Section 51(xx) of The Constitution of Australia - Corporations Subject To The Power

Corporations Subject To The Power

The Incorporation Case 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".

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. 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, 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 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