33.
77 Like the other members of the Court, O'Connor J took[1] as a premise the proposition that s 51(xx) was restricted to making laws with respect to corporations actually in being. From this it followed[2], in the view of O'Connor J, that the field of legislative power marked out for the Parliament extended "no further than the regulation of the conditions on which corporations of the class described shall be recognized, and permitted to carry on business throughout the Commonwealth". That power was not to be seen as unlimited lest it "encroach on the power of the State over its own internal trade"[3]. The limitation on the power was seen[4], by O'Connor J, as identifiable from the necessity, in the interests of Australian trade and commerce, for there to be federal power to grant the right to a foreign corporation, or a corporation which owed its existence to the laws of any Australian State, to carry on business in every part of Australia. Thus, it followed, in the opinion of O'Connor J[5], that:
"In the light of the circumstances it may fairly be taken that the framers of the Constitution intended by the sub-section under consideration to confer on the Parliament of the Commonwealth just that power which was wanting in the legislative bodies then existing in Australia – the power of making a uniform law for regulating the conditions under which foreign corporations, and trading or financial corporations created under the laws of any State, would be recognized as legal entities throughout Australia. As part of that power there would be necessarily implied the authority to impose on those corporations all such conditions on admission to recognition as would be appropriate or plainly adapted to the object of the sub-section and not forbidden by the Constitution."
The general nature of the power to make laws imposing conditions upon recognition of those corporations was described[6] by O'Connor J as being "those laws and the conditions embodied in them [that] have relation only to the
