By Alexandra Jackson, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Fergusson v Stevenson (1951) 84 CLR 421  

Court – High Court of Australia  
Judges – Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ
Date of Judgment – 3 October 1951

FACTS OF THE CASE

Stevenson, the defendant, was the Australian manager of an English company which bought and graded animal skins then exported them to tanneries in the United States.

In the course of conducting this business Stevenson knowingly had in his possession 1,318 kangaroo and wallaroo skins from animals who had been killed in Queensland and delivered to Stevenson in New South Wales for grading and exportation.

Stevenson was charged under s 19 of the Fauna Protection Act 1948 (NSW) (‘the Act’). Section 19(1) provided that “any person who knowingly buys, sells, offers or consigns for sale or has in his possession, house or control any protected fauna at any time shall be liable to a penalty.” Section 4 of the same Act defined “protected fauna” as “any fauna not mentioned in the First Schedule to this Act” and included the skin or any other part of such fauna. Kangaroos and wallaroos were not listed in the first schedule of the Act and were thus classed as protected fauna.

The killing of the kangaroos and wallaroos and the possession of them was lawful in Queensland; however s 19(1) of the Act also stated that the provision applied “whether such fauna was killed, taken or bought in or received from any State or Territory of the Commonwealth or the Dominion of New Zealand.”

This case originated in the Central Court of Petty Sessions in Sydney. However, it was heard in the High Court as the Attorney-General exercised the power under s 40 of the Judiciary Act 1903 (Cth) to remove any case pending in a State into the High Court where the cause arises under the Australian Constitution or involves its interpretation.

THE ISSUE

Whether Stevenson, in transacting and possessing the animal skins, acted unlawfully.

THE DECISION

The Court found unanimously in favour of the defendant and the case was dismissed with costs. McTiernan J found for the defendant on different grounds from the majority and submitted a separate judgment.

The State argued that s 19 of the Act existed for the purpose of the protection and preservation of fauna and that s 92 should not be used to give inter-State transactions freedom from adhering to those laws. The Court rejected this argument and found that the relevant facts were that the defendant had received the skins in the course of a transaction of interstate trade and commerce and that the allegedly unlawful possession arose directly from the interstate transaction. As freedom of interstate trade and commerce was protected by s 92 of the Australian Constitution, the Court held that the Act could not prohibit the transaction.

McTiernan J examined the definitions of “fauna” and “protected fauna” in the Act and found that the words “protected fauna” applied only to fauna originating in New South Wales. This excluded the wallaroo and kangaroo skins which were the subject of the charge, as the animals had been killed in Queensland. Thus, McTiernan J found that the facts did not fall within s 19 of The Act. Accordingly, His Honour did not need to consider the question of whether s 19 was incompatible with s 92 of the Australian Constitution.

COMMENTARY

This case reveals some of the problems that may be attributed to fragmented and inconsistent legislation among the states. Possession of the skins was lawful in Queensland and unlawful in New South Wales, which led the Court to find that the New South Wales law contravened the freedom of interstate trade and commerce enshrined in the Australian Constitution.

This decision effectively made the possession of the animal skins legal provided they were being transacted between states, or on the minority decision, killed interstate and then transported to New South Wales. The Court’s application of the legislation in light of the Constitution substantially diluted the intended effect of s 19 of the Act, which was to regulate the sale and possession of fauna – the definition of which encompassed their skins – for the purpose of protecting and preserving them.