcases and the container was then sealed. I was informed that the purpose of this sealing was to ensure security and that the seals were not normally broken until receipt by the consignee in London. The defendant's employee drove the prime mover and container containing the now loaded container to the defendant's depot at Rocherlea and after attaching a cooling unit to the container left it over night and the next day, 8th December, drove it to the port of Bell Bay for loading onto the A.N.L. vessel, the Sydney Trader." (at p162)

He also found that the ultimate destination of the goods was London. It was found further that to enable the goods to be shipped to London it was essential for Donaldson and his shippers, Huttons, to transport the container from St Leonards to Melbourne. Then follows the critical findings in these terms:

"The defendant company itself was only engaged in carrying goods intra-State from St Leonards to Bell Bay but in doing so it was acting on behalf of or in contractual relationship with principals who were concerned with transporting the container from St Leonards to Melbourne."

It would appear to me that it would have been more accurate to substitute "London" for "Melbourne" in the last finding, but of course the goods did have to go to Melbourne and the so-called "principals" were also concerned with that part of the carriage of the container. As was apparent there was to be a combined transport bill of lading from Launceston to London. (at p162)

8. Upon the foregoing facts I have reached the conclusion that the carriage of the lambs, which was arranged by Huttons with ACTA, from St Leonards to London was to be undertaken in three stages: (1) the carriage from St Leonards to Bell Bay via Rocherlea, (2) the carriage from Bell Bay to Melbourne, and (3) the carriage from Melbourne to London. I do not think that the whole is to be regarded as overseas trade to the exclusion of some part being intra-State trade and some part being inter-State trade. Upon the whole I consider the analysis according most closely to reality is that the carriage from St Leonards to London was to be performed by a combination of intra-State carriage, inter-State carriage and overseas carriage, and that in carrying the goods as it did Hammonds was engaged in intra-State trade and not inter-State trade. (at p162)

9. Before I refer to authorities it is necessary to mention that an attempt was made before us to question the findings which I have set out and to show that Hammonds was responsible for the whole carriage of the goods from St Leonards to Melbourne. Although there was some oral evidence in answer to leading questions that does give some support to this submission, the findings that were made are strictly in keeping with the documents in evidence and also in keeping with the evidence (1) that Hammonds' only payment was for taking the empty container to St Leonards and taking the filled container from St Leonards to Bell Bay via Rocherlea, and (2) that it was the business of ACTA to arrange for the transport of the container to Melbourne and that its responsibility ceased when the goods were received in the container terminal at Melbourne. I am not prepared to substitute for the findings of the magistrate a different finding to the effect that Hammonds was responsible for the delivery of the container either at the Melbourne wharf or at the container terminal in Melbourne. (at p163)

10. The learned magistrate, in reaching the conclusion which he did, relied upon Fegusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 , but that was an altogether different case to that which the magistrate was considering. There the law in question forbade "acts indispensably connected with the introduction into New South Wales from another State of a commodity, namely, skins, which form an ordinary subject of commerce in that other State" (1951) 84 CLR, at p 433 . It was because the law had this character that Fergusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 was distinguished in Wragg v. New South Wales [1953] HCA 34; (1953) 88 CLR 353, at p 387 . I accept entirely the statement that "Inter-State trade and commerce protected by s. 92 must include the transport of goods from one State to the ports of export of another for the purposes of shipment abroad" (1951) 84 CLR, at p 433 . (at p163)

11. Although, as I have said, each case has to be decided upon its own facts, I shall, in deference to the argument we have heard, refer to some of the cases where it has been decided in relation to the carriage of goods in a State whether or not that carriage was protected by s. 92. (at p163)

12. First there is Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 , in which it was decided that a carrier was not, by reason of s. 92, entitled to immunity from the application of the Transport Acts (Tas.) in respect of the carriage from a northern port to Hobart of fruit bought by merchants carrying on business in Hobart from sellers on the mainland who shipped the fruit to a northern port f.o.b. consigned either to the carrier or the Hobart merchants. The decision, which was upon a case stated that took no account of the trade of the Hobart merchants, was that the carrier himself was not engaged in inter-State trade. The only difficulty that I see in that case is that the inter-State trade of the Hobart merchants was disregarded, and to this I have already made reference in Bell Bros Pty Ltd v. Rathbone (1963) [1963] HCA 7; 109 CLR 225 , and to which I will refer to again later. It is something to which the judges who decided Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 have referred in later cases. The decision that the carrier, in carrying the goods from a northern port to Hobart, was not himself engaged in inter-State trade, is one that has been affirmed in later cases and it is a decision which I fully accept. (at p164)

13. The decision in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was explained and distinguished in Russell v. Walters (1957) 96 CLR 117 . Immunity was there granted to an inter-State trader in fruit who picked up his fruit ex ship from Burnie and carried it to Launceston. The Court said (1957) 96 CLR, at p 183 :

"The plaintiff in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was undoubtedly engaged in intra-State trade. The defendant Walters was undoubtedly engaged in inter-State trade up to the point when his goods were landed at Burnie. The question is whether he had ceased to be so engaged before his vehicle entered an area for which it was not licensed. If he had so ceased, he must, one would think, have so ceased when the goods were landed at Burnie."

". . . we are of opinion that the character of inter-State commerce attached to the journey of the fruit in question from the time of its departure from Deacon's premises at the Victoria Market in Melbourne to the time of its arrival at Walter's premises in Launceston. The end and object in view from the inception of the transaction was the arrival of the fruit at Walters' premises in Launceston. It was essentially a Melbourne-Launceston transaction. The intended destination of the fruit, when it left the Victoria Market, was Launceston." (at p164)

14. Later, in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 , the Court distinguished Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 and applied Russell v. Walters (1957) 96 CLR 117 . There a Queensland company which bought goods inland in Queensland for a New South Wales company as its disclosed principal was under an obligation to the principal to carry the goods from the place of purchase to the Queensland coast for shipment to the principal in Sydney. The Queensland company carried the goods from the place of purchase to the coast in a vehicle hired by it and driven by its employee. As Dixon C. J. said (1961) 107 CLR, at p 162 , "The case depends on the interference with the consignee's inter-State trade". (at p164)

15. In Bell Bros. Pty Ltd v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 , it appeared to a majority of the Court that the carrier of timber in Western Australia, which was being carried from Nannup in that State to South Melbourne in Victoria, was a party to the contract for that inter-State carriage: see McTiernan J. (1963) 109 CLR, at p 231 ; Menzies J. (1963) 109 CLR, at p 235 - agreed with by Kitto and Taylor JJ. - and Owen J. (1963) 109 CLR, at pp 241-242 - agreed with by Kitto and Taylor JJ. The other judges did not rely upon the contract of carriage for, as Dixon C.J. said (1963) 109 CLR, at p 229 :

". . . whichever way the documents are read or regarded it is plain that the timber was consigned by the Kauri Timber Co. Ltd. upon one journey from the Nannup mill to Melbourne and that Bell Bros. Pty. Ltd. were to undertake the land carriage which was necessary to the port of shipment and the vehicle in question was on this occasion engaged in nothing else. It appears to me to follow from Simms v. West and Russell v. Walters that the land carriage came within the protection of s. 92. The State Transport Co-ordination Act (W.A.) contains (see s. 4) a provision restricting its operation where it might be invalid, as for example under s. 92."

It was my opinion too that, even if the carrier had not itself been a party to the contract of the carriage of goods from Western Australia to Victoria, Simms v. West [1961] HCA 62; (1961) 107 CLR 157 would require a decision in its favour. I said, after citing from Simms v. West:

"These statements would cover this case even if, contrary to my view, the appellant in carrying the timber from Nannup to North Fremantle should itself be regarded as engaged in nothing but an operation of intra-State trade and this would be so whether it is to be regarded as having done what it did for the Kauri Company itself or for some other company which had contracted with the Kauri Company for the inter-State movement of the timber. In the course of his valuable argument. Mr. Wilson relied strongly upon Hughes v. Tasmania. [1955] HCA 30; (1955) 93 CLR 113 In the view I take of the facts that decision is distinguishable but if it is implicit in that case that in the circumstances here the appellant, if not itself engaged in an operation of inter-State trade, cannot rely upon the burden imposed upon it by the Act as involving an unconstitutional interference with the inter-State trade of others, then, as the citations I have made show, a different decision has already been given in the later case of Simms v. West." (1963) 109 CLR, at p 238

The Kauri Timber Co. Ltd., which was transfering its timber from Nannup to South Melbourne, was clearly engaged in inter-State trade and it was my view that the carrier could obtain the immunity conferred by s. 92 because of that trade even if it was not itself engaged in inter-State trade. This decision is not, I think, of any assistance to Hammonds, for here the only inter-State trade was, in my opinion, that of the Australian National Line and with that there was no interference. It was suggested that the burden which the Act imposes upon Hammonds was a burden upon the inter-State trade of ACTA, but I am not satisfied that ACTA was itself engaged in inter-State trade and I consider that, whatever its trade, the Traffic Act imposed no burden upon that trade. What Huttons arranged with ACTA was to have the lambs carried from its meat works at St. Leonards to London. It seems that ACTA did that by (1) a contract with Hammonds for the carriage of the goods in Tasmania, (2) a contract with the Australian National Line for the carriage of the goods from Bell Bay to Melbourne, and (3) by making arrangements for the carriage from Melbourne to Tilbury on the "Discovery Bay". To enter into a contract with a carrier for the carriage of the goods of a third person from one State to another, without more, is not to engage in inter-State trade. Furthermore, the Traffic Act imposed no burden upon the making or the carrying out of the contract which was made by ACTA with Hammonds. If it involved some financial burden, that did not fall upon anyone engaged in inter-State trade. (at p166)

16. I do not propose to discuss decisions such as Britton Bros. Pty. Ltd. v. Atkins [1963] HCA 8; (1963) 108 CLR 529 ; I.X.L. Timbers Pty. Ltd. v. Attorney-General (Tas.) [1963] HCA 10; (1963) 109 CLR 574 ; Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 ; Webb v. Stagg [1965] HCA 29; (1965) 112 CLR 374 ; Tamar Trading Co. Pty. Ltd. v. Pilkington [1968] HCA 15; (1968) 117 CLR 353 ; Brambles Holdings Ltd. v. Pilkington [1972] HCA 6; (1972) 126 CLR 524 ; and Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 , because, to my mind, those cases are merely concerned with the application of established principles to various sets of facts. Upon the facts in each case it was held that the carriage of goods from one place in Tasmania to another place in Tasmania was, or was not, part of what was claimed to be a larger activity, namely the inter-State carriage of the goods. It is not, I think, helpful to attempt to add single instance to single instance in determining what was the nature of Hammonds' trade under consideration here. (at p166)

