Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the power to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This power has become known as "the corporations power", the extent of which has been the subject of numerous judicial cases.
After the High Court's decision in Huddart, Parker & Co Ltd v Moorehead (1909), 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 the Engineer' case. Justice Issacs dissent in Huddart, Parker gave a broad meaning to s 51(xx) but attempted to set limits to the power, in particular pointing out:
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 Parker 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".
The High Court in New South Wales v Commonwealth (1990) (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 that 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.
The WorkChoices case provides the current definition for the extent of the corporations power, as noted in its majority opinion:
Whether a corporation falls within the group of "trading or financial corporations" has been the focus of much attention and debate. The dominant issues revolve around the type of corporation and the nature of the activities that characterise it as falling within s. 51(xx). In that regard:
Cherrybrook Technology High School is a purpose built Technology High School located at 28 - 44 Purchase Road, Cherrybrook NSW, Australia. The school was built in the late 1980s to support the rapid growth of the north-west sector in Sydney. With the school's completion and opening in 1992 the sheer size and capabilities of the school have grown beyond expectations. In 2002 a new two storey building with administration facilities on the ground floor and 12 classrooms on the top level was opened, bringing the permanent housing of the school up to 1250 students. 2009 saw the student population rise to over 2,000 for the first time.Section 51(xxxvii) of the Constitution of Australia
Section 51(xxxvii) of the Constitution of Australia (also called the referral power) is a provision in the Australian Constitution which empowers the Australian Parliament to legislate on matters referred to it by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian Constitution limits Commonwealth power (see Section 51). Section 51(xxxvii) allows for a degree of flexibility in the allocation of legislative powers.
In practice, the referral power has been quite important in allowing the Commonwealth to enact legislation.
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