Section 92 and the Decisions in Hospital Provident Fund Pty Ltd v. State of Victoria1 and Mansell v. Beck2
| Author | G. J. Davies |
| DOI | 10.1177/0067205X6700200204 |
| Published date | 01 June 1967 |
| Date | 01 June 1967 |
| Subject Matter | Article |
SECTION 92 AND
THE
DECISIONS
IN
HOSPITAL
PROVIDENT FUND PTY LTD
v.
STATE
OF
VICTORIA1AND MANSELL
v.
BECK2
By
G. J.
DAVIES*
In
an
article in The University
of
Queensland Law Journal in 1964
Mr
J. M. Morris set about the task
of
devising-
. . . a reasonably brief yet coherent scheme whereby areader may
gain some impression
of
the framework
of
the doctrine associated
with
s.
92
and the manner in which the more significant decisions
are related to this framework.3
It
is
not
intended in this article to comment on the overall degree
of
success achieved in that brave assault upon amammoth task.
It
is
proposed, however, to take up two suggestions made by
Mr
Morris
and discuss them. These suggestions relate to the effect
of
the decisions
in Hospital Provident Fund Pty
Ltd
v.
State o.f Victoria and Mansell
v.
Beck upon the reasoning which was set out by Dixon J. in
O.
Gilpin
Ltd
v.
Commissioner for Road Transport and Tramways (N.S.
W.)4
and
which was afterwards adopted by the High Court.
If
the effect
of
the
decisions
is
as
Mr
Morris asserts, considerable changes were effected
in the doctrine associated with section
92.
Both decisions, according
to
Mr
Morris, reduce
to
its essential minimum the freedom guaranteed
by section
92.
This is, then, quite plainly not
an
unimportant matter.
In
commenting upon the reasoning
of
Dixon J. in
O.
Gilpin
Ltd
v.
Commissioner for Road Transport
Mr
Morris cautions the reader
to
treat with reserve two notions which he attributes to the learned judge.s
The first notion is 'that
an
act
of
inter-State trade is protected
not
only
insofar as it causes movement, but also insofar as it causes any result
of
atrading
or
commercial character
'.6
Mr
Morris' caution with respect
to
this notion arises from the interpretation which he places upon the
Hospital Provident Fund case.
The second notion is
'that
alaw imposing aburden by reference
to
an
act
of
inter-State trade necessarily violates
s.
92
'.7
Mr
Morris suggests
that
it
is probable
that
this notion has
not
survived the decision in Mansell
v.
Beck.
*B.A., LL.B. (A.N.U.), Barrister-at-Law (N.S.W.), Lecturer in Law, Australian
National University.
1(1952-1953)
87
C.L.R.
1.
2(1956)
95
C.L.R.
550.
3(1964) 4University
of
Queensland Law Journal 369,
370.
•(1934-1935)
52
C.L.R. 189.
s(1964) 4University
0/
Queensland Law Journal 369, 400 n. 119.
6Loc. cit.
7Loc. cit. 244
JUNE
1967] Section 92, Hospital Benefits and Lotteries
245
First,
it
is questionable whether these 'notions 'are accurate expres-
sions
of
the views
of
Dixon J. and therefore properly attributable to him.
Secondly, there
is
the more important question
of
what changes,
if
any,
the two decisions referred
to
wrought in section
92
doctrine as actually
expressed by Dixon J. and his brother judges
on
the High Court.
Do
they in fact reduce the freedom guaranteed by section 92 to its essential
minimum?
What was the reasoning employed by Dixon J. in
O.
Gilpin
Ltd
v.
Commissioner for Road Transport? The essential facts
of
the case may
be stated briefly. The High Court was asked to determine whether the
protection
of
section 92 was to be afforded to ajourney involving the
carriage
of
goods from Melbourne
to
the Riverina district
of
New South
Wales. The State legislature
of
New South Wales had imposed alevy
of
threepence aton-mile upon aload
of
eight tons in respect
of
that
part
of
the journey from Albury to places in the Riverina. The appellant
company claimed that this was
an
invalid interference with interstate
trade.
Dixon J. pointed
out
that
anumber
of
basic questions needed to be
asked and answered. First, does the legislation operate so as to restrict
or
burden the acts for which immunity
is
claimed?
Secondly, are those
acts part
of
interstate trade, commerce
or
intercourse? Thirdly, is the
nature
of
the restriction
or
burden imposed upon those acts such
that
section
92
will relieve against it
?8
It
is this third question which most concerns us here as
Mr
Morris
in formulating his
first'
notion'
assumes aburden or restriction affecting
an
act
of
interstate trade, commerce
or
intercourse. However, for purposes
of
illustration the answer to the first question in the
O.
Gilpin
Ltd
v.
Commissioner for Road Transport situation was that the legislation did
impose aburden upon the journey from Albury to the Riverina, for
which journey immunity was claimed. The burden was the financial
exaction mentioned before. The answer to the second question was
that
although the journey from Albury to the Riverina took place within
the confines
of
New South Wales
it
was only part
of
alonger journey
from Melbourne in Victoria. Thus it was
part
of
an
interstate journey.
Dixon J. went on
to
explain more fully his third question.
It
is necessary
because acts and transactions occurring in the course
of
interstate trade
might possibly be burdened by legislation which had no particular
relationship to trade, commerce
or
intercourse among the States.
It
is only where legislation is related to trade, commerce
and
intercourse
among the States that section
92
has anything to say. Legislation has
that
necessary relationship when the burden
or
restriction
is
conditioned
8(1934-1935) 52 C.L.R. 189, 204.
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