High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ. SOS (Mowbray) Pty Ltd v Mead [1972] HCA 18 ORDER Appeal dismissed with costs. Cur. adv. vult. The following written judgments were delivered:— 1972, Feb. 29 Barwick C.J. The appellant was convicted by a stipendiary magistrate in the Court of Petty Sessions at Launceston, upon the complaint of the respondent, Director of Agriculture in Tasmania, of two offences against the provisions of the Dairy Produce Act 1969 Tas (the Act). The offences were (a) that it did sell at Launceston cooking margarine to which there had been added a prohibited colouring substance, namely beta carotene, contrary to s. 6 of the Act and (b) that it did sell at Launceston cooking margarine to which there had been added a prohibited flavouring substance, namely aliphatic delta lactones of carbon chain length between six and fourteen contrary to s. 6 of the Act. Section 6 of the Act is in the following terms: No person shall, within the State, manufacture or sell cooking margarine to which there is or has been added any— (a) prohibited colouring substance; or (b) prohibited flavouring substance. "Cooking margarine" is defined by s. 3 of the Act as: margarine that contains beef fat or mutton fat, or beef fat and mutton fat, in a quantity of not less than ninety per cent by weight of the total quantity of fat and oil contained in the margarine. "Prohibited colouring substance" is defined as: (a) a colouring substance that is specified in Part I of the schedule; and (b) any other colouring substance, that is declared by the regulations to be a prohibited colouring substance for the purposes of this Act. "Prohibited flavouring substance" is defined as: (a) a flavouring substance that is specified in Part II of the schedule; and (b) any other flavouring substance that is declared by the regulations to be a prohibited flavouring substance for the purposes of this Act. Part I of the Schedule to the Act includes as a prohibited colouring substance "(a) Beta carotene". Part II of the Schedule includes as a prohibited flavouring substance:— (d) Aliphatic delta or gamma lactones of carbon chain length between six and fourteen. The appellant carries on the business of the retail sale of food stuffs in supermarkets in and around Launceston, and of importing from the mainland goods for sale in that business. It ordered from Marrickville Holdings Ltd., a company based and carrying on business in the State of New South Wales a quantity of cooking margarine of a brand known as "Marville" in one half pound packets to be delivered to it in Launceston ex Sydney. The quantity ordered, according to the evidence, was made up as a batch in the course of manufacture in Sydney by Marrickville Holdings Ltd. and delivered by ship and road transport to the appellant in Launceston. On arrival in the appellant's store it was placed on its cool shelves and displayed for sale which was the purpose with which the appellant ordered the batch from Marrickville Holdings Ltd. On the date charged the appellant sold to retail purchasers three half pound packages, part of the said shipment of "Marville" margarine. The process of manufacturing this cooking margarine was evidenced before the magistrate and described by him in his reasons for judgment. I have no need to detail it. Clearly, the substance produced by the described process satisfied the statutory definition of cooking margarine and at a stage in the course of that process a small quantity of beta carotene was introduced and also at another stage a small quantity of the said prohibited flavouring substance. The magistrate found that "the two prohibited substances have been added, within the meaning of s. 6 to cooking margarine". Although in an extremely technical sense at the time these substances were introduced into the mixture being processed the mixture had not assumed the quality of cooking margarine, I see no reason to regard the magistrate's view as untenable. Indeed in a practical sense, the section needs to be read as including the addition of the substances in the course of the manufacture of cooking margarine. Thus, all the elements of the statutory offences were made out. But it was, and still is, objected on the part of the appellant, that its transactions with the "Marville" margarine which formed the basis of the charges, were protected by s. 92 of the Constitution, so that s. 6 of the Act could not validly apply to them. By the Act the sale in Tasmania of coloured and flavoured cooking margarine which hereafter I shall simply call margarine is prohibited. There is no suggestion whatever that the protection of human life or health is involved. We should be shutting our eyes to reality if we did not at once perceive that the motivation of the legislation is the protection of the dairying industry of the State, though in this case in my opinion the motivation of, and this evident purpose to be achieved by, the legislation need play no part in its construction or in the determination of its validity. Evidence was given before the magistrate and not disputed that cooking margarine as a commercial product both in Australia and abroad is both coloured and flavoured. There is no suggestion that the colouring or flavouring present in this case is a danger to health or that either affects the nutritive value of the product. The situation is akin to the requirement of the addition of arrowroot which was dealt with in O'Sullivan v Miracle Foods (S.A.) Pty Ltd [1] . The magistrate thought that the prohibition upon the addition of colouring and flavouring substances was to prevent confusion of the product with butter. But in my opinion there is no substance in this suggestion. Oddly enough, s. 7 of the Act prohibits the addition to butter of the same substances as are detailed in the schedule. The product is sold in a packaged condition. Section 5 of the Act contains explicit provisions as to the marking to be placed on the package. However, it was suggested that imposition was possible by a restaurateur by serving at the table cooking margarine for butter. But even if this is a possibility, the prohibition on sale in s. 6 cannot for that reason be regarded as regulatory in the constitutional sense. It would clearly be unreasonably incommensurate with the supposed deception. The view that the section is but regulatory is clearly in my opinion insupportable. The section is thus what Lord Porter in The Commonwealth v Bank of New South Wales [1] calls a "simple prohibition" which as his Lordship says is not regulation. 1. (1966) 115 C.L.R. 177. 2. [1950] A.C. 235, at pp. 310, 311; (1949) 79 C.L.R. 497, at p. 640. The prohibition of sale purported to be imposed by the Act encompasses the sale both of locally produced margarine, if any, and of margarine imported from another State. It also embraces the sale in Tasmania of margarine contractually to be delivered from another State: and, importantly for the present case, it includes the sale in Tasmania by its importer of margarine imported from another State for sale in Tasmania. We have long since been told that the equal treatment of transactions in locally produced goods and of transactions in inter-State commerce will not save a law otherwise infringing s. 92. We have also been reminded that the law may infringe though it strikes at a point and time when the transit of the border by the goods has long past. Thus it cannot of itself be a justification of a law which operates to burden inter-State trade that the transaction it seeks to prevent or hinder occurs within the State. Indeed the initiation and completion of every inter-State transaction in or transport of commercial goods must take place wholly within a State. Thus the Act would prevent the importer from selling in Tasmania the goods he has imported from another State for sale. But the respondent claims that the Act is valid and not in breach of s. 92 because he says firstly that any effect on the appellant's inter-State trade and commerce in the "Marville" margarine which the Act may have or produce is but an economic consequence and is not brought about by the direct and immediate operation of the statute itself. Second that the sales by the appellant in Launceston of the half pound packets of margarine were intra-state sales and outside the protection of the constitutional provision. It is of course the freedom of individuals in their trade and commerce between the States which is guaranteed by the Constitution. Here the relevant trade and commerce between the States is that of the appellant in "Marville" margarine. His inter-State trade was not merely to procure the delivery inter-State of what he had ordered from Marrickville Holdings Ltd., although transit of the goods contractually required across State lines is a mark of inter-State trade and commerce. The relevant trade and commerce in my opinion does not consist merely in the movement of the goods from State to State. It essentially includes the element of purchase at one end and sale at the other end of the goods thus imported for sale. The applicant's trade and commerce in the margarine necessarily and essentially had as its end point, not the arrival of the margarine in store, but its sale in Tasmania: his relevant trade and commerce was inter-State importation for sale. Without sale of the goods so imported there is no concluded trade or commerce of the appellant in the goods. It is the sale of the goods by him which is the commercially significant part of that trade or commerce. The Constitution does not merely guarantee the freedom of movement of goods from State to State; it guarantees the freedom of trade and commerce in goods between the States. To forbid the sale by the importer in the second state of goods so imported is in my opinion inevitably to impair that trade and commerce; indeed it would not merely burden the importer's inter-State trade and commerce, it would destroy it. That destruction is in my opinion directly and immediately brought about by the prohibition on sale by the importer in Tasmania of the imported goods. I have no doubt myself for these reasons and for reasons I have expressed in earlier cases that no law, State or Commonwealth, can prohibit the sale by the importer of goods imported by him for sale from one State to another, no considerations being present which would justify the conclusion that the law is no more than regulatory in the relevant sense. This reservation leaves a wide area in which laws may be made protecting the community from many hazards such as health, nutrition, inimical and fraudulent practices in trade and the like. As I have already indicated we have here no such considerations. Where they may exist, a problem which I mentioned in Samuels v Readers' Digest Association Pty Ltd [1] must be faced and resolved. I there pointed out: On the other hand, failure to observe and effectuate the limitation inherent in the concept of freedom of trade and commerce as used in the section can well result in unwarranted restrictions upon the ability of the legislatures to secure the society and its members against practices and activities which are incompatible with the maintenance of freedom of trade and commerce in a civilised society. There is thus a need in each case closely to observe a nicety of balance between freedom of trade and commerce and the permissible restrictive legislation of a free and civilised society which is compatible with that freedom. 1. (1969) 120 C.L.R. 1, at p. 15. I might here mention that in this case we are not concerned with another difficulty which at times has beset the application of the constitutional guarantee. There is here no question in my opinion as to the appellant's interest to maintain his suit; he is an inter-State importer of goods for sale. In some of the cases examination of the plaintiff's interest has required a discussion whether the impairment of which he complains is an impairment of inter-State trade and commerce as distinguished, at times with a high degree of artificiality, from intra-State trade and commerce or whether a particular transaction is a transaction in inter-State trade and commerce. But in my opinion for reasons which I have already given, and for others which will appear, this case does not really raise such a question. The appellant complains of the impact of the prohibition on sale upon his interstate trade and commerce. As I have indicated I regard the sale by him of what he has imported inter-State for sale as an integral part of his inter-State trade and commerce. These considerations answer in my opinion both the submissions made by the respondent. The appellant's sale in Launceston was part of his inter-State trade and commerce in the margarine and the effect which a prohibition of that sale would effect would be the direct and immediate operation of the Act itself. However the matter does not merely rest on the fundamental considerations to which I have referred. In my opinion this case is indistinguishable from the case of Fish Board v Paradiso [1] . Indeed this case is a fortiori of that case. There s. 27 (1) of The Fish Supply Management Acts, 1935 to 1951 Q, provided that No person shall in any district sell or purchase any fish unless such fish have first been brought to a market in that district and there sold at a sale conducted by the board i.e. a corporate board set up by that statute with power to conduct all sales of fish by public auction or otherwise subject to such conditions as it might deem fit to impose, and to determine the manner of such sales and the order of priority of selling. See s. 27 of The Fish Supply Management Acts. In terms that statute operated to prohibit the sale in Queensland of any fish by any person, including the inter-State importer of the fish, except through the board and subject to its conditions. A "reading down" provision in the Act made its terms inapplicable to inter-State trade and commerce. 1. (1956) 95 C.L.R. 443. The defendant in the case was a retailer who imported from New South Wales fish for sale in his retail shop. He was prosecuted by the Fish Board for selling fish in his retail shop near Brisbane, which had not first been brought to a market and there sold at a sale conducted by the Board. It was conceded that his purchase of the fish from New South Wales and its delivery to him in Brisbane were activities of inter-State trade and commerce outside the reach of the Act. But it was contended that his sale of that fish in Brisbane was an act of intra-State trade, validly caught by the prohibition of s. 27. The Court rejected the argument and dismissed the Fish Board's complaint. The Court took the ground that s. 27 (1) in so far as it purported to prevent an inter-State importer of fish for sale from dealing with it after he had received it otherwise than by sale through the Board had a direct and immediate impact upon inter-State trade and commerce and thus infringed s. 92 of the Constitution. Paradiso had imported the fish from New South Wales for sale by him. It does not appear that his vendor was contractually bound to bring from New South Wales the fish Paradiso ordered: though, no doubt this was the contemplation of the parties. He ordered the fish to be delivered to him and they in fact came to him from his vendor in New South Wales. The importation in fact of the fish for the purposes of sale in Brisbane was clearly an activity of inter-State trade and commerce. The inability to sell the fish he had thus ordered and received for the purposes of sale made an inadmissible impact on that inter-State trade and commerce. The inability derived from the statute as part of its direct and immediate operation [1] . 1. (1956) 95 C.L.R., at pp. 452-453. It is of interest that both Williams v Metropolitan and Export Abattoirs Board [2] and Wragg v New South Wales [3] were cited to and pressed upon the Court in the argument of Fish Board v Paradiso [4] . Neither receives mention in the reasons of the majority, though Kitto J. decided the former of the cases and Taylor J. wrote the leading judgment in the latter. Both Justices were parties to the unanimous judgment of the Court in Fish Board v Paradiso [4] . I do not find either of those two cases to stand in the way of the conclusion I have expressed. But, having regard to the submission that the appellant's sales in Launceston were, as it is said, intra-State sales, I should say something about the decision in Williams v Metropolitan and Export Abattoirs Board [2] . In that case, a South Australian statute, amongst other things, forbade the sale in the metropolitan abattoirs district of Adelaide of any meat from an animal slaughtered outside that district unless the meat had been brought to the metropolitan abattoirs, inspected and branded by an inspector. This provision might possibly have been intended as a health measure, and, subject to such considerations as are illustrated in Collier Garland Ltd. v Hotchkiss [1] and discussed in Harper v Victoria [2] might have been held to be no more than regulatory and thus not invalid as in breach of s. 92. A further provision of the statute forbade any person to bring into that district from any place outside it any meat derived from stock slaughtered outside it, unless pursuant to a permit which the board might grant. There would have been much more difficulty in holding such a provision to be regulatory. 1. (1953) 89 C.L.R. 66. 2. (1953) 88 C.L.R. 353. 3. (1956) 95 C.L.R. 443. 4. (1956) 95 C.L.R. 443. 5. (1953) 89 C.L.R. 66. 6. (1957) 97 C.L.R. 475. 7. (1966) 114 C.L.R. 361. The plaintiff carried on business in Victoria, buying meat from wholesale butchers, cutting it into portions, boning, seasoning, rolling and cooking it in electric ovens. There came a time when he appointed an agent in South Australia to procure orders for his cooked meat. His agent found customers who ordered meat which was despatched from Victoria to them, through the hands of the South Australian agent. The orders were oral and were found not to have contained a term that the meat must come from Victoria, though it might well have been thought that the purchasers contemplated that it would. Ultimately an inspector under the statute, the Metropolitan and Export Abattoirs Act, 1936-1948 SA, informed the plaintiff and his South Australian agent that this course of business was contrary to that statute and that the meat then in the agent's hands en route to its purchasers would be forfeited under the statute unless it was immediately returned to Melbourne that day. This the plaintiff did and terminated his course of business in selling into that metropolitan area. Kitto J. was satisfied that he did so because of the inspector's threats, threats for which the defendant board was responsible. The agent in consequence of the plaintiff's course of action lost his employment as the plaintiff's South Australian agent. The plaintiff and the agent sued for a declaration that the statute did not render unlawful the plaintiff's course of business which I have briefly described, did not authorize a seizure of meat, as threatened by the inspector and for an injunction to restrain a repetition of such acts and damages. In the course of the business I have described the purchasers of the meat might have been regarded as inter-State importers. They might be none the less so in fact because the contracts by which they purchased the meat were not themselves inter-State contracts. Of course for the contract itself to have been made in the course of inter-State trade it would need to stipulate for the delivery from State to State. But the absence of that stipulation does not in my opinion prevent the actual importation inter-State for sale being inter-State trade and commerce. It is noticeable that no reference is made in the judgment in Fish Board v Paradiso [1] to the presence or absence in or from the contractual arrangements of a stipulation that the fish must come from out-of-State, though, of course, the contemplation must have been that it would. However the case did not concern the purchaser's trade: the plaintiff clearly was at least an exporter from Victoria of the meat for sale: in Williams v Metropolitan and Export Abattoirs Board [2] Kitto J. said of the statutory provision proscribing the sale of meat: There is no denying that this provision, if it has literal effect, operates directly and immediately upon inter-State trade; for it is a prohibition upon sale generally, and sale is at the heart of trade. [3] 1. (1956) 95 C.L.R. 443. 2. (1953) 89 C.L.R. 66. 