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The Corporations and Races Powers

Published online by Cambridge University Press:  24 January 2025

G J Lindell
G J Lindell*
Affiliation:
Faculty of Law, Australian National University
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Extract

The legislation enacted to prevent the construction of the Franklin Dam relied on a number of federal legislative powers which included the corporations power and the races power in ss 51(xx) and 51(xxvi) of the Constitution respectively. In contrast to most of the other sections in the Constitution which confer legislative power on the Commonwealth Parliament those sections refer to persons or institutions. In a well-known passage in Stenhouse v Coleman, Dixon J (as he was then) said:

In most of the paragraphs of s.51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object.

Type
Research Article
Information
Federal Law Review , Volume 14 , Issue 3 , March 1984 , pp. 219 - 252
Copyright
Copyright © 1984 The Australian National University

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References

1 (1944) 69 CLR 457, 471.

2 (1971) 124 CLR 468, 507-508. See also Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 40 ALR 609, 644 per Brennan J.

3 (1920) 28 CLR 129. See eg Commonwealth v Tasmania (1983) 46 ALR 625, 710 per Mason J.

4 See eg Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 40 ALR 609, 616 per Gibbs CJ.

5 (1983) 46 ALR 625.

6 Strickland v Roela Concrete Pipes Ltd (1971) 124 CLR 468.

7 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 40 ALR 609.

8 R v Judges of the Australian Industrial Court; ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235; Fencott v Muller (1983) 46 ALR 41.

9 See generally Zines, L, The High Court and the Constitution (1981) Ch 4, 37-58.Google Scholar

10 Airlines of New South Wales Pty Ltd v New South Wales (1965) 113 CLR 54.

11 (1982) 40 ALR 609.

12 Ibid 616.

13 Ibid 637 per Mason J; 640-641 per Murphy J.

14 lbid 647, 649.

15 Below 236.

16 Counsel for Tasmania apparently conceded that the power extended to the regulation of acts undertaken by trading corporations for the purpose of engaging in their trading activities: (1983) 46 ALR 710.

17 Ibid 717 per Mason J; 740 per Murphy J; 790 per Brennan J; 834 per Deane J.

18 Ibid 685.

19 Coper, M, The Franklin Dam Case (1983) 13.CrossRefGoogle Scholar

20 (1983) 46 ALR 625, 712-714 per Mason J; 736 per Murphy J; 789-790 per Brennan J; 814-815 per Deane J.

21 Eg the power to make laws with respect to television services under s 51(v) of the Constitution: Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418; the power to make laws with respect to overseas trade under s 51(i) of the Constitution: Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 Cf the defence power ins 51(vi) and some aspects of the external affairs power in s 51(xxix) which are taken as being purposive in nature. Also see generally, Zines, L, The High Court and the Constitution (1981) 21-29.Google Scholar

22 Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 79-80.

23 It may well be that the doing of any act by a trading corporation will be treated as coming within the subject matter of the power since Mason, Murphy and Deane JJ upheld the validity of a law to deal with any activity of a trading corporation.

24 Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 40 ALR 609, 617.

25 (1983) 46 ALR 625, 755-756 per Wilson J; 851-854 per Dawson J.

26 lbid 756 per Wilson J; 853 per Dawson J.

27 Eg Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194; Fencott v Muller (1983) 46 ALR 41.

28 (1966) 115 CLR 418.

29 Ibid 434.

30 It is suggested later in this paper that the power to make laws with respect to foreign corporations is likely to be the same, if not greater, than the power with respect to trading corporations: below, 232.

31 (1954) 92 CLR 565; (1956) 94 CLR 367.

32 (1955) 93 CLR 55, 77 per Dixon CJ, McTiernan, Webb and Kitto JJ.

33 Zines, L, The High Court and the Constitution (1981) 69.Google Scholar

34 See the analysis of Fullagar J with whom Dixon CJ and Kitto J concurred: (1955) 93 CLR 565, 595-598.

35 The problem was discussed but not finally resolved in Swift Australia Co (Pty) Ltd v Boyd Parkinson (1962) 108 CLR 189.

