It must, however, be admitted that the question whether a lottery ticket can be bought or sold in such a way as to make the transaction of buying or selling a transaction in trade or commerce is one of difficulty. The question arose in the United States of America and it was decided in Champion v. Ames[19] (the Lottery Case). In that case it was decided that the carriage of lottery tickets from one State to another by an express company was inter-State commerce. It was further held that Congress could (under the commerce power) prohibit such carriage of lottery tickets. There is no provision in the Constitution of the United States corresponding to sec. 92. The case was first argued in February 1901, it was re-argued twice, and it was ultimately decided (in February 1903) by a majority of five justices to four justices. Such a record indicates the difficulty of the problem which confronted the court. It was held by the majority that "These" (lottery) "tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would pay to him the amount of the prize drawn"[20]. The minority took a contrary view, holding that lottery tickets were simply evidence of the existence of contractual relations and "that they are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them"[21] I refer to Champion v. Ames[22] not as an authority which should in any degree govern the decision of this court, but for the purpose of indicating the dividing line between the two views, one only of which can be adopted by this court.

I agree that entering into a lottery is not in itself a transaction of sale and that a person who "buys" a ticket in a lottery from the conductor of a lottery or his agent makes a wagering contract with the lottery conductor. The section of the New South Wales Act applies not only to such a transaction, but also to the sale of the ticket by such a purchaser to another person. In the latter case there is an assignment of a chose in action. But I am of opinion that a lottery ticket can be bought and sold. The New South Wales legislature was evidently of the same opinion, as the terms of the Act show. The defendant was an agent for the sale of both Tattersall's Consultation tickets and Golden Casket tickets. The evidence is that he sold large numbers of lottery tickets - £130,000 worth in three Golden Casket consultations.

For many years English legislation has dealt with the sale of lottery tickets. There were State lotteries during various periods from 1569 to 1826. The sale of tickets in other lotteries was regulated or prohibited from time to time: See Paul's Police Offences, 2nd ed. (1934), pp. 375 et seq.; Windeyer on Wagers, Gaming and Lotteries in Australia, Introduction; Quan Yick v. Hinds[23]; Encyclopœdia Britannica, 14th ed., vol. 10, p. 11 - "Gaming and Wagering". In all States of the Commonwealth there is legislation dealing in express terms with the sale of lottery tickets. This statutory history makes it very difficult to contend that a lottery ticket cannot be the subject matter of a transaction of sale.

It is common to speak of the sale of government bonds, of shares in companies and of railway tickets. The result of such transactions is that the purchaser of the bond becomes a creditor of a government, the purchaser of the share becomes entitled to obtain registration as a member of the company in respect of a particular number of shares, and the intending passenger enters into a contract for carriage by the railway authority. In each case it might be said that the real transaction is not a transaction of sale and purchase. But in each case the transaction does involve in a real sense and in a legal sense an element which is a sale. The transactions involve the delivery of the bond, of the scrip, or of the railway ticket, with a transfer of the property therein to a purchaser unless, in the last case, some special provision prevents such a transfer of property. So in the case of the sale of a lottery ticket there is an element in the transaction which includes the sale of a lottery ticket to a buyer. The ticket is transferred to the buyer so that he becomes the owner of the ticket. This element in the transaction is not the whole of the transaction, but it is the part of the transaction which is dealt with by sec. 21 of the New South Wales Act. It is a trading element in the transaction and it is this which is prohibited by sec. 21: Cf. Rummens v. Hare[24], where the court distinguishes between the transfer of a document and a transfer of the rights evidenced by the document.

