Case: Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 46 ; (1982) 150 CLR 160
Outcome: discussed
The majority also referred to the judgment of Gibbs CJ in Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 ( Fontana Films ) . The majority said at [163]: Gibbs CJ pointed out [Fontana Films [1982] HCA 23 ; (1982) 150 CLR 169 at 181; [1982] HCA 23 ; 40 ALR 609 at 615] that, like the aliens power (s 51 (xix)), the corporations power is conferred "by reference to persons". He continued [1982] HCA 23 ; [(1982) 150 CLR 169 at 181-2; [1982] HCA 23 ; 40 ALR 609 at 616]: However, having regard to the federal nature of the Constitution , it is difficult to suppose that the powers conferred by pars (xix) and (xx) were intended to extend to the enactment of a complete code of laws, on all subjects, applicable to the persons named in those paragraphs ... [I]n the case of the corporations described in s 51 (xx), extraordinary consequences would result if the Parliament had power to make any kind of law on any subject affecting such corporations ... Other difficulties in relation to s 51 (xx) are caused by the need to construe the Constitution as a whole, and thus to reconcile par (xx) with other parts of s 51. Although Gibbs CJ concluded [1982] HCA 23 ; [(1982) 150 CLR 169 at 182; [1982] HCA 23 ; 40 ALR 609 at 616] that it was both unnecessary and undesirable to attempt to define the outer limits of s 51(xx) , he did say [1982] HCA 23 ; [(1982) 150 CLR 169 at 182; [1982] HCA 23 ; 40 ALR 609 at 616] that: The words of par (xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid ... In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power. As to foreign corporations, he added [1982] HCA 23 ; [(1982) 150 CLR 169 at 183; [1982] HCA 23 ; 40 ALR 609 at 616-17] that "the fact that the corporation is a foreign corporation should be significant in the way in which the law relates to it". 16 The majority noted in [165]: ... the statements made by Gibbs CJ about laws relating to the trading and financial activities of trading and financial corporations being within power are to be understood as responding to the arguments advanced in that case. They are not to be read as attempting an exhaustive statement of the ambit of the power. Gibbs CJ explicitly denied [1982] HCA 23 ; [(1982) 150 CLR 169 at 182; [1982] HCA 23 ; 40 ALR 609 at 616] any intention of doing that. That said, it must be recognised that Gibbs CJ emphasised the importance of giving due weight to the words "foreign", "trading", and "financial" in considering the application of s 51(xx). 25 The majority said, at [55]: The challenge to the validity of the legislation enacted in reliance on the corporations power does not put in issue directly the characteristics of corporations covered by s 51(xx). It does not call directly for an examination of what is a trading or financial corporation formed within the limits of the Commonwealth. (Plainly, a foreign corporation is a corporation formed outside the limits of the Commonwealth.) No party or intervener called in question what was said about trading and financial corporations in R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 ; [(1979) 143 CLR 190 ; 23 ALR 439] , Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23 ; [(1982) 150 CLR 169 ; 40 ALR 609] , State Superannuation Board v Trade Practices Commission [(1982) [1982] HCA 72 ; 150 CLR 282 ; 44 ALR 1] or Fencott v Muller [1983] HCA 12 ; [(1983) 152 CLR 570 ; 46 ALR 41].