17. Accordingly, in my opinion, the magistrate was in error in deciding as he did that s. 92 rendered s. 24 of the Traffic Act inoperative in respect of the use of Hammonds' vehicle to carry the container from Rocherlea to Bell Bay. (at p166)

18. If the carriage of the container from St. Leonards to Bell Bay is to be linked with some on-carriage, I would link it with the carriage to London rather than merely the carriage to Melbourne. The carriage of the goods from Bell Bay to Melbourne does not, I think, give any character to the carriage that either preceded it or that which followed it. It was, of course, inter-State carriage, but it was no more than the means whereby ACTA got the goods from itself in Bell Bay to itself in Melbourne for the carriage overseas which had been arranged in accordance with the agreement with Donaldson through Huttons. I find no break in the carriage by the delivery of the goods in Melbourne. There was no more than a passing over of the goods to the company charged with their further on-carriage. In reality there was but a change of ship to complete the carriage of the goods which had begun at St. Leonards and was to end in London. (at p167)

19. I would therefore allow the appeal, convict the respondent and remit the matter to the Court of Petty Sessions at Launceston for the imposition of an appropriate penalty. (at p167)

GIBBS J. On 8th December 1970 a trailer owned and operated by the respondent company was being towed by a prime mover along the East Tamor Highway between Rocherlea (which is a few miles north of Launceston) and Bell Bay in Tasmania. The trailer was carrying a shipping container loaded with 750 carcases of frozen lamb. In respect of this use of the trailer the respondent was charged with an offence against s. 24 (1) (c) of the Traffic Act 1925 (Tas.) (as amended) which makes it an offence (inter alia) for any person to use as a public vehicle any vehicle in respect of which a licence (that is, a public vehicle licence issued in accordance with the Act) is not in force. It was common ground that the trailer was a vehicle, and was used as a public vehicle, within the meaning of the Act. It was not licensed as a public vehicle. All the elements of the statutory offence were established but it was contended on behalf of the respondent, and accepted by the magistrate before whom the charge came to be heard, that the trailer was at the time of the alleged offence being used in the course of inter-State trade, commerce or intercourse and that s. 92 of the Constitution prevented s. 24 of the Traffic Act from having any application. It is clear that the provisions of s. 24 could not validly be applied to the use of a vehicle in the course of inter-State trade or commerce, since there is no ground on which any distinction could be drawn between the provisions for the licensing of public vehicles that now appear in the Traffic Act and those that have been consistently regarded, in a series of cases from Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 to Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 , as incapable, consistently with s. 92, of applying to vehicles engaged in inter-State trade or commerce. The only question that requires consideration, therefore, is whether the respondent, on the journey in question, was using the trailer in the course of inter-State trade or commerce. (at p168)

2. The circumstances in which the trailer came to be used were as follows. The carcases of lamb were intended for export from Tasmania to the United Kingdom. J. C. Hutton Pty. Ltd. ("Hutton"), as agent for the grazier who owned the lamb, made arrangements with ACTA Pty. Ltd. ("ACTA"), a company engaged in the business of container shipping, for the carriage of the lamb in a refrigerated container from Hutton's premises at St. Leonards in Tasmania to London. It is possible (although the evidence is far from clear on the point) that Hutton contracted with ACTA, as principal, to carry the lamb from St. Leonards to the Overseas Terminal in Melbourne, and with ACTA as agent for another company, Associated Container Transportation (Australia) Ltd., for the onward carriage of the lamb to Tilbury, but I am content to assume, against the respondent, that Hutton entered into one contract only for carriage from St. Leonards to London. ACTA had a standing arrangement with the respondent, which carried on business in Tasmania as a transport contractor and operator, to supply empty containers to Tasmanian exporters who needed them and to collect the containers when loaded and arrange for their conveyance to Melbourne. Pursuant to this arrangement, and to instructions given in the particular matter, an employee of the respondent on 7th December 1970 took a container to St. Leonards and when it had been loaded with the lamb returned with it to the respondent's depot at Rocherlea. On the following day the employee used the trailer to carry the container from Rocherlea to Bell Bay and it is in respect of that journey that the present charge is laid. At Bell Bay the container was lifted from the trailer and loaded on to a vessel of the Australian National Line for shipment to Melbourne. The uncontradicted evidence is that the arrangements with the Australian National Line for the shipment of the lamb were made by the respondent and that the consignment note for the shipment from Bell Bay to Melbourne was prepared and signed by employees of the respondent. However, the note shows ACTA to be both the consignor and the consignee and in fact ACTA paid the freight direct to the Australian National Line and paid a separate sum to the respondent for its services. The magistrate found that ACTA contracted with the respondent to take the goods from St. Leonards to Bell Bay and contracted with the Australian National Line to ship the container from Bell Bay to Melbourne. It is not altogether clear whether in making this finding the magistrate intended to reject the uncontradicted evidence to which I have referred, but it is unnecessary to decide whether the finding was correct and it may be assumed, again in favour of the appellant, that the respondent's contractual obligations were fulfilled when it delivered the container to Bell Bay. The container was unloaded from the ship in Melbourne and conveyed from the Australian National Line Terminal to the Overseas Terminal under arrangements made by ACTA; the respondent had nothing to do with those arrangements. At the Overseas Terminal the container was loaded on to a container ship, the "Discovery Bay", for carriage to Tilbury. It is not clear when this was done but the expected sailing date of the "Discovery Bay" was shown on the consignment note at 13th December 1970 and the container must have been loaded within a few days after its arrival in Melbourne. (at p169)

3. Viewed in isolation the carriage of the container from Rocherlea to Bell Bay was a purely intra-State transaction: it began and ended within one State and did not involve the crossing of a border. Moreover, on the assumptions made, the respondent was not a party to a contract for the inter-State movement of the container; the respondent's responsibilities ended at Bell Bay. On the other hand, the carriage of the container from Rocherlea to Bell Bay formed part of a larger transaction. The lamb was intended to be carried and was in fact carried from St. Leonards to London, by way of Melbourne. The carriage from Rocherlea to Bell Bay was a necessary, or at least a natural, part of the carriage to London. The journey was continuous in the sense that the only interruptions were those occasioned by the necessity to load and unload the container from one means of transportation to another and to hold it for at most a few days while awaiting a convenient time for the loading or departure of the vehicles or vessels by which it was to be carried. The question is whether in these circumstances the carriage from Rocherlea to Bell Bay should be regarded as part of an inter-State transaction which attracted the protection of s. 92. (at p169)

4. It is convenient for ease of discussion first to consider the case on the hypothesis that the carcases of lamb were intended to be unloaded and delivered in Melbourne, or, in other words, on the hypothesis that the owner of the lamb contracted with a shipping agent to carry it from Tasmania to Melbourne, and that the shipping agent engaged a carrier, who had no other connexion with the transaction, to carry the lamb from the owner's premises to a Tasmanian port whence it was to be shipped to Melbourne. There is a conflict of authority on the question whether in these circumstances the carriage within Tasmania would obtain the protection of s. 92. Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 , if followed, would require that question to be answered in the negative. In that case merchants in Hobart bought fruit from sellers in other States. The fruit was shipped to a Tasmanian port (other than Hobart) and the contracts for sale did not impose on the sellers any duty to deliver it at Hobart, but it was, in the regular course of trade, brought from the ship's side to the merchants' premises at Hobart. It was held that the carrier who carried the fruit from the ship to Hobart obtained no immunity under s. 92 from the application of Tasmanian legislation which rendered it necessary for him to obtain a permit and pay a charge therefor before carrying the fruit to Hobart. All the members of the Court were agreed that the carrier himself was not engaged in inter-State trade or commerce and that the fact that he was serving the end of inter-State traders did not give to his own activities an inter-State character and did not protect him from the incidence of the State law: (1955) 93 CLR, at pp 124-125 . Kitto J. added that the effect of the legislation on the merchants, in depriving them of the carrier's services for the purposes of their inter-State transportation of fruit except on payment of a charge, was "merely a practical consequence" to the merchants of what the legislation did to the carrier. He further said that the legislation did directly operate on the merchants, in that they would be guilty of an offence if they procured the carrier to carry their fruit in the course of their inter-State transportation in contravention of the legislation, but that was not a direct operation on their inter-State intercourse (1955) 93 CLR, at pp 125-126 . (at p170)

5. Less than two years later, in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 , a different result was reached in a case where fruit bought by a Tasmanian merchant from a Victorian seller was carried on the intra-State stage of its journey not by an independent carrier but by the buyer himself in his own vehicle. The carriage was held to be in the course of the buyer's own inter-State trade since the inter-State journey made by the fruit did not end when the fruit was unloaded at the wharf in Tasmania but only when it reached the buyer's store. Russell v. Walters may be distinguished from Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 on the ground that in the later case, but not in the earlier, the person claiming the immunity from s. 92 was himself engaged in bringing goods across a State border. However, much of the reasoning in the joint judgment given by the members of the Court would have been equally applicable to the facts of Hughes v. Tasmania. The Court said (1957) 96 CLR, at p 184 : "The question of when and where inter-State transit begins and ends is a question to be decided not upon the terms of a contract but as a matter of practical reality depending on the facts of each particular case", and went on to say that the point at which inter-State trade ceases depends entirely on the circumstances "understood from a business standpoint". It would appear that in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 , as in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 , the "end and object in view from the inception of the transaction" (to use words from the judgment in the latter case (1957) 96 CLR, at p 184 was the arrival of the fruit at the merchants' premises and it would seem to follow that as a matter of practical reality, and viewed from a business standpoint, the inter-State carriage in that case also continued until the fruit reached its intended destination in the merchants' stores. (at p171)

6. Two later cases, Britton Bros. Pty. Ltd. v. Atkins [1963] HCA 8; (1963) 108 CLR 529 and Brambles Holdings Ltd. v. Pilkington [1972] HCA 6; (1972) 126 CLR 524 may be mentioned immediately, since, like Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 , they may be regarded as cases in which a person who was himself engaged in sending goods from one State to another carried the goods intra-State for part of their journey. The intra-State carriage was effected in the former case by a Tasmanian merchant who had engaged to sell the goods in Victoria and in the latter case by a carrier who, although not interested in the goods, had himself accepted an obligation to carry them inter-State. In both cases the carriage was held to be within the protection of s. 92. If Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 is distinguishable from Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 these cases are distinguishable on similar grounds. (at p171)