It is further argued on behalf of the State that sec. 21 is not legislation upon the subject of inter-State or foreign trade, but upon the subject of lotteries. It is said that James v. The Commonwealth[25] shows that it is necessary to look at the character and nature of legislation before considering whether or not it conflicts with sec. 92 of the Constitution, and that if legislation can be assigned to some other category than that of "trade and commerce legislation," then the fact that the legislation may interfere with trade and commerce to some extent does not necessarily make it invalid: See James v. The Commonwealth[26]. For example, it is said that a man may be arrested for crime while about to cross a State frontier in the course of a trade operation and that such an arrest is no infringement of sec. 92[[27](#CLR-FN> This court had occasion many years ago to say that the common forms of gambling were comparatively innocuous when placed in contrast with the widespread pestilence of lotteries; that the former were confined to a few persons and places, while the latter infested the whole community, entered every dwelling, reached every class, preyed upon the hard earnings of the poor, and plundered the ignorant and simple. Is a State forbidden by the supreme law of the land from protecting its people at all times from practices which it conceives to be attended by such ruinous results? Can the legislature of a State contract away its power to establish such regulations as are reasonably necessary from time to time to protect the public morals against the evils of lotteries?[53].

For New South Wales, counsel pointed out that sec. 21 of the Act, under which the conviction was had, does not prohibit the very act of bringing lottery tickets into the State or sending money out of it. In form, therefore, the legislation is distinguishable from that considered by this court in Ex parte Nelson [No. 1][54], where a proclamation issued under the New South Wales Stock Act 1901 had forbidden not the sale in New South Wales of cattle introduced from an infected area situated in Queensland, but the actual introduction into New South Wales of such cattle unless the cattle had been dipped so as to prevent the spread of tick or Texas fever. However, if the Stock Act 1901 had been framed so as to prohibit the sale or offering for sale in New South Wales of cattle which had been introduced from an infected area outside the State without compliance with the dipping requirement, the effect upon the trade in cattle between the two States would not have been substantially different. Where a State directly prohibits the importation of diseased cattle, the business of an individual trader or importer may be interfered with no more than in the case where the State's regulation is applied after the act of importation.

In my opinion, the decision in Ex parte Nelson [No. 1][55], if considered solely in relation to the actual regulation imposed by the relevant New South Wales proclamation, was right. In substance the court considered that the requirement of dipping suspected cattle as a precaution against the spread of Texas fever or tick was a genuine and relevant health requirement, and so far from being an impediment to inter-State trade was rather an aid to its safe and proper conduct.

There is nothing in Tasmania v. Victoria[56] which runs counter to the decision in Ex parte Nelson [No. 1][57] as thus explained. The former decision was based upon the finding that although Victoria purported to restrict the importation of Tasmanian potatoes by reference to health regulations contained in its Vegetation and Vine Diseases Act 1928, it was established or admitted that the supposed health regulation was neither a genuine nor a relevant provision in relation to imported potatoes. The majority judgment[58] carefully distinguished Ex parte Nelson [No. 1][59] and was based on the view that the absence of any nexus between potatoes from Tasmania and the spread of a particular plant disease in Victoria left the offending regulation standing as an almost undisguised prohibition of trade in potatoes.

Here it should be stressed that the judgment of Isaacs J. in Ex parte Nelson [No. 1][60] was based upon the principle that, as the New South Wales proclamation required the dipping of certain cattle arriving from Queensland, it was obviously a regulation of inter-State trade, but McArthur's Case[61] excluded from State legislative control inter-State trade in all its aspects. In his judgment Isaacs J. emphasizes this point over and over again. Sec. 92, he says, "withdraws from the States what would otherwise have been a concurrent power"[62]. Having regard to sec. 51 (i), conferring upon the Commonwealth Parliament the power to regulate inter-State trade and commerce, sec. 92, in his opinion, had the effect of "making the Commonwealth power exclusive"[63]. It followed in Isaacs J.'s view that every attempt by a State to legislate in relation to inter-State commerce was null and void[64]. Had the court been compelled to accept the principle that the State's power exists concurrently with that of the Commonwealth it is certain that the conclusion in Ex parte Nelson [No. 1][65] would have been acquiesced in by all members of this court.

