High Court of Australia Dixon C.J. McTiernan, Fullagar, Taylor and Menzies JJ. Pioneer Express Pty Ltd v Hotchkiss [1958] HCA 45 ORDER Pioneer Express Pty. Ltd. v. Hotchkiss. Order that the information be amended by substituting for the words therein beginning in that it did in the State of New South Wales in the course of and ending with the words licensed under the said Act as a public motor vehicle the following in that it did otherwise than in the course and for the purposes of inter-state trade operate as a public motor vehicle a motor vehicle, to wit motor coach No. VIC. GOS. 018, in that it did carry thereon for reward certain persons, to wit Messrs. Tingerak and Butler, Mrs. W. T. Thomas and Miss E. James, from Sydney in the State of New South Wales to Canberra in the Australian Capital Territory such vehicle not then being licensed under the said Act as a public motor vehicle. Order that the conviction or order of the Court of Petty Sessions be amended to accord with the information as so amended. Subject to the foregoing amendments order that the appeal be dismissed. Wade v. Hotchkiss. Appeal allowed. Conviction or order of the Court of Petty Sessions set aside. Cur. adv. vult. The following written judgments were delivered:— Oct. 20 Dixon C.J. These are two appeals, heard together, from two respective convictions by a court of petty sessions exercising federal jurisdictions. The convictions were obtained upon informations under State law but the jurisdiction became federal because some of the defences that failed were founded upon immunities which, according to the defendant's claim, arose under the Constitution of the Commonwealth. The informations were laid under s. 28 of the State Transport (Co-ordination) Act 1931-1956 N.S.W.. The material part of the section provides that no person shall, except in pursuance of a permit under that Act or under an exemption granted or declared under the Act, drive or operate or cause or permit to be driven or operated as a public motor vehicle any motor vehicle, unless the motor vehicle is licensed as a public motor vehicle and is used in conformity with the licence. On 17th January 1957 a motor coach belonging to the appellant Pioneer Express Pty. Ltd. was driven upon a journey from Sydney to Melbourne by way of Canberra. The appellant Wade drove it. The motor coach carried passengers in the ordinary way. Most of the passengers were carried to Melbourne or at all events into Victoria. Some however were set down in Canberra. Wade was charged under s. 28 with driving the vehicle, the company with operating it. It was a public motor vehicle and it was not licensed in that character nor was there any exemption. Both Wade and the company set up s. 92 of the Constitution as an answer to the respective charges against them. The journey was an inter-State one, and what matter, so they said, if a passenger or two were set down in the Australian Capital Territory before the Victorian State border was crossed. To set down such passengers was an indispensable or at all events a natural incident of an inter-State coach service and when s. 92 protects an inter-State commercial transaction it protects everything properly incidental to the transaction. Moreover the natural meaning of the bare words of s. 28 is restricted by sub-s. (2) of s. 3 of the Act which requires all the provisions to be read subject to the Constitution, to say nothing of sub-s. (3) which removes those operating a public motor vehicle in the course of and for the purposes of inter-State trade from the scope of the ordinary provisions of the Act into the field of the intended operations of the third schedule the provisions of which were held invalid in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] . 1. (1955) 93 C.L.R. 127. In the case of Wade on the facts there is no answer to the defence he raises under s. 92 to the information. The Act does not create an offence the elements of which consist in carrying a passenger who is picked up and set down within New South Wales or otherwise at points which mean that an inter-State boundary is not crossed. Section 92 might have nothing to say to such an offence. The charge against Wade is that he drove the vehicle and the fact is that he was driving it upon an inter-State journey. By no amendment of the information, so far as I can see, is it possible for the informant to put any better face on the information against him. He was the driver and on the facts he was not proved to have done anything but what was incidental to driving, nothing that could amount to any separate offence created by the Act. In driving he was within the protection of s. 92 because he was driving the vehicle from one State to another. His appeal must therefore succeed. The charge against the appellant company is different. What it covers is obscured by the use of the word "operate", a word defined in s. 3 (1). It is further obscured by the definition of "public motor vehicle" an expression also used in s. 28. Both expressions form part of the information against the company. What that information charged was that the company did in the State of New South Wales in the course of a journey between Sydney in that State and the Australian Capital Territory operate as a public motor vehicle a specified vehicle not then being licensed under the State Transport (Co-ordination Act) 1931, as amended, as a public motor vehicle. It was pointed out that in support of this information the proofs had shown that on the occasion in question the alleged journey did not end at Canberra but in Melbourne. On that footing the charge formulated by the information was not confined to unlawful acts. It covered facts involving no offence because within the protection of s. 92. It therefore could not be supported even if facts disclosing an offence could also be proved under the information. On this being pointed out an amendment of the information was sought. The proposed amendment alleged that the company was guilty of an offence against the Act in that it did otherwise than in the course of and for the purposes of inter-State trade operate as a public motor vehicle a motor vehicle (specifying it) in that it did carry thereon for reward certain persons, (naming them), from Sydney in the State of New South Wales to Canberra in the Australian Capital Territory such vehicle not then being licensed under the Act as a public motor vehicle. The proposed amendment is framed, I think, not on s. 28 but upon s. 12 as amended by s. 3 of Act No. 16 of 1956 (N.S.W.). In the circumstances of the present case it would be proper to grant the amendment. It has at least the merit of specifying the acts alleged to constitute the "operation" of the vehicle namely carrying identified persons from Sydney to Canberra. Section 12 as amended in 1956 provided that any person who operates a public motor vehicle otherwise than in the course and for the purposes of inter-State trade shall unless the vehicle is licensed under the Act and unless he is the holder of the licence be guilty of an offence against the Act. Grammatically the definitions of "public motor vehicle" and of "operate" fit in very badly and illogically not only with one another but, what is more important, with the context in s. 12 and for that matter in s. 28. The word "operate" is defined to mean "carry or offer to carry passengers or goods for hire or for any consideration or in the course of any trade or business". It will be seen at once that if this definition were substituted literally for the word "operate" in s. 12 or s. 28 it would not make grammatical sense unless some preposition or prepositional phrase were also inserted, such as "in" or "by means of". If this were done the expression "operate a public motor vehicle" would become "carry passengers or goods for hire or for any consideration or in any trade or business (in)" or "(by means of) a public motor vehicle". To understand such a preposition or prepositional phrase as part of the provision involves no great implication and perhaps should be regarded as according plainly with the draftsman's intention. The difficulties however are not diminished by the definition of "public motor vehicle". That definition begins by incorporating by reference the definition of "motor vehicle". It is not surprising that amidst all this artificial cross-definition of ordinary words the draftsman lost his way a little when he came to employ the words in the substantive provisions. By the definition of "motor vehicle" the expression means any vehicle propelled by mechanical means including a tractor, a trailer, and, be it noted, an aircraft. Vehicles on railways and tramways are expressly excluded. A motor vehicle thus defined becomes a "public motor vehicle" (i) if it is used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of any trade or business whatsoever, or (ii) plying or travelling or standing in a public street for or in hire or in the course of any trade or business whatsoever. When this is applied to the definition of operate and also when it is combined with the definition of motor vehicle it is plain enough that you are not expected to treat every alternative element in one as capable of a coalescence or combination with every alternative element in the other. For example, we need not suppose that the definitions contemplate the possibility of an aircraft standing in a public street for hire. It seems possible to take the definitions together and apply them to the phrase "operates a public motor vehicle" so that by substitution of some of the terms which occur in the definitions and by combining them the phrase can be expanded at least to cover the case of "carrying passengers for hire by means of a motor vehicle which is used for the conveyance of passengers". When this meaning (which of course is not exhaustive) is applied to the word "operates" in s. 12 (1) it becomes necessary to add the words "otherwise than in the course and for the purposes of interstate trade". It then becomes an offence against s. 12 (1) to carry passengers for hire by means of a motor vehicle (which is used for the conveyance of passengers) otherwise than in the course and for the purpose of inter-State trade, or to express the same thing in a different and better order, to carry passengers for hire, otherwise than in the course and for the purposes of inter-State trade, by means of a motor vehicle which is used for the conveyance of passengers. Now the critical question which this application of the definitions raises is whether an offence is committed when on an inter-State journey the motor vehicle used carries some passengers for hire upon a journey which does cross an inter-State boundary and other passengers upon a journey which does not cross a boundary between States. In other words is it correct to say that, within the true meaning of the provision so expanded by the definitions, there is in such a case a carrying of passengers for hire otherwise than in the course and for the purpose of inter-State trade as well as a carrying of passengers in the course and for the purpose of inter-State trade. I think that the answer is that it is correct to say this. The provision when amplified by the definitions appears to me to hit not simply an entire journey but rather the carriage of passengers and if there is any carriage of passengers otherwise than in the course or for the purpose of inter-State trade it is covered by s. 12 (1). It is true that in the case of a public motor vehicle operated in the course or for the purpose of inter-State trade s. 3 (3) purports to exclude the application of any part of the Act except as amended by the third schedule. But the exclusion must have a corresponding meaning; it is to be interpreted as excluding the application of the provisions, unless as so amended, in so far as a public motor vehicle is operated in the course of and for the purpose of inter-State trade. Prima facie therefore an offence against s. 12 (1) of the Act of 1931-1956 was committed by the appellant company. It was said however for the appellant company that the words "otherwise than in the course and for the purpose of interstate trade" placed by s. 3 of Act No. 16 of 1956 did not suffice to exclude all carriage or traffic which might enjoy the freedom conferred by s. 92. It was objected that it might happen that journeys of an inter-State character were undertaken in circumstances in which they enjoyed the protection of s. 92 but nevertheless it could not be said that they were both for the purposes of and in the course of inter-State trade. The exclusion therefore was not wide enough. Of this argument it is enough to say that the words of exclusion are obviously intended to cover all that s. 92 protects and should be so construed. It is a construction of which clearly enough they are capable. Once the view is adopted that s. 12 (1) read with the definitions makes it an offence to carry passengers between points involving no inter-State journey on their part notwithstanding that the vehicle in which they are so carried is engaged upon a journey between two States—and that is the view which is adopted above—then the difficulties of this case appear to me to vanish. I can find nothing in the meaning and operation which under the decisions now prevailing belong to s. 92 that would support an attack on the validity of such a law. I cannot entertain the argument that to set down passengers at Canberra on the journey from Sydney to Melbourne was so necessary an incident of that journey that s. 92 must be violated by a law prohibiting the carrying of passengers from Sydney to Canberra by a vehicle engaged on the inter-State journey in the course of a regular service between the two State capitals. The freedom which transport enjoys under s. 92 is to carry upon a journey across a boundary between States. The argument seems to me to confuse business and economic notions of what is incidental to the profitable carrying on of an enterprise with the conception of the law embodied in the maxim quando lex aliquid alicui concedit, concedere videtur et illud sine quo res ipsa valere non potest. Even in relation to the doctrine to which the maxim refers the warning given in Grannall v. Marrickville Margarine Pty. Ltd. [1] must be heeded. 1. (1955) 93 C.L.R. 55, at p. 77. There is no legislative enactment with reference to the Capital Territory such as was upheld in Lamshed v. Lake [2] in respect of the Northern Territory. Some arguments however were put forward in support of constitutional interpretations or implications which, if sound, would in the absence of such legislation suffice to invalidate a provision like s. 12 pro tanto or to prevent its application to the facts of the present case. The provisions relied upon include s. 52 (i) and s. 125 of the Constitution as well as the general purpose and structure of that instrument of government. Section 52 provides that the Parliament shall subject to the Constitution have exclusive powers to make laws for the peace order and good government of the Commonwealth with respect to (i) The seat of government of the Commonwealth and all places acquired by the Commonwealth for public purposes. Section 125 is as follows:—"The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meets at the seat of Government." 