''New South Wales v The Commonwealth'', the Incorporation Case,. was a decision handed down in the High Court of Australia on 8 February 1990 concerning the corporations power in s51(xx) of the Commonwealth Constitution. The states of

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South Australia South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...

and

Western Australia Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...

brought an application seeking a

declaration Declaration may refer to: Arts, entertainment, and media Literature * ''Declaration'' (book), a self-published electronic pamphlet by Michael Hardt and Antonio Negri * ''The Declaration'' (novel), a 2008 children's novel by Gemma Malley Music ...

as to the validity of certain aspects of the ''Corporations Act 1989'' (Cth).

Background

History of Section 51(xx)

Section 51(xx) of the 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...'' ::''(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth..."'' In an early High Court case, '' Huddart, Parker & Co Ltd v Moorehead'',. the corporations power had been construed extremely narrowly, mostly through adherence to the doctrine of

reserved state powers Reserved is a Polish apparel retailer headquartered in Gdańsk, Pomerania, Poland. It was founded in 1999 and remains the largest company of the LPP group, which has more than 1,700 retail stores located in over 20 countries and also owns such ...

which was later abandoned in ''the Engineers' case''.. The five justices in ''Huddart, Parker'' were of the opinion that the corporations power was confined to companies already in existence and did not extend to their creation. However, 60 years on, the High Court declined to follow ''Huddart, Parker'' in the case of ''

Strickland v Rocla Concrete Pipes Ltd ''Strickland v Rocla Concrete Pipes Ltd'',. also known as the ''Concrete Pipes Case'', is a High Court of Australia case that discusses the scope of the corporations power in section 51(xx) of the Australian Constitution. This was an important c ...

''.. This was based on the fact that the decision in ''Huddart, Parker'' had relied on the now defunct theory of reserved state powers. This decision led to a significant revival in the use of the corporations power.

Corporations Law in Australia

Corporations law in Australia had historically mirrored developments in English law and was mostly the concern of each separate state legislature. Thus, despite the reliance on the English framework, significant differences emerged between each state's corporations legislation. After the

Second World War World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposi ...

it became increasingly clear that these legislative differences were creating unnecessary costs for companies operating nationally. Thus, the states and the Commonwealth co-operated in the formation of uniform national companies legislation which passed in each jurisdiction by 1962. The difficulty with this scheme was that it did not provide for uniformity in amendment of the legislation and with changes of government and policy each state's legislation once again developed on separate lines. A second co-operative scheme was agreed to in 1978 and implemented by 1982 to overcome the defects in the first system. All laws and amendments would be agreed to by a Ministerial Council and automatically applied in each jurisdiction. This second scheme led the creation of the

National Companies and Securities Commission National may refer to: Common uses * Nation or country ** Nationality – a ''national'' is a person who is subject to a nation, regardless of whether the person has full rights as a citizen Places in the United States * National, Maryland, c ...

, the forerunner to the present day Australian Securities and Investments Commission. While an improvement on the first scheme, the 1982 scheme still presented significant difficulties mainly due to the NCSC delegating administrative functions to state commissions but retaining control of takeovers and policy. This led to funding difficulties and inefficient corporate regulation. Thus, the Commonwealth sought to take sole responsibility for corporations law in Australia.

''Corporations Act 1989''

Relying in the main on s51(xx) of the Constitution the Commonwealth enacted the ''Corporations Act 1989''. Concerned with the constitutional validity of the legislation the states of New South Wales, South Australia and Western Australia sought a declaration as to the validity of the aspects of the legislation dealing with the registration and incorporation of companies.

The decision

The majority

The court split 6:1 in its decision. The majority ( Mason CJ, Brennan, Dawson, Toohey, Gaudron &

McHugh McHugh is a common surname of Irish language, Irish origin. It is an anglicisation of the original Irish ''Mac Aodha'', meaning literally "Son of Aodh". Aodh (given name), Aodh was a popular male given name in mediaeval Gaelic Ireland. It was tradi ...

JJ) wrote a joint judgement in which they affirmed the view in ''Huddart, Parker'' that the corporations power was confined to making laws with respect to companies that had commenced trading and could not be interpreted so as to support laws providing for the formation of companies. The majority placed particular reliance on two arguments. The first being the presence of the past participle adjective "formed" which, in their Honours' opinion, restricted the section to companies which had already been formed. The second argument relied on were the speeches and notes of the Constitutional Convention debates. Successive drafts of the Constitution made it clear that the section was meant to apply to already formed companies. Moreover, the question of giving the Commonwealth the power to legislate for incorporation had been raised and had produced the following response from

Sir Samuel Griffith Sir Samuel Walker Griffith, (21 June 1845 – 9 August 1920) was an Australian judge and politician who served as the inaugural Chief Justice of Australia, in office from 1903 to 1919. He also served a term as Chief Justice of Queensland and t ...

The minority

Deane J wrote a vigorous dissenting judgment in which he said that the words of the constitution itself were authoritative, not the views expressed by the participants at the Constitutional Conventions. Deane J, in opposition to the majority of the court, considered that the wording of s51(xx) could be interpreted so as to give the Commonwealth a general power to incorporate trading and financial corporations.

Consequences

This decision had the practical effect of nullifying the intention of the ''Corporations Act 1989''. However, not to be deterred, the Commonwealth sought the power it wanted through negotiation with the states. This process resulted in each state agreeing to pass identical registration legislation as amended from time to time and accepting the administrative control of ASIC. To fully achieve the aim of a national scheme the Commonwealth and states entered a cross-vesting of jurisdiction agreement in which the Federal Court was vested with state jurisdiction to hear company law matters. Although this system functioned effectively for several years it was eventually brought to its knees by the High Court in ''

Re Wakim; Ex parte McNally ''Re Wakim; Ex parte McNally''. was a significant case decided in the High Court of Australia on 17 June 1999. The case concerned the constitutional validity of cross-vesting of jurisdiction, in particular, the vesting of state companies law jur ...

'',. ''

Bond v The Queen ''Bond v The Queen'',. was a significant case decided in the High Court of Australia regarding the power of the Commonwealth DPP to institute appeals in state courts. Background Alan Bond had pleaded guilty in the Supreme Court of Western ...

'',. and ''R v Hughes'',. (2000) 171 ALR 155. These decisions precipitated further reform of the national corporation law scheme in 2001.