3. (1953) 89 C.L.R., at p. 73. But in the long run, his Honour declined to make any of the orders sought because he held that the plaintiff had no sufficient interest to maintain the suit. With that proposition except in so far as it related to the claim for damages I can with due respect agree, for the plaintiff did not claim that he intended to resume the course of trade which he had abandoned. Other considerations may arise as to the claim for damages which need not be discussed for the purposes of this case. However, his Honour based that lack of interest to maintain the suit upon the view that the course of business formerly pursued by the plaintiff was not and did not include any part of inter-State trade and commerce, because the orders obtained from the Adelaide purchasers did not include a contractual term requiring delivery of the goods across State lines. But in my opinion the plaintiff's course of business in fact was the export into Adelaide from Victoria of the meat he had processed either for sale there or to fulfil a sale made there as part of his exporting business. The actual movement of goods inter-State in the course of trade, with a view to sale, is essentially inter-State trade. To deny the plaintiff the capacity to sell that which he brought into Adelaide in the course of that trade was in my opinion not merely to burden but to prevent that inter-State trade. The fact that the plaintiff's sale of these goods was made in Adelaide, if that in truth was the fact, does not mean that it was not the end point and indeed part and parcel of that inter-State trade. So it was held, in Fish Board v Paradiso [1] . I am unable to understand how it can properly be said that the sale by the exporter, or the importer, of the goods exported or imported as the case may be in the course of trade, that is to say with a view to sale, can be said not to be inseparably connected with the actual commercial exportation or importation as the case may be. In my opinion, the sale within the said State of such goods by the exporter or the importer is part and parcel of the inter-State trade of the exporter or the importer as the case may be. It is none the less so in my opinion because the sale itself takes place wholly within the State. 1. (1956) 95 C.L.R. 443. I would therefore find his Honour's reason for holding the plaintiff in Williams v Metropolitan and Export Abattoirs Board [2] to lack interest to maintain a suit for a declaration inconsistent with the decision in Fish Board v Paradiso [1] and, with due respect, I am unable to accept it. 1. (1953) 89 C.L.R. 66. 2. (1956) 95 C.L.R. 443. The submission is again made that only laws which fasten upon a characteristic which a transaction must have to be itself a transaction of inter-State trade and commerce as the criterion of the law's operation can offend s. 92. I have already indicated my inability to accept this proposed test of validity, see Samuels Readers Digest Association Pty Ltd [3] . No doubt a law which in terms placed an impairment upon some aspect of such trade and commerce will offend the Constitution. So much and in my opinion no more was said in the dissenting judgment in O. Gilpin Ltd. v Commissioner for Road Transport and Tramways (N.S.W.) [4] . The positive statement in Grannall v Marrickville Margarine Pty Ltd that [5] : If some fact or event or thing which itself forms part of trade, commerce or intercourse or forms an essential attribute of that conception (essential in the sense that without it you cannot bring into being that particular example of trade, commerce or intercourse among the States) is made the subject of the operation of a law which by reference to it or in consequence of it imposes some restriction or burden or liability, it does not matter how circuitously it is done or how deviously or covertly, though the statement has to my mind several inherent difficulties, may be accepted without subscribing to the exclusive test which the respondent submits. This passage from Grannall v Marrickville Margarine Pty Ltd [1] does not purport to imply or to assert its obverse or to propose an exclusive test: nor does the statement [2] which begins with the sentence "Two tendencies have grown manifest of late", if the whole passage is read in the light of the subject matter with which that case dealt and in the light of the illustrations which are there given. The laws described in these passages would seem to me to be laws about trade and would be express in their imposition of the inadmissible burden. 1. (1969) 120 C.L.R. at p. 18. 2. (1935) 52 C.L.R. 189, at p. 206. 3. (1955) 93 C.L.R. 55, at p. 78. 4. (1955) 93 C.L.R. 55. 5. (1955) 93 C.L.R., at p. 79. The sale by an inter-State importer of the goods he has imported for sale cannot be properly described in my opinion as "a subsequent transaction" or "necessarily consequential" upon the importer's inter-State trade and commerce in the goods. That sale is as I have said in my opinion part and parcel of that trade and commerce. It is an essential feature making the importation commercial: indeed if one were to adopt the language of the earlier passage I quoted from Grannall v Marrickville Margarine Pty Ltd [2] , the sale in Tasmania by the appellant of the margarine he had imported from New South Wales for sale was "an essential attribute of the conception" of trade and commerce in that commodity between the two States. I need say no more about Grannall v Marrickville Margarine Pty Ltd [1] as I have elsewhere expressed my view of what it decides and of what use can be made of it. 1. (1955) 93 C.L.R., at p. 79. 2. (1955) 93 C.L.R. 55. Allied to this submission is the insistence that only the direct and immediate operation of the law is relevant when considering its validity in relation to this constitutional guarantee. But the nub of the submission is in what is encompassed by the "operation of the law" and what is meant by "direct and immediate". Related to these matters is the submission that the economic consequences which the law brings about are necessarily beyond its operation and irrelevant when consideration is being given to the validity or invalidity of the law vis-a-vis s. 92. But trade and commerce are matters of fact. Long since the need for a non-technical and generous view to be taken of trade and commerce was emphasized. The operation of a law in my opinion is that which it does to and with the facts and circumstances which according to its intendment fall within and under its terms. What it achieves or produces in relation to those facts when applied to them are part of its operation. To what extent the widening ripples of disturbance in fact caused by the intrusion of a law into the pool of trade and commerce ought to be held to be within the operation of the law involves a question of degree often difficult of resolution. But no doubt there comes a time when the ripple becomes so far removed from the point of intrusion to become, to use the words of Lord Porter, "some indirect or consequential impediment which may fairly be regarded as remote": see The Commonwealth v Bank of New South Wales [1] . The contrast is between that which is "direct" and that which is "only remote or incidental" (ibid). Remoteness as a concept limiting the legal extent of a chain of causation is of course well known, used as it is in various fields of the law. 1. [1950] A.C., at p. 310; (1949) 79 C.L.R., at p. 639. But to say that the only thing that falls within the operation of the law is the depression, and perhaps not even the splash at the point of intrusion of the law into that pool is in my opinion to ignore the real operation of the law. In my opinion all that the law produces in its application to the facts is within its operation until that point of remoteness is reached; or it can be seen that the effect is but a consequence. All that impact which is not remote or mere consequence is direct and immediate in the relevant sense. Further when linked with the formula to which I have already referred the submission would in my opinion confine the operation of law to its text so that its direct operation is equated with its verbal expression. In other words in that view the operation of the law is discovered merely by textual construction. But it is quite clear from their Lordships' reasons in The Commonwealth v Bank of New South Wales [2] that the question of the operation of the law becomes a question of fact and degree. The present case is perhaps a good illustration of the narrowness and unreality of these submissions. The law in this case says that the person who has imported from another State goods for sale may not sell the goods he has imported for sale. The submission says that the undoubted effect this has upon that person's trade and commerce in the goods between the States is but economic and beyond and not within the operation of the law. This submission in my opinion is unacceptable. The destruction of the appellant's interstate trade in the margarine would be brought about by the operation of the Act itself if it were valid. It cannot properly be said that that effect of the Act is remote or incidental or merely consequential in the proper use of those words. 1. [1950] A.C. 235; (1949) 79 C.L.R. 497. We are here concerned only with the complaint against the appellant. If as I think s. 6 cannot validly apply to the sales of the margarine made in Launceston by the appellant because of their relation to his inter-State trade and commerce, that complaint ought to have been dismissed. Consequently, the the appeal should be allowed and the conviction quashed. McTiernan J. This appeal arose from the prosecution of S.O.S. (Mowbray) Pty Ltd for selling in one of their stores in Launceston several packages of cooking margarine, answering the definition of that commodity in the Dairy Produce Act 1969 Tas, coloured and flavoured by the manufacturers, contrary to s. 6 of that Act. The packages were part of a consignment of cooking margarine sent by the manufacturers in New South Wales on the order of the defendant company to the said store. The Magistrate who heard the case convicted the company. The principal question is whether s. 6 of the Act offends against s. 92 of the Constitution in so far as s. 6 provides that no person shall within the State of Tasmania, sell cooking margarine, as defined by s. 3, to which there has been added any colouring, or flavouring substance that is a prohibited substance within the meaning of s. 3 (1) of the Act and its Schedule. The words of s. 6 dealing with the sale of cooking margarine are applicable to the sale of this commodity imported from another State if it be coloured or flavoured contrary to s. 6, even if the sale is made by the importer. And under s. 8 he is guilty of an offence and liable to the penalty prescribed by s. 8. In order to determine the question it is necessary to apply the criteria enunciated by the Privy Council in The Commonwealth v Bank of New South Wales [1] . Their Lordships said: In this labyrinth there is no golden thread. But it seems that two general propositions may be accepted: (1) that regulation of trade commerce and intercourse among the States is compatible with its absolute freedom and (2) that s. 92 is violated only when a legislative or executive act operates to restrict such trade commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. In the application of these general propositions, in determining whether an enactment is regulatory or something more, or whether a restriction is direct or only remote or incidental, there cannot fail to be differences of opinion. The problem to be solved will often be not so much legal as political, social or economic. Yet it must be solved by a court of law. And later [1] : Difficult as the application of these general propositions must be it appears to their Lordships that this further guidance may be given. There follows a quotation from the judgment of Latham C.J. in Milk Board (N.S.W.) v Metropolitan Cream Pty Ltd [2] . 1. [1950] A.C. 235, particularly at p. 310; (1949) 79 C.L.R. 497, at p. 639. 2. [1950] A.C., at pp. 310-311; (1949) 79 C.L.R., at p. 640. 3. (1939) 62 C.L.R. 116, at p. 127. The passage reads thus: One proposition which I regard as established is that simple legislative prohibition (Federal or State), as distinct from regulation, of inter-State trade and commerce is invalid. Further, a law which is "directed against" inter-State trade and commerce is invalid. Such a law does not regulate such trade, it merely prevents it. But a law prescribing rules as to the manner in which trade (including transport) is to be conducted is not a mere prohibition and may be valid in its application to inter-State trade, notwithstanding s. 92. The Privy Council added the following [1] : With this statement which both repeats the general proposition and precisely states that simple prohibition is not regulation their Lordships agree. 1. [1950] A.C., at pp. 310-311; (1949) 79 C.L.R., at p. 640. As s. 1 (2) of the Dairy Produce Act 1969 Tas enacts that this Act is incorporated and shall be read as one with the Dairy Produce Act 1932, it is necessary to have regard to the provisions enacted in the latter Act for the regulation of the manufacture and sale of margarine and other substitutes for butter to understand the nature and operation of the section of the Dairy Produce Act 1969 under discussion. Under s. 3 (1) of the Dairy Produce Act 1932, "dairy produce" means "milk, cream, butter, cheese, condensed milk, and any other product of milk, and includes margarine"; and "margarine" means "any substance made from vegetable or animal fats, or a combination of both, and intended to be used, or capable of being used, as a substitute for butter". Section 30 (1) (c) and (e) and sub-s. (2) of the Dairy Produce Act 1932 are provisions to which regard should be had for present purposes. The first provision reads: s. 30 (1) No person shall— (c) sell, or offer, or expose, or prepare for sale by retail, margarine or any butter substitute which contains milk-fat or any product of milk, except skim milk containing not more than one-tenth of one per centum of milk-fat; (e) mix, colour, or strain any butter substitute with any ingredient or material so as to imitate butter. Subsection (2) reads: For the purposes of this section, "butter substitute" means any substance resembling butter which is intended to be used as a substitute for butter. The object stated in the long title of the Act which s. 30 is enacted to effectuate is "to provide for the regulation of the manufacture and sale of margarine and other substitutes for butter". The long title of the Dairy Produce Act 1969 is as follows: An Act to make provision with respect to the labelling of packages containing margarine and the addition of certain colouring substances and flavouring substances to margarine and to butter and with respect to matters incidental thereto. The definition of margarine in the Dairy Produce Act 1932 is relevant to the Dairy Produce Act 1969. But the latter Act also contains a definition of "cooking margarine" which is relevant to s. 6. The definition, contained in s. 3, is as follows: "cooking margarine" means margarine that contains beef fat or mutton fat, or beef fat and mutton fat, in a quantity of not less than ninety per cent by weight of the total quantity of fat and oil contained in the margarine. The word "vegetable" and the words "and intended to be used, or capable of being used, as a substitute for butter" are not found in the definition of cooking margarine in s. 3 of the Dairy Produce Act 1969. These words are used in the definition of margarine in the Dairy Produce Act 1932. The legislature did not, of course, include any "prohibited colouring substance" or "any prohibited flavouring substance" as an ingredient of "cooking margarine". The commodity "cooking margarine" means for the purposes of s. 6 "cooking margarine" as defined by s. 3 (1) of the Act. Under s. 3 (1), "table margarine" means "margarine that is not cooking margarine". Section 4 (1) of the Dairy Produce Act 1969 provides that: No person shall sell table margarine unless it is contained in a package on which there is printed in the prescribed manner— (a) the words "table margarine" in letters of the prescribed size and prescribed colour; (b) the name and address of the manufacturer of the margarine; and (c) such other words, statements, or particulars, if any, as are prescribed. Section 5 (1) is a similar provision applying to "cooking margarine". Section 30 (1) of the Dairy Produce Act 1932 and both s. 4 (1) and s. 5 (1) of the Dairy Produce Act 1969 are of general application. None of these provisions is of the nature of "simple legislative prohibition", as distinct from regulation, of inter-State trade and commerce in margarine. Is it right to apply the description "simple legislative prohibition" to s. 6 of the Dairy Produce Act 1969, in so far as this section applies to sale of cooking margarine or to s. 7 in so far as this section applies to sale of butter? The validity of s. 30 (1) (c), s. 4 (1), s. 5 (1) or s. 7 is not impugned here. The necessary legal effect of s. 6 of the Dairy Produce Act 1969 is to exclude from the domestic trade of Tasmania any cooking margarine offending against the section, but its necessary legal effect does not deprive any person of the liberty to import cooking margarine of that character. The Dairy Produce Act by its definition of "cooking margarine" is regulatory of the composition of that commodity. Section 6 is regulatory of the composition of the commodity at the point of sale by forbidding sale if that commodity to be sold as cooking margarine is coloured or flavoured in a manner forbidden by the section. In my opinion s. 6 is not other than regulatory as far as the sale of cooking margarine is concerned and is therefore compatible with the freedom guaranteed by s. 92. It would appear that the policy which inspires s. 6 is to prevent a commodity composed according to the definition of "cooking margarine" being coloured or flavoured so as to give the impression that it is butter not margarine. Section 6 is ancillary to s. 5 (1) of the Dairy Produce Act 1969. The policy inspiring s. 6 is akin with that inspiring s. 30 (1) (c) and (e) of the Dairy Produce Act 1932. The nature of those provisions is regulation as distinct from simple prohibition. Section 6 may be characterized similarly. The case of O'Sullivan v Miracle Foods (S.A.) Pty Ltd [1] is not, in my opinion, a precedent on which to decide the present case. 1. (1966) 115 C.L.R. 177. The finding of the magistrate that the prohibited colouring and flavouring substances, specified in the complaint initiating the prosecution, had been "added to" the batch of cooking margarine of which the cooking margarine in the packages sold by the appellant on the occasion in question was a part, is, in my opinion, supportable by the evidence which he heard of the process of manufacture of the batch. I consider that the finding ought not to be disturbed. In my opinion the appeal should be dismissed. Menzies J. The appellant was convicted in the Court of Petty Sessions at Launceston for offences against s. 6 of the Dairy Produce Act 1969 Tas in that it sold cooking margarine to which had been added a prohibited (1) colouring substance and (2) flavouring substance. It appealed on two grounds. First that the court was in error in finding that the prohibited substances, which had been used in the manufacture of margarine, had been added to the margarine, because they had been introduced in the course of the manufacture of the margarine sold rather than added to it after manufacture had been completed. Secondly that the prohibitions of the section cannot validly apply to the sales of the margarine made by the appellant because, were they to do so, they would interfere with its inter-State trade for which s. 92 of the Constitution secures absolute freedom. The section under challenge is as follows: No person shall within the State manufacture or sell cooking margarine to which there is or has been added any (a) prohibited colouring substance or (b) prohibited flavouring substance. The first ground of appeal can be disposed of shortly. It is a common use of the word "added" to describe the addition of substances in the course of manufacturing. The word clearly has that meaning here because part of the prohibition is against the manufacture of margarine with the prohibited additions. The argument of the second ground ranged widely over the decisions of the Privy Council and this Court upon s. 92 and its consideration requires a review of those authorities. Before embarking upon this review, however, it is necessary to say something about the section itself and the facts of this case. What is prohibited is the doing of certain acts in Tasmania. The manufacture or sale in Tasmania of cooking margarine with the addition of certain substances is prohibited. "Margarine" is "any substance made from vegetable or animal fats, or a combination of both, and intended to be used, or capable of being used as a substitute for