Between: Regina
And: Connare
Ex parte: Wawn

Judges: Latham CJ
Rich J
Starke J
Dixon J
Evatt J

McTiernan J

Subject References:
CONSTITUTIONAL LAW
Freedom of inter-State trade
Object of State lottery legislation

Legislative References:
Constitution (Cth) - s 92
Lotteries and Art Unions Act 1901 (NSW) No 34 - s 21

Melbourne (heard in Sydney)

Judgment by:
McTiernan J

The conviction against which this appeal is brought depends on ss. 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 s. 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. Section 21 of the Act prohibits, under a penalty not exceeding PD20, 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 s. 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, ^[F101] at p. 164: See also Taylor v Smetten, ^[F102] at p. 210. 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" (Encyclopædia 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 s. 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. Section 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 s. 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. ^[F103] 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". ^[F104] 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.

Section 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). ^[F105] Section 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. Section 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 s. 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 s. 92 of the Constitution. The appeal, therefore, should be dismissed.

Louat (with him Storey), for the applicant.

Weston K.C. (with him W. J. V. Windeyer), for the State of New South Wales

Solicitors for the applicant, T. T. Henery & Co ,

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