1. (1958) 99 C.L.R. 132. In the first place it was contended that it was incompatible with the purpose and intention of these provisions for a State, more particularly New South Wales the territory of which surrounds the Capital Territory, to enact a measure specifically directed against the transport of persons into the Capital Territory. Suppose it to be so. Nevertheless it is a mistake to interpret s. 3 of Act No. 16 of 1956 (N.S.W.) as offending against that principle. The amendment contained in s. 3 arose from the decision of the Supreme Court in Reg. v. Dunley [1] . This case disclosed the fact that the evident dichotomy intended between inter-State and intra-State traffic in the control of transportation did not cover the whole ground. The middle ground left uncovered was traffic between the State of New South Wales and a federal territory. There was no constitutional reason why that should not be placed under the uniform control provided for intra-State traffic and that was all that was done. It was done by a change of phrase. The positive phrase "in the course and for the purposes of intrastate trade" was altered to the exclusory phrase "otherwise than in the course and for the purposes of interstate trade". That was all. Had the resulting provision been adopted in the first instance it could not have been open to the objection. To do it by amendment does not give the amending provision the characteristics of a discriminating legislative attack on ingress into and egress from the Territory. 1. (1956) S.R. (N.S.W.) 427; 73 W.N. 602. Then it was said that s. 12 as amended, or at all events s. 3 of Act No. 16 of 1956 (N.S.W.) making the amendment invaded the exclusive power conferred by s. 52 (i). No more can be said about this argument than it simply is not so. Neither provision could have been enacted in relation to New South Wales by the federal Parliament in the exercise of the power given by s. 52. A claim resting on a much more solid foundation was made for a constitutional implication protecting the citizens of Australia, or if one prefers to put it from the corresponding opposite point of view, protecting the Capital Territory, from attempts on the part of State legislatures to prevent or control access to the Capital Territory and communications and intercourse with it on the part of persons within the States, and to hamper or restrain the full use of the federal capital for the purposes for which it was called into existence. No one would wish to deny that the constitutional place of the Capital Territory in the federal system of government and the provision in the Constitution relating to it necessarily imply the most complete immunity from State interference with all that is involved in its existence as the centre of national government, and certainly that means an absence of State legislative power to forbid restrain or impede access to it. But no such immunity can be held to be invaded by the State laws here in question. It is difficult to see how anything short of an implication in the very terms of s. 92 itself could protect the company from the incidence of such State laws, and so drastic a restraint upon State powers cannot be found imposed as a matter of implication. The present case does not provide an occasion for examining the place which the very general principles expounded in Crandall v. State of Nevada [1] possess with us. The presence in the Commonwealth Constitution of s. 92 must of course make some difference. But clearly enough to press that kind of implication so far as to disable a State from making such a law as s. 12 (1) would be to go beyond and outside the constitutional doctrines by which implications are authorized. 1. (1868) 6 Wall. 35 [18 Law. Ed. 745]. An attempt was made to find in the Motor Traffic Ordinance 1936-1950, as amended, of the Capital Territory some conflict, absolute or contingent, with s. 12. I cannot see any basis for the argument. I am of opinion that Wade's appeal succeeds and that the company's fails. I think that the order should be in Wade v. Hotchkiss that the appeal be allowed and the conviction set aside and in Pioneer Express Pty. Ltd. v. Hotchkiss that it be dismissed. As the appeals were heard together and as the respondent succeeds in the case of the Pioneer Express Pty. Ltd. after an amendment here of his information I think that it is better to make no order as to costs. McTiernan J. I agree. "Operate" and "public motor vehicle" are defined in s. 3 (1) of the State Transport (Co-ordination) Act. It is not possible to make a literal substitution of those definitions for the expressions "operate" and "public motor vehicle" in ss. 12 and 28 of the Act. The same difficulty would be encountered in applying the definitions in reading other sections. I think such a difficulty, which I regard as one merely of composition, should not lead to the rejection of the statutory definitions of "operate" and "public motor vehicle" as guides to the meaning of those expressions in ss. 12 and 28. It is the intention of s. 3 (1) that every definition which it enacts should apply unless the Act indicates or requires otherwise. In my opinion it is essential to the scheme embodied in the Act that both statutory definitions should govern the construction of ss. 12 and 28. A carrier of passengers has a separate relation, either contractual or arising from his duty as carrier, to his passengers individually. He conveys them individually, not as one load. In my opinion the phrase "operate a public motor vehicle" or "operate a motor vehicle as a public motor vehicle" applies as to the passengers severally, who are carried for any consideration, and to the separate parcels of goods in the vehicle. Accordingly, it would be consistent with s. 12 or s. 28 to amend the information against the company in the way proposed at the hearing of these appeals that is by limiting it expressly to the passengers going only as far as Canberra. The word "drive" is not defined in s. 3 (1) and it does not occur in s. 12. It is used in s. 28 as part of the phrase "drive a motor vehicle as a public motor vehicle". The concept of the carriage of the passengers severally is not applicable to driving the motor vehicle. For this reason I think it would not be consistent with s. 28 to amend the information against the driver, the appellant in the second appeal, by limiting it to the passengers in the vehicle which he was driving, whose destination was Canberra. I think that the information in that case should have been dismissed because inter-State passengers were in the motor vehicle to which the information related and the information applied to the driving of that vehicle. I agree that none of the constitutional grounds on which the conviction of the company or of the other appellant was challenged is sound. It is of course conceded that transportation of passengers or goods beginning at Sydney and ending at Canberra is not inter-State trade, commerce or intercourse. Evidence was called to prove that the appellant company needs to carry in the motor vehicles travelling to Melbourne any passengers for whom seats are available in such vehicles in order to make it economic to conduct the inter-State service. From this evidence it was argued that the carriage of the passengers to Canberra was incidental to the inter-State transport and as such part of it and therefore protected by s. 92 of the Constitution. This is a novel ground upon which to claim the protection of s. 92 for trade, commerce and intercourse which is not trade, commerce and intercourse between the States. The short answer to the proposition is that s. 92 applies only to inter-State trade, commerce and intercourse. Supposing that the position were reversed and the ability of the company to maintain a service to Canberra depended on the motor vehicles catering for inter-State passengers as well, surely that could not result in the removal of the company's operations within New South Wales from the protection of s. 92. Yet that would in the circumstances supposed, be a logical result if the proposition advanced for the company is sound. In my opinion it is not a valid proposition. It may be presumed that the Constitution does not intend to create by implication a guarantee similar to s. 92 applying between the States on