butter". "Cooking margarine" is "margarine that contains beef fat or mutton fat, or beef fat and mutton fat, in a quantity of not less than ninety percent by weight of the total quantity of fat and oil contained in the margarine". The prohibition upon sale extends to all cooking margarine wherever manufactured. The learned magistrate found that the appellant carries on business of selling food by retail in supermarkets and, in the course of that business, it sold, on 23rd October 1970, three half pound packets of "Marville" brand cooking margarine manufactured by Marrickville Holdings Ltd. in Sydney. The packets so sold were bought by the appellant in Tasmania as part of a consignment ordered and received, according to the magistrate's findings, in the following fashion: The order was prepared and signed on behalf of the defendant in Launceston on 22nd September 1970 by Mr. B. J. Fitch, the Managing Director of the defendant. It was then handed by him in Launceston to Mr. Logan, an employee of Marrickville Holdings Ltd., who took the order back to Marrickville Holdings Ltd. in Sydney. On arrival at the premises of Marrickville Holdings Ltd. in Sydney Mr. Logan, on 23rd September 1970, initialled acceptance of the order on behalf of Marrickville Holdings Ltd. Following upon receipt of the order, arrangements were made to manufacture cooking margarine to fulfil it. After manufacture the margarine was loaded onto a refrigerated van of Mayne Nickless Ltd. for dispatch to Launceston. A dispatch note was made out in respect of the shipment. It was taken in the refrigerated van to the docks at Sydney where the refrigerated van was itself loaded onto a ship for shipment to Hobart. At Hobart the ship was met by a representative of Mayne Nickless Ltd., the refrigerated van was off-loaded, and the van and its contents driven directly to Launceston. Upon arrival in Launceston part of the cooking margarine which formed the subject matter of the said order (including the three pieces of margarine which form the subject matter of these proceedings) was off-loaded into the supermarket of the defendant at 264 Invermay Road, Launceston where the cooking margarine was immediately placed in the cool shelves of the shop and displayed for the purposes of sale. A critical question is, of course, whether the sale which constituted the offence charged was a sale in the course of the inter-State trade of the appellant. In my opinion it was not. The sale was in the course of the appellant's business of selling goods by retail in Tasmania. If a retailer in Tasmania sells in its shop a tin of biscuits which it has imported from Scotland for sale in Tasmania, it is, in making that sale, not engaging in trade with Scotland, whether or not the biscuits were made to its order and whether or not its order for the biscuits was given or accepted in Tasmania or in Scotland. The transaction of sale would be by a retailer in Tasmania to a customer in Tasmania, and the place from which and the manner in which the retailer acquired the biscuits would have no bearing upon the character of the retail sale. If the retailer had in stock tins of biscuits, some made in Tasmania, the others imported by it from Scotland or from Western Australia, it is hardly to be thought that, according to the choice of the customer, the sale made to him of the tin chosen is part of the retailer's Tasmanian, Scottish or Western Australian trade. The truth is that, once the biscuits had become part of the retailer's stock in trade in Tasmania, their sale across the counter to a Tasmanian customer is part of its retail trade in Tasmania regardless of how the stock was acquired. Any other conclusion would lead to absurdity. The sale of goods imported from Scotland is not overseas trade and the sale of goods imported from Western Australia is not inter-State trade, notwithstanding that the retailer, in importing the goods, has engaged in overseas trade or inter-State trade as the case may be. It has often been pointed out that the Constitution does require the distinction to be drawn between intra-State trade and inter-State or overseas trade. Sometimes the distinction is not easy to make. In this case I think it is. It appears to me that the sale made by the appellant here falls completely outside what the Constitution describes as "trade and commerce with other countries and among the States". The foregoing conclusion is well established by the authorities to which reference will be made later. The next point, also well established by authority, is, to use the language of Taylor J. in Tamar Timber Trading Co. Pty Ltd v Pilkington [1] , that a law of general application which prohibits or restricts an activity which is not, itself, an activity of the character to which s. 92 gives protection does not infringe the provisions of that section. Examples of such laws are those which restrict production of a commodity which it is intended shall be used in inter-State trade (Grannall's Case [2] ) even though the obligation of manufacture for the purposes of inter-State trade is an obligation contractually undertaken (Beal v Marrickville Margarine Pty Ltd [1] ); those which prohibit the importation of articles including those intended for use in inter-State trade (Reg. v Anderson; Ex parte Ipec-Air Pty Ltd [2] ), and those which operate, inter alia, to impose restrictions on the disposal of articles imported from other States (Wragg's Case [3] ). 1. (1968) 117 C.L.R. 353, at p. 374. 2. (1955) 93 C.L.R. 55. 3. (1966) 114 C.L.R. 283. 4. (1965) 113 C.L.R. 177. 5. (1953) 88 C.L.R. 353. Is then s. 6 such a law? Upon its face it is. It was, however, suggested that the law is not general but particular and its purpose must be to interfere with inter-State trade because there is no other good reason for prohibiting the use of the colouring and flavouring substances specified. It is, however, for the Parliament of Tasmania to decide what colouring or flavouring substances should not be used in foodstuffs manufactured or sold in Tasmania. The Court cannot examine Parliament's reason for the legislation which it enacts. Moreover, a law applying to the manufacture of margarine in Tasmania with prohibited ingredients, as well as the sale in Tasmania of margarine with prohibited ingredients, provides no basis whatever for a search for some ulterior purpose for interfering with either overseas or inter-State trade. Furthermore, there are similar restrictions upon the manufacture and sale of butter, s. 7. I come now to the authorities which, as I read them, establish (1) that the sale which constitutes the offence was not part of the intra-State trade of the appellant, and (2) that this particular prohibition of an act of intra-State trade is not in contravention of s. 92 because any detrimental effect that it has upon inter-State trade is not within the direct operation of the law. I go first to James v The Commonwealth [4] , which emphasizes that the problems to which s. 92 gives rise can only be solved as they emerge by giving effect to the language used in the Constitution. There James v Cowan [5] , was regarded as a case of a prohibition of export from State to State. It was said [6] : the case is simply that of a restriction or prohibition of export from State to State, which necessarily involves an interference with the absolute freedom of trade among the States. Vacuum Oil Co. Pty Ltd v Queensland [7] , was explained as a case in which it was held that a burden placed (in substance) on the first seller in the State of imported petroleum, was in truth, though not in form, a sort of tax or impost. In James v The Commonwealth [1] the Privy Council regarded s. 92 as protecting the passage of goods from one State into another State notwithstanding that it was recognised that the burden upon importation could arise either before or after the goods crossed the State border. Nothing is to be found in James v The Commonwealth [1] to support the contention that s. 6 is in conflict with s. 92. In particular it does not afford any support for a general proposition that a prohibition of sale in the course of intra-State trade constitutes a legal burden upon the importation of the goods the subject of the prohibition. 1. [1936] A.C. 578; (1936) 55 C.L.R. 1. 2. (1932) 47 C.L.R. 386. 3. (1936) 55 C.L.R., at p. 52. 4. (1934) 51 C.L.R. 108. 5. [1936] A.C. 578; (1936) 55 C.L.R. 1. 6. [1936] A.C. 578; (1936) 55 C.L.R. 1. After James v The Commonwealth [1] this Court decided a number of cases giving effect to that judgment. In 1948 it decided, in Bank of New South Wales v The Commonwealth [2] , that s. 46 of the Banking Act 1947 Cth, which prohibited banks from carrying on inter-State banking business, was in conflict with s. 92. The Privy Council upheld that decision [3] . In so deciding the Privy Council applied its earlier decision in James v The Commonwealth [1] saying that the section does not "remotely or incidentally but directly, restrict the inter-State business of banking". Their Lordships observed [4] that the word "free" in s. 92 must receive some qualification. The qualifications proposed by their Lordships were as follows: (1) that regulation of trade commerce and intercourse among the States is compatible with its absolute freedom and (2) that s. 92 is violated only when a legislative or executive act operates to restrict such trade commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote, Three words in this formulation seem to me to have particular significance in deciding this case. They are the word "only", the word "operates", and the word "directly". Unless s. 6 operates to restrict inter-State trade directly, it is, according to their Lordships' formulation, not touched by s. 92. 1. [1936] A.C. 578; (1936) 55 C.L.R. 1. 2. (1948) 76 C.L.R. 1. 3. [1950] A.C. 235; (1949) 79 C.L.R. 497. 4. [1936] A.C. 578; (1936) 55 C.L.R. 1. 5. [1950] A.C., at p. 310; (1949) 79 C.L.R., at p. 639. Subsequently this Court applied the Privy Council decision in the Banking Case [3] in a number of cases upholding some laws which were challenged as contraventions of s. 92. In one field, however, this Court was in error. By a majority, against strong minority views, this Court did uphold laws which restricted the inter-State operation of transport vehicles by requiring their licensing at the discretion of State authorities and without regard to considerations such as public safety. There was, as their Lordships observed in Hughes and Vale Pty Ltd v New South Wales [1] , a "remarkable conflict of judicial opinion". In that case the conflict was resolved by the adoption of the minority view in language culled mainly from minority judgments. It was decided that legislation of the State of New South Wales, requiring a licence—to be given or refused at discretion—to operate vehicles in the course of, and for the purposes of inter-State transport, was invalid. The very terms of this decision show its limits, i.e. that it applied only to vehicles operating "in the course and for the purposes of inter-State trade" [2] . The decision requires that, in deciding the application of s. 92 in a particular case, attention must be focussed upon the question whether the challenged law does burden inter-State trade. If it does it is justified only if it is a permissible regulation or the burden is not direct but is remote or consequential, i.e. the interference is not within the operation, but is merely a consequence of the operation of the law that is challenged. It was said categorically [3] that "their Lordships accept without qualification everything that was said by the Board in the Bank Case". Nothing in any of the decisions of the Privy Council upon s. 92 supports the appellant's central proposition that the sales which constituted the offences here were in the course of inter-State trade. Furthermore, the judgment of the Privy Council is that, if s. 6 does restrict inter-State trade, the question then to be answered is whether the section "operates to restrict such trade directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote". 1. [1950] A.C. 235; (1949) 79 C.L.R. 497. 2. [1955] A.C. 241, at p. 308; (1954) 93 C.L.R. 1, at p. 34. 3. [1955] A.C., at p. 309; (1954) 93 C.L.R., at p. 35. 4. [1955] A.C., at p. 308; (1954) 93 C.L.R., at p. 34. The Privy Council forecast that, in determining whether a restriction is direct or only remote or incidental, there could not fail to be differences of opinion. This forecast has been realized, as a review of the more recent decisions of this Court will demonstrate. In this case, if the sales penalized were sales in the course of the inter-State trade of the appellant, then it is clear that the direct and immediate operation of the law prohibiting them would restrict inter-State trade. If, however, those sales were not in the course of the appellant's inter-State trade, then, in my view, any restriction upon inter-State trade that results from the prohibition of the section is no more than indirect or consequential. The strong current of authority in this Court supports this conclusion. In the forefront of these authorities I place Wragg v New South Wales [1] . I do so because, what was there decided by a unanimous court, does, I think, answer the question whether the sales giving rise to the convictions here were sales in the course of the appellant's inter-State trade, and, because the acceptance of the decision that the effect of the law impugned upon inter-State trade was not direct but consequential, has been decisive in a number of other cases. Wragg's Case [1] was decided after the Banking Case [2] . By virtue of a law of New South Wales the maximum price for the sale of potatoes in New South Wales, whether imported or not, had been fixed. The plaintiff's contention was that s. 92 prevented the application of the price fixing legislation to the sale in New South Wales of potatoes imported from Tasmania. Taylor J. states the contention thus [3] : the plaintiffs do contend that the fixing of a maximum price upon sales by retail, or upon any anterior sale, would infringe the provision of s. 92, for it is claimed that the business of importing potatoes cannot be freely carried on if, upon a sale at any stage of their marketing, a maximum price is fixed. This contention was rejected. It was held that even the first sales in New South Wales of potatoes imported from Tasmania had not been shown to be sales in the course of inter-State trade. Dixon C.J., with the concurrence of other members of the Court, said [4] : 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 connexion with the importation of the article from another State. His Honour also said [1] : It is, I think, undeniable that once the potatoes imported from Tasmania in the course of business which is described in the case stated have been delivered from the wharf in Sydney any further dealing with them by sale or other disposition forms part of the domestic trade of New South Wales. If any such sale is brought within the protection of s. 92, so that it cannot be governed by State legislation fixing the maximum price, it can only be on the ground that the fixing of the maximum price for the domestic sale produces economic consequences prejudicing importation because it affects the domestic price which an importer can afford to pay. This cannot, in my opinion, justify the application of s. 92 to the transactions. Taylor J., with the concurrence of other members of the Court and after referring to the Banking Case, said [2] : The substance of the plaintiff's argument on this point was that the prescription of maximum prices at any stage of the marketing in New South Wales of Tasmanian potatoes directly burdens or interferes with inter-State trade as such. But it is important again to observe that both the Act and the order made thereunder deal generally with goods, whether locally produced or imported from any other country, and any effect which the prescription of a general price for intra-State sales may have on the business of importing potatoes from Tasmania is not a direct effect but an economic consequence too remote to constitute an impairment of the freedom which s. 92 assures. Speaking specifically of sales by importers, his Honour said [3] : With respect to sales by "primary wholesalers" who are importers there may be stronger grounds for invoking s. 92, for some of these sales may actually be made in the course of inter-State trade. But before the plaintiffs can invoke s. 92 they must establish that, at least, some of those sales are of such a character as to be within the protection of s. 92. His Honour held that it had not been established that any sales by importers were made in the course of inter-State trade. That they were first sales of imported goods, was not, of itself, sufficient to establish this. 1. (1953) 88 C.L.R. 353. 2. (1953) 88 C.L.R. 353. 3. [1950] A.C. 235; (1949) 79 C.L.R. 497. 4. (1953) 88 C.L.R., at p. 393. 5. (1953) 88 C.L.R., at p. 385. 6. (1953) 88 C.L.R., at p. 387. 7. (1953) 88 C.L.R., at p. 398. 8. (1953) 88 C.L.R., at p. 399. Next I consider two cases much relied upon by counsel for the appellant, which I regard as having been decided on the basis that the law impugned was invalid because it burdened the importation of goods into one State from another State. The first is The Commonwealth and Commonwealth Oil Refineries Ltd. v South Australia [1] ; the second Vacuum Oil Co. Pty Ltd v Queensland [2] . The basis of these decisions invalidating laws of South Australia and Queensland respectively was stated by Taylor J. in Wragg's Case [3] in language which I entirely accept. His Honour said that the former was a case "where the burden attracted by the first sale of motor spirit in South Australia or by its use in that State was regarded as a tax on the goods in the importers' hands". The second was a case where "a majority of the Court held the Queensland legislation to be in conflict with s. 92, not because the first sale of petrol in Queensland was itself a part of trade, commerce and intercourse among the States, but rather because" the importer was taxed. His Honour said [2] : The destruction of the legislation under consideration in the last two cases may well be said to have resulted, not because the affected transactions were themselves necessarily part of inter-State trade and commerce, but because the particular burdens imposed were, in the circumstances, considered to be burdens directly imposed upon inter-State trade as such. 1. (1926) 38 C.L.R. 408. 2. (1934) 51 C.L.R. 108. 3. (1953) 88 C.L.R., at pp. 396, 397. 4. (1934) 51 C.L.R. 108. The next cases are the so-called Margarine Cases, Grannall v Marrickville Margarine Pty Ltd [4] , and Beal v Marrickville Margarine Pty Ltd [5] . As to these cases I adopt what Kitto J. said in Samuels v Readers' Digest Association Pty Ltd [6] : The Margarine Cases were cases of manufacture, but the principle for which they are authorities is missed if they are thought of as having been decided as they were because of some consideration applying exclusively to manufacture. The ratio decidendi had to do, not with anything peculiar to manufacture, but with the distinction between laws which impose by their own force restrictions or burdens upon the very things which s. 92 protects, namely inter-State trade, commerce and intercourse themselves, and laws which impose restrictions or burdens upon things antecedent or preparatory or collateral to inter-State trade, commerce or intercourse and affect such trade, commerce and intercourse as a matter only of economic or practical consequence. The application of that ratio decidendi to cases other than cases of manufacture is not an extension or development of the law as laid down in the Margarine Cases and the long line of cases from which they extract the essence. It is not open to be condemned as resulting rather from a pursuit of logic than upon the actual provisions of the Constitution. The purpose of the test which Dixon J. propounded is the exact opposite. It is to bring thought on the subject back to the very terms of the Constitution, and to insist that since s. 92 decrees freedom for nothing but trade, commerce and intercourse among the states no considerations of logic or supposed reasonableness should be allowed to extend the freedom beyond that concept to facts, events or things which, though incidental or ancillary or conducive to or necessarily consequential upon some activity of trade, commerce or intercourse [1] , neither form part and parcel of it nor give it the quality of inter-Stateness. The test propounded by Dixon J. accorded with his Honour's statement in Hospital Provident Fund Pty Ltd v Victoria [2] . Part of that statement is as follows: But if the fact or event or thing with reference to which or in consequence of which the law imposes its restriction or burden or liability is in itself no part of inter-State trade and commerce and supplies no element or attribute essential to the conception, then the fact that some secondary effect or consequence upon trade or commerce is produced is not enough for the purposes of s. 92. 