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{{Unreferenced|date=September 2010}}
{{Use Australian English|date=November 2017}}
{{Use dmy dates|date=November 2017}}
'''Section 51(xx) of the Australian Constitution''', is a subsection of [[Section 51 of the Australian Constitution|Section 51]] of the [[Australian Constitution]] that gives the [[Parliament of Australia|Commonwealth Parliament]] the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This power has become known as "the corporations power".
'''Section 51(xx) of the Australian Constitution''' is a subsection of [[Section 51 of the Australian Constitution]] that gives the [[Parliament of Australia|Commonwealth Parliament]] the power to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This power has become known as "the corporations power", the extent of which has been the subject of numerous judicial cases.


==Early approaches to 1971==
==Jurisprudence to 1971==
⚫
After the [[High Court of Australia|High Court]]'s decision in ''[[Huddart, Parker & Co Ltd v Moorehead]]'' (1909),<ref name="Huddart">{{Cite AustLII|litigants=Huddart, Parker & Co Ltd v Moorehead|link=Huddart, Parker & Co Ltd v Moorehead|source=HCA|num=36|year=1909|pinpoint=|parallelcite=(1909) 8 CLR 330|date=7 June 1909|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> the "corporations" power was largely ignored as a basis for Commonwealth legislation. The majority judges agreed in this case that the power should be construed narrowly, though they were unable to agree on any appropriate interpretation. Their approach reflected the perceived need to protect [[Reserved State powers|"the reserved powers of the States"]], an idea abandoned in 1920 as a result of the ''[[Amalgamated Society of Engineers v Adelaide Steamship Co Ltd|Engineer' case]]''.<ref name="Engineers' case">{{Cite AustLII|litigants=Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers' case) |link=Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. |year=1920 |court=HCA |num=54 |parallelcite=(1920) 28 [[Commonwealth Law Reports|CLR]] 129}}.</ref> [[Isaac Isaacs|Justice Issacs]] dissent in ''Huddart, Parker & Co.'' gave a broad meaning to s 51(xx) but attempted to set limits to the power, in particular pointing out:

⚫
After the [[High Court of Australia|High Court]]'s 1909 decision in ''Huddart, Parker & Co Pty Ltd v Moorehead'',<ref>{{Cite Case AU|litigants=Huddart, Parker & Co Pty Ltd v Moorehead|link=|source=HCA|num=36|year=1909|pinpoint=|parallelcite=(1909) 8 CLR 330|date=7 June 1909|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> the "corporations" power was largely ignored as a basis for Commonwealth legislation. The majority judges agreed in this case that the power should be construed narrowly, though they were unable to agree on any appropriate interpretation. Their approach reflected the perceived need to protect [[Reserved State powers|"the reserved powers of the States"]], an idea abandoned in 1920 as a result of ''[[Amalgamated Society of Engineers v Adelaide Steamship Co Ltd]]''. [[Isaac Isaacs|Justice Issacs]], in dissent, gave a broad meaning to s 51(xx) but attempted to set limits to the power, in particular pointing out:


:* it is exerciseable wherever these specific objects are found, irrespective of whether they are engaged in foreign or interstate commerce, or commerce confined to a single State
:* it is exerciseable wherever these specific objects are found, irrespective of whether they are engaged in foreign or interstate commerce, or commerce confined to a single State
Line 10: Line 10:
:* it is not a power to create or dissolve corporations
:* it is not a power to create or dissolve corporations
:* it is not restricted to internal company regulation
:* it is not restricted to internal company regulation
:* it is concerned with the regulation of the conduct of the corporations in their transactions with, or as affecting, the public
:* it is concerned with the regulation of the conduct of the corporations in their transactions with, or as affecting, the public<ref name="Huddart"/>