An analogous opinion to that adopted by Isaacs J. in Nelson's Case[66] was expressed by Dixon J. in his dissenting judgment in O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.)[67], where he gives an illustration which seems to me to give point to the fundamental difference between the reasoning of Isaacs J. in Nelson's Case[68] and that of the Privy Council in James v. The Commonwealth[69]. Dixon J. said: -

A deserting husband might be arrested under a law of a State notwithstanding that his destination lay over the border. But if the State law made his liability to arrest depend not on the fact of desertion but upon his attempting to leave the State, I should think that sec. 92 would invalidate it. In the first case, his inter-State journey might be interrupted but only as a consequence produced by a law which had no reference to any aspect of trade, commerce and intercourse among the States. In the other case, the State boundary is adopted by the law as the limit of the deserting husband's movement; the inter-State character of his flight is made the reason for his detention[70].

In my opinion it is clear that notwithstanding sec. 92 the legislation of a State can authorize the arrest of a wife deserter not merely where he has broken the State law by deserting his wife, but also where, leaving his wife still deserted and unprovided for, he is attempting to leave the jurisdiction. In such a case the State boundary is selected as creating a liability to arrest not because it marks the beginning of the territorial area of another State or of the high seas, or because the State is impeding inter-State trade, but because the State boundary also marks out the limit of the State's territorial jurisdiction. To take an analogous illustration, it may be noted that one of the essential requirements of the modern procedure for arrest on mesne process is that the defendant is about to remove himself from the territorial jurisdiction of the State: Cf. Arrest on Mesne Process Act 1902 N.S.W., sec. 5 (c).

Since the decision of the Privy Council in James v. The Commonwealth[71] the foundation of the reasoning upon which the dissenting judgments in Nelson's Case[72] were based has been destroyed. Sec. 51 (i) does not give the Commonwealth an exclusive power to regulate inter-State trade. Dealing with certain passages from R. v. Vizzard; Ex parte Hill[73], the Privy Council said: "If this reasoning, which in Vizzard's Case1(1935) [1933] HCA 62; 50 C.L.R. 30. was primarily applied to the States, is, as it seems to be, correct, then in principle it applies mutatis mutandis to the Commonwealth's powers under sec. 51 (i) and shows that sec. 51 (i) has a wider range than that covered by sec. 92"[75].

Having regard to the analysis of the prior decisions of this court which was made by the Privy Council in James v. The Commonwealth[76], it should be taken that in Tasmania v. Victoria[77] this court was of opinion that there had been an interference with trade freedom as at the frontier, whereas in Nelson's Case[78] the dipping restriction was in the circumstances rightly held not to be an interference with such freedom, which alone is guaranteed by sec. 92. "In every case," said Lord Wright, "it must be a question of fact whether there is an interference with this freedom of passage"[79]. The facts in Tasmania v. Victoria[80] differed considerably from those in Nelson's Case[81].

Further, the correctness of Nelson's Case[82] was not denied by the Privy Council in James v. The Commonwealth[83]. It was only said: - "It is certainly difficult to read into the express words of sec. 92 an implied limitation based on public policy ... But the question whether in proper cases the maxim, salus populi est suprema lex, could be taken to override sec. 92 is one of great complexity"[84].

Undoubtedly the fact that by a particular legislative provision the State is genuinely endeavouring to restrict the spread of disease (although at the same time it is directly regulating certain aspects of inter-State commerce) may in the circumstances tend to show that freedom of the frontier is not being impaired. In such cases, however, the reason is, not that provisions directed towards the prevention of disease are an exception carved out of sec. 92, but that sec. 92, properly construed and properly applied, does not prohibit the States from exercising a particular precautionary power creating no real barrier against inter-State trade. This distinction was adverted to by Lord Atkin in James v. Cowan[85], where the State legislative power sought to be exercised was the power of acquisition. There an executive power created by statute was made expressly subject to sec. 92.

"If," said Lord Atkin, "the real object of arming the Minister with the power of acquisition is to enable him to place restrictions on inter-State commerce, as opposed to a real object of taking preventive measures against famine or disease and the like, the legislation is as invalid as if the legislature itself had imposed the commercial restrictions. The Constitution is not to be mocked by substituting executive for legislative interference with freedom"[86].