1. (1955) 93 C.L.R. 55. 2. (1966) 114 C.L.R. 283. 3. (1969) 120 C.L.R. 1, at pp. 30-31. 4. (1955) 93 C.L.R. 55, at p. 79. 5. (1953) 87 C.L.R. 1, at pp. 17-18. The next case for consideration is Fish Board v Paradiso [3] . Counsel for the appellant greatly relied upon this decision but, as the argument was, in my opinion, based upon a misconception of what was decided, I will explain in some detail how I understand the case. The law impugned was s. 27 (1) of The Fish Supply Management Act Q. It provided: No person shall in any district sell or purchase any fish unless such fish have first been brought to a market in that district and there sold at a sale conducted by the board It was decided that the subsection, in so far as it purported to prevent the purchaser of fish in the course of inter-State trade from dealing with it upon its delivery to him in Queensland otherwise than by placing it at the disposal of the Board, constitutes an infringement of s. 92 of the Constitution because of its direct impact upon inter-State trade. The majority of the Court said [4] : The prohibition contained in s. 27 (1) is a conditional prohibition against the sale or purchase of fish in any fish supply district and unless the specified condition has been observed any such sale or purchase is unlawful. No difficulty arises in applying the section to cases where no element of inter-State trade is present but difficulties resulting from the nature of the condition immediately obtrude themselves in cases such as the present. It may be conceded that the sale the subject of the charge against the defendant was an intra-State transaction and, as such, that it was, in general, subject to control by the State legislature. Here it is stated categorically that the retail sale of fish purchased by the seller from a New South Wales company and delivered to him in Queensland was an intra-State transaction. Had that retail sale been part of an inter-State transaction, that would have been an end of the matter for inter-State trade would have been forbidden by the State law. It was because the retail sale was an intra-State transaction that the Court had to go on and consider the effect of the section upon the importation of fish. The following statement explains why s. 27 (1) could not apply to the sale [1] : when the subsection as a whole is considered it appears quite clearly not as a provision the object of which is to make it unlawful for retailers to sell fish in Queensland, but rather as a provision designed to ensure that all fish in Queensland shall be initially distributed in each particular district by means of sales conducted by the board. The operation of the subsection was stated as follows: if the subsection had provided that all fish in or coming into Queensland, whether in the course of inter-State trade or not, should be delivered to the board for sale there could be no doubt that it would collide with s. 92. Indeed we do not understand that proposition to be in dispute. But what difference is there between such a provision and that now under consideration? In each case the plain object is to compel the purchaser to place his property in the disposition of the board; the only difference is in the sanction provided. So understood, the burden imposed by the subsection was a direct burden upon the importation of fish from New South Wales. The terms of the judgment flatly contradict the proposition that a general prohibition of the retail sale of a commodity in a State cannot, by reason of s. 92, apply to the sale of goods imported from another State. Rather than supporting the appellant's case, Fish Board v Paradiso [2] makes untenable two principal propositions upon which it was based—(1) that the sale of the margarine was not an intra-State transaction, and (2) that a prohibition of retail sale in a State simpliciter cannot constitutionally apply to goods imported from another State for such sale. 1. (1956) 95 C.L.R. 443. 2. (1956) 95 C.L.R., at p. 451. 3. (1956) 95 C.L.R., at p. 451. 4. (1956) 95 C.L.R. 443. I now come to a series of cases upon miscellaneous matters decided since 1965 in which the differences of opinion forecast by the Privy Council have become pronounced. In Deacon v Mitchell [3] , Webb v Stagg [4] , and Tamar Timber Trading Co. Pty Ltd v Pilkington [1] the Court, by a majority, decided that Tasmanian laws prohibiting the carriage of timber in Tasmania validly applied to timber that it was intended at a future time should be exported to other States. The basis of the decisions was that the transport in question was not itself part of inter-State trade and that its prohibition did not constitute an unlawful impediment to inter-State trade. It is the latter proposition that is important here and the differences of opinion in the Court about the former proposition are not of present significance. In the last-mentioned case Taylor J. [2] explained the second proposition in words which I have cited earlier to the effect that a law of general application prohibiting activity not in itself part of inter-State trade does not infringe s. 92. Kitto J., who had not taken part in the decision of the earlier cases, based his decision on the same broad principle. He said [3] : The point is that s. 92 decrees freedom, not for every step a person may take with a view or for the purpose of preparing to carry out an example of inter-State trade, but only for a step which itself is in the course of, or for the purpose of actually carrying out, an example of inter-State trade; and that therefore a step which is only a prerequisite of the initiation of such an example is outside the subject matter of the protection. What is true of a step in anticipation of inter-State trade is also true of a step consequent upon inter-State trade. Owen J. and I decided the cases by application of the same principles as those applied by Kitto J. and Taylor J. [4] . These cases were not simply transport cases requiring a determination whether or not a journey within a State is, or is not, part of a larger inter-State movement of goods; they were concerned generally with the application of s. 92 to transactions which are not themselves part of inter-State trade and reaffirmed the principles upon which Wragg's Case [5] and the Margarine Cases were decided. I do not think that the case now before the Court could be decided in favour of the appellant without a substantial departure from the foregoing decisions. The contentions of the appellant accord, not with the decision of the majority, but rather with the reasoning of Barwick C.J. who, in dissenting, said in Tamar Timber Trading Co. Pty Ltd v Pilkington [6] : Without attempting to exhaust the relevant effect of s. 92, it can, in my opinion, be said that, consistently with s. 92, a law cannot be allowed an operation which would prevent the movement of a commodity with which the citizen challenging the law trades inter-State. The substitution of the word "sale" for the word "movement" in the passage cited represents the argument of the appellant in this case. That argument was expressed as follows: A State law which, if it were to operate according to its terms, would prohibit the importer of a recognized article of commerce from selling that article within the State after its importation by him from another State for the purpose of such sale, would to the extent of such a purported prohibition be involved in infringing s. 92. 1. (1965) 112 C.L.R. 353. 2. (1965) 112 C.L.R. 374. 3. (1968) 117 C.L.R. 353. 4. (1968) 117 C.L.R., at p. 374. 5. (1968) 117 C.L.R., at p. 367. 6. (1965) 112 C.L.R., at pp. 366, 381, 382 and 385. 7. (1953) 88 C.L.R. 353. 8. (1968) 117 C.L.R., at p. 364. Harper v Victoria [1] is an important case. In the first place the Court, by a majority, decided the case by the application of Wragg's Case [2] . See per McTiernan J. [3] , Taylor J. [3] , Menzies J. [4] and Owen J. [5] . This was put forcibly by McTiernan J. who, in referring to s. 41D of the Marketing of Primary Products Act 1958 Vict which imposed an obligation upon an importer of eggs into Victoria from New South Wales to grade, test and mark the eggs before selling them in Victoria, said [3] : The section operates after importation or the inter-State commerce has ended. When the obligation imposed by s. 41D to grade, test and mark the eggs arises the eggs are already committed to the intra-State retail trade of Victoria. The section operates at that stage, not beforehand; it does not restrict the plaintiff's trade as at the frontier. If the section entails any consequence to the plaintiff's inter-State commerce the consequence is economic: it does not operate on the inter-State commerce; its restrictive operation is limited to the domestic retail commerce. In my view the contention of the plaintiff as to the application of s. 92 of the Constitution is met by the principles enunciated by Dixon C.J. in Wragg v New South Wales [2] . Secondly, Taylor J. and Owen J. both made it clear that there was, in their opinion, no inconsistency between Wragg's Case [2] and Paradiso's Case [6] and explained the limits of Paradiso's Case [6] . Thus, Taylor J. said [3] : The problem raised is clearly covered by the decision in Wragg v New South Wales [2] —which decided that a company which had imported goods from another State into New South Wales could, notwithstanding s. 92, be bound by local legislation not to sell them by retail at prices in excess of those fixed for sales by retail—and is plainly distinguishable from that with which the Court later dealt in Fish Board v Paradiso [1] , where the legislation was held to interfere directly with the performance of an inter-State contract calling for the delivery of goods from the vendor in one State to the purchaser in another. I adhere to the observation which I made in the earlier case, and accordingly, it follows that I agree that the demurrer should be allowed. Owen J. explained the limits of Fish Board v Paradiso [1] and in distinguishing that decision said [2] : A person who in the course of his inter-State trade brings eggs into Victoria from another State is not required to place them at the disposal of the Board. 1. (1966) 114 C.L.R. 361. 2. (1953) 88 C.L.R. 353. 3. (1966) 114 C.L.R., at p. 377. 4. (1966) 114 C.L.R., at p. 377. 5. (1966) 114 C.L.R., at p. 378 (first paragraph). 6. (1966) 114 C.L.R., at p. 382. 7. (1966) 114 C.L.R., at p. 377. 8. (1953) 88 C.L.R. 353. 9. (1953) 88 C.L.R. 353. 10. (1956) 95 C.L.R. 443. 11. (1956) 95 C.L.R. 443. 12. (1966) 114 C.L.R., at p. 377. 13. (1953) 88 C.L.R. 353. 14. (1956) 95 C.L.R. 443. 15. (1956) 95 C.L.R. 443. 16. (1966) 114 C.L.R., at pp. 382-383. The decision in Harper v Victoria [3] is entirely inconsistent with the appellant's main thesis that a restriction upon the sale of goods imported from one State into another State for sale in the latter State is contrary to s. 92. 1. (1966) 114 C.L.R. 361. In O'Sullivan v Miracle Foods (S.A.) Pty Ltd [4] , the Court, by a majority, decided that s. 23 of the Margarine Act SA, which prohibited the sale of margarine unless it contained a percentage of starch or arrowroot, was contrary to s. 92 in so far as it applied to margarine manufactured in New South Wales and sold in South Australia. The only judgment to which I want to refer is the joint judgment of Taylor J. and Owen J. which it was argued was inconsistent with what Taylor J. had first said in Wragg's Case [5] and had repeated in other cases, e.g. Deacon v Mitchell [6] and Harper's Case [3] , and which Owen J. had adopted, e.g. Harper's Case [3] . I regard it as unthinkable, in a judgment which referred to Wragg's Case [5] without any criticism, that their Honours were departing from the settled principles which Taylor J. had done so much to establish by his epoch making judgment in Wragg's Case [5] . What was said in O'Sullivan's Case [4] was not an off-hand recantation. First, it is to be observed, that their Honours decided that the retail sales in question were not made in the course of inter-State trade [7] . The explanation of the judgment lies elsewhere. It is that their Honours regarded the otherwise pointless law under consideration as one which could have no reason other than to impose a burden upon the importation of margarine into South Australia. Having referred to the evidence, their Honours said [8] : Upon the evidence s. 23 cannot be justified as a provision concerned with the safeguarding of public health; it is merely a provision intended to enable a simple test to be made in order to establish that the product contains dry starch or arrowroot and, presumably, that it is not butter. But the direct effect of the section is to put an end to trade in margarine between South Australia and other States where the margarine is imported into South Australia for the purpose of resale if the margarine does not conform to the requirements of s. 23. So far as the defendant is concerned it was, it was said, free to import the margarine in question here into South Australia from New South Wales but since, admittedly, it was not possible for it to correct the lack of conformity with s. 23, the effect of the section in the circumstances was, for all practical purposes, to destroy the inter-State trade in the commodity. To our minds it is merely a matter of words to say that the defendant was free to import the margarine into South Australia from New South Wales for the moment it had it in its possession for sale in the former State, or the moment it sold it in that State, it would commit an offence. To our minds it is about as clear as it can be that, in these circumstances, s. 23 operated directly to terminate its inter-State trade in margarine. It is apparent, I think, that the law was regarded as one of the sort described in Mansell v Beck [1] as follows: A law which imposes restrictions or burdens upon some description of act matter or thing not of its own nature forming part of inter-State trade, commerce or intercourse and does so because of some characteristic which is independent of any element entering into that conception is very unlikely to be found to destroy impair or detract from the freedom secured by s. 92. It may conceivably do so if upon examination of the facts and scrutiny of its intended operation it appears that in spite of the prima-facie absence of any but an accidental interference with inter-State trade, commerce and intercourse the law is but a circuitous means of burdening, restricting or impeding operations of a kind which s. 92 protects. So understood the joint judgment stands with every word of what their Honours have said in considered judgments over a period of thirteen years beginning with Wragg's Case [2] . 1. (1966) 115 C.L.R. 177. 2. (1953) 88 C.L.R. 353. 3. (1965) 112 C.L.R. 353. 4. (1966) 114 C.L.R. 361. 5. (1966) 114 C.L.R. 361. 6. (1953) 88 C.L.R. 353. 7. (1953) 88 C.L.R. 353. 8. (1966) 115 C.L.R. 177. 9. (1966) 115 C.L.R., at pp. 189 and 190. 10. (1966) 115 C.L.R., at p. 190. 11. (1956) 95 C.L.R. 550, at p. 565. 12. (1953) 88 C.L.R. 353. Two cases decided in 1969 have still to be considered. In Samuels v Readers' Digest Association Pty Ltd [3] , the Court, by a majority, decided that a South Australian law prohibiting the use of trading stamps and the giving of rebates in kind validly applied to the defendant who sent from Sydney, to persons in Adelaide, a letter containing trading stamps and offering to sell a record album with a collateral advantage, i.e. the gift of another record. The actual decision is not particularly important for present purposes. What was said, however, by Kitto J. and Taylor J. is of great importance. Kitto J. [1] reaffirmed the passage from the judgment of Dixon J. in Hospital Provident Fund Pty Ltd v Victoria [2] to which reference has already been made. This passage, I have no doubt from his Honour's concurrence with the judgments of Dixon and Taylor JJ. in Wragg's Case [3] , would have been applied to the sales of goods brought into one State from another State for sale by a retail transaction. His Honour added [4] : A necessary application of the principle which I thus take to be established is that where the operation of a law is to impose a prohibition or burden upon any form of conduct with respect to goods, the question whether s. 92 prevents that operation in a given instance depends upon whether the conduct in that instance is an integral part or feature of a transaction of inter-State trade or is only preliminary or preparatory to it. If the former, s. 92 prevents the application of the law to that case. If the latter, s. 92 has nothing to say to the case. Again, what is said of a step preliminary to inter-State trade applies mutatis mutandis to a step subsequent to inter-State trade. Taylor J. [5] reaffirmed what was said by Dixon C.J., McTiernan J., and Webb J. in Hughes and Vale Pty Ltd v New South Wales [No. 2] [6] , and by Dixon C.J. and Webb J. in Mansell v Beck [7] in a passage from which I have already quoted. What Kitto J. and Taylor J. said in their judgments in Samuels v Readers' Digest Association Pty Ltd [8] is completely at odds with the contentions of the appellant here. 1. (1969) 120 C.L.R. 1. 2. (1969) 120 C.L.R., at pp. 27-31. 3. (1953) 87 C.L.R. 1. 4. (1953) 88 C.L.R. 353. 5. (1969) 120 C.L.R., at p. 31. 6. (1969) 120 C.L.R., at p. 36. 7. (1955) 93 C.L.R. 127, at p. 162. 8. (1956) 95 C.L.R., at pp. 564-565. 9. (1969) 120 C.L.R. 1. In Associated Steamships Pty Ltd v Western Australia [9] , the Court decided, by a majority, that a Western Australian law requiring the issue of a receipt and the payment of stamp duty validly applied to moneys received by the company as freight for the carriage of goods inter-State. The important passage for present purposes is to be found in the judgment of Kitto J. [10] who adopted the judgment of the Court in the Tasmanian road transport cases already considered and said [11] : The present case seems to me to present less difficulty than some and indeed to afford a classic example of a law to which s. 92 has nothing to say since the only direct operation of the law is to impose a burden upon an intra-State act, with consequences, but no more than consequences, for inter-State trade. That description is an accurate description of the law now under consideration. 1. (1969) 120 C.L.R. 92. 2. (1969) 120 C.L.R., at p. 109. 3. (1969) 120 C.L.R., at p. 110. The result of this review of the cases decided by the Privy Council and by this Court is two-fold: (1) that there exists an overwhelming body of authority, developed over many years, which, so long as it stands, requires the conclusion that s. 6 validly applies to the sales made by the appellant, and (2) that when close regard is had to the two decisions particularly relied upon by counsel for the appellant as governing this case namely Fish Board v Paradiso [1] and O'Sullivan v Miracle Foods (S.A.) Pty Ltd [2] it becomes apparent that the reasoning of the majority of the Court in the former is opposed to what it is claimed to support, and that the reasoning of Taylor J. and Owen J. in the latter is opposed to the submission that the sales here in question were part of the company's inter-State trade. 1. (1956) 95 C.L.R. 443. 2. (1966) 115 C.L.R. 177. It is hardly necessary for me to add that the body of authority to which I have referred, established, as it has been, by notable judgments to which I have consistently adhered by reason of my firm conviction of the soundness of the rational doctrine which has been developed, should not now be overthrown. It is out of fashion to seek light upon the problems arising under s. 92 from American cases decided upon the commerce clause of the Constitution of the United States, but it is, I think, appropriate to refer to three aspects of those decisions. Firstly, that although the Supreme Court of the United States has given a wider meaning to "inter-State trade" than has this Court, it has nevertheless always been recognized that "when inter-State trade is over and the articles carried in it have come under the general power of the State" the State may then exercise an authority altogether outside that which relates to inter-State commerce. See Weigle v Curtice Bros. [3] . Secondly, that restrictions upon the local manufacture or sale of margarine have been held not to violate the commerce clause, Capital City Dairy Co. v Ohio [4] . There it was decided, in relation to margarine manufactured in one State for sale in other States, that laws of Ohio forbidding the manufacture or sale in that State of margarine containing harmless colouring matter which would make it look like butter did not violate the commerce clause. In the opinion of the Court, delivered by White J., it was said [1] : The contention that the statutes in question are repugnant to the commerce clause of the Constitution is manifestly without merit. All the acts of the corporation which were complained of related to oleo-margarine manufactured by it in the state of Ohio, in violation of the laws of that state, and therefore operated on the corporation within the state, and affected the product manufactured by it before it had become a subject of interstate commerce. Thirdly, the Supreme Court of the United States has in general, in the application of the commerce clause, adopted a distinction between the "direct" and "indirect" effects of laws similar to that adopted by the Privy Council in James v The Commonwealth [2] and since applied by this Court. See the annotation to Pike v Bruce Church, Inc. [3] , where a number of the authorities are discussed. 