suggested structure -

• introduction with brief summary of the evolution of the jurisprudence on the corporations power - Huddart Parker, Rockla Pipes case, then Tasmanian Dams and brief description of what the central issue contained in the question is.
• discuss reasoning of
• Commonwealth legislative power is limited to the heads of power enumerated in s 51

s 51xx: external affairs power

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:—

Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth

• definition of a ‘corporation’
• laws regulating the formation of a corporation are not supported by s 51(xx)

characterisation question - how must a law be formulated so it is one that is ‘with respect to trading or financial corporations’

• this is a non-purposive power - it is defined by the subject matter of the entities to which it applies
• laws that regulate activities of non-corporations that interact in some way with constitutional corporations will be ‘with respect’ to constitutional corproations so as to fall under the scope of s 51(xx) - Fontana Films
• pre Tasmanian Dams - Rocla Pipes case -

Tasmanian Dams Case (1983)

• Cth introduced legislation that attempted to prevent a corporation (Tasmanian Hydro) established by the Tasmanian government from building a dam in the Franklin River

  • the effect of certain provisions of the World Heritage Properties Conservation Act 1983 was to prohibit trading corporations from damaging certain property without the consent of the Minister. The property protected included the area in which the Tasmianian Hydro commission, a trading corporation, intended to construct a dam which would produce hydro-electricity to be sold

• Cited a number of bases under s 51 to support this legislation, including the external affairs power and the corporations power

• with respect to the corporations power, the Tasmanian government argued that -

  • Tasmanian Hydro was not a trading corporation within the meaning of s 51 xx; and
  • building a dam was not a trading activity; so
  • not subject to Cth control

• Held —— s 51 xx supported the Cth legislation

  • purpose of building the dam was to manufacture electricity which was to be sold by Tasmanian Hydro; so, even though the act that the Cth purported to legislate on (building a dam) was not a trading activity in itself, it was done for the purpose of enabling Tasmanian Hydro to undertake trading activities

  significance

  <aside> 🏛️ evolution - slight broadening of the earlier view that the Cth could regulate the trading activities of a trading corporation. Here, the Cth could regulate activities that were done for the purpose of eventual trading activities by a trading corporation.

  </aside>

  • broadening of the interpretation of the corporations power - HCA said that laws that did not regulate the trading activities of constitutional corproations were still supported by the corporations power

  • from textbook:

    the laws could have been upheld by noticing a sufficient connection between the operation of the laws and the trading activities of the constitutional corporations, since what the laws regulated were things done for the purposes of trading activities. however, Mason J’s judgment upheld the laws by applying the broader view he expressed in Fontana Films - that the corporations power extends to regulating any activities undertaken by constitutional corporations. That broader view commanded majority support in the WorkChoices case

    • so this seems to suggest that the judgment of at least Mason J was upheld by the WorkChoices case - maybe approach

Key excerpts from the judgment Mason J

the question then is whether the corporations power extends to the regulation of the activities of trading corporations, not being trading activities […] It has been affirmatively established that the power extends to the regulation and the protection of the trading activities of trading corporations.