7. In Simms v. West [1961] HCA 62; (1961) 107 CLR 157 , a Queensland company bought timber in Ravenshoe (in North Queensland) on behalf of a Sydney principal and carried it to the wharf at Cairns for shipment to Sydney. It was held that the carriage from Ravenshoe to the wharf was part of "a continuous inter-State operation in the carriage of the goods" (to use the words of Dixon C. J. (1961) 107 CLR, at p 162 ) and that s. 92 applied to it. Although Dixon C. J. said (1961) 107 CLR, at p 161 that the Queensland company had the obligation to carry the timber to Cairns and see that it was loaded upon the ship that would take it to Sydney, Taylor J. spoke of its obligation as being only to transport the timber to the ship's side at Cairns (1961) 107 CLR, at p 164 (and see also the statement of facts (1961) 107 CLR, at p 158 ). If the Queensland company was obliged to arrange for the inter-State movement of the goods the case might be regarded as indistinguishable from Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 . If the company was not obliged to do anything more than take the goods to Cairns I find it impossible to distinguish the case from Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 , and McTiernan J., who dissented, could see no distinction. Dixon C.J. (1961) 107 CLR, at p 162 said that the case depended on the interference with the inter-State trade of the Sydney purchaser. Taylor J. said (1961) 107 CLR, at p 166 that it was conceded that, consistently with Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 , the provisions of the relevant Queensland legislation could not operate so as to prevent the servants of the purchaser from transporting his timber to the seaboard and that no distinction could validly be made where the carriage was undertaken, not by the servants, but by the agents, of the purchaser. However, the carrier in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was the agent of the purchaser of the fruit and yet it was held that his operations were not within the protection of s. 92. (at p172)

8. In Simms v. West [1961] HCA 62; (1961) 107 CLR 157 there was advanced an explanation of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 that has been repeated in other cases (see Britton Bros. Pty. Ltd. v. Atkins (1963) 108 CLR, at pp 535, 540 ; Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR, at pp 232, 242 ). This was that "the burden in that case of which the carrier complained was nothing but a financial exaction from him: one which did not interfere with the inter-State trade of the merchant whose fruit he carried" (per Dixon C.J. (1961) 107 CLR, at p 162 ; see also per Taylor J. (1961) 107 CLR, at p 165 ). However, according to the report (1955) 93 CLR, at p 118 , the argument submitted on behalf of the carrier in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was that trade by motor vehicle in Tasmania was subject to a discretionary licensing system which in point of power need never be relaxed, and this suggests that the objection there raised to the legislation was not merely that it imposed a charge. Moreover, the provisions in force when Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and Britton Bros. Pty. Ltd. v. Atkins [1963] HCA 8; (1963) 108 CLR 529 were decided would appear to have been the same as those considered in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 . (at p172)

9. The point of departure from Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was clearly reached in Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 . In that case a timber merchant consigned timber from its mill at Nannup in Western Australia to its yard in Melbourne. A carrier conveyed the timber from Nannup to Fremantle from which port is was carried by ship to Melbourne. It was held that the carriage to Fremantle came within the protection of s. 92. The evidence as to the arrangements made between the marchant and the carrier left the position somewhat obscure but five members of the Court took the view that the carrier was a party to the contract made between the merchant and a shipping company to carry the timber from Nannup to Melbourne; of the other two members of the court, Dixon C.J. did not find it necessary to express a conclusion on this matter and Windeyer J. did not agree that the carrier undertook the carriage of the timber to Melbourne. On the view of the facts taken by the majority, the case might have been decided on the basis that the carrier himself was engaged in the performance of a contract for the inter-State movement of the timber, and McTiernan J. did deal with it on that footing. However, the other members of the Court held that even on the view that the carrier himself did no more than carry the timber from Nannup to Fremantle, the protection of s. 92 was available to him: per Dixon C.J. (1963) 109 CLR, at p 229 ; per Menzies J. (1963) 109 CLR, at p 236 ; per Windeyer J. (1963) 109 CLR, at pp 239-240 ; per Owen J. (1963) 109 CLR, at p 242 - Kitto and Taylor JJ. agreed with Menzies and Owen JJ. Dixon C.J. said (1963) 109 CLR, at p 228 that "the carriage by land was portion of a continuous journey of an inter-State character", and Kitto J. said (1963) 109 CLR, at p 232 that s. 92 prevents a provision prohibiting (as distinguished from regulating) carriage "from applying, as against either the carrier or the customer, to any carriage, intra-State though it be, which is an integral part of an inter-State movement of the goods". Menzies J. said (1963) 109 CLR, at p 236 :

"The movement of the timber from Nannup through North Fremantle and Melbourne to Lorimer Street, South Melbourne, was an inter-State operation and to prevent the appellant from carrying out part of that inter-State movement unless it had obtained a licence under the Act authorizing the use of its vehicle for that purpose would, in my opinion, amount to an unconstitutional interference with the freedom of inter-State trade upon which the appellant could rely to have the Act read down to constitutional limits."

"In considering the effect of s. 92 on commercial transactions, attention should, in my opinion, be directed to whether the transaction that it is intended should be a accomplished, is in reality and as a whole a transaction of inter-State commerce; and if so, whether the impugned legislation interferes, in a real and relevant sense, with the activities of some person engaged in its accomplishment. Each case depends upon all its facts and circumstances."

On the assumption that the carrier in Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 had no further obligation than to carry the timber from Nannup to fremantle for reward, the facts of that case were indistinguishable from those of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 ; on that assumption, in both cases, the carrier was himself engaged in an act of purely intra-State carriage, which formed part of a wider inter-State operation, and the two decisions cannot stand together. (at p174)

10. I.X.L. Timbers Pty. Ltd. v. Attorney-General (Tas.) [1963] HCA 10; (1963) 109 CLR 574 , which was heard before a single Justice (Windeyer J.), was another case in which although the carrier himself was employed to carry only within Tasmania, the carriage of timber by land to the port, its loading there and carriage by sea to the mainland were regarded as "one continuous operation of inter-State trade" (1963) 109 CLR, at p 577 . It was accordingly held that by reason of s. 92 the carrier could not lawfully be required to have a permit under the Traffic Act 1925 (Tas.) to use his vehicle to carry the timber from the mill to the port. (at p174)

11. The latest decision of the Court on the subject is Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 in which the facts were that an agent for a company which was engaged to transport plant from Melbourne to Stanley (in Tasmania) carried the plant from the wharf at Burnie to Stanley. It was held that the movement of the plant from Melbourne through Burnie to Stanley was an inter-State operation and that to prevent the carrier "from carrying out part of that inter-State movement unless it had obtained a licence under the Traffic Act authorizing the use of the vehicle for that purpose would amount to an unconstitutional interference with the freedom of inter-State trade and commerce" (1972) 127 CLR, at p 394 . The Court said of Hughes v. Tasmanis (1972) 127 CLR, at p 395 :

"The plaintiff in that case, unlike the appellant in this case, was not the agent of a carrier who had an obligation of through carriage of the goods, he was the agent of a purchaser who, having purchased fruit to be brought from the mainland to the Tasmanian coast, was bringing his goods to his place of business in Hobart. Whether or not that difference in the facts is sufficient to distinguish that case from this need not be decided in order to dispose of this case."

In my opinion, no valid ground of distinction can be found between the facts in the two cases. (at p175)

12. Finally, mention should be made of three other decisions, Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 ; Webb v. Stagg [1965] HCA 29; (1965) 112 CLR 374 and Tamar Timber Trading Co. Pty. Ltd. v. Pilkington [1968] HCA 15; (1968) 117 CLR 353 . In these cases it was held (in each case by a majority) that the intra-State act of transportation in question was not part of an inter-State journey. The Court in those cases did not revert to the views given effect in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 , but held, to put it shortly, that in the circumstances there was such a break in the continuity of the movement of the goods that there were in truth two journeys (one intra-State and one inter-State) rather than one (see per Menzies J. in Deacon v. Mitchell (1965) 112 CLR, at p 365 ). In other words, the carriage that took place within Tasmania in those cases was held to be, not part of the inter-State movement of the goods, but merely a prelude to it - an antecedent transaction of the kind referred to in Grannall v. Marrickville Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55, at p 79 . Nothing said in the judgments in those cases cast any doubt on Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 or is in any way inconsistent with the later decision in Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 . (at p175)

13. In the present case also it might be enough to follow Simms v. West [1961] HCA 62; (1961) 107 CLR 157 and Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 without deciding whether the facts of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 render that case distinguishable. To take that course would, however, be unsatisfactory and probably productive of misunderstanding. It ought now to be recognized that the decision in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 , that the activities of the carrier in that case were not entitled to the protection of s. 92, is inconsistent with the later authorities and in the light which those authorities provide must be regarded as arroneous. (at p175)

14. In my judgment it is established that is, when all the facts and circumstances have been considered, it is seen that the carriage of goods between two places within one State formed part of what was in truth one larger operation of an inter-State character, that carriage must itself be regarded as having been done in the course of inter-State trade and commerce and as being within the protection of s. 92, notwithstanding that the carrier himself had no responsibility to carry the goods, or to arrange for them to be carried, across the border of the State. (at p176)

15. On the hypothesis mentioned above, that the destination of the lamb was in Victoria, the present case would be indistinguishable from Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 and Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 . As a matter of practical reality the lamb, on that hypothesis, was despatched on a single continuous journey from St. Leonards to Melbourne. The carriage of the lamb from Rocherlea to Bell Bay formed one stage of the journey; it was an integral part of the inter-State movement of the goods and was protected by s. 92. However, in the present case the object of the transportation of the lamb was to get it to London. Its movement to Melbourne was merely part of a longer journey. Therefore, according to the submission of the appellant, if the carriage of the goods from Rocherlea to Bell Bay is not to be regarded as a purely intra-State movement, it ought to take its character from that of the whole journey, and to be regarded as an operation in the course of overseas trade, rather than in the course of inter-State trade. I cannot accept this argument. It follows from what I have already said that from the point of view of practical reality, as a matter of business, the lamb was carried on one continuous movement from St. Leonards to London. There was no such break in the continuity of the movement as to make it right to say that the lamb went on three distinct journeys - one intra-State, one inter-State and one abroad. Therefore I would agree that the movement of the container from St. Leonards to London was an overseas operation. However, it does not follow that its movement from St. Leonards to Melbourne was not an inter-State operation. The container was in fact transported inter-State as well as abroad. In S.O.S. (Mowbray) Pty. Ltd. v. Mead, Walsh J. said (1972) 124 CLR 529, at p 582 :

"But in many cases an act may have a double aspect. In one aspect it may appear to be an act which forms part of domestic or intra-State trade. In another aspect, it may appear to be an act which forms part of inter-State trade."