It was not until ''Huddart Parker'' was overruled in ''[[Strickland v Rocla Concrete Pipes Ltd]]''<ref>{{Cite Case AU|litigants=Strickland v Rocla Concrete Pipes Ltd ("Concrete Pipes case")|link=Strickland v Rocla Concrete Pipes Ltd|source=HCA|num=40|year=1971|pinpoint=|parallelcite=(1971) 124 CLR 468|date=3 September 1971|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> that the modern development of the power began. The leading judgment was delivered by [[Garfield Barwick|Chief Justice Barwick]]. He refused to define the scope of the corporations power, stating instead, "the decision as to the validity of particular laws yet to be enacted must remain for the Court when called upon to pass upon them". The ''Concrete Pipes Case'' gave a clear indication that the Commonwealth could enact trade practices legislation by relying chiefly upon s 51(xx).
It was not until 1971, when ''Huddart, Parker & Co.'' was overruled in ''[[Strickland v Rocla Concrete Pipes Ltd]]'',<ref>{{Cite AustLII|litigants=Strickland v Rocla Concrete Pipes Ltd ("Concrete Pipes case")|link=Strickland v Rocla Concrete Pipes Ltd|source=HCA|num=40|year=1971|pinpoint=|parallelcite=(1971) 124 CLR 468|date=3 September 1971|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> that the modern development of the power began. In that case, the leading judgment was delivered by [[Garfield Barwick|Chief Justice Barwick]], who, although agreeing that Isaacs' dissent in ''Huddart, Parker & Co.'' conformed to the reasoning in ''Engineers'', refused to define the scope of the corporations power. He stated instead that "the decision as to the validity of particular laws yet to be enacted must remain for the Court when called upon to pass upon them".


==Corporations subject to the power==
The course of High Court decision-making on s 51(xx) since the ''Concrete Pipes Case'' has been mostly confined to particular issues and has proceeded on the case-by-case basis foreshadowed by Barwick.
The High Court in ''[[New South Wales v Commonwealth (1990)]]'' (the Incorporation Case)<ref>{{Cite AustLII|litigants=NSW v Commonwealth (the Incorporations case)|link=New South Wales v Commonwealth (1990)|source=HCA|num=2|year=1990|pinpoint=|parallelcite=(1990) 169 CLR 482|date=8 February 1990|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> confirmed that the ambit of the corporations power extends only to corporations that have already been formed, and, therefore, it does not include the power to incorporate them. It extends only to domestic corporations of a trading or financial character, and to all corporations formed outside Australia, and they are collectively referred to as "constitutional corporations".<ref name = "OrgCC">{{Cite web|title = Is your organisation a Constitutional Corporation?|url = https://wiki.qut.edu.au/download/attachments/5250979/Static+copy+of+checklist+-+Jobs+Australia.pdf?version=1&modificationDate=1190858489000|access-date=25 September 2012}}</ref>


⚫
In most of the early cases, the question of what aspects or activities of a corporation can be regulated under s 51(xx) was not directly addressed. Some incidental points were clarified in ''R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd''.<ref>{{Cite AustLII|litigants=R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd|link=|source=HCA|num=6|year=1977|pinpoint=|parallelcite=(1977) 136 CLR 235|date=10 February 1977|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> That case established that, where the activities of a s 51(xx) corporation were validly regulated, the conduct of individual persons taking part in those activities, such as company directors, could incidentally be regulated as well.
⚫
==Trading and financial corporations==


⚫
In ''Actors and Announcers Equity Association v Fontana Films Pty Ltd'',<ref>{{Cite AustLII|litigants=Actors & Announcers Equity Association v Fontana Films Pty Ltd|link=|source=HCA|num=23|year=1982|pinpoint=|parallelcite=(1982) 150 CLR 169|date=11 May 1982|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> the Court still did not deal directly with the regulation of a corporation's activities. The whole Court upheld a section that protected a corporation against a [[secondary boycott]]. The legislative purpose thus upheld was ''protection'' of corporations rather than ''regulation'' of them. The case also provided an opportunity for extensive discussion of how far the "corporations" power might extend.
The first issue to be addressed after the ''Concrete Pipes Case'' was the meaning of "trading or financial corporations". The characteristics of the term have been the focus of much attention and debate.


⚫
''[[New South Wales v Commonwealth (2006)|The WorkChoices case]]'' provides the current definition for the extent of the corporations power, as noted in its majority opinion:
In 1974, the crucial issue in ''R v Trade Practices Tribunal; Ex parte St George County Council ''<ref>{{Cite Case AU|litigants=R v Trade Practices Tribunal; Ex parte St George County Council|link=|source=HCA|num=7|year=1974|pinpoint=|parallelcite=(1974) 130 CLR 533|date=4 March 1974|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> was whether an organisation's characterisation as a corporation was to be assessed by reference to the "original purposes" for which the Council was incorporated, or by reference to its "current activities". In this case, the majority preferred the "purposes" test.