36 Above 223.

37 (1909) 8 CLR 330, 348.

38 (1971) 124 CLR 468, 489-490.

39 (1983) 46 ALR 625, 684 per Gibbs CJ; 756 per Wilson J; 852 per Dawson J.

40 Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 40 ALR 609, 616.

41 (1971) 124 CLR 468, 502-503.

42 Ibid 516.

43 (1983) 46 ALR 625, 852.

44 Ibid.

45 (1909) 8 CLR 330, 409.

46 (1983) 46 ALR 625, 711-712 per Mason J: 736 per Murphy J.

47 (1971) 124 CLR 468, 489.

48 (1983) 46 ALR 625, 816.

49 Ibid 711.

50 Ibid.

51 Ibid 710.

52 Ibid 736.

53 Fencott v Muller (1983) 46 ALR 41.

54 J, Mason seemed to envisage the power to control borrowing: (1983) 46 ALR 625, 710.Google Scholar

55 Above 226.

56 Section 10(2).

57 Strickland v Rocla Concrete Pipes (1971) 124 CLR 468, 490.

58 Eg R v Trade Practices Tribunal; ex parte St George County Council (1974) 130 CLR 533, 565 per Gibbs J; the Franklin Dam case (1983) 46 ALR 625, 710 per Mason J.

59 (1983) 46 ALR 625, 711.

60 Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 40 ALR 609, 616.

61 (1971) 124 CLR 468, 489.

62 (1962) 107 CLR 46, 63, 68. The approach of Windeyer Jin the same case may even be wider, 69-70. The reasoning of the other judges in the case does not bear on the issue discussed in the text.

63 (1981) 38 ALR 25.

64 Ibid 30 per Gibbs CJ; 35-36 per Stephen J. See in particular the hypothetical example given by Stephen J of a State tax which discriminates against marriage certificates in relation to the use of the marriage power ins 51(xxi).

65 Ibid 47.

66 See L Zines, below 275.

67 (1981) 38 ALR 25, 32.

68 The discussion in the text assumes that the power to make laws with respect to taxation under s 51(ii) could not be used to exclude the operation of the State tax. Recently, and rather surprisingly in the light of the Second Uniform Tax case (1957) 99 CLR 575, Mason and Murphy JJ suggested in Hematite Petroleum Pty Ltd v Victoria (1983) 47 ALR 641, 660, 664-665, 666 that the tax power and s 109 could be used to exclude a State tax: see also Gibbs CJ but he did not expressly refer to the tax power: ibid 649. It would seem unsafe to assume that the Court will depart from the assumption stated earlier until more is said about the issue.

69 (1947) 74 CLR 421, 455.

70 References mentioned in Zines, L and Lindell, G J (eds) Sawer's Australian Constitutional Cases (4th ed 1982) 436Google Scholar especially Rose in regard to the significance of the view stated in the text in relation to s 51(xx).

71 (1983) 46 ALR 625, 715 per Mason J; 738 per Murphy J; 796 per Brennan J; Deane J was able to conclude that the prohibition did not apply because the Act was not a “law or regulation of trade or commerce” without relying on Morgan's case and he left the correctness of that case open: 799.

72 Lane, P, The Australian Federal System (2nd ed 1979) 109 n 76; 174 n 96.Google Scholar

73 (1983) 46 ALR 625, 756.

74 Eg Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 40 ALR 609, 636.

75 Above 223.

76 (1983) 46 ALR 625, 684 per Gibbs CJ; 716-717 per Mason J.

77 Ibid 682.

78 Ibid 682-683.

79 (1974) 130 CLR 533.

80 Menzies and Gibbs JJ held that the St George Council was not a trading corporation within the meaning of s 51(xx) of the Constitution with Barwick CJ and Stephen J dissenting. McTiernan J appeared to decide that the Council was not a trading corporation within the meaning of the legislation in issue because the legislation was not intended to apply to public authorities. There was much to be said for the view that the Council was a trading corporation according to both the purposive and activities tests.