the one hand and the Territories on the other hand. Such an implication would have to be made to entitle the appellant company to "operate" its "public motor vehicles" on journeys beginning at Sydney and ending at Canberra, within New South Wales, without holding a licence, permit or exemption granted under the State Transport (Co-ordination) Act. In my opinion it would be an error to make that implication. The decision of the majority in Lamshed v. Lake [1] demonstrates the width of legislative power granted to the Parliament of the Commonwealth to make laws relating to egress and ingress to a territory. In my opinion it is difficult to maintain, in view of what is decided in that case, that there is implied in the Constitution any specific restriction of legislative power designed to maintain freedom of communication between the States and the Territories. If there is such an implied restriction does it bind the Commonwealth? There is, I think, no room for such an implication having regard to the wide construction given by Lamshed v. Lake [1] of Commonwealth legislative power. Whether communication between the States and Territories should be absolutely free or free to any less extent is in my opinion a question which the Constitution places within the discretion of the Parliament of the Commonwealth. I think that is the result which follows from the extent and nature of its powers as shown by Lamshed v. Lake [1] . If a State law is, within the meaning of s. 109 of the Constitution, inconsistent with a law passed by the Parliament of the Commonwealth pursuant to those powers the State law is invalid. There is no such law of the Commonwealth, or any other law passed by the Parliament of the Commonwealth with which the State Transport (Co-ordination) Act is in conflict. 1. (1958) 99 C.L.R. 132. 2. (1958) 99 C.L.R. 132. 3. (1958) 99 C.L.R. 132. Fullagar J. Pioneer Express Pty. Ltd. v. Hotchkiss. In my opinion this appeal should be dismissed. With regard to this case I agree entirely with the judgment of the Chief Justice, and I have nothing to add. Wade v. Hotchkiss. I have come to the conclusion that this appeal also should be dismissed. The essence of our decision in the Pioneer Express Case is that the company, although it was operating the vehicle in the course of inter-State commerce (which operation is protected by s. 92), was also operating it in the course of State-Territory commerce (which operation is not protected by s. 92), and that the operation in the course of State-Territory commerce constituted an offence against the New South Wales Act. It seems to me that a parallel process of reasoning leads to the conclusion that the driver, Wade, was also guilty of an offence against the Act. There can, I should suppose, be no doubt that the State legislature could, without infringing s. 92, provide that the driver of a vehicle for the conveyance of passengers from Sydney to Canberra in the circumstances of this case should be guilty of an offence. The only question is whether it has done so. In other words, the question is purely one of the construction of the State Act. A charge of "operating" in contravention of the Act could apparently be laid either under s. 12 or under s. 28. But the word "operate" cannot be read as including driving as such, although, if the hire were payable to the person driving the vehicle, that person would, I should think, be both "driving" and "operating". In the circumstances of the present case, therefore, a charge of driving in contravention of the Act would have to be laid under s. 28, which purports to create six offences, since it speaks of driving or operating or causing or permitting to be driven or operated. The necessary exception of inter-State trade commerce and intercourse is expressly, though imperfectly, stated in s. 12, which (as amended by s. 3 of the Act of 1956) speaks of operating "otherwise than in the course and for the purposes of inter-state trade". Section 28 contains no corresponding express exception, but s. 3 (2) requires s. 28 to be construed as subject to the exception, so that the acts which it purports to prohibit are to be taken as prohibited only if done otherwise than in the course and for the purposes of inter-State trade commerce or intercourse. The question in this case then is whether Wade, who was the servant of the Pioneer Express Pty. Ltd., drove that company's vehicle as a public motor vehicle otherwise than in the course and for the purposes of (to express it shortly) inter-State commerce. Because the vehicle set out from Sydney on a journey which had Melbourne for its ultimate destination, it is clear that he was driving the vehicle in the course and for the purposes of inter-State commerce. But it does not seem to me to follow—any more than a corresponding conclusion follows in the case of the company's "operation" of the vehicle—that he was not also driving the vehicle in the course or for the purposes of State-Territory commerce. It has been pointed out that, in his definition and subsequent use of the word "operate", the draftsman of the Act has fallen into confusion. The difficulty created is, of course, by no means insuperable, although the fact remains that to transcribe the words of the definition into the substantive enactments of s. 12 and s. 28 simply makes nonsense. In effect, the definition of "operate" must be ignored. No such difficulty, however, arises in connexion with the word "drive" in s. 28. We must simply give that word its ordinary meaning as a word in common use, and there is no difficulty in transcribing into s. 28 the definition of "public motor vehicle" which is contained in s. 3 (1). For the purposes of the present case the material words of s. 28 must then be read as "drive a motor vehicle as a motor vehicle used for the conveyance of passengers for hire". The driving which is made an offence by s. 28 is not a driving which consists merely of a series of acts which cause a vehicle to travel along roads from a starting point to a predetermined destination. The driving which is made an offence is characterized by the nature of the use to which the vehicle is being put. It is the nature of that use that is the essence of the matter. The vehicle which Wade was driving was being used for the conveyance of passengers for hire, and prima facie that driving was an offence under s. 28. Then was it within the implied exception? Was it a driving in the course and for the purposes of inter-State commerce? The answer must, as I think, be dictated by the same considerations which apply when the same question is asked with regard to an "operation" of the vehicle. The answer is that the vehicle was being used for two relevant purposes. Because it was being used to carry passengers for hire from Sydney to Melbourne, it was being used in the course and for the purposes of inter-State commerce. The driving of a vehicle which is being used for that purpose is within the exception. But the vehicle was also being used to carry passengers for hire from Sydney to Canberra. That use is not a use in the course or for the purposes of inter-State commerce, and the driving of a vehicle which is being used for that purpose is not within the exception. One point may be mentioned in conclusion. Section 28 makes it an offence either to drive a vehicle as a public motor vehicle or to cause it to be driven as a public motor vehicle. The company could equally well have been charged with causing the vehicle to be driven as a public motor vehicle, and it must have been convicted on that charge. It is a curious result if the company can be convicted of causing the vehicle to be driven while the driver cannot be convicted of driving it. For these reasons I am of opinion that Wade's appeal, as well as the appeal of his employer, should be dismissed. Taylor J. On and prior to 17th January 1957 the appellant, Pioneer