Smith v Capewell

142 CLR 509
26 ALR 507

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(Judgment by: Murphy J)

Between: Smith
And: Capewell

Court:

Judges: Barwick CJ
Gibbs J
Stephen J
Mason J

Murphy JAickin J

Subject References:
Constitutional Law (Cth)

Hearing date: Sydney, 24 April 1979
Judgment date: 4 October 1979

Melbourne

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Judgment by:
Murphy J

Mr. Smith appeals by special leave against the judgment of Mr. Waller S.M. dismissing an information laid by the appellant on behalf of the National Parks and Wildlife Service which laid the information against the respondent charging that (contrary to s. 105 (a) of the National Parks and Wildlife Act 1974 (NSW), as amended he did carry on the business of a skin dealer otherwise than under and in accordance with the authority conferred by a licence issued under ss. 124 or 125 of the Act. The magistrate held that the provision of the Act was "invalid insofar as it related to the interstate transaction" and that Mr. Capewell's transaction was protected by s. 92 of the Constitution.

The respondent, a registered fauna dealer in Queensland, sold green kangaroo skins to buyers in New South Wales pursuant to various contracts. One transaction concerned a consignment of skins which had been sent by the respondent from Queensland to a tannery in Botany, New South Wales, but after a dispute with this tannery, sold by the respondent to a licensed skin dealer in New South Wales. The transaction, subject of this information, concerned a sale of skins to the same dealer; the skins also came from Queensland. The facts show that the respondent carried on business as a skin dealer in New South Wales without a licence under ss. 124 or 125.

The respondent was engaged in trade and commerce among the States even if the purchaser was not. The defendant's trade concerned more than one State (see Gibbons v. Ogden (1824) 9 Wheat 1(6 Law Ed 23) . Buying in one State and taking the goods to another and selling there is trade and commerce among the States, even if the sale is intrastate when regarded in isolation. The application of s. 92 has been bedevilled by the fallacy that there is a rigid separation between intrastate trade and commerce and trade and commerce among the States. Very early the fact that they overlap was recognized. "Commerce among the States must of necessity be commerce with the States" (Gibbons v. Ogden (1824) 9 Wheat, at p 196 (6 Law Ed, at p 70) , see also Barwick C.J. dissenting in Harper v. Victoria (1966) 114 CLR 361 , at p 372 ; Attorney-General (WA); Ex rel. Ansett Transport Industries (Operations) Pty. Ltd. v. Australian National Airlines Commission (1976) 138 CLR 492 , at pp 500-501 ; Buck v. Bavone (1976) 135 CLR 110 at p 135 ).

The National Parks and Wildlife Act under s. 105 expresses a direct prohibition against a person carrying on business as a skin dealer unless he is licensed as a skin dealer (under s. 125) or as a fauna dealer (under s. 124). Section 92 is not contravened because the Act does not impose, directly or indirectly, any customs duty or any discriminatory fiscal impost. It follows that the magistrate should have found the information proved. Section 175 of the Act provides a monetary penalty for an offence under the Act which suggests that the offence is a civil offence. No submission was made that an appeal does not lie against the dismissal.

In the circumstances, the appeal should be allowed.