The above statement was the Privy Council's short and conclusive answer to the argument that in no case whatever can a State Act, which acquires property within its borders, constitute an infringement of sec. 92. The answer is that the State's power of acquisition may be utilized in order to place restrictions upon inter-State commerce just as it may be utilized to prevent the spread of disease or the onset of famine. In each case the effect of the legislation on the inter-State flow of certain commodities may be noticeable or considerable. In the one case sec. 92 is infringed, in the other there may be no infringement. And it is not material whether the legislature acts directly or through the executive.

"It may be conceded," said Lord Atkin, "that, even with powers granted in this form, if the Minister exercised them for a primary object which was not directed to trade or commerce, but to such matters as defence against the enemy, prevention of famine, disease and the like, he would not be open to attack because incidentally inter-State trade was affected"[87]. In the case of State legislation in its ordinary form, analogous distinctions may be valuable; for "it is impossible to accept the theory that, in applying sec. 92, one need not look past the mere operation of the State law upon the inter-State trader, traveller or carrier and that one should disregard the nature and character of the State law which is impugned"[88].

It does not necessarily follow from the fact that the State legislature or executive is dealing to some extent with the subject of disease, that sec. 92 is not being infringed. But the pursuit of such an object by a State is a circumstance of the utmost importance in determining the question - really one of fact - whether the trade freedom of the frontier has been interfered with. In some cases, such as Nelson's Case[89], it is clear that the "frontier" crossing is selected by the State as the discrimen of liability, not because it is the trade frontier, but because the health precaution must, if it is to be of any value, operate at the very first moment of time when the suspected goods come effectively within the State's territorial jurisdiction and can be dealt with so as to prevent the spread of disease. If in such cases the operation of the State law were postponed until the arrival of the goods at the market place, not only might disease be spread, but the owner of the goods might have to be exposed to the risk of complete forfeiture. In all cases the crucial question is: has there been interference with the trading or commercial freedom of the frontier?

Although the Constitution of the United States contains no express provision like sec. 92, the decisions of the Supreme Court are often of value. Broadly speaking that court has deduced from the existence of a power in Congress to regulate inter-State commerce, the entire exclusion of the State legislatures from that field of law making, except in cases where the exercise of State legislative power may inferentially be permitted either by the action or the inaction of Congress. Notwithstanding the inferior position of State legislatures there as contrasted with their position here, the Supreme Court has frequently affirmed the power of State legislatures to prevent the spread of disease into their borders by regulations operating at the moment of entry. One can hardly deny to the States of Australia an authority at least as extensive, for here the States are bound by sec. 92 only to the same degree as is the central legislature. In the United States, also, it has been held, conformably with the Privy Council's ruling in James v. The Commonwealth[90], that questions of fact and degree are necessarily involved in determining very analogous constitutional issues. As Mr. Justice Cardozo said: -

The line of division between direct and indirect restraints of commerce involves in its marking a reference to considerations of degree ... Subject to the paramount power of the Congress, a State may regulate the importation of unhealthy swine or cattle (Asbell v. Kansas[91]; Mintz v. Baldwin[92]); or decayed or noxious foods (Crossman v. Lurman[93]; Savage v. Jones[94]; Price v. Illinois[95]). Things such as these are not proper subjects of commerce, and there is no unreasonable interference when they are inspected and excluded. So a State may protect its inhabitants against the fraudulent substitution, by deceptive colouring or otherwise, of one article for another. ... None of these statutes - inspection laws, game laws, laws intended to curb fraud or exterminate disease - approaches in drastic quality the statute here in controversy which would neutralize the economic consequences of free trade among the States (Baldwin v. Seelig[96]).

For the reasons I have given I am of opinion that even if the New South Wales legislation here impeached had assumed the form of prohibiting the introduction into the State of lottery tickets or the sending out of the State of money for the purchase of lottery tickets, sec. 92 would have had nothing to say in denial of such an exercise of the State's power.

