Joshua Sproule

University

University of Queensland

Place (Rank)

3rd Place

Year

2012

Introduction

Since the High Court’s decision in WorkChoices, a law will generally be valid under the corporations power if it singles out a constitutional corporation as the object of its statutory command. Here, the majority adopted the dicta of Gaudron J in Re Pacific Coal where her Honour opined that the corporations power: “extends to the regulation” of a constitutional corporation’s “activities, functions, relationships and...business” as well as “the creation of rights and privileges belonging to such a corporation and the imposition of obligations on it”. This scope is immense. Yet, the decision represents “more than simply the triumph of the object of command test”. There are also significant implications for the nexus required under the implied incidental aspect of the power. Simply put, the majority favoured the modality of a ‘capability to affect’ over an ‘actual effect’ as the test for connection. This vindicated Gaudron J as opposed to McHugh J in Re Dingjan. This article analyses the rationale for, and merits of, that choice and its implications for the ambit of the corporations power in s 51(xx) of the Constitution. I argue that uncertainty still surrounds the question of nexus and that a principled and appropriate test, though desirable, remains elusive.

Essay

Since the High Court’s decision in WorkChoices,[1] a law will generally be valid under the corporations power[2] if it singles out a constitutional corporation[3] as the object of its statutory command.[4] Here, the majority adopted the dicta of Gaudron J in Re Pacific Coal[5] where her Honour opined that the corporations power: “extends to the regulation” of a constitutional corporation’s “activities, functions, relationships and...business”[6] as well as “the creation of rights and privileges belonging to such a corporation and the imposition of obligations on it”.[7] This scope is immense. Yet, the decision represents “more than simply the triumph of the object of command test”.[8] There are also significant implications for the nexus required under the implied incidental aspect of the power. Simply put, the majority favoured the modality of a ‘capability to affect’ over an ‘actual effect’ as the test for connection. This vindicated Gaudron J as opposed to McHugh J in Re Dingjan.[9] This article analyses the rationale for, and merits of, that choice and its implications for the ambit of the corporations power in s 51(xx) of the Constitution. I argue that uncertainty still surrounds the question of nexus and that a principled and appropriate test, though desirable, remains elusive.

 

[1]     New South Wales v Commonwealth (2006) 229 CLR 1. Hereafter referred to as ‘WorkChoices’.

[2]     Constitution s 51(xx).

[3]     A ‘constitutional corporation’ means “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”: Constitution s 51(xx).

[4]     New South Wales v Commonwealth (2006) 229 CLR 1, 121 [198].

[5]     Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346. Hereafter referred to as ‘Re Pacific Coal’.

[6]     Throughout this essay each of these terms will be used interchangeably for convenience.

[7]     Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at 375 per Gaudron J.

[8]     Justice Peter Applegarth SC, ‘The WorkChoices Case: Corporations Power Aspects’ (Paper presented at the Constitutional Law Conference, Gilbert & Tobin Centre of Public Law, February 2007) 14.

[9]     Re Dingjan; Ex parte Wagner (1995) 183 CLR 323. Hereafter referred to as ‘Re Dingjan’.