25.
corporations, the contention is one that seeks to identify what is meant by a law "with respect to" the specified kinds of corporation, and seeks to limit such laws to laws with respect to external relationships. And the alternative submissions about what is not, and what is, sufficient to characterise a law as a law with respect to constitutional corporations have the same focus.
2The Commonwealth's principal arguments
61 The Commonwealth submitted that a law "directed specifically to constitutional corporations", in the sense that the law creates, alters or impairs the rights, powers, liabilities, duties or privileges of such a corporation, is supported by s 51(xx). This the Commonwealth described as "a 'direct' connection". The Commonwealth further submitted that previous decisions of this Court showed that other, less direct, forms of connection between a law and constitutional corporations are not so "insubstantial, tenuous or distant"[1] as to deny its characterisation as a law with respect to that subject-matter. Four forms of connection were said to be supported by authority:
(a) a law relating to the conduct (in the relevant capacity) of those who control, work for, or hold shares or office in constitutional corporations[2];
(b) a law relating to the business functions, activities or relationships of constitutional corporations[3];
(c) a law protecting a constitutional corporation from conduct that is carried out with intent to, and the likely effect of which would be to, cause loss or
- ↑ Melbourne Corporation (1947) 74 CLR 31 at 79; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 369 per McHugh J; Leask v The Commonwealth (1996) 187 CLR 579 at 601–602 per Dawson J, 621 per Gummow J.
- ↑ Re Dingjan (1995) 183 CLR 323 at 369 per McHugh J.
- ↑ Re Dingjan (1995) 183 CLR 323 at 364 per Gaudron J (with whose reasons Mason CJ and Deane J agreed), 369–370 per McHugh J. See also Quickenden v O'Connor (2001) 109 FCR 243 at 257–258 [38]–[40] per Black CJ and French J, 274–275 [115] per Carr J.