Although I did not agree with the conclusion reached by Walsh J. in that case, the passage which I have cited seems obviously correct. In the present case the carriage by land within Tasmania may be regarded as having three aspects. Seen from one point of view it was part of the domestic trade of Tasmania and from another part as part of overseas trade, but, with equal truth, it also formed part of inter-State trade. (at p176)

16. It would, in my respectful opinion, be a mistake to think that the present case should be decided by determining what was the dominant purpose of the whole continuous journey of the goods. If that were the correct approach the carriage would no doubt be characterized as effected in the course of, and for the purposes of, overseas trade and if each segment of the journey took its character from the whole it would follow that the carriage by sea across Bass Strait, from the port of one State to the port of another, could not be held to have been in the course of inter-State trade. That would clearly not be correct. The relevant question is whether the trade (here the carriage of the goods for reward) was in the course of or for the purposes of inter-State trade, and not whether it was in the course of or for the purposes of overseas trade. There is no necessary antinomy between the two statements. For the reasons I have given, the carriage from St Leonards to Melbourne, including that from Rocherlea to Bell Bay, was in the course of, and for the purposes of, inter-State trade and it did not cease to answer that description because it formed part of a larger carriage ending in London. (at p177)

17. In Ferguson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421, at p 433 it was said in a judgment published by five members of the Court: "Inter-State trade and commerce protected by s. 92 must include the transport of goods from one State to the ports of export of another for the purpose of shipment abroad." The facts of that case were recited by Fullagar J. in Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR, at p 81 as follows:

"In Fergusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 a company named Booth & Co. (England) Ltd. transported kangaroo skins purchased on its behalf in Brisbane to Sydney, where they were sorted and exported overseas. Clearly the company was engaged in inter-State trade or commerce. But did the Fauna Protection Act 1948 (N.S.W.) interfere with the freedom of that trade? The relevant provision of the Act forbade any person to have in his possession in New South Wales, inter alia, any kangaroo skin. It did not in terms forbid the importation of kangaroo skins from Queensland into New South Wales, which would, of course, have been an obvious interference with freedom of trade. But the company's inter-State trade could not practically or effectively be carried on without some person in New South Wales having possession of skins, if only for a brief period. It was accordingly held that the law from which immunity was claimed did possess the character of an interference with freedom of trade, and that s. 92 gave immunity."

Of course, once the conclusion was reached that the company was engaged in inter-State trade or commerce, the Court was called upon to consider questions that do not arise in the present case. However, clear as it may have been that the company was engaged in inter-State trade, an argument was advanced that there was not any inter-State element involved (1951) 84 CLR, at p 423 , and that the transaction whereby the skins were brought in Brisbane and consigned to Sydney was not within the protection of s. 92, "because the purpose of receiving the skins in Sydney was to ship them abroad" (1951) 84 CLR, at p 433 . The Court held that this suggestion was without foundation, and proceeded to dispose of it in the words that I have already set out. It is in this respect that I regard Fergusson v. Stevenson as in point in the present case. It would seem to me inconsistent with that decision to hold that the transport of goods from St Leonards to Melbourne (the port of export) for the purpose of shipment to London was not within the protection of s. 92. This authority, in my respectful opinion, accords with the principles that I have endeavoured to state. (at p178)

16. I hold that the carriage of the container within Tasmania was in the course of inter-State trade and commerce. It follows that the appeal should be dismissed. (at p178)

STEPHEN J. In this appeal the operation of s. 92 of the Constitution is in question in the context of a transport case involving the island State of Tasmania. (at p178)

2. A container of frozen lamb, originating in inland Tasmania and destined for London, made two journeys by land and two by sea in the course of transit to its destination. On the first journey by land, from inland Tasmania to the port of Bell Bay, it was carried by the respondent on a trailer attached to a prime mover; that trailer was not licensed as a public vehicle and, unless the protection of s. 92 was applicable, its use by the respondent involved an offence against s. 24 (1) (c) of the Traffic Act 1925. (at p178)

3. On the hearing of the complaint the learned magistrate dismissed the charge against the respondent, holding that the respondent was engaged in an inter-State transaction and was therefore entitled to rely upon s. 92 of the Constitution. It is from that decision that this appeal is brought. (at p178)

4. The relevant facts, set out in detail in the reasons for judgment of the other members of the Court, reveal that after the respondent's carriage of the container to Bell Bay it was loaded on to an Australian National Line vessel plying between Tasmania and the mainland and was carried to the A.N.L. terminal in Melbourne. On arrival there it was unloaded and transported by land to the Overseas Container Terminal in the port of Melbourne where it was loaded on to a container vessel outward bound for London. (at p179)

5. The portion of this journey which was performed by the respondent was, viewed in isolation, exclusively intra-State in character; it was a carriage of goods within Tasmania from one place to another and of itself formed no part of trade or commerce among the States. However the learned magistrate concluded that the absence of any appreciable break in the journey between inland Tasmania and Melbourne sufficed to confer upon the respondent's intra-State carriage the protection of s. 92 and did not regard the fact that after reaching Melbourne the journey was again continued, without appreciable interruption, to London as affecting that conclusion. (at p179)

6. The point raised by this appeal is essentially a short one, whether the respondent's Tasmanian inland journey was so related to trade, commerce or intercourse among the States as to entitle the respondent to rely upon s. 92 in answer to its admitted breach of the Tasmanian legislation. This in turn involves the determination of what is, as a matter of law, a sufficient relationship with inter-State trade and, following that, a conclusion as to whether the facts disclose such a relationship in the present case. (at p179)

7. That the freedom preserved by s. 92 is not to be confined either to a freedom to cross State borders or to a freedom from State customs duties and the like is well established and calls for no citation of authority; its protection is wider in relation both to the transactions which it protects and to the burdens against which it grants protection. (at p179)

8. Of immediate relevance in the present case is the extension of the constitutional freedom afforded by s. 92 to instances of intra-State carriage undertaken by a carrier who does not himself engage in acts of inter-State trade. That the freedom conferred by s. 92 may so extend is not undoubted; it suffices to refer to the decisions of this Court in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 , Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 and I.X.L. Timbers Pty. Ltd. v. Attorney-General (Tas.) [1963] HCA 10; (1963) 109 CLR 574 and to what has been said in the reasons for judgment in Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 and Webb v. Stagg [1965] HCA 29; (1965) 112 CLR 374 . To the extent to which it may be thought that Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 is a decision to the contrary. I have had the benefit of reading the reasons of judgment of the members of the Court who take the view that that decision should now be expressly overruled. With this view I am in agreement. (at p180)

9. This extension of the freedom has, in the precedent cases, occurred in instances in which the intra-State carriage for which the protection of s. 92 was associated with some more extensive carriage beginning in one State and ending in another. The conditions appropriate for such an extension of the freedom have been variously described, sometimes in terms of the need adequately to protect inter-State trade from unconstitutional burdens and sometimes by reference to the intra-State carriage being integral with the inter-State carriage. In Deacon v. Mitchell (1965) 112 CLR, at p 364 and again in Webb v. Stagg (1965) 112 CLR, at pp 380-381 , Menzies J. analysed the effect of the precedent cases when he said that there were two classes of case in which this extension of the freedom might occur, the first arising when the burden which the challenged legislation places upon the act of intra-State carriage relevantly interferes with another's inter-State trade; the second when the intra-State carriage forms an integral part of the inter-State movement of goods. (at p180)

10. These two classes appear, in point of principle, to have little in common; the first looks to the effect of the challenged legislation, the second to the facts of the carriage in question. However each is, I think, in the ordinary case, but a different side of the same coin; an inter-State journey that is effectively separated from an earlier intra-State journey will not normally be burdened in any constitutionally relevant sense by restrictions placed upon the latter whereas the contrary will be the case if the total transportation forms a substantially continuous, uninterrupted movement. (at p180)

11. Where, as in the present case, the total transportation is, as I think, not inter-State in character but rather an instance of carriage to an overseas destination, to seek to apply the second of these two grounds for the extension of the protection of s. 92 is likely to lead to difficulty and requires recourse to processes of characterization of segmented journeys which are, perhaps, better avoided. If there be, in the facts of this appeal, any total movement of which the respondent's intra-State carriage forms a part of it must, I think, be regarded as an example of overseas, and not of inter-State, trade. It cannot be a ground for extending the protection of s. 92 to an act of intra-State carriage that it forms an integral part of a large movement if the only entire movement that exists is a movement to an overseas destination. If "association as part of a larger integer" may bring intra-State transportation within s. 92, it will only be because that larger integer bears "as a whole the distinctive character of commerce between States": W. & A. McArthur Ltd. v. Queensland [1920] HCA 77; (1920) 28 CLR 530, at p 549 . That character seems to me to be absent both from the export trade in frozen lamb in which Mr Donaldson was engaged and from the total movement to London which was undertaken to give effect to and as a part of that trade. (at p181)

12. It is true that it happens, in the present case, that the inter-State carriage follows immediately after the respondent's intra-State carriage but the application of s. 92 can scarcely turn upon this. The order in which segments of carriage occur in a sequence forming a total transportation appears an unsatifactory basis upon which to determine the application of s. 92 to one of those segments. There is, I think, a reason for associating the respondent's intra-State carriage with inter-State trade but it arises from a consideration of the burden cast upon the latter by the restraints which the Tasmanian legislation imposers upon the former and not from any linking together of the respondent's carriage with the subsequent sea crossing of Bass Strait. (at p181)

13. The case of Fergusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 relied upon by the respondent, does not appear to me to be in point; what was there said (1951) 84 CLR, at p 433 as to inter-State trade including the transport of goods from one State to the ports of export of another for shipment abroad was, I think, said in answer to a submission, appearing in argument (1951) 84 CLR, at pp 423, 428 , their neither the purchase of skins in Queensland nor their movement inter-State with a view to their export to American principals of the New South Wales exporter gave rise to any trade among that States. The defendant exporter was, clearly enough, engaged in inter-State trade, the purchase of the skins in Queensland and their movement south across the border, and the Court held that its resultant possession of the skins in New South Wales was protected as "an inseparable concomitant" of the inter-State transaction. The decision is not, to my mind, any authority for the proposition that if the "larger integer" be overseas trade an intra-State segment of carriage may be characterized as inter-State trade because there exists as another, and immediately sequential, segment of the total movement an example of inter-State carriage. (at p181)