Five years later in 1979, however, the High Court went the opposite way in ''R v Federal Court of Australia; Ex parte WA National Football League ("Adamson's case")''.<ref>{{Cite Case AU|litigants=R v Federal Court of Australia; Ex parte WA National Football League ("Western Australia Football case")|link=|source=HCA|num=6|year=1979|pinpoint=|parallelcite=(1979) 143 CLR 190|date=27 February 1979|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> Chief Justice [[Garfield Barwick|Barwick]], and justices [[Anthony Mason (judge)|Mason]], [[Lionel Murphy|Murphy]] and [[Kenneth Jacobs|Jacobs]] all applied an "activities" test - although Justice Murphy asserted that a corporation will fall within s 51(xx) if either test applies. Although the majority judgments did not explicitly overrule ''St George County Council'', they may now be taken to have done so. While ''Adamson's case'' established the activities case, it did not settle whether the activities of a corporation need to be its "predominant" activities in order for it to wear the character of a trading corporation, or if a "substantial part" was all that was required.

The characteristics of a "financial corporation" were approached in ''State Superannuation Board of Victoria v Trade Practices Commission''<ref>{{Cite Case AU|litigants=State Superannuation Board v Trade Practices Commission|link=|source=HCA|num=72|year=1982|pinpoint=|parallelcite=(1982) 150 CLR 282|date=14 December 1982|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> by justices Mason, Murphy and Deane in much the same way as ''Adamson's case'' approached "trading corporations": that is, a corporation is a "financial" corporation if it engages in financial activities. ''State Superannuation Board'' is significant because the majority held that, in order for a corporation to be a "financial corporation", its financial activities need not be its predominant activities, but need only form a substantial proportion of its total activities. The majority justices, however, did not entirely exclude the "purposes" test.

The case of a [[shelf company]] with no current activities was considered in ''Fencott v Muller''.<ref>{{Cite Case AU|litigants=Fencott v Muller ("O'Connors Winebar case")|link=|source=HCA|num=12|year=1983|pinpoint=|parallelcite=(1983) 152 CLR 570|date=28 April 1983|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> Justices Mason, Murphy, Brennan and Deane, who had hiterto favoured the "activities" test, now held that it was a "trading or financial corporation" by applying the "purposes" test. They argued that in the absence of any current activities, the character of the corporation should be determined by the purposes for which it was created.

==Regulating the activities of corporations==

⚫
In most of the early cases, the question of what aspects or activities of a corporation can be regulated under s 51(xx) was not directly addressed. Some incidental points were clarified in ''R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd''.<ref>{{Cite Case AU|litigants=R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd|link=|source=HCA|num=6|year=1977|pinpoint=|parallelcite=(1977) 136 CLR 235|date=10 February 1977|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> That case established that, where the activities of a s 51(xx) corporation were validly regulated, the conduct of individual persons taking part in those activities, such as company directors, could incidentally be regulated as well.

⚫
In ''Actors and Announcers Equity Association v Fontana Films Pty Ltd'',<ref>{{Cite Case AU|litigants=Actors & Announcers Equity Association v Fontana Films Pty Ltd|link=|source=HCA|num=23|year=1982|pinpoint=|parallelcite=(1982) 150 CLR 169|date=11 May 1982|courtname=[[High Court of Australia|High Court]]|juris=}}</ref> the Court still did not deal directly with the regulation of a corporation's activities. The whole Court upheld a section which protected a corporation against a [[secondary boycott]]. The legislative purpose thus upheld was ''protection'' of corporations rather than ''regulation'' of them. The case also provided an opportunity for extensive discussion of how far the "corporations" power might extend.

⚫
''[[New South Wales v Commonwealth (2006)|New South Wales v Commonwealth]]'' provides the current definition for the extent of the corporations power, as noted in its majority opinion:


:* the regulation of the activities, functions, relationships and the business of the specified types of corporation
:* the regulation of the activities, functions, relationships and the business of the specified types of corporation
Line 40: Line 27:
:* the imposition of obligations on it
:* the imposition of obligations on it
:* the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business
:* the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business
:* including laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations<ref>{{Cite Case AU|litigants=New South Wales v Commonwealth|link=New South Wales v Commonwealth (2006)|source=HCA|num=52|year=2006|pinpoint=par. 178|parallelcite=81 ALJR 34; 231 ALR 1|date=14 November 2006|courtname=[[High Court of Australia|High Court]]|juris=}}</ref>
:* including laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations<ref name="WorkChoices">{{Cite AustLII|litigants=NSW v Commonwealth (the WorkChoices case)|link=New South Wales v Commonwealth (2006)|source=HCA|num=52|year=2006|pinpoint=par. 178|parallelcite=81 ALJR 34; 231 ALR 1|date=14 November 2006|courtname=[[High Court of Australia|High Court]]|juris=}}</ref>