1. (1918) 248 U.S. 285, at p. 288; 63 Law. Ed. 242, at p. 250. 2. (1901) 183 U.S. 238; 46 Law. Ed. 171. 3. (1901) 183 U.S., at p. 245; 46 Law. Ed., at p. 175. 4. [1936] A.C. 578; (1936) 55 C.L.R. 1. 5. (1970) 25 Law. Ed. 2d. 846. In my opinion the appeals should be dismissed. Windeyer J. I do not propose to compare and contrast the facts of this case with those of other cases concerning s. 92. To do that is, I think, likely to lead one away from the Constitution to Tennyson's codeless myriad of precedent where the meaning of freedom of trade and commerce is hidden in a wilderness of single instances. Nor do I propose to cite at length passages from judgments in earlier cases. I refrain from doing so not because I am unacquainted with what has been written in judgments and other literature on the topic, or that I have not tried to avail myself of the guidance that these offer: but for the reasons that I have stated on other occasions—I refer especially to what I wrote in Chapman v Suttie [4] ; Deacon v Mitchell [5] ; Damjanovic & Sons Pty Ltd v The Commonwealth [6] ; and recently in Cantarella v Egg Marketing Board (N.S.W.) [7] . If it were necessary I would repeat all that without retraction or repentance. But all that is called for here are, I think, some general observations. 1. (1963) 110 C.L.R. 321, at pp. 344-345. 2. (1965) 112 C.L.R. 353, at pp. 368-372. 3. (1968) 117 C.L.R. 390, at pp. 406-411. 4. Post, at p. 605. The validity of any law regulating trade or commerce in any commodity cannot, I think, depend upon the purpose or policy of the Parliament that enacted it. Its operation, rather than its subject matter, is what counts. A law passed to promote the health or safety or moral welfare of the public generally may be a valid measure, although it bears upon inter-State trade: so too I consider may a law passed to promote the economic welfare of a section of the public, as for example dairy farmers and butter-makers. It is for a legislature to decide, in its wisdom or according to its prejudices, whether a particular law should be made. A court is concerned only with the character of the law when made as determined by its practical operation, not with its wisdom. So judged, is it a law that it was within the power of the legislature to enact? That is the question. When s. 92 is relied upon to impugn a law and the challenge is met by describing it as "regulatory", I do not think that one should start by asking whether its purpose is to protect life or health. It is true that the enabling adjective "regulatory" has most often found effective operation as a description of laws directed to such ends: but, whatever the subject of a law, the question under s. 92 is whether inter-State trade is "hampered", "handicapped", "impeded", "burdened", in a way that "impairs" or "restricts" the freedom that the Constitution assures. You can choose whichever word you wish from these and others that are to be found in judgments in this Court as synonymous or exegetic of a denial of the constitutional freedom. In Damjanovic's Case [1] , I referred to the dissenting judgment of Holmes J. in Baldwin v Missouri [2] . I adopted as pertinent to s. 92 his remark concerning the Fourteenth Amendment: "I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions." I add to that his expression of "the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States". It seems to me that an ever-increasing scope is sought for s. 92 too. I am, of course, not concerned, as Holmes J. was, by this as a cutting down of State rights. That does not arise in Australia. What does cause me anxiety is the still greater danger of us putting more and more matters outside the authority of all the parliaments of Australia, Commonwealth and State. I think that we should be careful not to do this, except when the Constitution clearly demands it, and that the denotation of the concept that is embodied in the words of s. 92 as now interpreted must be accordingly confined. If in doubt whether a particular matter was within the scope of the freedom that s. 92 proclaims I would resolved the doubt in favour of the Parliaments. When anyone claims an immunity from a duly enacted law, or an executive direction, on the ground that, he being engaged in inter-State trade, it cannot bind him, he must I consider make out his right to the immunity that he claims. It is not, I think, for the High Court, perhaps by a majority decision, to increase the size of the field into which Parliamentary Government cannot enter. I do not, I trust, underrate the importance of s. 92 in promoting the economic integrity of Australia as a great factor in making Australia united as a nation. I have alluded to this on other occasions, especially in what I wrote in Deacon v Mitchell [1] . But the work of s. 92 as a nation builder is undone if it is construed so as to restrain more than need be the authority of the national Parliament. The situation would be very different if we were able to say that s. 92 does not bind the Commonwealth Parliament, or limit its powers under s. 51 (i.) of the Constitution except in so far as restrained by s. 99. But it is too late for that. It is because s. 92 governs the Commonwealth Parliament as well as the State Parliaments, and because of our system of precedents and reasoning by the analogy from the facts of one case to that of the next, that, in my opinion, full scope must be given to those qualifications that the Privy Council has put upon the wide words of s. 92. 1. (1968) 117 C.L.R. 390. 2. (1929) 281 U.S. 586, at p. 595; 74 Law. Ed. 1056, at p. 1061. 3. (1965) 112 C.L.R. 353, at p. 371. As s. 92 binds both the Commonwealth and the States, a useful test of a State law impugned as an impediment of freedom of inter-State trade is, I think, to ask could such a law be made by the Commonwealth Parliament to apply to trade and commerce between the States. In the present case we are concerned with a State law. As the State is Tasmania, I may be pardoned for saying that it seems to me to be a law of a peculiarly insular character. I do not like it. But as a lawyer I hesitate to say that any law, whether I liked it or not, made by the Commonwealth Parliament, because considered by it to be in the national interest, prescribing standards of size, shape, colour and get-up of any commodity passing in commerce from one State for consumption in another would have to be struck down by the High Court as obnoxious to s. 92. If that could be done by the Commonwealth Parliament with respect to all States, then it can, I consider, be done by a State Parliament with respect to its own State. But enough of generalities: I turn to the particular facts. A law made by the Parliament of Tasmania prohibits the manufacture or sale within that State of cooking margarine, coloured or flavoured in the manner proscribed. This enactment, is in the Dairy Produce Act 1969. It is obviously designed to prevent cooking margarine being made to look like butter and taste like butter. There is nothing new or surprising in that. Statutes designed to prevent the sale of margarine made in imitation of butter are widespread and old. Australian Parliaments, solicitous for dairy farmers, were not their first inventors. The first such statute that I know of was the Margarine Act 1887 of the United Kingdom: later the Parliament of the United Kingdom enacted the Butter and Margarine Act 1907, and now the Margarine Regulations 1967 are in force there. These, like similar legislation elsewhere regulating the retail sale of margarine, provide, as the basic requirement, that margarine must be sold in wrappers or packages bearing the word "margarine" in block letters of specified size. A South Australian provision of that kind was in question in O'Sullivan v Miracle Foods (S.A.) Pty Ltd [1] . It was upheld as a valid regulation of trade in margarine, including inter-State trade and not incompatible with its freedom. But the contest goes on. Margarine-makers continue to fight under the banner of freedom, "torn but flying", emblazoned s. 92. 1. (1966) 115 C.L.R. 177. The prohibition of the sale in Tasmania of coloured and flavoured cooking margarine necessarily operates, it was urged, to prevent the commercial importation of coloured and flavoured cooking margarine from a manufacturer in another State. With that I agree. But I am unable to agree that this establishes that the prohibition is a contravention of s. 92. More examination is required. If the law of a State prohibits the use there of things of a particular kind, I do not think that it necessarily ceases to apply to things of that sort brought in from another State where they were bought. Poker machines, lawful in some States but not in others, are an example. Cases of that sort are not, to my mind, resolved by using the word "regulatory"; for to prohibit is not to regulate. Rather the question that arises in such cases is answered by emphasizing the distinction between inter-State commerce and intra-State activities. The mere importation of articles which may not be used is not forbidden. It is simply rendered useless in the result. I may quote here a passage from the judgment of Kitto J. in Associated Steamships Pty Ltd v Western Australia [1] : The Banking Case [2] established that s. 92 forbids only such restraints and burdens as, but for the section, laws would impose upon interstate trade by their direct operation; and that necessarily involves, as the decisions of this Court have repeatedly shown over the last twenty years, that upon a claim to the protection of s. 92 the crucial question is whether the law in question operates directly to restrict or burden something that is actually within, and not merely connected with, the concept of interstate trade, commerce and intercourse. The economic or social consequences that flow from its legal operation are irrelevant, as the Privy Council said in so many words in the Banking Case [3] ; and the operation of the impugned law upon anything outside the very subject matter for which freedom is decreed is likewise, and for the same reason, irrelevant. 1. (1969) 120 C.L.R. 92, at pp. 108-109. 2. [1950] A.C. 235; (1949) 79 C.L.R. 497. 3. [1950] A.C., at pp. 307-308; (1949) 79 C.L.R., at p. 637. It is, I appreciate, possible to apply that reasoning in this case and to say that the prohibition of the sale of coloured and flavoured cooking margarine in Tasmania does not directly prevent its importation from another State—that, using the words of their Lordships in the Privy Council [4] , it does not impose a restriction upon inter-State trade that is "direct", but one that is only an "indirect or consequential impediment which may fairly be regarded as remote". I recognize, as did their Lordships, that in this "there cannot fail to be differences of opinion". That is so because the notion of what is but remote and merely consequential is described by those words and left there. Yet they are words of indefinite connotation. They are used in relation to the elusive concept of causation as lawyers understand it. The contrast between a direct cause and an indirect cause, the latter producing results that are too remote to attract legal consequences, is familiar for us, especially as the determinant of responsibility for damages flowing from torts. But this is a philosophically debatable concept, difficult to apply for other purposes than fixing responsibility upon persons. In Professor Derham's edition of Sir George Paton's Text Book of Jurisprudence, p. 427, it is said that " "Direct cause" has no easily expressed meaning as it is used in law—it is a phrase that is a rationalization of concrete decisions". I would hesitate to try to rationalize all relevant decisions. As to consequences that are "too remote", convenient as that expression is to explain exoneration from liability for damage, its limits are imprecise. Probably the term remote consequences would not have entered so much into legal vocabulary if it had not been taken as the correlative of a remote cause and Bacon had not put as the first of his "Maxims of the Law": "In jure non remota causa sed proxima spectatur." Although I recognize that, simply because the words express an indefinite idea, another view can be taken, I am not prepared to say that the prohibition of the sale in Tasmania of cooking margarine that has been coloured and flavoured does not, directly and immediately, restrict importations of it. But that is far from a decisive consideration. 1. [1950] A.C., at p. 310; (1949) 79 C.L.R., at p. 639. The critical question, as I see it, becomes whether such a restriction of the quality or character of margarine that can be lawfully sold in Tasmania is an unlawful impediment to trade and commerce, or whether it is not merely a lawful regulation of trade and commerce in margarine. Statutory provisions to prevent the adulteration of articles of food by the addition of colouring matter are of a long standing in the law. In the United Kingdom the Sale of Food and Drugs Act 1875 is an early illustration. It replaced earlier enactments such as the Adulteration of Food Act 1860. In more modern times the same matter is dealt with in England by regulations under the Food and Drugs Act 1955. These provisions are concerned with the addition to foodstuffs of colouring matter that is injurious to health. They thus differ from the enactment in question in this case. But they bear upon the problem, because they resemble it, being prohibitions of adulteration in its widest sense. The reason for such prohibitions may be that adulteration makes the adulterated substance injurious to health or it may be that it gives it a deceptive appearance enabling it to be passed off for something that in truth it is not. Whatever the reason for them, such prohibitions are in my view essentially regulatory in character. Trade and commerce between the States in margarine is, I consider, untouched by s. 92 if the only restriction upon it is that margarine must be labelled "margarine" and cooking margarine must not be coloured or flavoured to resemble butter. I think it is not to the point that the Act also prohibits the addition of colouring matter to butter to improve its appearance as butter. The appellant relied upon Fish Board v Paradiso [1] . As an illustration of an enactment dealing with intra-State activities having an immediate and direct impact upon inter-State trade that case is no doubt pertinent, although, as I have said, cases under s. 92 are not, to my mind, to be determined by similarities with the facts of other cases. Still less are they to be determined by taking sentences from judgments as paraphrases of the language of the Constitution. I need not repeat here objections that I have expressed elsewhere to this process. I simply add the, to me comforting, support of what appears in the judgment of Isaacs J. in James v Cowan [1] . Furthermore, in Paradiso's Case [2] the law struck down operated to control the way in which an article of commerce, fish, imported from another State must be sold in Queensland. Here the challenged law prevents the sale of an article of commerce, margarine, in Tasmania, if it be artificially coloured or flavoured. The analogy escapes me. That may be only that I am impercipient; but I cannot regard that case as giving the answer in this case. 1. (1956) 95 C.L.R. 443. 2. (1930) 43 C.L.R. 386, at p. 417. 3. (1956) 95 C.L.R. 443. To say that the statute prevents inter-State trade in coloured margarine as a substance of trade to my mind confuses what the old logicians would describe as accidens with proprium. A statutory requirement that an article must not be artificially coloured in the course of manufacture seems to me to be of the same kind as a statutory requirement that after manufacture it must be got up, packed and labelled in a specified way. The latter requirement amounts to a prohibition upon the importation in the course of commerce of articles of the prescribed kind not labelled or packed as prescribed. Compliance with the former requirement may be said in the language of logic to produce an inseparable accident, with the latter a separable accident. But this distinction is of no importance for present purposes. The artificial colour, and the particular size and shape of a substance made for sale that are given to it in the course of manufacture are, I consider, matters that can be regulated by law without impairing freedom to trade in that substance. I see them as accidentia in most cases, certainly in this. The law of Tasmania does not, either directly or indirectly, prevent the sale and delivery there from another State of margarine as such. In its practical operation it regulates the form in which cooking margarine may come in—that is to say, in its natural colour and with its natural flavour. I do not regard this as an unlawful impediment to trade in margarine between New South Wales margarine-makers and Tasmanians who wish to buy cooking margarine for resale as cooking margarine. Its only effect is that makers of cooking margarine for sale in Tasmania must refrain from adding colouring or flavouring matter to their product. I would dismiss these appeals. Owen J. In my opinion these appeals should be allowed. I have had the opportunity of reading the reasons prepared by the Chief Justice and am in general agreement with them. I would only add that in O'Sullivan v Miracle Foods (S.A.) Pty Ltd [1] Taylor J. and I, when dealing [2] with s. 23 of the Margarine Act SA, were of opinion that that section operated directly to impose a burden—indeed to terminate—the appellant's interstate trade. For relevant purposes I cannot distinguish the facts in that case from those in the present case nor does there seem to me to be any relevant distinction between s. 23 of the South Australian Act and s. 6 of the Dairy Produce Act Tas and nothing that I have heard in the course of the argument has led me to think that we were wrong in our conclusion. 1. (1966) 115 C.L.R. 177. 