81 (1979) 23 ALR 439. It was held in this case that the WA National Football League was a trading corporation per Barwick CJ, Mason, Jacobs and Murphy JJ; Gibbs, Stephen and Aickin JJ dissenting.

82 Ibid 472 per Mason J. Jacobs J agreed fully with the judgment of Mason J.

83 Ibid 452 per Barwick CJ. Murphy J would have treated a corporation as a trading corporation as long as its trading was “not insubstantial”; ibid 477. Subsequently it was said that if there was any “difference in the comments made by the majority in Adamson it is one of emphasis only”: State Superannuation Board v Trade Practices Commission (1982) 44 ALR I, 15 per Mason, Murphy and Deane JJ.

84 (1983) 46 ALR 41.

85 Mason, Murphy, Brennan and Deane JJ were in the majority and Gibbs CJ and Wilson J dissented.

86 (1982) 44 ALR 1.

87 Ibid 16. Mason, Murphy and Deane JJ were in the majority and Gibbs CJ and Wilson J dissented.

88 Ibid 10.

89 (1983) 46 ALR 625, 716-717 per Mason J; 736 per Murphy J; 789 per Brennan J; 833- 834 per Deane J. Brennan J had taken the same view as the judge at first instance in the State Superannuation Board case (1982) 44 ALR 1.

90 (1983) 46 ALR 625, 717.

91 Ibid 833-834.

92 Ibid 683 and generally 678-684.

93 Ibid 683-684.

94 Ibid 759 (answer to Question (5)) per Wilson J; 854 per Dawson J.

95 And also, as Mr Coper points out, as long as all seven judges sit on a particular case: Coper, M, The Franklin Dam Case (1983) 15.CrossRefGoogle Scholar

96 Eg Queensland v Commonwealth (1977) 139 CLR 585, 598-601.

97 Dr C Saunders, The Australian 2-3 July, 1983, 9.

98 Notwithstanding the assertion by Lord Coke that the Sovereign was a corporation sole: The Case of Sutton's Hospital (1613) 10 Co Rep 23a, 29b and see also Halsbury's Laws of England (4th ed) ix, 720, para 1207 n 3. Professor Maitland argued against the assertion in “The Crown as Corporation” (1901) 17 LQR 131; see also Moore, H, “The Crown As Corporation” (1904) 20 LQR 351Google Scholar; Stoljar, S, Groups and Entities: An Inquiry into Corporate Theory (1973), 147-148Google Scholar. Possibly the meaning of “body corporate” in the definition of “person” ins 2(1) of the Interpretation Act 1889 (Imp) may throw some light on the problem: see Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667, 675, 695; Commissioner for Government Transport v Cumley [1964-1965] NSWR 1564, 1567 and cf Shepherd v New South Wales (1957) 97 CLR 673.

99 (1979) 23 ALR 439, 472-473 per Mason J: 477 per Murphy J.

100 Even though only Mason J expressly adverts to the incorrectness of the St George County Council case in the Franklin Dam case (1983) 46 ALR 625,716. The fact that the St George County Council would be a trading corporation within the meaning of s 51(xx) does not necessarily mean that it was such a corporation within the meaning of the legislation under consideration in the case.

101 (1909) 8 CLR 330, 393.

102 Eg Mason J in R v Adamson; ex parte WA National Football Leage (Inc) (1979) 23 ALR 439, 473.

103 Eg Barwick CJ in Strickland v Roela Concrete Pipes (1971) 124 CLR 468, 489; Bank of New South Wales v Commonwealth (1948) 76 CLR I, 381-383 per Dixon J.

104 Constitution Alteration (Aboriginals) 1967 (Cth).

105 Arguments for and against the Proposed Alterations together with a statement showing the Proposed Alterations, 13.

106 (1982) 56 ALJR 625.