Express Pty. Ltd., conducted a service for the carriage of passengers by road transport between Sydney and Melbourne via Canberra. For some time after the inauguration of the service it was the practice of the company, in the course of its service, to carry passengers only on forward and return journeys between Melbourne and Sydney and Melbourne and Canberra. Rightly or wrongly, it is conceded that in any such case the carriage was inter-State. But at some time prior to 17th January it commenced to carry passengers both on forward and return journeys between Canberra and Sydney. All passengers carried on any of these journeys were carried in vehicles which, themselves, proceeded either from Melbourne to Sydney or from Sydney to Melbourne and passengers, on occasions alighted at Canberra and others were picked up there. The reason why the company extended its service to the carriage of passengers between Sydney and Canberra was that frequently vehicles travelled between those two places without full loadings and it was both possible and commercially expedient for it to engage in this trade. Additionally, it was said, the company was advised that in the circumstances it was lawful for it to pursue this course without obtaining licences for its vehicle as public motor vehicles pursuant to the State Transport (Co-ordination) Act, 1931 N.S.W. as amended. On 17th January 1957 a motor coach belonging to the company departed from Sydney for Melbourne via Canberra. In addition to the passengers bound for Melbourne the coach contained four passengers who had purchased tickets entitling them to travel as far as Canberra where, after completing their respective journeys, they alighted. The appellant, Wade, was the driver of the coach which was not licensed as a public motor vehicle. These facts were proved in subsequent proceedings upon a charge against the company that in the State of New South Wales, in the course of a journey between Sydney and the Australian Capital Territory, "it did operate as a public motor vehicle, a motor vehicle such motor vehicle not then being licensed under the said Act as a public motor vehicle". The charge against the other appellant, Wade, was that in the course of that journey he "did drive as a public motor vehicle a motor vehicle such vehicle not then being licensed under the said Act as a public vehicle". The terms in which these charges were framed raise difficulties of their own and these will become apparent upon a consideration of the relevant statutory provisions. It would seem that each charge was laid under s. 28 of the Act though upon the appeal it was suggested that that preferred against the company was laid under s. 12. Both of these sections were the subject of some attempted adaptation by scheduled provisions for the purpose of their application to vehicles engaged in inter-State trade and commerce but the adapting provisions were declared to be ultra vires in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] . This is, however, of no consequence in this case for we are concerned with charges laid under one or other of these sections as they now stand in the Act. In terms these sections provide:— "s. 12 (1) Any person who after a date appointed by the Governor and notified by proclamation published in the Gazette operates a public motor vehicle otherwise than in the course and for the purposes of inter-state trade shall, unless such vehicle is licensed under this Act by the board and unless he is the holder of such license, be guilty of an offence against this Act: Provided that this sub-section shall not apply to a public motor vehicle that is being operated under and in accordance with an exemption from the requirement of being licensed granted under section nineteen or a permit granted under section twenty-two of this Act." "s. 28 (1) No person shall, except in pursuance of a permit under this Act or under an exemption granted or declared under this Act, drive or operate or cause or permit to be driven or operated as a public vehicle any motor vehicle unless the motor vehicle is licensed as a public motor vehicle and is used in conformity with the license." 1. (1955) 93 C.L.R. 127. So far as can be seen it is of little consequence whether the charge against the company is taken to be laid under s. 28 or, as the respondent now seeks to accomplish by appropriate amendments, under s. 12. What is of importance is that in either case the activity selected as unlawful on the part of the company is the operation of a motor vehicle as a public motor vehicle and, as it appears to me, the vital question in the case is what is meant by this expression. There is, of course, no doubt that at the time of the alleged offence the company was engaged in an activity which was entitled to the protection of s. 92 of the Constitution, for its coach was engaged in transporting passengers for reward between Sydney and Melbourne. And, putting aside an argument of the appellant to which reference will be made shortly, it was also engaged in an activity which was not part of inter-State trade and commerce for it was also carrying passengers for reward from Sydney to Canberra. In these circumstances the question at once arises whether the relevant provisions forbade the journey to be made if some one or more of the passengers were not on an inter-State journey, or, whether what was forbidden was the carriage upon some part of the vehicle's inter-State journey of individual passengers who had not embarked upon an inter-State journey. If the former view is to be preferred then the section collides with s. 92 for its effect is to prohibit an activity which, itself, forms part of inter-State trade and commerce whilst, if the latter view be taken as correct, all that is prohibited is the carriage of individual passengers from Sydney to Canberra and no impediment is placed upon any inter-State activity. For the guidance of persons affected by the Act the expressions "operate" and "public motor vehicle" are defined. The former expression means "carry or offer to carry passengers or goods for hire or for any consideration or in the course of any trade or business whatsoever" whilst the latter means inter alia "a motor vehicle used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of any trade or business whatsoever". But it is quite impossible, literally, to read these extended meanings into either s. 12 or s. 18 and we are left with the problem whether, in these sections, the word "operate", in its application, to a motor vehicle is to be understood in its conventional sense or whether it is intended to denote merely the carriage thereby of passengers or goods for reward. If the former be the correct view the section strikes at a single activity which, in the circumstances of this case, was just as much part of inter-State trade and commerce as it was of any other form of trade or commerce whilst, if the latter interpretation be preferred, it is possible to say that it strikes only at the carriage or conveyance of passengers and goods otherwise than in the course and for the purposes of inter-State trade. The word "operate" is used frequently throughout the Act and it may be said with some degree of conviction that on some occasions it is used in its defined sense and that it is, at least, doubtful whether its use on other occasions was intended, literally, to import its defined meaning. An example of its use in the former sense is to be found in s. 15 and examples of its use in the latter sense may be found, in addition to ss. 12 and 28, in ss. 14, 18 (8) and 18 (9). Indeed, in the last two instances the word "operate" cannot be given its defined meaning for the relevant expressions are "Where a public motor vehicle is solely operated for the conveyance of passengers and/or goods" and "Where a public motor vehicle is solely operated for the carriage of