2. (1966) 115 C.L.R., at p. 190. Walsh J. The provisions of the law of Tasmania which are relevant to this appeal against convictions by a Court of Petty Sessions and the facts found by the learned magistrate or proved at the hearing have been set out in other judgments. I need not repeat them. Each of the charges upon which the appellant was convicted related to a sale of cooking margarine. The sales were retail sales. They could properly be described as intra-State sales. But, in my opinion, that is not conclusive of the main question which is raised by the appeal. The goods had been bought by the appellant from a manufacturer who carried on business in New South Wales. They were manufactured pursuant to an order given by the appellant. It is probable that the property in the goods passed in New South Wales to the appellant but I do not think it matters whether that was so or not. The appellant was a retailer and no doubt much of the stock that it held in its store was locally produced. But in the course of its business it purchased and brought into Tasmania for sale margarine made in New South Wales by the manufacturer from whom the appellant bought it. It is plain that in doing that the appellant was engaged in inter-State trade and commerce. Some of the goods that were thus brought into Tasmania by the appellant were the subject matter of the sales in respect of which it has been convicted of offences against s. 6 of the Dairy Produce Act 1969 Tas. The goods had in them a colouring substance and a flavouring substance which fell within the description of the substances declared by the Act to be prohibited substances. If s. 6 had a valid operation in respect of the sales to which the charges related, its effect was that the appellant was forbidden to sell in Tasmania the goods which it had brought into Tasmania for the purpose of sale in that State. The appellant contends that in so far as the law would operate, apart from s. 92 of the Constitution, to have that effect it would be incompatible with the absolute freedom of trade, commerce and intercourse among the States which is protected by that provision. It has been submitted that it is essential to a decision in this case that a choice should be made between two opposing principles or sets of principles relating to the interpretation and the application of s. 92, expressed respectively by the Chief Justice in Samuels v Readers' Digest Association Pty Ltd [1] and by Kitto J. in Associated Steamships Pty Ltd v Western Australia [2] . For my part, after anxious consideration of this important case, I do not feel able to resolve it simply by making a choice which accepts unreservedly one of those formulations of the relevant principles as a completely accurate and adequate exposition of the law and rejects the other. The matter is more complex than that. For example, it appears to me that the statement of Kitto J. to which I have referred, which insists that a law if it is to offend against s. 92 must operate directly to restrict or burden "something that is actually within, and not merely connected with, the concept of inter-State trade, commerce and intercourse" cannot be accepted as being entirely correct, unless it be understood that a sale which when considered by itself is an entirely intra-State transaction may yet "take on the character of inter-State commerce" in virtue of "some inseparable connexion with the importation of the article from another State" (Wragg v New South Wales [3] ), and unless it be further understood that such a sale is then to be regarded as being "actually within, and not merely connected with, the concept of inter-State trade, commerce or intercourse". 1. (1969) 120 C.L.R. 1, at p. 17. 2. (1969) 120 C.L.R. 92, at p. 109. 3. (1953) 88 C.L.R. 353, at p. 385. Of course, I do not mean by what I have just said to suggest that we should not give attention to the principles that we are able to discover from a study of the decisions relating to s. 92 and of the reasons given for those decisions. But in this area of the law, perhaps even more than in others, I think that it is not possible to find all that one needs to know crystallized in one statement that is of universal application. As their Lordships said in The Commonwealth v Bank of New South Wales (the Bank Case) [4] : "In this labyrinth there is no golden thread." 1. [1950] A.C., at p. 310; (1949) 79 C.L.R., at p. 639. In examining the problem raised by the appeal, I shall make some general observations and then I shall refer more particularly to some decisions which appear to me to be of particular significance. I think it must be accepted, despite practical difficulties, that the distinction between inter-State trade and the domestic trade of a State must be constantly maintained, both in applying s. 51 (i.) of the Constitution and in applying s. 92. On this subject it is sufficient to refer to the statement of Dixon C.J. in Wragg's Case [1] . 1. (1953) 88 C.L.R., at pp. 385-386. The domestic trade of a State is not mentioned in s. 92 and is not itself governed in any way by that provision. But in many cases an act may have a double aspect. In one aspect it may appear to be an act which forms part of domestic or intra-State trade. In another aspect, it may appear to be an act which forms part of inter-State trade. In such cases the maintenance of the distinction between intra-State trade and inter-State trade may present difficulties. It was argued for the appellant that the sale of goods imported for sale from another State, although as between the appellant and its customer it was simply a retail sale over the counter in a store, was itself part of the appellant's inter-State trade in those goods. If that proposition were accepted there could be no doubt, I think, that the law which is challenged had a direct legal effect upon that inter-State trade by prohibiting an act which formed part of it. But the proposition is of course strenuously denied. It raises a question which received consideration a long time ago in The Commonwealth and Commonwealth Oil Refineries Ltd. v South Australia [2] . Isaacs J. said [3] : Whether a sale which taken by itself would be a purely domestic operation is to be so regarded notwithstanding previous inter-State movements of the goods or transactions relating to them, is a business question, and is determined by its connexion or want of connexion with the other circumstances as then understood, from a business standpoint. His Honour said that [4] , a sale within a State of goods brought from another State may, not as an exception but as a very common case arising in business, be part of an inter-State operation of trade and commerce. But there are later authorities in which the view has been taken that the sale by an importer of goods from another State is not necessarily to be classed as part of the process of importation or as being a sale made in the course of inter-State trade. That view was adopted in Wragg's Case [1] and it was expressed again by Taylor and Owen JJ. in O'Sullivan v Miracle Foods (S.A.) Pty Ltd [2] , in a judgment upon which the appellant in this case relies. To those cases I shall refer again. 1. (1926) 38 C.L.R. 408. 2. (1926) 38 C.L.R., at p. 429. 3. (1926) 38 C.L.R., at p. 430. 4. (1953) 88 C.L.R. 353. 5. (1966) 115 C.L.R. 177, at p. 189. The appellant's case does not rest solely upon the contention that the sales in question were actually a part of its inter-State trade which continued until those sales had been made. It submits that there is a different path by which the conclusion may be reached that the provision under which it was charged constituted an infringement of the freedom of its inter-State trade. In this submission it is put that the law had a direct operation and effect upon the act of importation of the goods, which was plainly an act of inter-State trade. The proposition that it had a direct effect on importation is contested and it is said that its acceptance would involve the rejection of a great body of authorities to which the Court should adhere. Nevertheless, I have come to the conclusion that the law, which prohibited absolutely the sale in Tasmania of the goods which the appellant had imported for sale, did affect, in the relevant sense and in a manner forbidden by s. 92, the act of importation from New South Wales of those goods. That is a conclusion which I must endeavour to justify and it includes a subsidiary assertion that must also be justified, namely, that the law effected what was in a relevant sense a total prohibition upon the sale and not merely a regulation of the sale of a product, prescribing a standard to which that product should conform. I am assuming now that the act upon which attention is to be concentrated is the act of importing the goods. If it be correct to say that a law cannot operate in a manner forbidden by s. 92 unless the law selects in its express terms as the act upon which it takes effect an act which is itself a part of inter-State trade or an essential characteristic in such an act, that is to say, unless the law refers expressly to such an act or characteristic as the criterion of its operation, then the law now under consideration does not fulfil that requirement in relation to the act of importation, for it does not refer in terms to importation. But, in my opinion, the proposition just set out cannot be accepted. No doubt it is true that a law which in express terms makes an act of inter-State trade or something which is an essential part of that trade the criterion of its operation will constitute, at least prima facie, an infringement of s. 92. But that does not mean that it is such a law and no other law that is capable of offending against s. 92. It was suggested in argument that when the Chief Justice in Samuels' Case [1] stated as being a view held by others which his Honour could not accept, the view that the Privy Council had affirmed the proposition that only laws "which fastened upon a characteristic which a transaction must have to be itself a transaction of inter-State trade, commerce or intercourse as the critieron upon which the law's operation depends" can be obnoxious to s. 92, that was not an accurate statement of the doctrine which had been expounded by Kitto J. and other members of this Court in their judgments. I do not think it is useful to pursue a detailed inquiry into that question. I think it may be said that the principle which the Chief Justice rejected has been stated in the manner he described but it has also been stated in terms which introduce a qualification upon the requirement that the criterion upon which the law's operation is made to depend must be a characteristic which a transaction must have to be itself a transaction of inter-State trade, commerce or intercourse. In this respect a comparison may be made between what Kitto J. said in Associated Steamships Pty Ltd v Western Australia [2] and what he said in Samuels v Readers' Digest Association Pty Ltd [3] . For present purposes it is sufficient for me to say that in my opinion a principle in the terms which the Chief Justice attributed to those from whom he differed could not be accepted without qualification. 1. (1969) 120 C.L.R., at p. 17. 2. (1969) 120 C.L.R. 92, at p. 111. 3. (1969) 120 C.L.R. 1, at pp. 29-30. It is of course of great importance to have regard to what their Lordships did say in the Bank Case [4] , as well as to what they have said in other cases and to what has since been said about the true meaning and effect of their statements. I do not propose to set out all the passages in the Bank Case to which attention was given in the argument of this appeal. It is enough I think to refer once more to the well-known general proposition enunciated by their Lordships [5] that s. 92 is violated only when a legislative or executive act operates to restrict such trade commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. In so far as that proposition refers to legislative acts it is not confined to those which impose in express terms some restriction on an activity of trade, commerce or intercourse named therein as the criterion upon which the law depends. But it is essential that the legislative act should operate to restrict trade, commerce or intercourse "directly and immediately". 1. [1950] A.C. 235; (1949) 79 C.L.R. 497. 2. [1950] A.C., at p. 310; (1949) 79 C.L.R., at p. 639. The critical question at this point in my consideration of the questions before the Court is whether or not the law prohibiting the sale by the appellant of the goods it imported from New South Wales operated to restrict "directly and immediately" the importing of the goods "as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote". To this question it is said by those opposing the appellant's claim that the principles enunciated in many cases decided by this Court since the Bank Case [1] require a negative answer. But my examination of what has been decided in the cases most nearly resembling the present case has caused me to think that they provide no obvious and ready answer to the question. They present difficulties of reconciliation which, if they can be resolved at all, can be resolved only by providing for some of the cases explanations which are not in my opinion entirely convincing. Before turning to specific cases of that kind there are some further observations which I wish to make. 1. [1950] A.C. 235; (1949) 79 C.L.R. 497. There has been much discussion in the arguments about the difference between the legal effect and the economic consequences of a law and of the need to have regard only to its legal effect. Now it would be easy to say that the only legal effect that a law can have, if it prohibits either absolutely or conditionally a sale of goods, is that the goods must not be sold or that they must be sold only upon the stated conditions and to say that all other effects are irrelevant. But in my opinion it cannot be right to say that the only relevant effect which a law can have is that which is literally stated in it. Whatever explanation may be adopted of the true basis of the cases to which I shall refer presently there are several cases which cannot, in my opinion, be in any way reconciled with that literal view of what a law effects. In the Bank Case [1] their Lordships recognized that in the application of the proposition to which I have referred there could not fail to be differences of opinion. What they said shows, in my opinion, that the problem of the application of the principle is not one to be solved simply by looking at a particular statutory provision in respect of which the protection of s. 92 is claimed and seeing whether its terms are directed expressly against an activity in inter-State trade in which the appellant has been engaged. As I understood the arguments, it was not contended by those who opposed the appeal that you may look only at the law and not at any facts at all and it was accepted that you may have to examine facts to ascertain what is the operation of the law. But what I have said concerning the difficulty that may arise in applying the principle under discussion needs to be kept firmly in mind in examining the question whether the law which speaks only of sales could have a relevant effect upon the appellant's importing of the goods. 1. [1950] A.C. 235; (1949) 79 C.L.R. 497. A law may operate in a manner forbidden by s. 92, although it is a law applying generally to goods whether they are locally produced or brought from another State in the course of an importer's trade. It is not essential in order that it may attract the operation of s. 92 that a law should be expressed to apply only to goods imported into the State. That is well established. It is established also that in some cases a law may infringe s. 92 notwithstanding that the relevant burden or impediment is imposed by a provision that operates after inter-State trade has ceased. In O'Sullivan v Miracle Foods (S.A.) Pty Ltd [1] , Taylor and Owen JJ., after referring to a contention that the effect of certain provisions was to impose burdens obnoxious to s. 92, said, In this connexion it may be observed that it is not an answer to this contention merely to assert that the impugned sections operate only after the inter-State trade has ceased. Their Honours then referred to Field Peas Marketing Board (Tas.) v Clements and Marshall Pty Ltd [2] and to Wragg's Case [3] . I did not understand any of those who presented argument to the Court in this case to dispute that proposition. 1. (1966) 115 C.L.R. 177, at p. 190. 2. (1948) 76 C.L.R. 414. 3. (1953) 88 C.L.R. 353. I have said that a law may offend against s. 92 although it is a general law and is not a law that "discriminates" against goods produced in another State. Nevertheless, there is authority for the view that a law the application of which is limited to goods brought from other States will be invalid although a similar law applying generally to all goods would be valid. This principle has been extended in some cases so as to apply to laws which, although not so limited in terms, have been considered to operate in reality in a special way upon goods imported from another State. A good example is to be found in the judgment of Dixon J. (as he then was) in Vacuum Oil Co. Pty Ltd v Queensland [4] . I have no wish to cast any doubt upon the proposition that if it appears that what is expressed as a restriction or burden upon the sale of a commodity is imposed specially upon persons who import that commodity for sale, then such a law is obnoxious to s. 92. But I find difficulty in the notion that in such a case it may be said that the law has a "legal effect" or a "direct effect" upon the act of importing for sale, but that a general law which in its operation upon a trader who imports for sale is precisely the same (that is to say, in either case the law makes it an offence for him to sell or to sell except upon stated conditions) has no legal effect or direct effect upon the act of importing for sale and any effect thereon is only "indirect" or "consequential". In the case to which I have just referred Dixon J., after stating that the very essence of commercial intercourse between States is importation or exportation for purposes of sale, described the case as being one in which the State made "one of these acts the substantive ground for imposing the burden of supporting home production" [1] . I have no difficulty in understanding that a law may be held to have, in reality although not in form, an operation which places a particular burden upon inter-State traders not shared by all traders. But I do not find it easy to appreciate why in such a case the effect of the law upon the inter-State trade of a trader who imports goods is for that reason a legal effect or a direct effect upon his importation of them, whilst the same effect of a general law, by which I mean the effect of the law upon his selling of the goods, is to be classed as being, in relation to his importation of the goods, an indirect or inconsequential or economic effect. 1. (1934) 51 C.L.R. 108, at pp. 125-129. 2. (1934) 51 C.L.R., at p. 129. I must refer now to several cases to which much importance was attached in the argument of this appeal. Two of these may be considered together. They are The Commonwealth and Commonwealth Oil Refineries Ltd. v South Australia [2] and Vacuum Oil Co. Pty Ltd v Queensland [3] . I have already made some reference to the latter case. In Wragg's Case [4] Taylor J. gave an explanation of those two cases. He said [5] : The destruction of the legislation under consideration in the last two cases may well be said to have resulted, not because the affected transactions were themselves necessarily part of inter-State trade and commerce, but because the particular burdens imposed were, in the circumstances, considered to be burdens directly imposed upon inter-State trade as such. I accept that as an explanation of the basis upon which The Vacuum Oil Co. Case [1] was decided, although that ground of decision presents to me a difficulty which I have already endeavoured to explain. But it is by no means clear to me that the earlier decision in The Commonwealth and Commonwealth Oil Refineries v South Australia [2] may properly be treated as having been based upon the ground suggested by Taylor J. A consideration of the judgments of those Justices who expressed the opinion that there was an infringement of s. 92 provides scant support, in my opinion, for the view that the decision may be fitted neatly into place in the application of the distinction, subsequently worked out, between burdens which are "directly" imposed by a law and burdens which are the indirect consequences of a law. 1. (1926) 38 C.L.R. 408. 2. (1934) 51 C.L.R. 108. 3. (1953) 88 C.L.R., at pp. 396-397. 4. (1953) 88 C.L.R., at p. 397. 5. (1934) 51 C.L.R. 108. 6. (1926) 38 C.L.R. 408. The case of Fish Board v Paradiso [3] was examined exhaustively in the arguments which we heard. It is discussed at length in judgments prepared by other members of the Court. But whatever be said about it, whatever explanations be given concerning the reasons of their Honours and whatever view be taken about the validity of the comment made upon it by Taylor J. in Harper v Victoria [4] , some points which are relevant to the present case seem to me to be clear. The provision under which the defendant was charged was a prohibition against the sale (or purchase) of fish unless that fish had first been brought to a market and there sold at a sale conducted by the Board. It was a provision which applied (as the majority of the Court considered) to all fish in Queensland, whether the fish had been caught in that State or had been brought from another State. The defendant was charged with respect to a sale which took place in his shop, that is, after the fish had been delivered to him in pursuance of the contract by which he bought it and had become part of the stock in his shop. The act that was the subject of the charge was the act of selling the fish. The defendant was not charged with failing to bring the fish to the market for sale. It was held that the complaint failed because there was an immediate and direct impact on inter-State trade. It was said in the judgment [5] that in terms s. 27 (1) of The Fish Supply Management Acts, 1935 to 1951 Q operated to prohibit the sale by the defendant of the fish ordered by him as from the moment of its entry into Queensland and that the event which attracted the prohibition was its entry into that State. In the present case, the margarine was subject from the moment of its entry into Tasmania to the prohibition enacted by s. 6. In fact, it happened, as it did in Paradiso's Case [1] , that the actual sale which was the subject of the charge occurred not at the moment of entry but after the goods had been taken to the shop and had become part of the stock-in-trade of the shopkeeper's business. But, of course, the prohibition would have operated if a sale had been made by the appellant as soon as the goods entered Tasmania. Whatever may be said about the reasons contained in the joint judgment in Paradiso's Case [1] it is difficult, in my opinion, to maintain that the decision that Paradiso was immune, in his act of selling the fish, from the prohibition imposed upon the sale, which was a conditional and not an absolute prohibition, and a decision in this case that the appellant was not immune from an absolute prohibition upon the sale of the margarine it brought from New South Wales can stand together without any incongruity. 