In James v. The Commonwealth[97] Lord Wright said: "The true criterion seems to be that what is meant is freedom at the frontier or, to use the words of sec. 112, in respect of goods passing into or out of the State". As already pointed out, I am not concerned to dispute that inter-State transactions in respect of lottery tickets may be regarded as within the legislative power of the Commonwealth under sec. 51 (i). It does not follow that lottery tickets can be regarded as goods or commodities which are entitled to the protection of sec. 92. If they are goods or commodities they belong to a very special category, so special that in the interests of its citizens the State may legitimately exile them from the realm of trade, commerce or business. The indiscriminate sale of such tickets may be regarded as causing business disturbance and loss which, on general grounds of policy, the State is entitled to prevent or at least minimize.

How such legislation, merely because it discourages unrestrained investment in lotteries conducted in other States of the Commonwealth, can possibly be regarded as inconsistent with sec. 92 I fail to understand. In order to assist the Royal Commission on the Constitution of the Commonwealth which reported in the year 1929, a committee of counsel of the Bar of Victoria made a useful reference to the High Court's interpretation of sec. 92. This was before the upsetting of McArthur's Case ruling[98] that the States had no legislative power at all in relation to inter-State trade. Inter alia it was said: -

It seems incredible that the immunity given by sec. 92 should operate to prevent the States from including in general prohibitions relating to transactions of trade and commerce, transactions which form part of inter-State trade. The suppression of lotteries, for instance, in a State, upon a logical application of the view that freedom means freedom from all legal restriction, could not extend to a lottery conducted by inter-State communications (Report of the Royal Commission on the Constitution, (1929), p. 263).

If, notwithstanding McArthur's Case[99], it was "incredible" that the States could not suppress or regulate lotteries conducted by inter-State communications, the adjective to be selected to-day when the States have been restored to their constitutional status by James v. The Commonwealth[100] and are as much at liberty to regulate inter-State communications as the Commonwealth itself, should be even stronger. But "incredible" is strong enough. In relation to sec. 92 it evidences one of the postulates or axioms which, I suggest, are demanded alike by common sense and by a sound knowledge of what was aimed at by the founders of the Australian Commonwealth.

The conviction against which this appeal is brought depends on secs. 19 and 21 of the Lotteries and Art Unions Act 1901-1929, an act of the State of New South Wales. The ground of the appeal is that these sections infringe sec. 92 of the Commonwealth Constitution, which provides that trade, commerce and intercourse among the States shall be absolutely free. The Act in which the sections appear is expressed in its long title to be an Act to consolidate the Acts relating to the prevention of lotteries and the legalizing of art unions and similar associations. Sec. 21 of the Act prohibits, under a penalty not exceeding £20, three things, namely, offering to sell a ticket or share in a foreign lottery, selling such ticket or share, and accepting money in respect of the purchase of such ticket or share. The appellant was convicted of the offence of offering to sell a ticket in a lottery in Tasmania, which is a foreign lottery within the definition of that expression in sec. 19. The section says that a foreign lottery means a lottery conducted or to be conducted outside New South Wales.

A lottery is defined in Johnson's Dictionary as "a game of chance; a sortilege; distribution of prizes by chance; a play in which lots are drawn for prizes." In Webster's Dictionary (1832) it is said to be "a scheme for the distribution of prizes by chance, or the distribution itself." These definitions were approved in Barclay v. Pearson[101]: See also Taylor v. Smetten[102]. There are very varied methods of deciding the chance upon which the distribution may depend. Instances of the devices which might be employed for the purpose are to be found in the following summary of the English Lotteries Acts: "The Act of 1699 refers to lotteries by drawing, playing or throwing by dice lots, cards, balls, or any other numbers or figures, or in any other way whatsoever. That of 1721, to lots, tickets, numbers, or figures, that of 1738, to lots, tickets, numbers or figures, cards or dice, and games, methods or devices depending on or to be determined by any lot or drawing, whether it be out of a box or wheel, or by cards or dice, or by any machine, engine, or device of any kind whatsoever. The Acts of 1738, 1740, and 1745 treat as lotteries the games ace of hearts, faro, basset and hazard, passage and roulette or roly-poly, and all games (except backgammon and tables), invented or to be invented, which are to be played with dice, or with any instrument, engine, or device in the nature of dice having one or more figures or numbers thereon; and the Act of 1812 deals with little-goes, or any lottery not authorized by statute, played, drawn, or thrown for by dice, lots, cards, balls, or by numbers or figures, or by any other way, contrivance, or device whatsoever" (Encyclopœdia of the Laws of England, 2nd ed. (1907), vol. 8, p. 440).