14. I return, then, to a consideration of what I have described as the first of the two classes of case in which it is said that the protection of s. 92 will be extended to the trade of an intra-State carrier, that concerned with the resultant burdening of some other act of inter-State trade. In Simms v. West [1961] HCA 62; (1961) 107 CLR 157 an intra-State carrier's carriage by road to a Queensland port merited the protection of s. 92 because otherwise there would be a "direct interference with the inter-State trade" of the Sydney consignee which was protected by s. 92: per Dixon C.J. (1961) 107 CLR, at p 161 . His Honour went on to say (1961) 107 CLR, at p 162 that "the question here is not whether the carrier because of his own operations can make out a complete immunity under s. 92. The case depends on the interference with the consignee's inter-State trade." In Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR, at p 232 , Kitto J. said that only when the burdening of the trade of an intra-State carrier "is not also a burden upon the customer whose goods are carried" will it not offend against s. 92; it will then not offend only because it does not "in any relevant sense burden or impede the inter-State trade of his principal": per Windeyer J. (1963) 109 CLR, at p 240 , and see per Owen J. (1963) 109 CLR, at p 242 . (at p182)

15. In more recent cases of this nature in which s. 92 has been held to be applicable, the intra-State carriage in question has been regarded as distinct from and unassociated with any subsequent act of inter-State carriage. These were cases in which the only total movement that might have been found to exist was an inter-State, and not an overseas, movement and accordingly, whether the matter was approached by reference to the incidence of burden upon inter-State trade or to the existence of one continuous journey, the result would be the same. In either case it was critical to determine whether the act of intra-State carriage formed part of the subsequent inter-State carriage; if not, s. 92 would not apply to it either because to impose a restraint upon it would not be to burden inter-State trade, the effect on that trade being a mere consequence: Deacon v. Mitchell, per Taylor J. (1965) 112 CLR, at pp 361-362 , a "merely consequential economic effect" - per Menzies J. (1965) 112 CLR, at p 366 , and see per Owen J. (1965) 112 CLR, at p 373 ; Webb v. Stagg, per Menzies J. (1965) 112 CLR, at p 382 , and see Tamar Timber Trading Co. Pty, Ltd. v. Pilkington [1968] HCA 15; (1968) 117 CLR 353 ; or else because the intra-State carriage being then no part of the inter-State carriage but being instead severed from it by some material interruption it followed that the freedom attaching to the inter-State carriage would not extend to the distinct intra-State carriage: per Menzies J. in Deacon v. Mitchell (1965) 112 CLR, at p 365 and in Webb v. Stagg (1965) 112 CLR, at pp 380-381 . (at p183)

16. In this appeal no question arises of any relevant interruption to the substantially continuous nature of the movement in which the frozen lamb was engaged from the time it left the premises of Huttons in Tasmania until its arrival in London. The journey of the sealed, refrigerated container was an uninterrupted one and there was no even any repacking involved at any stage, as there was in Brambles Holdings Ltd v. Pilkington where the Court said [1972] HCA 6; (1972) 126 CLR 524, at pp 527-528 :

"There can of course be an intra-State journey which is but a prelude to an inter-State journey, in other words two distinct journeys, for the former of which there is no constitutional protection. But it is perhaps difficult to conceive of one inter-State journey that loses its character as such because, due to commercial requirements, the goods must rest at a point in the course of the journey without any change in their character so that they may be re-packed in order to be acceptable for carriage in some particular form of transport: what happened here was no more than that." (at p183)

17. If there is to be applied to the respondent's part in this total movement of goods the test of whether the restraint imposed upon its intra-State carriage burdens another's inter-State trade this will involve, first, the identification of some act of inter-State trade and, second, a determination whether the Tasmanian legislation relevantly burdens that trade when it is sought to be applied to the respondent's carriage intra-State; if so, the freedom afforded to the inter-State trade by s. 92 will extend also to the respondent's carriage, the better thereby to protect the freedom of that inter-State trade. It will not matter that that inter-State trade is also found to be associated with some overseas trade; that will neither detract from its own right to freedom nor from its ability to confer that freedom, where necessary, to an instance of intra-State trade associated with it. (at p183)

18. A relatively complex transaction such as the present involves a number of instances of trade and commerce, more than one of which are inter-State in character. The trade of Donaldson, and of his agent Hutton, were not however, in my view, of this character but were rather examples of overseas trade to which no constitutional freedom attaches. The carriage of the loaded container by the Australian National Line across Bass Strait is an instance of inter-State trade and will be protected by s. 92, but it is not relevantly burdened by the Tasmanian legislation affecting the respondent's carriage of the loaded container to Bell Bay. Only if the consequence of that legislation was shown to be the total abandonment of Donaldson's act of overseas trade, his exporting of lamb to London, could the burden placed upon the respondent's intra-State trade in any way affect Australian National Line's inter-State trade and then only quite indirectly and remotely in consequence of its direct effect upon Donaldson's overseas trade. (at p184)

19. The act of trade involved in undertaking, as one entire contractual obligation, to procure the carriage of the loaded container from inland Tasmania to Melbourne and in giving effect to that undertaking is a further instance of inter-State trade. The conduct of that trade of its nature involved the movement of goods inter-State, the performance of the contractual obligations around which that trade revolved required such movement, and it follows that that trade was itself inter-State in character: Bank of New South Wales v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at pp 289-380 ; Hospital Provident Fund Pty. Ltd. v. Victoria [1953] HCA 8; (1953) 87 CLR 1, at pp 14-15, 24, 38, 44 . (at p184)

20. The evidence leaves it uncertain whether it was the respondent or ACTA Pty. Ltd. which engaged in this inter-State trade but it does clearly emerge from the evidence that in the ordinary course of its business one or other of them agreed to procure the performance of this total transportation. I do not therefore regard it as material to do more than identify the existence of this instance of inter-State trade since the purpose of identifying it is only to see whether the protection to which it is entitled required the extension of that protection so as to cover the respondent's intra-State carriage. It is also, I think, immaterial to determine whether whichever party did engage in that inter-State trade was so engaged as principal or as agent for another; trade which is inter-State in character is none the less so because the trader's role is that of an agent, it will not thereby forfeit the right to the protection of s. 92: Reg. v. Wilkinson; Ex parte Brazell, Garlick and Co. [1952] HCA 6; (1952) 85 CLR 467 . (at p184)

21. This identified instance of inter-State trade was, in my view, directly burdened by the operation of the Tasmanian legislation upon the respondent's intra-State carriage; the legislation operated so as to prevent the conduct of that trade and in consequence the inter-State trader could not fulfil, in the manner in which it had selected, its promise to procure the movement of the goods inter-State. Only be extending to the respondent's intra-State carriage the protection to which that inter-State trade was entitled could its freedom effectively be secured. (at p184)

22. It was, I think, therefore open to the respondent to call in aid s. 92 when proceeded against under the Tasmanian legislation. There was precisely such a situation as has been held to entitle an intra-State carrier of goods to invoke s. 92. All necessary ingredients were present: the existence of inter-State trade, being the trade of procuring the inter-State carriage of goods, the performance of which necessarily involved carriage across State borders; intra-State carriage which, because it formed an integral part of that larger movement across State borders cannot be dissociated from it as merely preliminary to it; and, finally, a burden placed upon that intra-State carriage which directly burdens the inter-State trade by impeding the larger act of transportation which is to be undertaken. (at p185)

23. For these reasons I would dismiss this appeal. (at p185)

MASON J. In his dissenting judgment in James v. Cowan [1930] HCA 48; (1930) 43 CLR 386, at p 418 Isaacs J. said that s. 92 of the Constitution conferred "a personal right attaching to the individual and not attaching to the goods". In the same case, on appeal [1932] HCA 21; (1932) 47 CLR 386, at p 398 , the Privy Council expressed approval of the judgment of Isaacs J., although reference was not made to the passage which I have quoted. Since that approval was given it has been accepted that s. 92 guarantees the freedom of the individual to engage in inter-State trade. Conversely it has been said that there is no infringement of s. 92 unless it appears that there is an interference of the kind forbidden by the section with an individual's inter-State trade. (at p185)

2. There is, however, an element of ambiguity in the expressions which have been employed in this discussion. In the context with which I am presently concerned the individual's freedom "to engage in inter-State trade" may mean his freedom to carry on an activity or to undertake an obligation which involves the movement of goods for reward across State borders; on the other hand, it may mean the freedom of the individual to participate in the movement of goods for reward across State borders, notwithstanding that the acts which he performs take place within the boundaries of one State and that he undertakes no obligation to deliver across the State border. (at p185)

3. To elucidate this question it is necessary to turn to s. 92 itself. The section does not in terms speak of the private right of the individual to engage in trade, commerce and intercourse among the States; it refers to trade, commerce and intercourse among the States as an entire and total concept and provides that it is to be "absolutely free" in the sense in which this expression has been discussed in the decided cases. In saying so much the section protects the right of the individual to engage in inter-state trade, commerce and intercourse but it needs to be recognized that this protection is incidental to, and in a sense consequential upon, the protection which is given to the entire concept of inter-State trade, commerce and intercourse, including the various acts and transactions by which it is constituted. (at p186)

4. The emphasis which in my opinion should be given to the public, as distinct from the private, character of s. 92 has importance in cases where, as here, goods are carried for reward from a point of departure in one State to a destination in another State in the course of an entire or single continuous movement of goods for reward which is effected in stages by different carriers one of whom does not traverse a State boundary and whose contract to deliver is intra-State only. Even in such a case it will generally, if not invariably, appear that a burden imposed on that carrier is an interference with the inter-State trade of another, whether it be the trade of the consignor or consignee, or the trade of some other person for whom, or on whose behalf, the carrier has undertaken his activity. However, in my view the carriage undertaken by the carrier falls within the protection conferred by s. 92, notwithstanding that he does not carry across a State boundary, because his carriage is an integral part of an inter-State movement of goods for reward and therefore forms part of inter-State trade. As I have said, it will generally appear that an interference with the carrier's activity of the kind forbidden by the section will constitute an interference with the inter-State trade of another, but even if this be not established by evidence the carriage is protected because it forms an integral part of the inter-State movement of goods for reward. (at p186)

5. It may be said that the same conclusion may readily be reached by pursuing a different route and acknowledging that the intra-State carrier in the illustration given is himself engaged in inter-State trade, notwithstanding that he does not deliver or contract to deliver across a State boundary, because the activity which he undertakes is itself an integral part of inter-State trade. To say that the carrier is engaged in inter-State trade in these circumstances is merely to say that he is participating in an operation of inter-State trade, although he may be entirely unaware that he is participating in such an operation and that the goods which he is carrying are bound for an inter-State destination. The conclusion that he is engaged in inter-State trade is derivative only and has its origin in the character of the inter-State transportation of the goods, an operation of inter-State trade, in which he is participating. (at p187)

6. The proposition that the intra-State carriage of goods which is an integral part of the inter-State transportion of goods for reward is itself inter-State trade and commerce protected by s. 92 is, with the exception of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 , consistent with the decided cases, although it must be admitted that in the main the reasons for judgment of members of the Court can, and in my view should, be read as asserting that the intra-State carriage of goods for reward is protected when an interference with it is shown to be an interference with the carrier's inter-State trade or that of some person for whom, or on whose behalf, he carries, whether it be the consignor, the consignee or some other person. (at p187)

7. A consideration of the cases must begin with Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 in which it was held that a carrier who transported fruit for reward from northern ports in Tasmania to Hobart upon part of a continuous course of transport by sea and land from the sellers in other States to the consignees in Hobart was not himself carrying out an inter-State transaction which entitled him to protection under s. 92 against the requirement imposed under the Transport Act 1938-1953 (Tas.) and the Traffic Act 1925-1954 (Tas.) that he should obtain an out-of-area permit to carry goods from the northern ports to Hobart involving the payment of a charge calculated according to a formula based on the tare weight of the vehicle and the mileage. The carriage of the goods was prohibited unless the carrier held an out-of-area permit. The basis on which the Court approached the matter is clearly expresed in the judgments. Dixon C.J., McTiernan, Williams, Webb and Taylor JJ. said (1955) 93 CLR, at p 124 :

"It is clear, therefore, that any inter-State character that may be possessed by the plaintiff's activities as a carrier are not obtained from the nature of his functions but from the course of his clients' trade . . .The foundation of the plaintiff's complaint is that the charges constitute a burden upon an inter-State transaction which the plaintiff carries out. That inter-State transaction, however, must consist simply in the loading and discharge of the lorries and the journey. Regarded in this way his claim for the protection of s. 92 is seen to be untenable."