1. (1956) 95 C.L.R. 443. 2. (1966) 114 C.L.R. 361, at p. 378. 3. (1956) 95 C.L.R., at p. 452. 4. (1956) 95 C.L.R. 443. 5. (1956) 95 C.L.R. 443. In O'Sullivan v Miracle Foods (S.A.) Pty Ltd [2] , the Court was concerned with three different provisions. One of them was s. 23 of the Margarine Act, 1939-1956 SA and it is that provision only to which I shall refer. It provided: No person shall manufacture, sell or have in his possession for sale any margarine unless one-tenth of one per centum by weight of such margarine consists of dry starch or arrowroot intimately mixed with the other constituents of the margarine. The relevant charge, as amended, related to a sale of margarine which was alleged to have been in contravention of s. 23. By majority the Court held that that charge should be dismissed. 1. (1966) 115 C.L.R. 177. In my opinion, we could not dismiss this appeal unless we held that that decision was wrong. The learned Solicitor-General of the Commonwealth suggested that the decision could be supported on the footing that s. 23 was invalid in so far as it would operate to make it an offence for an importer of margarine to have that margarine in his possession for sale and that the prohibition against a sale was not severable and it was therefore invalid. But it is plain that none of the members of the Court who constituted the majority based his decision on that ground and, in my opinion, the decision could not have been correctly so based. Furthermore, I have difficulty in accepting the view that a law which operates so that it is an offence for an importer of goods to have them in his possession for sale is plainly invalid as being a direct restriction upon his importation of the goods, whereas a law which operates to make it an offence for him to sell the goods is valid, because it imposes no direct restriction upon his importation. It is said that in the present case the law leaves the appellant free to import the goods and to have them and keep them in its possession. It may be urged that by contrast a law making it an offence to have specified goods in one's possession in Tasmania would directly prevent importation since possession of the goods would be "an inseparable concomitant or consequence" of importing them: see Fergusson v Stevenson [1] , But in that case it was made an offence to have the articles in possession at all for any purpose. If, however, there is a prohibition against having goods in one's possession for sale, which leaves the importer free to keep them in his possession for other purposes, it is not easy to see why the possession of the goods is "an inseparable concomitant" of importing the goods for sale but the actual selling of them is not. 1. (1951) 84 C.L.R. 421, at p. 435. To return to the case of O'Sullivan v Miracle Foods (S.A.) Pty Ltd [2] , the whole of that part of the joint judgment of Taylor and Owen JJ. which deals with s. 23 is important in the present case. If what they said be accepted, I am of opinion that the conclusions follow that it should be held that the effect of s. 6 of the Dairy Produce Act was to destroy the appellant's inter-State trade in the commodity in which it had been and was trading; that "it is merely a matter of words" to say that the appellant was free to import the margarine into Tasmania, and that s. 6 operated directly to terminate its inter-State trade in that margarine. 1. (1966) 115 C.L.R. 177. It is plain that a conclusion in favour of the appellant must be reached if the reasons of the Chief Justice in O'Sullivan's Case [3] are applied to this case. 1. (1966) 115 C.L.R., at pp. 187-188. I do not think that in O'Sullivan's Case [2] Taylor J. intended to overthrow any principles to which he had previously adhered concerning the application of s. 92. As will appear, I do think that there are difficulties in reconciling O'Sullivan's Case [2] with all the reasons given in Wragg's Case [4] . I think, also, that there are difficulties in reconciling it with some statements made in Harper v Victoria [5] , although I regard the decision in that case as distinguishable. But I think that Taylor J. himself considered that the reasons stated by him jointly with Owen J. in O'Sullivan's Case [2] were consistent with what he had written in Wragg's Case [4] to which I shall refer again. Whether they were consistent or not, the point that must here be made is that there is not, in my opinion, any satisfactory ground upon which the majority decision in O'Sullivan's Case [1] can be distinguished from the case now before the Court. 1. (1966) 115 C.L.R. 177. 2. (1966) 115 C.L.R. 177. 3. (1953) 88 C.L.R. 353. 4. (1966) 114 C.L.R. 361. 5. (1966) 115 C.L.R. 177. 6. (1953) 88 C.L.R. 353. 7. (1966) 115 C.L.R. 177. It has been said that a law may conceivably detract from the freedom secured by s. 92 if upon examination of the facts and scrutiny of its intended operation it appears that in spite of the prima-facie absence of any but an accidental interference with inter-State trade, commerce and intercourse the law is but a circuitous means of burdening, restricting or impeding operations of a kind which s. 92 protects: see Mansell v Beck [2] . The principle that legislation may offend against s. 92, although its effect in imposing restraints upon inter-State trade or intercourse may be "circuitous", has been recognized also in other cases, e.g., by Fullagar J. (quoting earlier authority) in Hospital Provident Fund Pty Ltd v Victoria [3] . If the joint judgment of Taylor and Owen JJ. in O'Sullivan's Case [1] should be understood as being no more than an application of that principle, this means that the view of their Honours was that the law prohibiting sale constituted a circuitous means of preventing importation. Whilst it may be questionable whether that view of the decision of their Honours accords with the language they used, if that view be accepted its acceptance does not affect, in my opinion, the direct bearing of the decision upon the present case. The same principle, if applicable in that case, is applicable here. In my opinion, there was no feature of the South Australian law which is absent from the law with which this case is concerned and which would justify a conclusion that the former law was a circuitous means of prohibiting importation but the law now under consideration is not so to be regarded. 1. (1956) 95 C.L.R. 550, at p. 565. 2. (1953) 87 C.L.R. 1, at p. 36. 3. (1966) 115 C.L.R. 177. I have indicated that I think there are difficulties in reconciling the decision and the reasons in O'Sullivan's Case [1] with some of the reasons for judgment in Wragg's Case [4] . But I think it is an important point of difference between the cases that in one there was in effect an absolute prohibition upon sale and in the other there was not such a prohibition but only a requirement of adherence to a price-fixing scheme. In this connexion the views of Webb J. as to the relationship of general price-fixing legislation to s. 92 are of significance. But it is the judgment of Taylor J., with which five other Justices expressed agreement, upon which reliance is placed by those who opposed the appellant's contentions. It is to be noticed that the Prices Regulation Order purported to fix prices upon the sale of potatoes whether imported or not at every stage of the trade until they found their way into the hands of the consumer. It was said [1] that the plaintiffs contended that the fixing of a maximum price upon sales by retail, or upon any anterior sale, would infringe s. 92, because it was claimed that the business of importing potatoes for sale could not be freely carried on if, upon a sale at any stage of the marketing, a maximum price were fixed. With that contention Taylor J. did not agree. He said that the fixing of a maximum price for retail sales might have an economic effect upon the importing business but that effect would vary, if not from day to day, then from time to time. He thought that this did not necessarily constitute a direct burden upon the inter-State trade of the importers. His Honour examined at length the case of W. & A. McArthur Ltd. v Queensland [2] . He concluded that it was an express decision to the effect that the Queensland legislature has power to fix maximum prices upon all sales in Queensland, except those made in the course of trade, commerce and intercourse among the States. He added [3] , that there was nothing in James v The Commonwealth [4] to throw doubt upon the propositions (a) that Queensland can validly prescribe the maximum prices which might be charged in that State for all goods other than those the subject of sales in the course of inter-State trade and (b) that where a contract of sale if effected or the delivery of goods to be sold might, at the option of the vendor, for all that appears, be consummated entirely within the State of Queensland it is impossible to say these transactions are of an inter-State character. His Honour made references, which I have already discussed, to The Commonwealth and Commonwealth Oil Refineries v South Australia [5] and to the Vacuum Oil Co. Case [6] . Then he dealt with the subsequent sales made by persons who were not importers. He stated [7] the view that any effect which the prescription of a general price for intra-State sales might have on the business of importing potatoes from Tasmania was "not a direct effect but an economic consequence too remote to constitute an impairment of the freedom which s. 92 assures". He repeated that this was an effect which would vary from time to time. He said that the disadvantage alleged was "the indeterminate and variable product from time to time of a number of economic factors of which the existence of the order was but one". It seems clear to me that that description of the "disadvantage" suffered by the importer could not properly be applied to the consequences of the prohibition imposed upon the appellant in this case. His Honour said that such an effect as he had described could not be regarded as the "necessary legal effect" as distinct from "the ulterior effect, economically or socially" or as distinct from "some indirect or consequential impediment which may fairly be regarded as remote". His Honour then added this statement [1] : The conclusion might well be different if it were established in any particular case that a Prices Regulation Order relating to intra-State sales had been promulgated for the purpose of preventing or impeding or otherwise burdening the business of importing such goods into New South Wales from another State. That is an important sentence. It is possible that in it there is an indication of the way in which Taylor J would have distinguished O'Sullivan's Case [2] from Wragg's Case [3] . His Honour did not elaborate upon the manner in which it might be "established" in a particular case that a law relating to intra-State sales had been promulgated for the purpose of preventing or impeding the business of importing goods from another State. But, in my opinion, if that could have been regarded as established in O'Sullivan's Case, it may be regarded equally as established in this case. His Honour went on to refer to sales by "primary wholesalers" who were importers and said that in respect of these sales there may be stronger grounds for invoking s. 92, the reason being that some of these sales may actually be made in the course of inter-State trade. He thought that it had not been proved sufficiently that some of the sales were of such a character as to be within the protection of s. 92. I think that it must be acknowledged that in this part of the judgment it is asserted that a first sale by an importer is not to be classed simply because it is a sale of that description as a sale made in the course of inter-State trade. It is also indicated, I think, that a burden upon such sale is not necessarily to be regarded as a burden imposed directly upon the act of importation. I recognize the force of the contention that the application of those views to this case should lead to the rejection of the appellant's claims. But it is important to keep in mind that the major portion of the judgment directs itself to the particular question of price-fixing legislation. In my opinion, the reasons of Taylor J., even if accepted as dealing correctly with a burden imposed by legislation of that kind, ought not to be applied to legislation which prohibits altogether the sale by an importer of goods which he has imported for sale. I think that in general it cannot be regarded as legitimate to make a distinction, for the purpose of deciding whether a law infringes s. 92, between one law which affects something that a person wishes to do so drastically as to prevent him from doing it at all and another law which imposes some less drastic restriction or burden upon his doing it. Yet I have come to the conclusion that in relation to the question whether a law imposes a burden obnoxious to s. 92 upon a person who imports goods for sale a distinction may validly be made between a law which requires him to conform to a general price-fixing scheme and a law which prohibits him altogether from selling his goods. In its operation upon that trader a law of the latter kind is, in my opinion, a law which has a direct effect upon his importation of the goods for sale. It destroys his trade in those goods. That cannot be, in my opinion, an "indirect or consequential impediment which may fairly be regarded as remote". 1. (1966) 115 C.L.R. 177. 2. (1953) 88 C.L.R. 353. 3. (1953) 88 C.L.R., at p. 393. 4. (1920) 28 C.L.R. 530. 5. (1953) 88 C.L.R., at p. 396. 6. [1936] A.C. 578; (1936) 55 C.L.R. 1. 7. (1926) 38 C.L.R. 408. 8. (1934) 51 C.L.R. 108. 9. (1953) 88 C.L.R., at p. 398. 10. (1953) 88 C.L.R., at p. 399. 11. (1966) 115 C.L.R. 177. 12. (1953) 88 C.L.R. 353. In my opinion, it is not a necessary consequence of that conclusion that I must hold that the cases of Grannall v Marrickville Margarine Pty Ltd [1] ; Beal v Marrickville Margarine Pty Ltd [2] ; Deacon v Mitchell [3] ; Webb v Stagg [4] ; and Tamar Timber Trading Co. Pty Ltd v Pilkington [5] , were all wrongly decided. The view has been expressed in Samuels v Readers' Digest Association Pty Ltd [6] and in Associated Steamships Pty Ltd v Western Australia [7] , that all these cases are illustrations of the application of the same basic principle. But for myself I do not regard an application in this case of the decision in Fish Board v Paradiso [8] and in O'Sullivan's Case [9] and a refusal to hold it to be governed by Wragg's Case [10] as involving a repudiation of the earlier margarine cases or of the cases dealing with the transport of timber in Tasmania. Again, I do not think the present case is in relevant respects identical with the case of Harper v Victoria [11] , in which the law under consideration did not impose a total prohibition upon sale. 1. (1955) 93 C.L.R. 55. 2. (1966) 114 C.L.R. 283. 3. (1965) 112 C.L.R. 353. 4. (1965) 112 C.L.R. 374. 5. (1968) 117 C.L.R. 353. 6. (1969) 120 C.L.R., at p. 30. 7. (1969) 120 C.L.R., at pp. 109-110. 8. (1956) 95 C.L.R. 443. 9. (1966) 115 C.L.R. 177. 10. (1953) 88 C.L.R. 353. 11. (1966) 114 C.L.R. 361. One matter remains for consideration. It was submitted for the respondent that the law under consideration does not offend against s. 92 because it is a law which regulates trade in a manner that does not impair the freedom which s. 92 assures. It was submitted that it is a law of the same kind as those laws fixing standards or regulating the packing and labelling of goods or restraining undesirable trade practices which have been regarded as providing no relevant impediment to trading. In particular, it has been said that the law in question is a law to prevent or to lessen the risk of confusion between different classes of goods, by which purchasers might be deceived. In my opinion, these submissions should not be accepted. They raise a question which requires a judgment upon matters of fact and I think it is necessary to refer to some of the evidence given at the hearing of the charges. It was proved by evidence which has not been challenged that at least for a very long time and perhaps from the first time that the product called margarine began to be made, there has been used in making it an ingredient, natural or synthetic, which gives it a colour different from the almost colourless appearance that otherwise it would have. For a long time the colour so imparted has been a yellow colour similar to the colour of butter. It has been, also, the practice to use a flavouring ingredient to make the product more palatable and to make it a more saleable commodity. In the process of manufacture of margarine for commercial purposes, there is no essential difference between the substances which are now defined by legislation as being respectively "table margarine" and "cooking margarine". Evidence was given that until the enactment in Victoria of legislation similar to that which was enacted later in Tasmania, all margarine had a taste and a colour similar to the taste and colour of the margarine the subject of these charges. In consequence of legislation in Victoria, margarine was afterwards marketed in that State without the colouring and flavouring substances, but apart from that, according to one of the witnesses, "margarine always had the taste and colour that we have got here". It is true that the product thus marketed in Victoria after the introduction of restrictive legislation was marketed as "cooking margarine" and it was not disputed by the witnesses that it was correct to refer to it as margarine. Therefore it cannot be said that margarine without the colouring and flavouring substances stands wholly outside the area of trade. But, in my opinion, it is clear from the evidence that, but for legislative restrictions and but for the statutory definitions in the enactments by which those restrictions are imposed, it was a product that included in it a colouring substance and a flavouring substance and that had a recognized colour and taste derived from those substances which constituted the well-known ordinary article of commerce called margarine. In these circumstances it is right, in my opinion, to regard the product having those characteristics as being the commodity in which the appellant was trading and to reject the suggestion that the prohibition imposed by s. 6 left the appellant free to trade in a commodity in which it was trading and in which it desired to trade, and merely regulated that trade. In my opinion, the proper conclusion on the facts is that if the use of the prohibited substances is excluded from the process of manufacture, the resulting product, although it may be called margarine, is in a relevant sense a thing different in kind from the commercial product in which the appellant traded. The consequence of those views concerning the facts of the case is that the law imposes an absolute prohibition on sale and it cannot be regarded as a regulatory provision compatible with freedom of trade. In this case there is, of course, no suggestion of an overriding necessity to prohibit the sale of the product, derived from an apprehension of danger to life or to health: see Tasmania v Victoria [1] . 