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S 51 xx extends to the regulation of the activities

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‘s 51 (xx) extends to the regulation of the activities, functions, relationships and the business of a corporation… the creation of rights, and privileges belonging to such a corporation, the imposition of obligations… and the regulation of conduct of those through whom it acts.’ POST Workchoices – the object of command test is implicitly favored and any law that has corporations as its object is a law with respect to corporations ALL ACTIVITIES of Constitutional Corporations can be regulated: Workchoices . Further support for the broad view by Mason and Murphy JJ in Tas Dams and Mason J in Dingjan B. LEGISLATION THAT AFFECTS A CONSTITUTIONAL CORPORATION Cth can still legislate over an entity if its conduct affects a constitutional corporation S 51 (xx) extends ‘to the regulation of those whose conduct is or is capable of affecting [a constitutional corporation’s] activities, functions, relationships or business.’ Majority in Workchoices adopting the dicta of Gaudron J in Dingjan Usually occurs in context of companies contracting with Constitutional Corporations: post- Workchoices this area of law is less clear: Draw analogies from these cases: Fontana Films : the court recognized that the Cth may legislate over non-corporations when it’s ‘protecting’ a constitutional corporation. o ‘directed to any person … (and) designated to protect a corporation from certain conduct’ STS Constitutional Law [email protected]
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Dingjan : the court held the legislation must be sufficiently connected . McHugh J test – must have significance (benefit/detriment) for a Constitutional Corporation. o Discuss if this is a stronger connection than ‘relating to’ Workchoices : broadened the test to ‘ not insubstantial, tenuous or distant ’ by reinterpreting (but not overruling) Dingjan o The majority in Workchoices adopted the reasoning of Gaudron J in Dingjan ‘also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or businesses’ o The test must be read in context of other cases, and remains unclear how the HCA will apply this wider interpretation. SCOPE OF CONTROL - SIGNIFICANCE TEST: the law must have ‘some significance for the activities, functions, relationships or business of the corporation:’ Dingjan McHugh J STS Constitutional Law [email protected]
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CORPORATIONS POWER FLOW CHART STS Constitutional Law [email protected] Cth Legislative provision Provision regarding a Constitutional Corporation Provision regarding conduct that affects a Constitutional Corporation Is the entity in question a trading, financial or foreign corporation? The activity of the corporation can be regulated if the ‘object of command test’ is satisfied S 51 (xx) extends to the regulation of people or companies that affect, or may affect, a constitutional corporation’s functions Apply the current activities test: Adamson’s Case I f yes, the Cth can legislate over it I f no, the Cth may still legislate if conduct affects a constitutional corporation All activities of a Constitutional Corporation can be regulated: Workchoices
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