"'It may be true that" (the plaintiff's) "carriage represents a service rendered in the course of the carrying out of an inter-State transaction which consists in the sale and delivery of fruit. But to that transaction the plaintiff is a complete stranger. He can claim protection only for what he himself does."

"The legislation which is attacked in this action affects the merchants in two ways: first, the merchants are deprived of the plaintiff's services for the purposes of their inter-State transportation of fruit except upon payment of a charge; and, secondly, the merchants themselves will be guilty of an offence if they procure the plaintiff to carry their fruit, in the course of their inter-State transportation, in contravention of the legislation.

Neither of these effects, however, is a detraction from the freedom which s. 92 preserves. The first is merely a practical consequence to the merchants of what the relevant legislation does to the plaintiff. The second, which results from an operation of the general criminal law in conjunction with the relevant legislation, is a direct operation upon the merchants but is not a direct operation upon their inter-State intercourse." (at p188)

In Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 , the defendant Walters, a wholesale fruit merchant who maintained his depot at Launceston, imported fruit from Melbourne. It was consigned by land and sea transport to him at Burnie where, on arrival, it was placed on his truck for delivery to the depot at Launceston. The driver did not hold an out-of-area permit required under the Tasmanian legislation for the journey from Burnie to Launceston. On this occasion it was held that the vehicle was being used in the course of, and for the purposes of, inter-State trade. Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 was distinguished on the simple ground that, unlike the defendant in the instant case, the carrier in Hughes v. Tasmania "was not himself engaged in inter-State trade" [1955] HCA 30; (1955) 93 CLR 113 ). (at p188)

8. The distinction reflected the reasoning in the joint judgment and that of Fullagar J. in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 and it expresses at its strongest the view that to invoke s. 92 the plaintiff must show an interference with his inter-State trade. To my mind the proposition on which the distinction was based is unacceptable because it fails to give effect to the protection which s. 92 confers on inter-State trade and those acts which form part of it. Moreover, the distinction does not accord with the later cases, in particular Simms v. West [1961] HCA 62; (1961) 107 CLR 157, and Bell Bros. Pty. Ltd. v. Rathbone, [1963] HCA 7; (1963) 109 CLR 225. (at p188)

9. In the first of these cases a Queensland company which bought goods inland in that State for a New South Wales company as its disclosed principal was under an obligation to the principal to carry the goods from the place of purchase to the port of Cairns for shipment to the principal in Sydney. The Queensland company carried the goods from the place of purchase to Cairns in a vehicle hired by it and driven by its employee. It was held (McTiernan J. dissenting) that the carriage of goods from the place of purchase to Cairns was part of a continuous inter-State operation in the carriage of goods protected by s. 92 so as to exclude the application of s. 23 of the State Transport Facilities Act 1946-1959 (Q.) which prohibited the use of a motor vehicle for the carriage of timber without a permit for which a charge was payable. The Court followed Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and distinguished Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 . That decision was explained, not on the basis expressed in Russell v. Walters, but on the ground which had been expressed by Kitto J. in Hughes v. Tasmania. (at p189)

10. Dixon C. J. said (1961) 107 CLR, at pp 161-162 :

"In these circumstances the impossibility under State law of North Queensland Timber Traders Pty Ltd carrying the timber to the coast without the contravention of the terms of s. 23 of the State Transport Facilities Acts, 1946 to 1959 (Q.), would mean a direct interference with the inter-State trade of Bradshaw & Duncan Pty. Ltd. The question is not whether North Queensland Timber Traders Pty. Ltd. can make out an interference with the inter-State trade of that company. The decision in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 may suggest that considered only as a carrier carrying on business in Queensland the actual carrying by that company could not be regarded as necessarily amounting in itself to an operation of inter-State commerce. It must be kept in mind, however, that the burden in that case of which the carrier complained was nothing but a financial exaction from him: one which did not interfere with the inter-State trade of the merchant whose fruit he carried. The carrier was licensed for an area but to perform the service he needed an 'out of area permit' and for that he had to pay unless he could obtain protection against the payment under s. 92. But the question here is not whether the carrier because of his own operations can make the carrier because of his own operations can make out a complete immunity under s. 92. The case depends on the interference with the consignee's inter-State trade."

Taylor J. (1961) 107 CLR, at p 165 said of the defendant in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 :

"His complaint, however, and his only complaint, was that the charges which, by the conditions of his permit, he was required to pay, constituted an interference with the freedom of trade and commerce among the States. This contention was rejected, it being held, firstly, that the carrying activities of the appellant himself formed no part of such trade or commerce and, secondly, that, even if it might be said that his vehicle was used in the transport of goods which at the time were still in the course of inter-State trade, that circumstance provided no foundation for the proposition that the exaction of the charges in question from him, in the course of his business, constituted any interference with the inter-State trade of his principals." (at p190)

11. These observations marked a departure from the ground previously taken by members of the Court other than Kitto J. They suggest that the decision in Hughes v. Tasmania (1955) 93 CLR 115 is explicable on the footing that as it merely imposed a financial exaction on the carrier it constituted no direct burden on the inter-State trade of the consignees. This suggested distinction appears to overlook the circumstance that in Hughes v. Tasmania (1955) 93 CLR 115 there was a prohibition against carriage in the absence of an out-of-area permit, thereby denying to the merchants freedom to have the goods carried by road except on the terms for which the legislation made provision. Moreover, the suggested distinction is again unacceptable because it fails to give effect to the protection which s. 92 in my opinion confers on inter-State trade and those acts which form part of it. (at p190)

12. The judgments in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 proceed on the footing that the carriage of goods within the boundaries of a single State is protected by s. 92 when a burden imposed on that carriage is a burden on the inter-State trade of the consignor or consignee. The conclusion thereby reached was not put exclusively on the ground that the carriage was protected because it was an integral part of an entire inter-State transportation of goods or because in consequence of that circumstance the carrier was himself engaged in inter-State trade. (at p190)

13. Simms v. West [1961] HCA 62; (1961) 107 CLR 157 was applied in Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 where the defendant carrier transported timber from Nannup in Western Australia to Fremantle in the same State. The timber was in the course of a continuous transportation from Nannup to the consignee's yard in Melbourne. The magistrate held that the activities of the carrier were confined to the intra-State carriage in Western Australia, but in this Court a different view was taken of the facts and it was held that the carrier was a party to the contract for the transportation of the timber from Nannup to Melbourne. On this footing the carrier was engaged in inter-State trade and his carriage was protected by s. 92. The case is chiefly of importance for what was said by the members of the Court. (at p191)

14. The observations of Dixon C. J. are consistent with the view that it was enough to bring the carriage in Western Australia under the protection of s. 92 that it was "portion of a continuous journey of an inter-State character" (1963) 109 CLR, at p 228 but it may be that too much significance should not be attributed to these words in view of the conclusion which his Honour reached on the facts, "that the timber was consigned by the Kauri Timber Co. Ltd upon one journey from the Nannup mill to Melbourne and that Bell Bros. Pty Ltd were to undertake the land carriage which was necessary to the port of shipment" (1963) 109 CLR, at p 229 . Menzies J., with whom Kitto and Taylor JJ. agreed, found that the carrier was a party to the contract to deliver from Nannup to Melbourne but he went on to say (1963) 109 CLR, at p 236 :

"Even, however, on the magistrate's view that the appellant itself did no more than carry the timber from Nannup to North Fremantle for reward, I think, with respect, that the conviction of the appellant was wrong. The movement of the timber from Nannup through North Fremantle and Melbourne to Lorimer Street, South Melbourne, was an inter-State operation and to prevent the appellant from carrying out part of that inter-State movement unless it had obtained a licence under the Act authorizing the use of its vehicle for that purpose would, in my opinion, amount to an unconstitutional interference with the freedom of inter-State trade upon which the appellant could rely to have the Act read down to constitutional limits. I regard this as established by Russell v. Walters [1957] HCA 21; [1957] HCA 21; (1957) 96 CLR 177 and Simms v. West [1961] HCA 62; (1951) 107 CLR 157 . (at p191)

15. His Honour made it clear that in expressing this view he was basing it on the proposition that an interference with the intra-State carriage was an interference with the inter-State trade of the consignor or of some other company which had contracted with the consignor for the inter-State movement of the timber. (at p191)

16. What his Honour said with respect to Hughes v. Tasmania (1955) 93 CLR 115 on this occasion is not without significance. He said (1963) 109 CLR, at p 238 :

"In the view I take of the facts that decision is distinguishable but if it is implicit in that case that in the circumstances here the appellant, if not itself engaged in an operation of inter-State trade, cannot rely upon the burdon imposed upon it by the Act as involving an unconstitutional interference with the inter-State trade of others, then, as the citations I have made show, a different decision has already been given in the later case of Simms v. West [1961] HCA 62; (1961) 107 CLR 157 ." (at p192)

17. Similar questions have been considered in recent decisions of the Court, in particular, Britton Bros. Pty Ltd v. Atkins [1963] HCA 8; (1963) 108 CLR 529 ; Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 ; Webb v. Stagg [1965] HCA 29; (1965) 112 CLR 374 ; Tamar Timber Trading Co Pty Ltd v. Pilkington [1968] HCA 15; (1968) 117 CLR 353 ; Brambles Holdings Ltd v. Pilkington [1972] HCA 6; (1972) 126 CLR 524 and Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 . With the exception of Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 and Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 it is unnecessary to refer to these cases. (at p192)