⚫
==Characteristics of trading and financial corporations==

Whether a corporation falls within the group of "trading or financial corporations" has been the focus of much attention and debate. The dominant issues revolve around the type of corporation and the nature of the activities that characterise it as falling within s. 51(xx). In that regard:

:* A constitutional corporation can be a "trading corporation" and a "financial corporation" at the same time
:* A "trading corporation" is one where trading is a substantial or significant part of its activities, and that determination is irrespective of the purpose for which the corporation formed (''Quickenden v O'Connor'')<ref>{{harvnb|Dixon|2005|p=9}}</ref><ref>{{Cite AustLII|litigants=Quickenden v Commissioner O'Connor of the Australian Industrial Relations Commission|link=|source=FCA|num=303|year=2001|pinpoint=|parallelcite=|date=23 March 2001|courtname=[[Federal Court of Australia|Federal Court]]|juris=}}</ref>
::* A trading corporation can be found to exist on the basis of the nature of its established activities (the "activities test"), or with respect to the objects for which it was incorporated (the "purpose test")<ref>{{harvnb|Dixon|2005|p=8}}</ref>
::* "Trading activities" are those that involve some form of buying and selling, and generate revenue, regardless of whether carried out at a profit (''R v Federal Court of Australia; Ex parte WA National Football League ("Adamson's case")'')<ref name = "OrgCC" /><ref>{{harvnb|Dixon|2005|p=16}}</ref><ref>{{Cite AustLII|litigants=R v Federal Court of Australia; Ex parte WA National Football League ("Western Australia Football case")|link=|source=HCA|num=6|year=1979|pinpoint=|parallelcite=(1979) 143 CLR 190|date=27 February 1979|courtname=[[High Court of Australia|High Court]]|juris=}}</ref>
::* The type of ownership is not material{{emdash}}a State corporation established to generate electricity has been held to be subject to regulation (''[[Commonwealth v Tasmania|Tasmanian Dam case]]'')<ref>{{Cite AustLII|litigants=Commonwealth v Tasmania ("Tasmanian Dam case")|link=Commonwealth v Tasmania|source=HCA|num=21|year=1983|pinpoint=|parallelcite=(1983) 158 CLR 1|date=1 July 1983|courtname=[[High Court of Australia|High Court]]|juris=}}</ref>
::* Where a corporation has not yet commenced trading (i.e., a [[shelf company]]), it can still be subject to regulation based on its objects of incorporation (''Fencott v Muller'')<ref>{{harvnb|Dixon|2005|p=13}}</ref><ref>{{Cite AustLII|litigants=Fencott v Muller ("O'Connors Winebar case")|link=|source=HCA|num=12|year=1983|pinpoint=|parallelcite=(1983) 152 CLR 570|date=28 April 1983|courtname=[[High Court of Australia|High Court]]|juris=}}</ref>
::* however, the High Court, in a controversial ruling, has held that a municipal corporation was to be distinguished from a trading corporation, notwithstanding the fact that it carried out trading activities (''R v Trade Practices Tribunal; Ex parte St George County Council '')<ref>{{harvnb|Dixon|2005|pp=12{{endash}}13}}</ref><ref>{{Cite AustLII|litigants=R v Trade Practices Tribunal; Ex parte St George County Council|link=|source=HCA|num=7|year=1974|pinpoint=|parallelcite=(1974) 130 CLR 533|date=4 March 1974|courtname=[[High Court of Australia|High Court]]|juris=}}</ref>
:* A "financial corporation" is one that engages in substantial financial activities or intends to do so, but it is not necessary for such activities to be predominant or characteristic of it{{emdash}}however, a corporation that carries on substantial financial activities in the course of carrying on its primary business will be classified as a financial corporation (''State Superannuation Board of Victoria v Trade Practices Commission'')<ref>{{harvnb|Dixon|2005|p=10}}</ref><ref>{{Cite AustLII|litigants=State Superannuation Board v Trade Practices Commission|link=|source=HCA|num=72|year=1982|pinpoint=|parallelcite=(1982) 150 CLR 282|date=14 December 1982|courtname=[[High Court of Australia|High Court]]|juris=}}</ref>