goods". Consideration of the many provisions of the Act compels the conclusion that the word "operate" has been used indiscriminately and that on some occasions the key to the sense of a provision is to be found in the allied expression "public motor vehicle". Sections 12 and 28 appear as provisions of this character and their sense is to be discovered not in the literal attribution of the defined meanings to both "operates" and "public motor vehicle", but by regarding the expressions "operates a public motor vehicle", in s. 12, and "operate or cause or permit to be driven or operated as a public motor vehicle any motor vehicle", in s. 28, as compound expressions and, then, by ascertaining the activity or activities which they are intended to denote. Clearly enough "operate" in such expressions means something more than drive, or mechanically control, for both sections deal not with the operation of motor vehicles simpliciter but with their operation as public motor vehicles. That is to say, they deal with the operation of motor vehicles used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of any trade or business whatsoever. In this circumstance it is possible to perceive that the statutory provisions were intended to deal with the situation which exists when an unlicensed vehicle is used, inter alia, for the conveyance of passengers for hire. That being so, it may be said that "operate" does not in these sections mean drive or mechanically control and that what is forbidden by s. 12 is the use, otherwise than in the course and for the purposes of inter-State trade, of any unlicensed motor vehicle for the carriage of passengers or goods for reward. The result of this line of reasoning is that where a motor vehicle is used both for the conveyance of passengers proceeding upon an inter-State journey and passengers proceeding upon journeys which are not of that character the offence created by s. 12 is committed by the use of the vehicle for the conveyance of the passengers secondly described. This means that the single activity of driving or controlling or managing the vehicle, or of taking the vehicle upon the inter-State journey, is left untouched by the section and that, in such a case, what is forbidden is the use of the vehicle for the conveyance of passengers upon journeys which are not of an inter-State character. The terms of s. 28 do not contain an express exclusion relating to vehicles used in the course or for the purposes of inter-State trade but since the section must be read down pursuant to s. 3 (2) of the Act, the ambit of its effective operation is no wider than that of s. 12. Upon this view there is no basis for the submission that the relevant provision of either section, in any way, impairs the freedom assured to inter-State trade and commerce by s. 92 of the Constitution. In the case of the driver of the vehicle the position is, however, somewhat different. In his case the offence alleged was that he drove the vehicle. But the act of driving the vehicle was a single activity and this he did in the course and for the purpose of inter-State trade. That being so it is clear that, having regard to the provisions of s. 3 (2) of the Act, the provisions of s. 28 did not apply to the activity upon which the charge against him was based. In the circumstances it now becomes necessary to deal with other grounds advanced in support of the appeal. The first of these is that the carriage of passengers between Sydney and Canberra was, itself, part of inter-State trade and commerce and the basis of this submission may be briefly stated. It was that the facts show that the carriage of passengers between those two places was undertaken merely incidentally to the company's main business of transporting passengers from State to State and that, therefore, the minor or subsidiary, or so-called incidental activity, should, itself, be regarded as part of trade and commerce among the States. But this submission clearly fails to distinguish between, on the one hand, an activity which, because of commercial expediency, may be undertaken as an incident, or, rather, as a subsidiary venture, of a business mainly engaged in inter-State activities and, on the other, an activity which is, in the legal sense, strictly incidental to the inter-State activities themselves. In my view there is no substance in the appellant's submission on this point and it should be rejected. An element of confusion of much the same character is to be found in the submission made on behalf of the company that the statutory provisions cannot stand because they are repugnant to the right of citizens of the Commonwealth freely to travel to and fro on journeys between the Australian Capital Territory and the State of New South Wales. Such a right is, it is said, implicit in the constitutional instrument and is the only view reconcilable with the Federal structure of the Commonwealth. I have no doubt that some such implication is clearly justifiable. But, equally, I have no doubt that this is not the occasion for considering the precise implication or implications which should be made for, in spite of the submissions of counsel, neither section impairs any right of this character. What the appellant company seeks to do is to justify a right to conduct a transport business across the borders of the Australian Capital Territory on precisely the same basis as that which s. 92 assures to trade commerce and intercourse among the States and it is clearly impossible to make any implication which could produce this result. Much as it may be thought reasonable that trade and commerce between New South Wales and the Australian Capital Territory should be entitled to the same freedom or immunities as inter-State trade and commerce there are no grounds to support such an implication. Indeed, to hold otherwise would be to disregard the precise pronouncement of this Court in Australian National Airways Pty. Ltd. v. The Commonwealth [1] concerning the application of s. 49 of the Australian National Airlines Act 1945 to territorial airline services: see particularly per Latham C.J. [2] ; Rich J. [3] , Dixon J.—(as he then was) [4] and Williams J. [5] and, moreover, to ignore the presence in the Constitution of s. 92 in the form in which it stands. Counsel for the appellant company did not, however, contend otherwise. What he pressed upon us was that ss. 12 and 28 interfered with the right of citizens to have free access to the Australian Capital Territory by denying to them the use of any available facilities to take them there. But to require registration as a condition of the conveyance of fare-paying passengers on such a journey in no way impairs any right of that character. 1. (1945) 71 C.L.R. 29. 2. (1945) 71 C.L.R., at p. 64. 3. (1945) 71 C.L.R., at p. 73. 4. (1945) 71 C.L.R., at p. 86. 