Wragg v New South Wales [1953] HCA 34

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. Wragg v New South Wales [1953] HCA 34

ORDER Questions in the case stated answered as follows:—

1. None of the plaintiffs is entitled to any part of the relief claimed.

2.

(a) No.

(b) No.

(c) No.

3. No.

Case stated remitted to Fullagar J. with these answers. Costs of the case stated to abide the order of the judge on the further hearing of the suit.

Cur. adv. vult.

The following written judgments were delivered:—

June 9 Dixon C.J.

I have had the advantage of reading the judgment prepared by Taylor J. and agree in the conclusions which his Honour has expressed and in the reasoning upon which they are founded. But I desire to make the following observations upon the case.

The argument upon which the plaintiffs depend appears to me to mean that in the case of an article imported into a State, State law cannot fix the maximum price at which it may be sold in any transaction between buyer and seller at any stage between importation and purchase by the actual consumer. It is of course clear that in the case of most imported articles sales which take place in the course of distribution to the consumer are, when considered by themselves, entirely intra-State transactions. If they take on the character of inter-State commerce it must be in virtue of some inseparable connection with the importation of the article from another State. The distinction which is drawn between inter-State trade and the domestic trade of a State for the purpose of the power conferred upon the Parliament by s. 51 (i.) to make laws with respect to trade and commerce with other countries and among the States may well be considered artificial and unsuitable to modern times. But it is a distinction adopted by the Constitution and it must be observed however much inter-dependence may now exist between the two divisions of trade and commerce which the Constitution thus distinguishes. A legislative power, however, with respect to any subject matter contains within itself authority over whatever is incidental to the subject matter of the power and enables the legislature to include within laws made in pursuance of the power provisions which can only be justified as ancillary or incidental. But even in the application of this principle to the grant of legislative power made by s. 51 (i.) the distinction which the Constitution makes between the two branches of trade and commerce must be maintained. Its existence makes impossible any operation of the incidental power which would obliterate the distinction. Section 92 does not confer power but restricts it. It is commonly said that it confers an immunity. For it denies power to the legislatures to impair the freedom of trade, commerce and intercourse among the States. The argument for the plaintiffs presents all the appearance of an attempt to take the principles relating to the inclusion in a grant of power of what is incidental or ancillary to its fulfilment, and, by applying such principles to the denial of power which is involved in s. 92, to extend the area of the immunity. Moreover, the extension of the area of immunity proposed by the argument is inconsistent with the maintenance of the distinction which s. 92 makes as clearly as does s. 51 (i.).