1. (1935) 52 C.L.R. 157, at pp. 168-169. In my opinion the appeal should be allowed. Gibbs J. The appellant is one of a group of companies which carried on the business of retailing goods, including foodstuffs, at a number of shops (called "supermarkets") in and around Launceston in Tasmania. In the course of its business the appellant ordered a consignment of packages of "Marville Cooking Margarine" from Marrickville Holdings Limited, a company which manufactures that product in Sydney. The order was signed by the appellant's managing director and handed by him, in Launceston, to an agent of Marrickville Holdings Ltd., who took the order form to Sydney, where an acceptance was endorsed on it. In fulfilment of the order, margarine was manufactured and was then despatched, in cartons of half-pound packages, from Sydney to Launceston. Upon their arrival in Launceston some of the packages of the margarine were displayed for sale in the cool shelves of one of the appellant's shops in that city, and, on 23rd October 1970, the appellant sold by retail three of the packages. In respect of these sales the appellant was charged that it did sell cooking margarine to which there had been added a prohibited colouring substance, namely, beta carotene, contrary to s. 6 of the Dairy Produce Act 1969 Tas ("the Act") and that it did sell cooking margarine to which there had been added prohibited flavouring substances, namely, aliphatic delta lactones of carbon chain length between six and fourteen, contrary to s. 6 of the Act. A stipendiary magistrate convicted the appellant of both offences and an appeal against his judgment is now brought to this Court. Section 6 of the Act reads: No person shall, within the State, manufacture or sell cooking margarine to which there is or has been added any— (a) prohibited colouring substance; or (b) prohibited flavouring substance. "Cooking margarine" means "margarine that contains beef fat or mutton fat, or beef fat and mutton fat, in a quantity of not less than ninety per cent by weight of the total quantity of fat and oil contained in the margarine" (s. 3 of the Act) and it is conceded that the margarine in question answered this description. "Prohibited colouring substance" and "prohibited flavouring substance" are defined by s. 3 to include a colouring substance and a flavouring substance respectively specified in Pt I and Pt II of the Schedule to the Act. Part I specifies, inter alia, beta carotene and Pt II specifies, inter alia, aliphatic delta or gamma lactones of carbon chain length between six and fourteen. These prohibited substances were admittedly added to the refined beef tallow during the course of the manufacture of the margarine. The effect of these additives is to make the resulting product look and taste like butter; margarine which does not contain these or similar substances is, according to the evidence, white, insipid and unpalatable. It was submitted on behalf of the appellant that the prohibited substances had not been added to the margarine within the meaning of s. 6 since they were ingredients used in the course of manufacture and were not added to the product after it had become margarine. This contention cannot, in my opinion, be supported. The section forbids not only the sale but also the manufacture of margarine to which a prohibited substance has been added and it is therefore impossible to construe the section as prohibiting the addition of the substances only after the process of manufacture has been completed. The appellant in the present case sold margarine to which the prohibited substances had been added, notwithstanding that the addition had taken place in the course of manufacture. The main contention of the appellant, however, is that if the provisions of s. 6 of the Act operated to prohibit the sale by the appellant of the margarine which it had brought from New South Wales into Tasmania for the purpose of selling it in the latter State they would conflict with s. 92 of the Constitution. Each of the sales which formed the subject of the charges was made within the four walls of a Tasmanian shop. From the beginning to the end of the transaction the buyer and the seller's employees were present in that shop and the goods were in stock there. In my opinion, there was no inter-State element in any of these sales; each of them formed part of the trade which the appellant carried on within Tasmania. It is true that there had been an inter-State transaction in respect of the goods before the sales were effected. But although the appellant's purpose in engaging in that inter-State transaction was to sell the goods in Tasmania, the inter-State transaction did not extend to and include the subsequent sales within the shop. It had ended before the goods were sold to the customers who, of course, simply bought out of stock and were not concerned how the goods got into stock or whence they had been obtained. When a merchant makes a sale over the counter to a customer who comes into his shop to buy goods which he has in stock, it seems to me that the commercial reality is that the sale to the customer is a domestic sale and is not part of the merchant's inter-State trade, notwithstanding that the merchant had, by means of an inter-State transaction, obtained the goods for the purpose of selling them in his shop. In my opinion, the conclusion that the sales in question in the present case were purely intra-State transactions accords with the authorities: W. & A. McArthur Ltd. v Queensland [1] ; Wragg v New South Wales [2] ; Fish Board v Paradiso [3] ; Harper v Victoria [4] ; and O'Sullivan v Miracle Foods (S.A.) Pty Ltd [5] . 1. (1920) 28 C.L.R. 530, at pp. 540, 559-560. 2. (1953) 88 C.L.R. 353, at pp. 387, 398-399. 3. (1956) 95 C.L.R. 443, at p. 451. 4. (1966) 114 C.L.R. 361, at pp. 377, 382. 5. (1966) 115 C.L.R. 177, at p. 189. However the appellant contends that if it is prohibited from selling in Tasmania the margarine which it has imported from New South Wales for the purpose of sale in Tasmania, the prohibition will constitute a direct burden on its inter-State trade and will infringe s. 92 even if the sales which it is prohibited from making are themselves of an intra-State character. There can be little doubt that if s. 6 of the Act is valid the appellant will cease to carry on its inter-State trade in "Marville Cooking Margarine". The purpose of that inter-State trade is to have that brand of margarine available for sale in Tasmania. If the margarine cannot lawfully be sold in Tasmania the appellant is likely to find it impossible, for commercial reasons, to continue to buy the margarine. The practical consequence of the law may well be to put an end to the appellant's inter-State trade in margarine. However, from a purely legal point of view, the appellant's inter-State trade is not affected. The appellant has the legal right to continue to order "Marville Cooking Margarine" from Marrickville Holdings Ltd. for delivery in Tasmania if it wishes to do so and to receive the margarine in Tasmania if it is delivered there. In other words, s. 6 leaves the appellant absolutely free, as a matter of law, to continue its inter-State trade in the margarine, although as a matter of practical and commercial reality the section may have the effect of destroying that trade. The important question for decision is whether, in these circumstances, the law infringes s. 92. The answer to that question depends on whether s. 6 of the Act operates to restrict the inter-State trade of the appellant directly and immediately or whether it does no more than create some indirect or consequential impediment which may fairly be regarded as remote: The Commonwealth v Bank of New South Wales [1] . The proposition thus enunciated by their Lordships has been refined in this Court. In Hospital Provident Fund Pty Ltd v Victoria , Dixon C.J. said [2] : If a law takes a fact or an event or a thing itself forming part of trade commerce or intercourse, or forming an essential attribute of that conception, essential in the sense that without it you cannot bring into being that particular example of trade commerce or intercourse among the States, and the law proceeds, by reference thereto or in consequence thereof, to impose a restriction, a burden or a liability, then that appears to me to be direct or immediate in its operation or application to inter-State trade commerce and intercourse, and, if it creates a real prejudice or impediment to inter-State transactions, it will accordingly be a law impairing the freedom which s. 92 says shall exist. But if the fact or event or thing with reference to which or in consequence of which the law imposes its restriction or burden or liability is in itself no part of inter-State trade and commerce and supplies no element or attribute essential to the conception, then the fact that some secondary effect or consequence upon trade or commerce is produced is not enough for the purposes of s. 92. The principle expressed in this passage has been accepted as correct and applied in a number of subsequent cases. It forms, in my opinion, the ground of the decision of the majority of the members of the Court who decided Grannall v Marrickville Margarine Pty Ltd [1] and Beal v Marrickville Margarine Pty Ltd [2] , where it was held that restrictions on the manufacture of a commodity intended to be sold and delivered inter-State do not conflict with s. 92 (see particularly in Grannall v Marrickville Margarine Pty Ltd [3] ). Other decisions, in which the principle has been applied, at least by some members of the Court, are Reg. v Anderson; Ex parte Ipec-Air Pty Ltd [4] , where a refusal to permit the importation of aircraft intended to be used in inter-State transportation was upheld [5] , Damjanovic & Sons Pty Ltd v The Commonwealth [6] , where an Act imposing a levy on hens was held validly to apply in respect of hens owned and kept for the production of eggs intended exclusively for sale in the course of inter-State trade [7] , and Associated Steamships Pty Ltd v Western Australia [8] , where stamp duty was held payable on amounts received in payment of freight charged for carriage of goods inter-State [9] . For present purposes, however, the most important application of the principle is to be found in Wragg v New South Wales [10] , where a law fixing the maximum price on the sale of potatoes in New South Wales was held validly to apply to potatoes grown in Tasmania and imported into New South Wales for the purpose of sale there. Dixon C.J. said [11] : The law restricting the price is not one operating in reference to or in consequence of any matter or thing itself forming part of trade, commerce or intercourse among the States. It does not limit the legal freedom to import potatoes or to contract to buy them for shipment from Tasmania. Its operation is to create conditions of trade in potatoes within New South Wales which react on the economic, not the legal, capacity of the trader desiring to import Tasmanian potatoes. The economic consequences which it may have upon inter-State trade may well be serious, but that is a different thing from interference by law or government action with the freedom which s. 92 confers. In the same case Taylor J. said [12] : The substance of the plaintiff's argument on this point was that the prescription of maximum prices at any stage of the marketing in New South Wales of Tasmanian potatoes directly burdens or interferes with inter-State trade as such. But it is important again to observe that both the Act and the order made thereunder deal generally with goods, whether locally produced or imported from any other country, and any effect which the prescription of a general price for intra-State sales may have on the business of importing potatoes from Tasmania is not a direct effect but an economic consequence too remote to constitute an impairment of the freedom which s. 92 assures. McTiernan, Williams, Fullagar and Kitto JJ. expressed agreement with both Dixon C.J. and Taylor J. Wragg v New South Wales [1] was followed and applied by the majority of the Court in Harper v Victoria [2] . 1. [1950] A.C. 235, at p. 310; (1949) 79 C.L.R. 497, at p. 639. 2. (1953) 87 C.L.R. 1, at pp. 17-18. 3. (1955) 93 C.L.R. 55. 4. (1966) 114 C.L.R. 283. 5. (1955) 93 C.L.R., at pp. 78-79. 6. (1965) 113 C.L.R. 177. 7. (1965) 113 C.L.R., at pp. 193, 196. 8. (1968) 117 C.L.R. 390. 9. (1968) 117 C.L.R., at pp. 399-401, 403-404. 10. (1969) 120 C.L.R. 92. 11. (1969) 120 C.L.R., at pp. 109, 111. 12. (1953) 88 C.L.R. 353. 13. (1953) 88 C.L.R., at p. 387. 14. (1953) 88 C.L.R., at p. 398. 15. (1953) 88 C.L.R. 353. 16. (1966) 114 C.L.R. 361, at pp. 377, 377-378, 382. If the principle which underlies these decisions is applied to the present case the result is that the law under attack must be upheld as valid. That law operates with respect to sales within Tasmania. Those sales, as I have held, are themselves no part of inter-State trade, and they do not supply any element or attribute essential to the concept of inter-State trade. The importation of the margarine can be carried to completion notwithstanding the ban on its sale within the State. The present case may be compared with Fergusson v Stevenson [3] , where the defendant was charged under the Fauna Protection Act, 1948 NSW with having in his possession in Sydney certain kangaroo skins, which had been consigned from Brisbane to Sydney where they were to be sorted and exported overseas. The defendant was held entitled to the protection of s. 92, because the transaction in which he was engaged was one of inter-State trade, and his possession of the skins in Sydney was "an inseparable concomitant or consequence of that transaction" [4] . The possession by the appellant of the margarine in Launceston could no doubt appropriately be similarly described, but the sale by the appellant of the margarine after it had been delivered to him was not "an inseparable concomitant or consequence" of his transaction with Marrickville Holdings Ltd. 1. (1951) 84 C.L.R. 421. 2. (1951) 84 C.L.R., at p. 435. In my opinion, although s. 6 of the Act has an economic, commercial or practical effect on the appellant's inter-State trade, that effect must, in accordance with the principles that I regard as now settled, be regarded as consequential rather than direct. Section 6 therefore does not restrict the inter-State trade of the appellant contrary to s. 92. However, it is necessary to consider four cases which, at first sight, seem at variance with the principles to which I have referred and upon which the appellant naturally places strong reliance. Two of these cases were decided before the effect of s. 92 had been expounded in the Bank Case [1] . In The Commonwealth and Commonwealth Oil Refineries Ltd. v South Australia [2] , an Act which imposed a tax upon the income of a vendor who sold Motor spirit within the State of South Australia for the first time after the entry of such motor spirit into that State was held to violate s. 92. In Vacuum Oil Co. Pty Ltd v Queensland [3] , an Act whose effect was to require the first seller of motor spirit within the State of Queensland to buy a proportionate quantity of power alcohol was similarly held invalid. The Act in the latter case infringed s. 92 because it placed a special burden on the goods in the State to which they had come, simply because they had come from the other State: see James v The Commonwealth [4] . Although the Justices who decided the former case appear to have considered that the Act was invalid because it covered both inter-State and intra-State sales and was inseverable, it seems right to regard the burden imposed by the legislation considered in that case as a tax on the goods in the importer's hands (see per Taylor J. in Wragg v New South Wales [5] ) so that in both of these cases the legislation which was held to be invalid imposed a burden on the importer because he was the importer—a burden the criterion of whose imposition was the importation of the petrol into the State. It is well settled that s. 92 is not limited in its operation to laws which discriminate against inter-State trade; "An Act may contravene s. 92 though it operates in restriction both of intra-State and of inter-State trade"—James v The Commonwealth [6] . Where, however, a statute places a special burden on an activity simply because it is an activity of inter-State trade, it would seem impossible to resist the conclusion that the burden is directly imposed upon the inter-State trade. Of course, the fact that the burden is imposed after the trade has terminated does not necessarily prevent it from amounting to a direct burden on the trade: Wragg v New South Wales [7] . 1. (1949) 79 C.L.R. 497. 2. (1926) 38 C.L.R. 408. 3. (1934) 51 C.L.R. 108. 4. [1936] A.C., at p. 631; (1936) 55 C.L.R., at p. 59. 5. (1953) 88 C.L.R., at pp. 396-397. 6. [1936] A.C., at p. 628; (1936) 55 C.L.R., at p. 56. 7. (1953) 88 C.L.R., at p. 397. The next case, Fish Board v Paradiso [8] , is most important to the appellant's argument. It was there held by Dixon C.J. and Williams, Webb, Fullagar, Kitto and Taylor JJ., that s. 27 (1) of The Fish Supply Management Acts, 1935 to 1951 Q, which provided that "No person shall in any district sell or purchase any fish unless such fish have first been brought to a market in that district and there sold at a sale conducted by the board ", infringed s. 92 in so far as it purports to prevent a purchaser of fish in the course of inter-State trade from dealing with it upon its delivery to him in Queensland otherwise than by placing it at the disposal of the board. Their Honours said [1] : In terms s. 27 (1) operated to prohibit the sale by the defendant of the fish ordered by him as from the moment of its entry into Queensland and the event which attracted the prohibition was its entry into that State. They went on to say that they regarded the provision as one in substance providing that all fish in or coming into Queensland, whether in the course of inter-State trade or not, should be delivered to the board for sale. Their Honours did not explain why they considered that the event which attracted the prohibition imposed by s. 27 (1) was the entry of the fish into the State. However, by s. 3 of Thv Fish Supply Management Acts, "sell" is defined to include "keep or have in possession for sale". The Act therefore forbad any person who imported fish from another State for sale to keep or to have the fish in his possession for sale. The case may therefore perhaps be regarded as one in which the legislation made it impossible for the parties to complete an inter-State contract calling for fish to be delivered from one State to another for the purpose of sale—a case not unlike Fergusson v Stevenson [2] . However it cannot be thought that the Justices who delivered the judgment in Fish Board v Paradiso [3] intended, sub silentio, to depart from the principles which they themselves had recently affirmed in Grannall v Marrickville Margarine Pty Ltd [4] and Wragg v New South Wales [6] . 1. (1956) 95 C.L.R. 443. 2. (1956) 95 C.L.R., at p. 452. 3. (1951) 84 C.L.R. 421. 4. (1956) 95 C.L.R. 443. 5. (1955) 93 C.L.R. 55. 6. (1953) 88 C.L.R. 353. Finally, in O'Sullivan v Miracle Foods (S.A.) Pty Ltd [6] , it was held by Barwick C.J. and Taylor and Owen JJ., Menzies and Windeyer JJ. dissenting, that s. 23 of the Margarine Act, 1939-1956 SA which provides that no person shall manufacture, sell or have in his possession for sale any margarine unless one-tenth of one per centum by weight of such margarine consists of dry starch or arrowroot intimately mixed with other constituents of the margarine, imposes a burden contrary to s. 92 in so far as it applies to margarine manufactured in another State but sold or held for sale in South Australia. The decision may be supported on the ground that the section not only prohibited sale but also made it an offence for a person who had brought margarine into South Australia from another State to have it in his possession for sale. If, however, the decision can not be distinguished from the present case, I would, with great respect, feel bound to decline to follow it, on the ground that it is contrary to Grannall v Marrickville Margarine Pty Ltd [1] and Wragg v New South Wales [2] . In O'Sullivan v Miracle Foods (S.A.) Pty Ltd [3] , the Chief Justice said: Though the forbidden sale may be characterized as an intra-State sale, its prohibition directly puts an end to the commercial possibility of inter-State movement in the commodity. For the reasons I have given, I respectfully consider that the commercial consequences of a prohibition on an intra-State sale do not cause such a prohibition to be a direct burden on the inter-State trade which had been engaged in with a view to making the intra-State sale, but which was completed before that sale was made. 1. (1966) 115 C.L.R. 177. 2. (1955) 93 C.L.R. 55. 3. (1953) 88 C.L.R. 353. 4. (1966) 115 C.L.R., at p. 187. I hold, therefore, that s. 6 of the Act does not directly burden the appellant's inter-State trade. It operates after that trade has been completed and has only an economic or commercial effect upon it. In accordance with the principles to which I have referred I hold that the section does not contravene s. 92. It is therefore unnecessary to decide whether if the provisions of s. 6 did impose a direct burden on inter-State trade they might, nevertheless, be upheld as being regulatory. The appellant was, in my opinion, rightly convicted and I would dismiss the appeal.