5. (1945) 71 C.L.R., at p. 112. A final submission was made that the provisions of ss. 12 and 28 are repugnant to certain provisions of the Motor Traffic Ordinance 1936-1950 made pursuant to the Seat of Government Acceptance Act 1909 and the Seat of Government (Administration) Act 1910-1947. But examination of the provisions to which we were referred fails to reveal any such inconsistency and, accordingly, this submission should also be rejected. In the circumstances of the case it is, I think, unnecessary to comment upon or deal with the form of the information which alleged the offence against the appellant company. No objection was taken to its form in the court below and since the parties were concerned to have the matter of substance decided an appropriate amendment would have been permitted if necessary. That being so, it is sufficient to say that, for the reasons given, the appeal of the company should be dismissed and that of the personal appellant allowed. Menzies J. The appellants Pioneer Express Pty. Ltd. and Wade, who was employed by that company as the driver of a motor coach, were each convicted of an offence under the State Transport (Co-ordination) Act 1931-1956 N.S.W. in that, to state the matter broadly, on 17th January 1957 the company operated and Wade drove a motor coach in New South Wales that was not licensed under the Act. These are appeals from those convictions. The material facts are not in dispute and it appears that on the day in question the company ran a motor coach from Sydney on a journey to Melbourne carrying passengers and on that motor coach there were carried for hire four other passengers who were not travelling inter-State but who joined the coach at Sydney and left it at Canberra. Wade drove the coach from Sydney to Cootamundra via Canberra. There is no question of the right of the company to run a coach from Sydney to Melbourne carrying inter-State passengers for hire without licence under the Act: Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [1] ; Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [2] ; the principal questions are whether it is an offence under the Act upon its proper construction to carry passengers from Sydney to the Australian Capital Territory in a motor coach that is running from Sydney to Melbourne and if so whether the Act, in so far as it does create such an offence is valid. 1. (1955) A.C. 241; (1954) 93 C.L.R. 1. 2. (1955) 93 C.L.R. 127. Two sections of the Act have to be considered, ss. 12 and 28. The former as amended by Act No. 16 of 1956 makes it an offence to operate a public motor vehicle not licensed under the Act otherwise than in the course and for the purposes of inter-State trade; the latter makes it an offence to drive or operate as a public motor vehicle a motor vehicle not licensed under the Act. It is to be observed that in s. 12 there is an express limitation designed to avoid conflict with s. 92 of the Commonwealth Constitution whereas the limitation upon the more generally expressed prohibition in s. 28 depends upon sub-s. (2) of s. 3 of the Act which is in common form and requires the Act to be read so as not to exceed the legislative power of the State. By virtue of this latter provision every section of the Act is to be read so that its operation would leave inter-State trade, commerce and intercourse absolutely free. See Carter v. The Potato Marketing Board [1] . 1. (1951) 84 C.L.R. 460, at pp. 484 et seq. Before attempting to consider the application of these sections it is necessary to refer to certain definitions in s. 3 of the Act, namely that of "public motor vehicle" and "operate". A "public motor vehicle" is, inter alia, "a motor vehicle used for the conveyance of passengers or goods for hire" and "operate" means "carry or offer to carry passengers or goods for hire or for any consideration or in the course of any trade or business whatsoever". It is not easy to fit these definitions neatly into either s. 12 or s. 28, principally because of the overlapping that would result if they were simply transcribed into the section, but I have reached the conclusion that to carry a passenger for hire in a vehicle used for the conveyance of passengers for hire is to operate a public motor vehicle within the meaning of s. 12 and is also to operate a motor vehicle as a public motor vehicle within the meaning of s. 28. To this I will return later. The informations upon which the appellants were convicted charged the company that it "did in the State of New South Wales in the course of a journey between Sydney in the State and the Australian Capital Territory, operate as a public motor vehicle, a motor vehicle, to wit motor coach No. VIC. GOS. 018, such vehicle not then being licensed under the said Act as a public motor vehicle" and charged Wade in like but not identical terms with the substitution of the word "drive" for the word "operate". Both informations appear to have been laid under s. 28 of the Act and, in the case of Wade, this was necessarily so. Upon the hearing of these appeals it was pointed out with respect to each information that it did not upon its face disclose any offence and furthermore that it was impossible to establish an offence by alleging and proving acts that were no more than acts done in the course of inter-State trade. In an endeavour to meet these objections an application was made by the respondent to each appeal to substitute a new information charging the company "that it did otherwise than in the course and for the purposes of inter-State trade operate as a public motor vehicle a motor vehicle, to wit motor coach No. VIC. GOS. 018, in that it did carry thereon for reward certain persons, to wit Messrs. Tingerak and Butler, Mrs. W. T. Thomas and Miss E. James, from Sydney in the State of New South Wales to Canberra in the Australian Capital Territory such vehicle not then being licensed under the said Act as a public motor vehicle" and charging Wade "that he did otherwise than in the course and for the purposes of interstate trade drive as a public motor vehicle a motor vehicle, to wit motor coach No. VIC. GOS. 018 such vehicle then being used to carry thereon for reward certain persons to wit Messrs. Tingerak and Butler, Mrs. W. T. Thomas and Miss E. James, from Sydney in the State of New South Wales to Canberra in the Australian Capital Territory and not then being licensed under the said Act as a public motor vehicle." Having regard to the way in which the case was conducted in the court below, to the fact that there is not in either notice of appeal any reliance upon the inadequacy of the information and to the desire of both parties that there should be a decision upon the substance of the matter and as the substance of the matter to which evidence and argument were directed is in each case raised by the amended information and not by the original information, I consider that these applications should be granted. I think, however, that the case against Wade, even upon the amended information, should have failed because all that appears is that he drove a public motor vehicle on part of its journey from Sydney to Melbourne. It seems to me that the circumstance that in the vehicle there were four passengers from Sydney to Canberra does not make his driving between Sydney and Canberra any the less driving on an inter-State journey. The element which s. 28 seizes upon is driving and when all that appears is that the appellant Wade drove the motor coach on part of its way from Sydney to Melbourne I do not see any way in which it could be said that he was not at all times driving the coach in the course of inter-State trade, notwithstanding that for a time it carried passengers who were not themselves travelling inter-State. I have been in some doubt whether the offence of operating the motor coach with which the company is charged should not be similarly regarded, but having regard to the views I have already stated as to the operation of ss. 12 and 28 I think it should not. The carriage of passengers from Sydney to the Australian Capital Territory seems to me to amount to a use and therefore an operation of the vehicle separate from its use and operation to carry passengers from Sydney to Melbourne, notwithstanding that both classes of passengers are carried together. In the same way there would, I think, be one use and therefore one operation of a vehicle to carry passengers from Sydney to Melbourne, and a different use and a different operation to carry goods to the Australian Capital Territory. As I have already indicated, I regard ss. 12 and 28 as in effect relating to each use or operation of the motor vehicle in the sense just stated, and so I have reached the conclusion that the application of sub-s. (2) of s. 3 in the case of ss. 12 and 28, and of the phrase "otherwise than in the course and for the purposes of interstate trade" in s. 12 does not, separately or together, take the facts here