107 Gibbs CJ, Stephen, Aickin, Wilson and Brennan JJ held that ss 9 and 12 of the Racial Discrimination Act 1975 (Cth) were not valid as an exercise of the races power. Murphy J was of the contrary opinion even though it was unnecessary to deal with the issue given the availability of the external affairs power to sustain the same provisions. Mason J did not deal with the races power and the relevant provisions were held valid as an exercise of the power ins 51(xxix).

108 (1982) 56 ALJR 625, 642-643 per Stephen J. Cf Brennan J in the Franklin Dam case who implied that racial discrimination was not shown to be “peculiarly a practice affecting Aborigines” (1983) 46 ALR 625, 793.

109 (1982) 56 ALJR 625, 632.

110 Ibid 642. See also Wilson J: ibid 657.

111 Ibid 632.

112 Ibid 642.

113 (1971) 124 CLR 468, 491-499. See also Jin, Wilson the Koowarta Case (1982) 56 ALJR 625, 657-658.Google Scholar

114 (1982) 56 ALJR 625, 631-632 per Gibbs CJ; 642 per Stephen J; 657 per Wilson J.

115 Ibid 656 Brennan J did not express a view on this issue.

116 Ibid 657 per Wilson J.

117 (1983) 46 ALR 625, 794. See also 720 per Mason J; 738 per Murphy J; 818 per Deane J.

118 Ibid 792-793.

119 Ibid 819-820. See also 718-719 per Mason J; 737 per Murphy J.

120 Ibid 757. See also 678 per Gibbs CJ; 856-857 per Dawson J.

121 Ibid 719 per Mason J. See also 818 per Deane J.

122 “Two Hundred Years Later ... “ – Report by the Senate Committee on Constitutional and Legal Affairs on the feasibility of a compact, or 'Makarrata', between the Commonwealth and Aboriginal people. Parl. P no. 107/1983, 92.

123 Ibid.

124 (1983) 46 ALR 625, 677.

125 Ibid 737.

126 Ibid 791.

127 Ibid 794.

128 Ibid 791.

129 Ibid 718-719 per Mason J (regulation and control if people of any race constitute a “threat or problem”); 817 per Deane J (power remains a general power to pass laws discriminating against or benefiting the people of any race with the power including a power to make laws benefiting the people of the Aboriginal race since 1967).

130 (1951) 83 CLR 1, 258.

131 Williamson v Ah On (1926) 39 CLR 95. See also Milicevic v Campbell (1975) 132 CLR 307.

132 (1983) 46 ALR 625, 718.

133 Quoted earlier above 244.

134 Italics added. It was numbered s 53(1) of Chapter l: National Australasian Convention Debates, Sydney (1891) 953.

135 See Sawer, G, “The Constitution and the Aborigine” (1966) 2 FL Rev 17, 18-19, 23Google Scholar. Possibly the court might now have resort to the Convention Debates as a means of ascertaining the actual reason for the deletion of the italicised words: Re Pearson; ex parte Sipka (1983) 57 ALJR 225, 227 per Gibbs CJ, Mason and Wilson JJ. However a perusal of those debates only suggests that the italicised words were deleted for mere drafting reasons. The changes seem to have been incorporated in amendments made by the Drafting Committee which were agreed to without discussion in the final session of the Convention: National Australasian Convention Debates, Melbourne (1898) Vol 2 1820, 2450. Isaacs had earlier complained that he was unable to understand the meaning of the term “general community”: 227, 253. Barton conceded that there was some doubt regarding that expression: 228.

136 G Rumble, Supplementary Submission to the Senate Standing Committee on Constitutional and Legal Affairs inquiry into the reference mentioned above n 122, 6-7. The writer wishes to acknowledge generally the assistance he derived from reading the same supple-mentary and original submissions both of which were prepared before the Franklin Dam case.

137 (1983) 46 ALR 625, 677 per Gibbs CJ; 756 per Wilson J; 855 per Dawson J. The latter member of the Court expressly relied on the Communist Party case (1951) 83 CLR 1.

138 (1983) 46 ALR 625, 719-720 per Mason J; 819-820 per Deane J.

139 Ibid 737.

140 Ibid 817.