R v. Connare; ex parte Wawn

61 CLR 596

(Judgment by: Dixon J)

Between: Regina
And: Connare
Ex parte: Wawn

High Court of Australia

Judges: Latham CJ
Rich J
Starke J

Dixon J
Evatt J
McTiernan J

Subject References:
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

Hearing date: 28-29 March 1939
Judgment date: 17 May 1939

Melbourne (heard in Sydney)

Judgment by:
Dixon J

Section 21 of the Lotteries and Art Unions Act 1901-1929 of New South Wales enacts that whosoever sells or offers for sale or accepts any money in respect of the purchase of any ticket or share in a foreign lottery, that is, a lottery conducted outside the State, shall be liable to a penalty not exceeding PD20. Section 3 (4) of the same Act provides that whosoever sells or offers for sale any ticket or share in a lottery or raffle or accepts any money in respect of the purchase of any such ticket or share shall be liable to a penalty not exceeding PD5. Apart from a difference in the penalties, these provisions combine to form a uniform suppression of the sale of lottery tickets whether the lottery is conducted inside or outside the State. Exceptions are made in favour of permitted raffles for charitable purposes or the like (ss. 4-6). The State Lotteries Act 1930 then makes lawful a State lottery promoted and conducted by the Colonial Treasurer of New South Wales.

In this state of the law of New South Wales the appellant was prosecuted for offering for sale in Sydney a ticket in a foreign lottery known as Tattersall's Consultation conducted in Tasmania.

The evidence showed that the appellant, who said that he was in the lottery business, proposed to the respondent, the informant in the prosecution, that he should buy tickets in a lottery outside New South Wales and said that at any time he could give him a ticket in Tattersall's or the Queensland Golden Casket. There and then the informant bought and paid for two tickets in a Tattersall's Consultation. It is this transaction which is relied on as constituting the offence charged.

The appellant was convicted before the magistrate and now appeals to this court under s. 39 (2) (b) of the Judiciary Act 1903-1937 on the footing that a question has arisen under the Constitution or involving its interpretation. That question is whether the appellant was entitled under s. 92 of the Constitution to immunity from the operation of the provisions of the New South Wales statute.

In the present state of authority, it is wise, I think, at all events for me, to decide any case under s. 92 on the narrowest grounds which the facts provide.

There are two reasons which, in conjunction, appear to me sufficient to establish that the appellant obtains under s. 92 no protection from the sanctions of State law for the transaction with the informant.

In the first place, the transaction was not in itself a transaction of inter-State trade, commerce, or intercourse. It was a "sale" in New South Wales of a ticket then in New South Wales. No doubt, juristically analysed, it was not a sale but the making of an agreement consisting of an offer in writing by the appellant on behalf of his Tasmanian principals in consideration of a payment in cash then and there made to him. But the fact that one principal to the contract is in another State does not give the agreement the character of inter-State commerce. It remains an intra-State transaction.

It follows that the transaction itself could not fall under the direct protection of s. 92. But a law which forbids or burdens an intra-State transaction may operate to hinder or prevent some anterior dealing of an inter-State character and therefore be bad. Thus, an attempt to place a burden upon the first sale of goods after their introduction into a State well might be obnoxious to s. 92 because of its tendency to prevent or discourage the importation of such goods from another State. It therefore does not follow from the mere fact that the sale by the appellant to the respondent of the ticket in Tattersalls was an intra-State transaction that it is effectually penalized by s. 21 of the Lotteries and Art Unions Act 1901-1929. For the contention would still remain that no State legislation could place a burden on the introduction into New South Wales of lottery tickets from other States, things which the appellant seeks to bring into the same category as commodities that are the subjects of trade and commerce.

The second matter or reason to which I referred appears to me to answer this contention. It is that, apart from the State lottery and permitted charitable raffles, the New South Wales legislation suppresses uniformly the sale of all lottery tickets in New South Wales. In form of expression, the legislation forbids under a separate heading the sale of foreign tickets. But the content and not the form of the law must be considered to discover whether it detracts from the freedom guaranteed by s. 92. The New South Wales law does not by its content discriminate against foreign lottery tickets. It does not forbid them because they come over the border but because they are lottery tickets and because all lotteries except the State lottery are uniformly suppressed and the sale of tickets in all other lotteries is made an offence.

In my opinion, therefore, s. 21 is not entirely void but is capable at least of operating upon an intra-State sale of a lottery ticket, such as the sale made by the appellant.

For these reasons I think the appeal should be dismissed with costs.