proved outside the operation of the sections so limited, so that, in the absence of some other defence, an offence against one or other of ss. 12 and 28 has, in my judgment, been established. Three other defences were urged each of which can be most simply considered as defences going to the validity of ss. 12 and 28. In the first place it was argued that if either s. 12 or s. 28 make it an offence to carry passengers from Sydney to the Australian Capital Territory on a motor coach running from Sydney to Melbourne, it is contrary to s. 92. I cannot accept this; the Act does not interfere with the inter-State journey or with the carriage of passengers inter-State in any way. What is made an offence is to carry passengers who are not travelling inter-State. It was contended that the carriage of passengers not travelling inter-State was in all the circumstances merely an incident of the carriage of passengers inter-State. I do not think that this is so either if the journey on the day in question is looked at by itself or if it is looked at as part of a regular service. It is no doubt true that the carriage of the two classes of passengers together would be advantageous to the carrier and might make possible a better service, but that only means that it is more advantageous to carry on inter-State trade and trade other than inter-State trade together rather than to carry on inter-State trade by itself. In the case of a person carrying on both kinds of trade together it would be contrary to s. 92 to prohibit the whole trade either directly or by a system of discretionary licensing see Australian National Airways Pty. Ltd. v. The Commonwealth [1] and The Commonwealth v. Bank of N.S.W. [2] , but it is not the same thing to prohibit or subject to a licensing system so much of the trade as is not inter-State. To say this is in no way to depart from the accepted principle that an inseparable concomitant of an inter-State transaction itself takes on an inter-State character; it becomes part of inter-State trade and is protected as such. Here to take up passengers in Sydney and to set them down in Canberra was not part of inter-State trade at all and it is something that can easily be separated from the admittedly inter-State trade in which the company was engaged. This defence fails. 1. (1945) 71 C.L.R. 29. 2. (1950) A.C. 235; (1949) 79 C.L.R. 497. The next defence was that the Act is invalid because it is a law within the exclusive competence of the Commonwealth Parliament under s. 52 or s. 122 of theConstitution. This argument I reject and I add that it finds no support whatever from the decision in Lamshed v. Lake [1] . Indeed, in so far as that case proceeded on the footing that the State law there in question would have been valid in the absence of the inconsistent provision in the ordinance, it is quite inconsistent with the argument now under consideration. Act No. 16 of 1956, s. 3, is a law amending a New South Wales statute. It obviously could not have been passed by the Commonwealth Parliament; nor could s. 12 as amended have been passed by the Commonwealth Parliament; nor could s. 28 have been passed by the Commonwealth Parliament. These sections are part of an Act dealing with the use of roads in New South Wales otherwise than in inter-State trade and it seems to me quite wrong to contend that the sections in question or the substance of those sections or the Act as a whole or its substance could have been enacted by the Commonwealth Parliament under any power. 1. (1958) 99 C.L.R. 132. There is in the Motor Traffic Ordinance 1936-1956 of the Australian Capital Territory provision for the licensing of motor vehicles using the public streets of the Territory and it was argued that the New South Wales Act, containing as it does provisions for the licensing of motor vehicles using the public streets of New South Wales, is inconsistent with the ordinance and is to that extent void by reason of s. 109 of the Constitution. The statement of the proposition is sufficient answer to it; the ordinance relates to the use of roads in the Australian Capital Territory; the New South Wales Act relates to the use of roads in New South Wales and there is no inconsistency whatever between them. They do not overlap; each occupies a separate field. The final defence argued was that the New South Wales Act offends against the federal nature of the Constitution in one of two ways. First it was said that it is aimed against or unduly interferes with the Government of the Commonwealth and to support the argument the principles stated and applied in Melbourne Corporation v. The Commonwealth [2] are prayed in aid reciprocally to protect the Commonwealth from what is described as hostile and burdensome State legislation. As to this, reliance was placed principally upon the assertion that the amendment to s. 12 made by Act No. 16 of 1956 after the decision of the Supreme Court of New South Wales in Reg. v. Dunley [1] , operated only upon vehicles carrying passengers between some place in New South Wales and Canberra. I do not think that what is asserted is correct because the amendment would make the Act as amended apply to vehicles engaged upon other journeys as well; but, even if it were correct, it would not afford any basis for holding the amendment or the Act as amended invalid. The Act prior to the amendment dealt generally with the use of public motor vehicles on New South Wales roads in intra-State trade; the Act after amendment dealt generally with the use of public motor vehicles on New South Wales roads in trade other than inter-State trade and even if it were the fact, which it is not, that the only difference between the two is with regard to the use of public motor vehicles travelling between some place in New South Wales and the Australian Capital Territory, the passing of such a law would be quite outside any constitutional implication protecting the Commonwealth from hostile or burdensome State legislation. It is not concerned with the Commonwealth at all, nor is it concerned with people dealing with the Commonwealth. What it is concerned with is a particular use of State roads otherwise than in the course of inter-State trade. In the second place it was said that there is in the Australian Constitution a necessary implication of the sort established in the Constitution of the United States of America by the decision in Crandall v. State of Nevada [2] . The limits of the implication that was invoked were not explored; all that was claimed was that there is an implication which requires that intercourse (and probably trade and commerce) between the Australian Capital Territory and any other place in Australia shall be absolutely free from State (and probably federal) legislative control. I think that in these circumstances it would be unwise to do more than say that any implication that there may be protecting the individual's right of access to the governments of the federal system would not invalidate the law here in question. In the face of s. 92 which is limited in its terms to the freedom of trade, commerce and intercourse among the States, it would be wrong to infer that there is in the Constitution a necessary implication that trade, commerce and intercourse between the Australian Capital Territory and the rest of Australia shall also be absolutely free. The decision in the Airlines Case [3] that it was within the constitutional power of the Parliament of the Commonwealth to prohibit territorial air services is inconsistent with such an implication restricting Commonwealth power although the point was not raised in that case. 1. (1947) 74 C.L.R. 31. 2. (1956) S.R. (N.S.W.) 427; 73 W.N. 602. 3. (1868) 6 Wall. 35 [18 Law. Ed. 745.] 4. (1945) 71 C.L.R. 29. For the reasons I have given I consider that Wade's appeal should succeed and the appeal of Pioneer Express Pty. Ltd. should fail.