18. In Deacon v. Mitchell, Barwick C.J. said (1965) 112 CLR, at p 357 :

". . . it has also been decided that where goods or commodities are in fact in the course of inter-State movement, every part of their transport for that purpose, even though there is no contractual or other legal obligation to make that part of the journey, is similarly protected." (at p192)

19. In Holloway v. Pilkington [1972] HCA 8; (1972) 127 CLR 391 the Court, in holding that the carriage of goods within the State of Tasmania fell within the protection conferred by s. 92 did so on the ground that the carriage formed "part of an inter-State movement" of goods. But it was evident that the burden imposed by the Tasmanian legislation on the carrier was an interference with the inter-State trade of the person for whom he carried and that, accordingly, the case was governed by the decisions in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 , Simms v. West [1961] HCA 62; (1961) 107 CLR 157 and Bell Bros. Pty Ltd v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 . It cannot be said that the judgment necessarily involves a departure from the approach which the Court took in the three earlier cases. (at p192)

20. Of Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 the Court said [1972] HCA 8; (1972) 127 CLR 391, at p 395 :

"The plaintiff in that case, unlike the appellant in this case, was not the agent of a carrier who had an obligation of through carriage of the goods. He was the agent of a purchaser who, having purchased fruit to be brought from the mainland to the Tasmanian coast, was bringing his goods to his place of business in Hobart. Whether or not that difference in the facts is sufficient to distinguish that case from this need not be decided in order to dispose of this case." (at p192)

21. With the exception of the observations of Barwick C. J. in Deacon v. Mitchell (1965) 112 CLR, at p 357 and the possible exception of the comment of Dixon C. J. in Bell Bros. Pty Ltd v. Rathbone (1963) 109 CLR, at p 228 , the Court has adhered to the proposition that the intra-State carriage of goods by a carrier which forms an integral part of the inter-State movement of the goods for reward is protected by s. 92, if it appears that an interference with that carriage is an interference with the inter-State trade of the consignor, consignee or other person for whom, or on whose behalf, the intra-State carriage is undertaken. Nevertheless, in my opinion it should now be recognized that s. 92 accords protection to the carriage because, and solely because, it is an integral part of the inter-State movement of goods for reward, whether or not the evidence establishes it to be an infringement of the inter-State trade of a person for whom, or on whose behalf, the carriage is undertaken. (at p193)

22. It follows from the view which I have expressed that Hughes v. Tasmania was incorrectly decided and that it should be no longer followed. Even on the more limited approach taken by the Court and applied in Russell v. Walters, Simms v. West and Bell Bros. Pty. Ltd. v. Rathbone I should have concluded that no sound basis existed for upholding Hughes v. Tasmania. The subsequent decisions make it clear that the decision could not be upheld on the ground initially taken, namely, that the carrier himself had no inter-State trade and that it was not relevant to consider the consignee's inter-State trade nor, as I have already pointed out, can the decision be supported on the ground that the legislation merely imposed a financial exaction on the carrier without imposing a burden on the inter-State trade of the merchants. (at p193)

23. There is in this case the added complication that the goods seem to have been consigned by the consignors under a through bill of lading to London but this aspect of the case may be left until I have discussed the facts. (at p193)

24. The respondent was charged that on 8 th December 1970 on the East Tamar Highway it used as a public vehicle a vehicle not licensed as such under the provisions of the Traffic Act 1925 (Tas.) and the regulations thereunder contrary to s. 24 (1) (c) of the Act. The section provides that:

"No person shall drive or use or cause or permit to be driven or used as a public vehicle any vehicle -

. . .

(c) in respect of which a licence is not in force; except in pursuance

of a permit issued for that purpose or under an exemption granted or declared under this Act." (at p193)

25. The allegations in the complaint were not disputed. At the relevant time the prime mover was being driven by an employee of the respondent from Rocherlea, a township four miles north of Launceston, to the port of Bell Bay, some thirty miles north of Launceston. The prime mover was towing a trailer upon which was loaded a shipping container which contained 751 frozen lamb carcases the property of one Donaldson, a northern Tasmanian lamb producer. Donaldson is now deceased but he had made an arrangement with J. C. Hutton Pty. Ltd. ("Hutton") to act on his behalf in the processing and trans-shipment of his meat. Under this arrangement the company received his stock and slaughtered, prepared, froze and stored the carcases at its works at St. Leonards, a township four miles south-east of Launceston. (at p194)

26. Although the contract documents were incomplete the learned magistrate found that Hutton on behalf of Donaldson contracted with ACTA Pty. Ltd. ("ACTA") for the transport of the frozen lamb from the premises of Hutton in St. Leonards to London. He also found that to perform part of this contract ACTA contracted with the respondent to take the goods from St. Leonards to the nearest container port at Bell Bay by road and contracted with the Australian National Line to ship the container from Bell Bay to Melbourne where the goods were to be transferred almost immediately to an overseas ship, the "Discovery Bay", for shipment to London. (at p194)

27. In accordance with these arrangements, on 7 th December 1970 the respondent's driver drove a prime mover towing the trailer upon which was loaded the empty container to the premises of Hutton at St. Leonards. Donaldson's frozen lamb carcases were then loaded in the container and it was sealed. The respondent's employee then drove the prime mover and trailer with the loaded container to the respondent's depot at Rocherlea where a cooling unit was fitted to the container. On the following day the prime mover, trailer and container proceeded along the East Tamar Highway. It was this use of the prime mover and trailer that constitute the offence charged. (at p194)

28. I infer from the documents placed in evidence which consisted of the Australian National Line consignment note and the carter's copy of the forwarding instruction, a document issued by ACTA, agent for Associated Container Transportation (Australia) Ltd. ("ACT") and stating that the frozen lamb carcases were shipped by Donaldson to Messrs. McPherson Train & Co. Ltd. in London by the "Discovery Bay" from Melbourne to London, that ACTA contracted as a principal with Hutton to carry or bring about the carriage of the goods from St. Leonards to the Overseas Terminal at Melbourne and that ACTA contracted as agent for ACT for the carriage of the goods from Melbourne to Tilbury. The carriage of the goods from Bell Bay to the Overseas Terminal at Melbourne was undertaken by the Australian National Line on its vessel the "Sydney Trader" pursuant to a contract between it and ACTA, acting on its own behalf and not on behalf of ACT. The carriage of the goods from the Overseas Terminal at Melbourne to Tilbury was undertaken by ACT on its vessel the "Discovery Bay". (at p195)

29. Although the documentary evidence is incomplete and the oral evidence is not entirely consistent, I take the view, as I have indicated, that ACTA contracted with Hutton to deliver the container to the Overseas Terminal at Melbourne so as to enable the on-carriage of the container by ACT to London. By way of performance of its contract with Hutton to deliver the container from St. Leonards to Melbourne, ACTA employed the respondent pursuant to a general arrangement which it had with the respondent to carry the container from St. Leonards to Bell Bay. (at p195)

30. The learned magistrate found that the respondent was "only engaged in carrying the goods intra-State from St. Leonards to Bell Bay". An endeavour was made to displace this finding by reference to oral evidence which suggested that the respondent entered into contractual arrangements on behalf of ACTA for the delivery of goods from Tasmania to Melbourne. However, for my part I do not regard this evidence as establishing that the respondent was contracting to deliver goods from Tasmania to Melbourne and it follows that in my view the respondent's activities in a relevant sense were limited to carriage of the container within the State of Tasmania. (at p195)

31. Notwithstanding this finding, and subject only to a consideration of the significance to be attributed to the circumstance that the container was consigned to a purchaser in London, it is evident that the goods were at the relevant time in the course of an entire and continuous transportation from St. Leonards in Tasmania to Melbourne in Victoria. The carriage undertaken by the respondent formed an integral part of the inter-State commercial movement of the goods and therefore fell within the protection of s. 92, subject to the qualification already mentioned. (at p195)

32. Indeed, the evidence establishes, to my mind, that ACTA by contracting to deliver the goods from St. Leonards to Melbourne was engaged in inter-State trade. Were it necessary to do so, I should be prepared to hold that s. 24 of the Traffic Act 1925 in its application to the respondent imposed a burden on the inter-State trade of ACTA. However, for the reasons which I have already given I prefer to rest my conclusion on the sole ground that the carriage within Tasmania, being an integral part of an entire and continuous inter-State commercial movement of the goods, was protected by s. 92. (at p196)

33. There remains for consideration the circumstance that the goods were consigned overseas and that the transportation from St. Leonards to Melbourne was part of an entire and continuous commercial movement of the goods from St. Leonards to Tilbury. In Fergusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 it was held that where kangaroo skins had been bought in Brisbane and consigned to a company in Sydney for sorting and export overseas, the transaction, including the possession of the skins by the defendant who was the manager of the Sydney company, was protected by s. 92 and that s. 19 of the Fauna Protection Act 1948 (N.S.W.) had no application so as to make possession of the skins an offence. In their joint judgment, Dixon, Williams, Webb, Fullagar and Kitto JJ. said (1951) 84 CLR, at p 433 :

"A suggestion was made that such a transaction is not within the protection of s. 92 because the purpose of receiving the skins in Sydney was to ship them abroad. As an observation of fact, it may be remarked that the purpose of sorting them in Sydney according to size, weight, type and quality, involves a substantial commercial operation. But in any case the suggestion is without any foundation.