==See also==
==See also==
{{Category see also|Corporations power in the Australian Constitution cases}}
{{Category see also|Corporations power in the Australian Constitution cases}}


* ''[[Workplace Relations Act 1996]]''
* [[WorkChoices]]
* [[Workplace Relations Act 1996]]
* [[Australian industrial relations legislation, 2005]]


==References==
==References==
{{reflist}}
{{reflist}}

==Further reading==

* {{cite journal |last1= Carney|first1= Gerard|year= 1990|title= Section 51 (xx): No Power of Incorporation|journal= Bond Law Review|volume= 2|issue= 1|pages= 79{{endash}}89|publisher= [[Bond University]]|doi= 10.53300/001c.5200|url= http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1021&context=blr|access-date=25 September 2012|doi-access= free}}
* {{Cite web|last1= Dixon|first1= Tom|title = 51 (xx) - The ambit of the Corporations Power|url = http://www.statechambers.net/pics/COLLEGEOFLAWSEMINAR-TDIXON.pdf|publisher = State Chambers|date = 12 October 2005|access-date=25 September 2012}}
* {{cite journal |last1= Ford |first1= W.J. |year= 2005 |title= Politics, the Constitution and Australian Industrial Relations: Pursuing a unified national system |journal=Comprehensive Labor Law and Policy Journal |volume= 26 |issue= 2 |pages=161–180 |publisher=[[University of Illinois]] |url=http://www.law.illinois.edu/publications/cllpj/archive/vol_26/issue_2/fordarticle26-2.pdf |access-date=25 September 2012}}


{{Business in Australia}}
{{Business in Australia}}

Revision as of 03:55, 26 August 2024

Section 51(xx) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the power to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This power has become known as "the corporations power", the extent of which has been the subject of numerous judicial cases.

Jurisprudence to 1971

After the High Court's decision in Huddart, Parker & Co Ltd v Moorehead (1909),[1] the "corporations" power was largely ignored as a basis for Commonwealth legislation. The majority judges agreed in this case that the power should be construed narrowly, though they were unable to agree on any appropriate interpretation. Their approach reflected the perceived need to protect "the reserved powers of the States", an idea abandoned in 1920 as a result of the Engineer' case.[2] Justice Issacs dissent in Huddart, Parker & Co. gave a broad meaning to s 51(xx) but attempted to set limits to the power, in particular pointing out:

  • it is exerciseable wherever these specific objects are found, irrespective of whether they are engaged in foreign or interstate commerce, or commerce confined to a single State
  • the power is to operate only on corporations of a certain kind, namely, foreign, trading, and financial corporations
  • it is not a power to create or dissolve corporations
  • it is not restricted to internal company regulation
  • it is concerned with the regulation of the conduct of the corporations in their transactions with, or as affecting, the public[1]

It was not until 1971, when Huddart, Parker & Co. was overruled in Strickland v Rocla Concrete Pipes Ltd,[3] that the modern development of the power began. In that case, the leading judgment was delivered by Chief Justice Barwick, who, although agreeing that Isaacs' dissent in Huddart, Parker & Co. conformed to the reasoning in Engineers, refused to define the scope of the corporations power. He stated instead that "the decision as to the validity of particular laws yet to be enacted must remain for the Court when called upon to pass upon them".

Corporations subject to the power

The High Court in New South Wales v Commonwealth (1990) (the Incorporation Case)[4] confirmed that the ambit of the corporations power extends only to corporations that have already been formed, and, therefore, it does not include the power to incorporate them. It extends only to domestic corporations of a trading or financial character, and to all corporations formed outside Australia, and they are collectively referred to as "constitutional corporations".[5]

In most of the early cases, the question of what aspects or activities of a corporation can be regulated under s 51(xx) was not directly addressed. Some incidental points were clarified in R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd.[6] That case established that, where the activities of a s 51(xx) corporation were validly regulated, the conduct of individual persons taking part in those activities, such as company directors, could incidentally be regulated as well.

In Actors and Announcers Equity Association v Fontana Films Pty Ltd,[7] the Court still did not deal directly with the regulation of a corporation's activities. The whole Court upheld a section that protected a corporation against a secondary boycott. The legislative purpose thus upheld was protection of corporations rather than regulation of them. The case also provided an opportunity for extensive discussion of how far the "corporations" power might extend.

