Crim tutorial week 3 Corporations power 51. the parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth What are corporations? Why is the regulation of corporations important? Politics of corporations power's scope? Trends in interpreting the corporations power? Two issues 1. Type of corporations: which corporations can be regulated? 2. Types of activities: which activities (by whom) can be regulated? Question 1 In Re Pacific Coal Pty Ltf: Ex parte construction, Forestry, mining and Energy Union 2tftftf, Gaudron J stated: I have no doubt that the power conferred by s 51 (xx) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub-section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, it employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business And her Honour further explained that the power: Extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations In a case note on New South Wales v Commonwealth (the WorkChoices Case) 2tftf6, Professor Tony blackshield observed: The real problem is not that the Pacific Coal dicta do not support the majority conclusion, they do. The problem is rather that the judgement assumes that because the words are applicable the words are authoritative, thus falling into the error of mechanically applying the words of a judgement as if they were the words of a statute. What is needed is some exposition of why, as a matter of principle, the view expressed by Gaudron J should be accepted as correct, and this the joint judgement fails to supply Does the majority of the High Court supply a reason why the Pacific Coal dictum should be accepted as correct?
What types of activities can be regulated - Interstate and intrastate activities (Strickland, overruling Huddart, Parker and Co) - Not the formal act of incorporation itself (incorporation case- but see Callinan J in WorkChoices) 'the power conferred by s 51 ffXX) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub- section, the creation of rights and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose confuct is or is capable of affecting its activities, functions, relationships, and business Gaudron J in Re Pacific Coal 2tftftf Where a constitutional corporation