R v. Connare; ex parte Wawn61 CLR 596
(Judgment by: Rich J)
Ex parte: Wawn
Freedom of inter-State trade
Object of State lottery legislation
Constitution (Cth) - s 92
Lotteries and Art Unions Act 1901 (NSW) No 34 - s 21
Judgment date: 17 May 1939
Melbourne (heard in Sydney)
In this case I granted a rule nisi for prohibition so that an appeal under s. 39 (2) (b) of the Judiciary Act 1903-1937 might be heard in this court in a matter alleged to concern the interpretation of the Constitution.
The appellant was prosecuted under the Lotteries and Art Unions Act 1901-1929 (N.S.W.) for offering for sale in Sydney a ticket in a foreign lottery, known as Tattersall's Consultation, conducted in Tasmania. That consultation is carried on in that State under the authority of the Gaming Act 1935 (Tas.) and the Regulations dated 18th February 1938 and published in the Tasmanian Government Gazette, 22nd February 1938, p. 206 (amended 18th April 1939).
The facts which gave rise to the prosecution are that the appellant, who was engaged in the lottery ticket business and was the authorized agent of Tattersall's lottery, offered to let the informant have a ticket at any time in Tattersalls. The informant then said:"In that case there is no time like the present. I would like a couple of tickets in Tatts. if I could get them on the spot." The appellant then gave him two tickets, for which he paid.
The effect of the Lotteries and Art Unions Act 1901-1929, under which the prosecution was launched, is to prohibit and penalize the sale of tickets and shares in lotteries conducted in or outside the State, raffles, art unions, etc being excepted. The expression "foreign lottery" means any lottery conducted outside the State of New South Wales and whether legal in the place where it is conducted or not. The State Lotteries Act 1930 makes special provision for the promotion of a State lottery and for the immunity from the sanctions imposed by the Lotteries and Art Unions Act 1901-1929 of subscribers or contributors to a State lottery and of any person concerned in the promotion or conduct of a State lottery.
The result of the offering for sale and the purchase of the ticket was that, according to the evidence, the informant, through the office of the appellant, was induced to and did enter into a transaction with the promoters of Tattersall's Consultation in Tasmania. What was done by the appellant and the informant was an important step in bringing about a relationship between the informant in New South Wales and the promoters of Tattersall's Consultation which had the following consequences:The payment of money to the promoters of Tattersall's in Tasmania through their agent in New South Wales; a right in the informant to an interest in a lottery lawful in the State where it was being conducted; a right should the appellant be successful to a sum of money-and such a sum of money could lawfully be recovered in an appropriate court, since in Tasmania the lottery carried on by the promoters of Tattersall's is lawful. The selling or offering for sale of a ticket is merely a step in a transaction which has the consequences mentioned. While it may be said that the taking part in a lottery such as Tattersall's may not amount to trade or commerce, it cannot be said that it does not amount to "intercourse" between the States. It may be suggested also with some force that the attempt of the legislature to prevent residents in New South Wales from taking part in lotteries in other States and which are lawful in such other States is not unconnected with the object of allowing an advantage for the State lottery of New South Wales at the expense of lotteries legally established in other States. The Act prevents the sale of tickets obtained from Tasmania. It does not prevent the importation of tickets, but only their sale after importation. The prohibition imposed by the Act is absolute. The Act does not merely control or regulate traffic in the tickets by, for example, prescribing sales by persons licensed by the State or their sale in certain places or at specified hours.
For these reasons I think that s. 21 of the Lotteries and Art Unions Act 1901-1929 is obnoxious to s. 92 of the Constitution and the appeal should be allowed.