Inter-State trade and commerce protected by s. 92 must include the transport of goods from one State to the ports of export of another for the purpose of shipment abroad." (at p196)

34. Although these observations related to different circumstances in which the goods were not in the course of an entire and continuous movement from a point of departure in one State to an intermediate point in another State and thence to a consignee at an overseas destination, the principle which they enunciate should in my opinion be applied to the present case. Although there was here an entire and continuous movement of the container from St. Leonards to Tilbury, of which the carriage from St. Leonards to Bell Bay and the transportation from Bell Bay to Melbourne formed integral parts, it does not follow that there was not an inter-State movement of goods for reward and a consequential absence of inter-State trade. Plainly enough the commercial movement of goods across State borders is part of the concept of inter-State trade notwithstanding that the goods have been consigned, and are in the course of transportation, to a purchaser at an overseas destination. There is no antithesis or opposition between inter-State trade (in so far as it is an element in overseas trade) and trade and commerce with other countries which would make the protection afforded by s. 92 inapplicable to commercial transportation across State borders merely because it forms part of an entire and continuous transportation between a point of departure in Australia and an overseas destination. (at p197)

35. In the result I am of the opinion that the appeal should be dismissed. (at p197)

JACOBS J. Mr J. Donaldson was in 1970 a producer of lambs in Northern Tasmania. He arranged with J. C. Hutton Pty Ltd for that company to process his lambs for purposes of export to London. This involved their slaughter, preparation, freezing and storing awaiting shipment. It also involved arranging for the transport of the lamb carcases to London. On behalf of Mr Donaldson, J. C. Hutton Pty Ltd contracted with ACTA Pty. Ltd. that the latter company would make any necessary transport arrangements. Such arrangements involved, after the loading at the St Leonards store of J. C. Hutton Pty Ltd, transport to the container port at Bell Bay, transport by the Australian National Line to Melbourne, and trans-shipment there to an overseas container ship bound for London. ACTA Pty. Ltd. pursuant to a standing arrangement engaged the respondent company to carry the container from the St. Leonards store to the port at Bell Bay. It would appear that the respondent company on behalf of ACTA Pty. Ltd. also arranged for the shipping of the container from Bell Bay to Melbourne, but this is not in my view of essential significance. (at p197)

2. Thus it was that on 7th December 1970 the road transport company Frank Hammond Pty. Ltd. by one of its drivers drove a container loaded on a semi-trailer to St. Leonards, had 750 lamb carcases loaded into the container, drove the semi-trailer from St. Leonards to its depot at Rocherlea for a stay overnight, and next day drove the semi-trailer to the container port at Bell Bay for loading on to the Sydney Trader, bound for Melbourne. While the semi-trailer was being driven to Bell Bay the driver was stopped by a transport inspector. Although both the semi-trailer and its prime mover were registered pursuant to Tasmanian law, the semi-trailer being a public vehicle was not licensed to be driven on the Tasmanian highway, nor was there any permit or exemption in respect of it. (See Traffic Act 1925 (Tas.), s. 24 (1) (c).) Frank Hammond Pty. Ltd. was prosecuted for an offence under this section and in its defence claimed that the requirements of the section were inapplicable to it on the occasion charged because of s. 92 of the constitution. The learned magistrate who heard the proceedings in the Court of Petty Sessions at Launceston upheld this claim and on 24th January 1972 dismissed the complaint. (at p198)

3. The question as I see it is whether the movement of the container packed with frozen lambs involved at the time of its interception by the transport inspector trade commerce or intercourse among the States. If it did, then it is not questioned that the requirement that there be a licence or permit for its movement was an infringement of the absolute freedom of trade commerce and intercourse among the States which is enjoined by s. 92. This appeal is in no way concerned with the character of the burden imposed by the Tasmanian legislation. The Court is in this case spared the extraordinarily difficult task of determining whether or not a particular act or action infringes the absolute freedom enjoined by s. 92. It could be assumed for the purpose of examination of the only question which arises on the appeal that the movement of the container of frozen lambs on the public highway from Rocherlea to Bell Bay for the purpose of shipment to Melbourne and trans-shipment to London was totally prohibited by the State law. (at p198)

4. In my opinion the movement of the container at the relevant place and time did involve trade commerce and intercourse among the States. Mr. Donaldson wanted to get his container of lambs to Melbourne. His reason for wanting so to do is of no essential significance but in fact his reason was that he wanted to make use of the facilities which Melbourne offered for trans-shipment of containers to London. There are, according to the evidence, only three overseas container loading ports in Australia. But this is by the way. Section 92 requires that this container of frozen lambs be free to be moved among the States of Australia. A grazier in Tasmania is as free to move his frozen lambs to Melbourne whatever his purpose may be as the grazier in any other State. It is true that the grazier in Victoria may be in a position in respect of shipment from Melbourne to overseas places different from graziers in other States, though perhaps it must be borne in mind that the freedom enjoined by s. 92 is a freedom among the States, not between the States. The purpose and effect of s. 92 is to create a common area of trade commerce and intercourse among the States of Australia. Other chapters of the Constitution created the new political entity but Ch. IV, particularly ss. 88 to 104 inclusive, created the economic entity. In particular s. 92 created not only the economic but also the social entity. No act of legislature, executive, corporation or individual was, after imposition of uniform duties of customs, to be able to fragment the newly created Commonwealth in its economic and social aspects. (at p199)

5. The impact of s. 92 was reflected not only in the application of its injunction to the Commonwealth as a whole, but also in its application to the particular rights of the States, of corporations and of persons. Since trade and commerce and intercourse ordinarily involve the activities of individuals, corporate or incorporate, it is convenient and necessary to examine the impact of some legislative administrative or other act upon the freedom of the individual in his her or its trade commerce or intercourse. However, these individual rights or freedoms are a reflection on private rights of the constitutional injunction. Section 92 remains primarily a public declaration and injunction. In a passage in the judgment of the Privy Council in Hughes and Vale Pty. Ltd. v. New South Wales, Lord Morton said [1954] UKPCHCA 5; (1954) 93 CLR 1, at p 16 :

"It is true, as has been said more than once in the High Court, that s. 92 does not create any new juristic rights, but it does give the citizen of State or Commonwealth, as the case may be, the right to ignore, and if necessary, to call upon the judicial power to help him to resist, legislative or executive action which offends against the section." (at p199)

6. It is therefore not correct to have primary or exclusive regard to the trade or commerce of the particular individual who in particular proceedings claims the protection which s. 92 gives. Though a necessary condition of a right in an individual to raise in the Courts an infringement of s. 92 may be an impact upon his her or its own trade commerce or intercourse, once that condition is satisfied the question of infringement of the s. 92 injunction must be considered as a public or national issue. It is not possible to isolate the burden on particular actors in a particular transaction or happening and to characterize the burden differently in respect of the different parts played by the various actors. To do so is to overlook the essential generality of s. 92. It converts the established principle that s. 92 is effective to protect the trade commerce and intercourse of individuals into a principle that s. 92 in its essential nature rather than in its effect confers a lot of individual freedoms in relation to the particular activities of individuals and that the burden on one individual differently from another can be particularly classified as an infringement or non-infringement of the s. 92 injunction. In my opinion this is not correct. (at p199)

7. It follows in the present case that the question whether the respondent was carrying on trade or commerce by way of a business of transportation beyond the boundaries of Tasmania is otiose. The primary question is not whether its particular trade or commerce was with another State but whether the owner's goods, being committed to transportation by various means, were free to move in the course of trade commerce and intercourse among the States. An embargo by the State of Tasmania when the journey had hardly commenced seems to me clearly to affect that freedom of movement. It is established, and not disputed in this appeal, that this affection by application of the Tasmanian statute does impose a burden which infringes the freedom which s. 92 enjoins. Part of the freedom is a freedom of choice whether and if so how the lambs would be moved from their point of loading into the container to their place of trans-shipment at Melbourne. In New South Wales v. The Commonwealth Griffith C.J. said [1915] HCA 17; (1915) 20 CLR 54, at p 68 :

"Section 92 may, therefore, so far as it relates to commerce, be paraphrased thus: Every owner of goods shall be at liberty to make such contracts for the transportation of goods from one State to another as he thinks fit without interference by law."

In so saying, Griffith C.J. spoke in a context of limitation of the operation of s. 92, but perhaps this view gives added force to his words which recognized at least the degree of freedom conferred by s. 92 which he thus expressed. However, it is necessary to add for the sake of completeness that the freedom thus expressed by Griffith C.J. must be read as a freedom within the limits of that word as it is used in s. 92. That is a different subject. (at p200)

8. What I have written disposes in my mind of the two principal submissions made on behalf of the appellant. First, it is not sufficient to point to the fact that the carrying activities of the respondent were activities wholly within Tasmania. Attention must be directed to the movement of the goods in trade commerce or intercourse among the States. Secondly, the fact that the owner of the lambs intended them for export in continuation of their carriage from St. Leonards is incapable of detracting from the character of the movement of the lambs from their point of first loading to their point of trans-shipment at Melbourne. The purpose of export and the actual export are not relevant. The export is not part of or related to the trade commerce or intercourse among the States simply because there has been a prior movement between Tasmania and Victoria any more than import is related to trade commerce on intercourse among the the States simply because a future movement of the goods sought to be imported is intended from one State to another: Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. [1965] HCA 27; (1965) 113 CLR 177 . In my opinion this can be stated without framing the conclusion as a deduction from a wider proposition embracing goods brought or proposed to be brought into existence by activities within Australia itself. Proposed export or import by a trader does not impinge by way of subtraction or addition upon freedom of trade commerce and intercourse among the States within Australia itself. The character of the relevant trade commerce or intercourse, if any, must be determined by having regard to activities within Australia. It follows therefore that a purpose of export or indeed a stage in transportation for export does not impinge upon the necessary freedom of any preceding trade commerce and intercourse between the states: Fergusson v. Stevenson [1951] HCA 49; (1951) 84 CLR 421 . (at p201)

9. It is necessary now to say something of the decision in Hughes v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 . That case has been so often distinguished in subsequent cases that it is very doubtful whether the conclusion or any substantial part of the reasons now affords a continuing useful precedent. In so far as the reasoning was based on an examination of the carrier's trade to the exclusion of consideration of the trade commerce and intercourse of the owner of the goods that reasoning cannot stand with Bell Bros. Pty. Ltd. v. Rathbone [1963] HCA 7; (1963) 109 CLR 225 and probably not with Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and Simms v. West [1961] HCA 62; (1961) 107 CLR 157 . The result in that case would seem to me only to be justified on the basis that the transit from the other States to Tasmania was at an end in such a way that the goods had become "part of the mass of property within the State" (Fox v. Robbins [1909] HCA 81; (1909) 8 CLR 115, at p 124 ). This concept involves many problems of refinement but the facts in Hughes v. Tasmania do not appear to bear out any such view of the case. It is better that Hughes v. Tasmania be regarded as overruled by the application of the reasoning applied in the later cases to which I have referred. When goods have not ceased to be part of the mass of property within the State in a legal or practical sense, then at least in respect of their movement on a public highway within a State the injunction of s. 92 has not commenced to affect them. Such an approach is consistent with the decisions in Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 , Webb v. Stagg [1965] HCA 29; (1965) 112 CLR 374 and Tamar Timber Trading Co. Pty. Ltd. v. Pilkington [1968] HCA 15; (1968) 117 CLR 353 . But when they have so ceased and when in such circumstances of transportation they have not entered the mass of property within another State then they are involved in trade commerce and intercourse among the States. (at p202)

10. In my opinion the appeal should be dismissed with costs. (at p202)

Appeal dismissed with costs. ON APPEAL FROM THE COURT OF PETTY SESSIONS AT LAUNCESTON, TASMANIA.