It is quite a novel suggestion that the disposition of prizes by any of these means is an operation within the sphere of trade and commerce. To stake money on the chance upon which prizes are to be distributed by any such devices is plainly gaming or gambling. Hence the Lotteries Acts are regarded as Acts relating to gaming. They are collected in Chitty's Statutes, vol. 11, p. 1310, under the title "Gaming," and are discussed in text-books on that subject. Examples are: Stutfield on the Law relating to Betting, Time-bargains and Gaming; Coldridge and Hawksford on the Law of Gambling.

The present Lotteries and Art Unions Act applies to any scheme which is within the ordinary definition of the word "lottery." Its scope is expressed to be wide enough to suppress dispositions of property which are determined by reference to the result of a horse race and competitions determined by chance, although they may involve a certain degree of skill on the part of the competitors. The Act prohibits all lotteries except such as it legalizes. These are raffles and art unions which are permitted if held for any of the objects and under the conditions laid down in the Act. The wide sweep of the prohibition explains the provision that the Act is not to affect either the provisions of the Gaming and Betting Acts which legalize betting under certain conditions or of the Acts regulating the use of the totalisator on race courses. Since the passing of the Lotteries and Art Unions Act 1901-1929 the Parliament of New South Wales gave to the government power to conduct lotteries.

Some trades are more adventurous or speculative than others, but trade or commerce as a branch of human activity belongs to an order entirely different from gaming or gambling. Whether a particular activity falls within the one or the other order is a matter of social opinion rather than jurisprudence. In Boswell's Life of Johnson the following conversation is recorded: - "Boswell: So then, sir, you do not think ill of a man who wins perhaps forty thousand pounds in a winter? Johnson: Sir, I do not call a gamester a dishonest man; but I call him an unsocial man, an unprofitable man. Gaming is a mode of transferring property without producing any intermediate good. Trade gives employment to numbers and so provides immediate good." It is gambling to buy a ticket or share in a lottery. Such a transaction does not belong to the commercial business of the country. The purchaser stakes money in a scheme for distributing prizes by chance. He is a gamester.

The Act does not attach the label of crime to the foible of buying a lottery ticket. The plan of the Act is to eliminate all lotteries except those which are legalized and to place obstacles in the way of persons gambling by obtaining tickets or shares in lotteries. The provisions of sec. 21 regarding tickets or shares in foreign lotteries have been mentioned, and it should be observed that the Act contains similar provisions regarding tickets or shares in (presumably) local lotteries. It is gambling to purchase a ticket in a lottery whether it is conducted outside or inside the State. The legislation has not sought to prohibit all lotteries. It has, in effect, aimed at preventing gambling by lottery from reaching proportions which it would consider mischievous. It would be singularly ineffective to achieve this object if it had not attacked the distribution within the State of tickets and shares in lotteries conducted outside the State. Sec. 21, therefore, is an integral part of the legislation. The section is, in substance, a law for the regulation of gaming. There is no ground for the assumption that the things which the section forbids to be done with tickets or shares in foreign lotteries are forbidden simply because the lotteries are foreign: it is patent that those things are forbidden as gambling operations or transactions incidental to gambling.

None of the things forbidden by sec. 21 belongs, in my opinion, to the trade or commerce of the country. No wider statement of what is comprised within the words trade and commerce among the States has been given than that in the case of W. & A. McArthur Ltd. v. Queensland[103]. Indeed, the definition has been criticized as being too wide. The generalization which was made in that case of the elements of trade and commerce is: "All the commercial arrangements of which transportation is the direct and necessary result"[104]. It is not a commercial arrangement to sell a lottery ticket; for it is merely the acceptance of money or the promise of money for a chance. In this case the purchase of a lottery ticket merely founds a hope that something will happen in Tasmania to benefit the purchaser.

