Under the object of command test endorsed in

Info icon This preview shows pages 5–7. Sign up to view the full content.

View Full Document Right Arrow Icon
Under the ‘object’ of command test endorsed in WorkChoices case it is likely that a provision will be valid if it applies exclusively to constitutional corporations and imposes a duty upon, or regulates the activities of, a constitutional corporation: Gaudron J (dicta) in Pacific Coal endorsed in Workchoices Generally, a law is characterized under s 51 (xx) if it: Singles out constitutional corporations Protects constitutional corporations Prescribes norms regulating the relationship between a constitutional corporation and its employees Prescribes industrial rights and obligations of constitutional corporations and their employees and the means by which they are to conduct their industrial relations. A. LESIGATION THAT AFFECTS A CONSTITUTIONAL CORPORATION The corporation must be either a: 1. Foreign Corporation: corporations formed outside the limits of the Cth: Incorporations Case ; or 2. Financial Corporation : same test as trading corp: Ku-ring-gai ; State Superannuation Board ; or 3. Trading Corporation: use the current activities test : Mason J in Adamson’s Case trading activities must constitute a ‘sufficiently significant proportion’ of overall activities. Amount of trading must not be insubstantial: Adamson Regardless of the purpose the corporation was incorporated for: Adamson Application : what are the ‘revenue raising’ activities of the corporation? Compare the amount of revenue raised and compare to the overall size of activities Must be trading on a substantial scale: Adamson Is the trading so ‘slight and incidental to some other principal activity?’ (religion, education) that it can’t be described as a trading corporation? Adamson Mason J STS Constitutional Law [email protected] s 51(xx) of the Commonwealth Constitution Provides ‘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
Image of page 5

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Corporations may have very different activities including policy functions and still be a CC, as long as trading activities are carried out on a ‘large scale’ Tas Dams SCOPE OF CONTROL OVER A CONSTITUTIONAL CORPORATION In order to be valid, the law must be characterized as a law with respect to corporations, and have a ‘sufficient connection’ to a constitutional corporation [in view of the ‘rights, powers, liabilities, duties and privileges’ which the law creates: Dingjan (per McHugh J)] Past tests : distinctive character test v object of command test – HCA categorically rejected distinctive character test in Dingjan , but it never explicitly adopted the object of command test. Workchoices , current HCA case, avoided choosing an authoritative test: emphasized that characterizing the legislation using a ‘sufficiency of connection’ approach was most important. The HCA in Workchoices adopted: Gaudron J dicta in Pacific Coal Object of command test accepted by the majority of the HCA in Workchoices – if the legislation includes a provision that includes ‘constitutional corporation’ it will be supported by s 51 (xx) o
Image of page 6
Image of page 7
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern