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1 (1962–1963) 36 A.L.J.R. 342. High Court of Australia; Dixon C.J., Taylor, Menzies, Windeyer and Owen JJ.
2 Italics added.
3 (1962-1963) 36 A.L.J.R. 342.
4 By Taylor, Menzies and Owen JJ., Windeyer J. dissenting on this point, on the ground that the issue of a certificate under the Act was left, by the Act, to the discretion of an official of the State. By Windeyer J. on the ground that the Act and Regulations placed obstacles in the way of anyone resident outside Victoria obtaining a certificate under the Act. Per Dixon C.J. (dissenting) at p. 342 ‘ … for now that judicial decisions appear to have succeeded in settling the chief general tests governing the application of s. 92 to laws and governmental action said to impair or adversely affect transactions of trade, commerce or intercourse among the States, it has seemed to me that the question whether a given transaction obtains the protection of s. 92 from the interference of a statutory provision or an exercise of governmental authority must be determined by the facts of the transaction rather than the general character of the law considered in the abstract’. The Chief Justice went on to hold that, notwithstanding any possible defects in the legislation, the appellant had not on the facts of the case shown an infringement of s. 92.
5 Dixon C.J. expressly referred to the fact that the conflict between complete freedom of trade in dangerous goods and the measures of control which could be imposed in the interests of safety had not received much consideration in the courts.
6 (1962-1963) 36 A.L.J.R. 342, 351.
7 [19511 S.A.S.R. 76; Ligertwood and Abbott JJ. concurring with the judgment of Napier C.J. In the High Court Menzies J. was the only one to refer to this decision and expressly reject it.
8 Cf. the reasoning in Coghlan v. Fleetwood [1951] S.A.S.R. 76.
9 Commonwealth v. Bank of New South Wales (1949) 79 C.L.R. 497.
10 (1912) 16 C.L.R. 99, 110.
11 (1928) 42 C.L.R. 209.
12 W. & A. McArthur v. Queensland (1920) 28 C.L.R. 530, 550, 551 where it was said that s. 92 affords no protection for a person dealing in goods that are dangerous, such as ‘ gun powder or wild cattle or a mad dog’, or are stolen or offensive and that he must submit to any relevant State law.
13 Ibid.
14 (1928) 42 C.L.R. 209.
15 (1934-1935) 52 C.L.R. 157.
16 (1932) 47 C.L.R. 386, 396, 397. This dicta of the Privy Council gave rise to a school of thought seeking to characterize laws so as to take them outside the operation of s. 92; e.g. Hartley v. Walsh (1937) 57 C.L.R. 372.
17 (1934-1935) 52 C.L.R. 157, 180, 183.
18 (1928) 42 C.L.R. 209.
19 (1936) 55 C.L.R. 1, 53 where it was said: ‘It is certainly difficult to read into the express words of s. 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 s. 92 is one of great complexity.’
20 Commonwealth v. Bank of New South Wales (1949) 79 C.L.R. 497.
21 Ibid.
22 Ibid. 641.
23 [1960] S.R. (N.S.W.) 532. In Banco: Evatt C.J., Herron and Sugerman JJ.
24 (1951) 84 C.L.R. 421.
25 The Act was intended for the protection and preservation offauna in New South Wales. The defendant was charged under s. 19 (1) which provides: ‘Any person who knowingly buys, sells, offers or consigns for sale, or has in his possession, house, or control, any protected fauna at any time shall be liable to a penalty not exceeding five pounds for each of such fauna in respect of which such offence has been committed. The provisions of this subsection shall apply whether such fauna was killed, taken, or bought in or received from any State or territory of the Commonwealth, or the Dominion of New Zealand, or elsewhere: Provided that the Minister may by license, under conditions therein specified, permit the importation of any such fauna: Provided also that the Governor may by proclamation exempt under conditions specified in such proclamation any fauna from such provisions.’
26 The High Court did not say, however, that the absence of such bases for the prohibition was relevant, it said: ‘To negative their existence is not to imply that their presence in the case would be decisive or even important or relevant, but it serves at once to clear the ground and to define the scope of our actual decision.’ (1951) 84 C.L.R. 421, 434.
27 W. & A. McArthur v. Queensland (1920) 28 C.L.R. 530.
28 (1936) 55 C.L.R. 1.
29 (1949) 79 C.L.R. 497.
30 Ibid.
31 (1962-1963) 36 A.L.J.R. 342.
32 (1951) 84 C.L.R. 42l.
33 [1951] S.A.S.R. 76.
34 (1962-1963) 36 A.L.J.R. 342
35 Ibid.
36 Dixon C.J., Webb and Fuijagar JJ. in Mansell v. Beck (1956) 95 C.L.R. 550.
37 (1962-1963) 36 A.L.J.R. 342, 345.