Sec. 92, however, has a wider field than trade and commerce. It guarantees freedom of intercourse among the States against infringement by a State or even by the Commonwealth (James v. The Commonwealth[105]). Sec. 21 does not, in my opinion, in any way impair freedom of intercourse among the States. As has been explained, the section is a law against gaming. What it does, in effect, is to prevent a person in New South Wales from selling to others, in return for their cash, tickets in a lottery, or, in other words, distributing for money consideration things which are part of the paraphernalia necessary or incidental to the game. Sec. 92 intends that Australia should be a unity in trade and commerce; it also intends its unity in social intercourse. But it is not true that the social unity of the Commonwealth is impaired if, for example, a citizen of Tasmania, who goes to New South Wales for the purpose of selling tickets in a Tasmanian lottery, is prevented by the laws of New South Wales from selling the tickets. The State of New South Wales could not prevent him from entering the State, but the limitation or regulation of his gambling activities in the State is no infringement of the freedom of intercourse guaranteed by sec. 92. A fortiori, it is not an infringement of the freedom of intercourse between the States for the State of New South Wales to prohibit one of its own citizens from selling tickets in a Tasmanian lottery, whether the tickets are sent from Tasmania or printed in New South Wales.

In my opinion, the legislative provisions on which the conviction appealed against is based are not invalid as an infringement of sec. 92 of the Constitution. The appeal, therefore, should be dismissed.

Appeal dismissed. Order nisi discharged with costs.

Solicitor for the State of New South Wales (intervening), J. E. Clark, Crown Solicitor for New South Wales.

[1] [1926] HCA 47; (1926) 38 C.L.R. 408.

[2] [1934] HCA 5; (1934) 51 C.L.R. 108.

[3] (1936) A.C., at pp. 623, 631; 55 C.L.R., pp. 52, 59.

[4] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[5] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[6] (1936) A.C., at p. 626; 55 C.L.R., at pp. 54, 55.

[7] [1909] HCA 81; (1909) 8 C.L.R. 115.

[8] (1909) 8 C.L.R., at pp. 119, 120.

[9] (1909) 8 C.L.R., at pp. 119, 120.

[10] (1936) A.C., at p. 617; 55 C.L.R., at p. 46.

[11] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[12] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[13] [1932] UKPCHCA 2; (1932) A.C. 542; 47 C.L.R. 386.

[14] (1936) A.C., at p. 623; 55 C.L.R., at p. 52.

[15] (1936) A.C., at pp. 625, 626, 628, 629; 55 C.L.R., at pp. 54, 55, 57.

[16] (1936) A.C., at p. 630; 55 C.L.R., at p. 58.

[17] (1936) A.C., at p. 631; 55 C.L.R., at p. 59.

[18] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[19] [1901] USSC 144; (1903) 188 U.S. 321; 47 Law. Ed. 492.

[20] (1903) 188 U.S., at p. 353; 47 Law. Ed., at p. 500.

[21] (1903) 188 U.S., at p. 368; 47 Law. Ed., at p. 506.

[22] [1901] USSC 144; (1903) 188 U.S. 321; 47 Law. Ed. 492.

[23] [1905] HCA 10; (1905) 2 C.L.R. 345, at pp. 356, 357.

[25] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[26] (1936) A.C., at pp. 625, 630; 55 C.L.R., at pp. 54-58.

[27] (1936) A.C., at p. 630; 55 C.L.R., at p. 58.

[28] [1964] USSC 148; (1850) 49 U.S. 163; 12 Law. Ed. 1030.

[29] (1850) 49 U.S., at p. 168; 12 Law. Ed., at p. 1033.

[30] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[31] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[32] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[33] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[34] [1901] USSC 144; (1903) 188 U.S. 321; 47 Law. Ed. 492.

