Page:New South Wales v Commonwealth of Australia (2006).pdf/41

31.

corporation with which s 51(xx) deals rested either in the States (in the case of trading or financial corporations formed within the limits of the Commonwealth) or in a foreign jurisdiction (in the case of foreign corporations). But the respondent's broader contention, that the Parliament has power to regulate what constitutional corporations can or cannot do within the Commonwealth, because it has power to create trading or financial corporations, informed much of what was said by the Justices in their reasons in Huddart Parker. In particular, it seems plain that it was this argument that prompted consideration, by some members of the Court^[1], of what Westlake had written in 1905^[2], on the subjects of the law which regulated an artificial person, like a corporation, in matters "concerning only itself or the relations of its members, if any, to it and to one another" as distinct from the law which governed its entry into relations, in another country, with "outside parties".

74 Significance was attached by Griffith CJ^[3], by O'Connor J^[4] and by Isaacs J^[5], to a distinction of the kind drawn by Westlake, as assisting the task of characterising the laws in question in Huddart Parker. Of course it is important to recognise that the opinions of Griffith CJ and Barton and O'Connor JJ, three of the four Justices who held ss 5 and 8 of the Australian Industries Preservation Act invalid, were much influenced by the then accepted doctrine of the Court that legislative powers not given to the Parliament were reserved to the States. In particular, as O'Connor J said^[6], the construction of s 51(xx) was approached on the basis that the grant of power to the Parliament must be "so construed as to be consistent as far as possible with the exclusive control over its internal trade and commerce vested in the State". Nonetheless, observing the importance of the reserved powers doctrine to the reasoning of these members of the majority in Huddart Parker does not explain all aspects of the differences in opinion

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1. (1909) 8 CLR 330 at 353 per Griffith CJ, 370–371 per O'Connor J, 395 per Isaacs J.
2. A Treatise on Private International Law, 4th ed (1905) at 358–359. See also Dicey, A Digest of the Law of England with reference to The Conflict of Laws, (1896) at 485–486.
3. (1909) 8 CLR 330 at 353.
4. (1909) 8 CLR 330 at 370–371.
5. (1909) 8 CLR 330 at 394–395.
6. (1909) 8 CLR 330 at 370.