Section 51(xx) of The Constitution of Australia - Jurisprudence To 1971

Jurisprudence To 1971

After the High Court's 1909 decision in Huddart, Parker & Co Pty Ltd v Moorehead, 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 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd. 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
• 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

It was not until Huddart Parker was overruled in Strickland v Rocla Concrete Pipes Ltd 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 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".