[36] (1898) 171 U.S. 578, at p. 591; 43 Law. Ed. 290, at p. 295.

[37] (1928) 42 C.L.R., at pp. 180, 181.

[38] (1928) 42 C.L.R., at pp. 195, 196.

[39] (1928) 42 C.L.R., at p. 204.

[40] (1928) 42 C.L.R., at p. 178.

[41] [1935] HCA 8; (1935) 52 C.L.R. 189, at p. 209.

[42] (1936) A.C., at p. 630; 55 C.L.R., at p. 58.

[43] (1936) A.C., at p. 626; 55 C.L.R., at p. 55.

[44] [1933] HCA 62; (1933) 50 C.L.R. 30.

[45] [1935] HCA 8; (1935) 52 C.L.R. 189.

[46] [1935] HCA 38; (1935) 52 C.L.R. 570.

[47] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[48] (1937) 57 C.L.R., at pp. 394, 395.

[49] [1905] USSC 100; (1905) 198 U.S. 45, at p. 76; [1905] USSC 100; 49 Law. Ed. 937.

[50] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[51] [1901] USSC 144; (1903) 188 U.S. 321; 47 Law. Ed. 492.

[52] [1897] USSC 185; (1897) 168 U.S. 488; 42 Law. Ed. 553.

[53] (1897) 168 U.S., at p. 496; 42 Law. Ed., at p. 555.

[56] [1935] HCA 4; (1935) 52 C.L.R. 157.

[58] (1935) 52 C.L.R., at p. 169.

[61] [1920] HCA 77; (1920) 28 C.L.R. 530.

[62] (1928) 42 C.L.R., at p. 224.

[63] (1928) 42 C.L.R., at p. 234.

[64] (1928) 42 C.L.R., at pp. 236, 237.

[67] (1935) 52 C.L.R., at pp. 202 et seq.

[69] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[70] (1935) 52 C.L.R., at pp. 205, 206.

[71] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[73] [1933] HCA 62; (1935) 50 C.L.R. 30.

[74] [1933] HCA 62; (1935) 50 C.L.R. 30.

[75] (1936) A.C., at p. 622; 55 C.L.R., at p. 51.

[76] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[77] [1935] HCA 4; (1935) 52 C.L.R. 157.

[79] (1936) A.C., at p. 631; 55 C.L.R., at p. 59.

[80] [1935] HCA 4; (1935) 52 C.L.R. 157.

[83] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[84] (1936) A.C., at pp. 624, 625; 55 C.L.R., at p. 53.

[85] [1932] UKPCHCA 2; (1932) A.C. 542; 47 C.L.R. 386.

[86] (1932) A.C., at p. 558; 47 C.L.R., at p. 396.

[87] (1932) A.C., at pp. 558, 559.

[90] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[91] [1908] USSC 74; (1908) 209 U.S. 251, at p. 256; [1908] USSC 74; 52 Law. Ed. 778, at p. 781.

[92] [1933] USSC 99; (1933) 289 U.S. 346; 77 Law. Ed. 1245.

[93] [1904] USSC 17; (1904) 192 U.S. 189; 48 Law. Ed. 401.

[94] [1912] USSC 173; (1912) 225 U.S. 501; 56 Law. Ed. 1182.

[95] [1915] USSC 212; (1915) 238 U.S. 446; 59 Law. Ed. 1400.

[96] (1935) 294 U.S., at pp. 525, 526; 79 Law. Ed., at pp. 1039, 1040.

[97] (1936) A.C., at p. 630; 55 C.L.R., at p. 58.

[98] [1920] HCA 77; (1920) 28 C.L.R. 530.

[99] [1920] HCA 77; (1920) 28 C.L.R. 530.

[100] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.

[101] (1893) 2 Ch. 154, at p. 164.

[102] (1883) 11 Q.B.D. 207, at p. 210.

[103] [1920] HCA 77; (1920) 28 C.L.R. 530.

[104] (1920) 28 C.L.R., at p. 547.

[105] [1936] HCA 32; (1936) A.C. 578; 55 C.L.R. 1.