The WorkChoices case provides the current definition for the extent of the corporations power, as noted in its majority opinion:

  • the regulation of the activities, functions, relationships and the business of the specified types of corporation
  • the creation of rights, and privileges belonging to such a corporation
  • the imposition of obligations on it
  • the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business
  • including laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations[8]

Characteristics of trading and financial corporations

Whether a corporation falls within the group of "trading or financial corporations" has been the focus of much attention and debate. The dominant issues revolve around the type of corporation and the nature of the activities that characterise it as falling within s. 51(xx). In that regard:

  • A constitutional corporation can be a "trading corporation" and a "financial corporation" at the same time
  • A "trading corporation" is one where trading is a substantial or significant part of its activities, and that determination is irrespective of the purpose for which the corporation formed (Quickenden v O'Connor)[9][10]
  • A trading corporation can be found to exist on the basis of the nature of its established activities (the "activities test"), or with respect to the objects for which it was incorporated (the "purpose test")[11]
  • "Trading activities" are those that involve some form of buying and selling, and generate revenue, regardless of whether carried out at a profit (R v Federal Court of Australia; Ex parte WA National Football League ("Adamson's case"))[5][12][13]
  • The type of ownership is not material—a State corporation established to generate electricity has been held to be subject to regulation (Tasmanian Dam case)[14]
  • Where a corporation has not yet commenced trading (i.e., a shelf company), it can still be subject to regulation based on its objects of incorporation (Fencott v Muller)[15][16]
  • however, the High Court, in a controversial ruling, has held that a municipal corporation was to be distinguished from a trading corporation, notwithstanding the fact that it carried out trading activities (R v Trade Practices Tribunal; Ex parte St George County Council )[17][18]
  • A "financial corporation" is one that engages in substantial financial activities or intends to do so, but it is not necessary for such activities to be predominant or characteristic of it—however, a corporation that carries on substantial financial activities in the course of carrying on its primary business will be classified as a financial corporation (State Superannuation Board of Victoria v Trade Practices Commission)[19][20]

See also

See also: Category:Corporations power in the Australian Constitution cases

References

  1. ^ a b Huddart, Parker & Co Ltd v Moorehead [1909] HCA 36, (1909) 8 CLR 330 (7 June 1909), High Court
  2. ^ Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers' case) [1920] HCA 54, (1920) 28 CLR 129.
  3. ^ Strickland v Rocla Concrete Pipes Ltd ("Concrete Pipes case") [1971] HCA 40, (1971) 124 CLR 468 (3 September 1971), High Court
  4. ^ NSW v Commonwealth (the Incorporations case) [1990] HCA 2, (1990) 169 CLR 482 (8 February 1990), High Court
  5. ^ a b "Is your organisation a Constitutional Corporation?" (PDF). Retrieved 25 September 2012.
  6. ^ R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6, (1977) 136 CLR 235 (10 February 1977), High Court
  7. ^ Actors & Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23, (1982) 150 CLR 169 (11 May 1982), High Court
  8. ^ NSW v Commonwealth (the WorkChoices case) [2006] HCA 52 at par. 178, 81 ALJR 34; 231 ALR 1 (14 November 2006), High Court
  9. ^ Dixon 2005, p. 9
  10. ^ Quickenden v Commissioner O'Connor of the Australian Industrial Relations Commission [2001] FCA 303 (23 March 2001), Federal Court
  11. ^ Dixon 2005, p. 8
  12. ^ Dixon 2005, p. 16
  13. ^ R v Federal Court of Australia; Ex parte WA National Football League ("Western Australia Football case") [1979] HCA 6, (1979) 143 CLR 190 (27 February 1979), High Court
  14. ^ Commonwealth v Tasmania ("Tasmanian Dam case") [1983] HCA 21, (1983) 158 CLR 1 (1 July 1983), High Court
  15. ^ Dixon 2005, p. 13
  16. ^ Fencott v Muller ("O'Connors Winebar case") [1983] HCA 12, (1983) 152 CLR 570 (28 April 1983), High Court
  17. ^ Dixon 2005, pp. 12–13
  18. ^ R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7, (1974) 130 CLR 533 (4 March 1974), High Court
  19. ^ Dixon 2005, p. 10
  20. ^ State Superannuation Board v Trade Practices Commission [1982] HCA 72, (1982) 150 CLR 282 (14 December 1982), High Court

Further reading

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