40.
established in respect of other powers[1]), s 51(xx) would support a law forbidding a foreign company doing any business whatever in Australia, or permitting entry to the field of trade only on conditions.
90 In any event, there seems little reason to assign relationships between the corporation and its employees to the class of "internal" relationships. If, as Isaacs J suggested[2], the touchstone is whether the corporation is "a completely equipped body ready to exercise its faculties and capacities", that seems to embrace the initial employment of employees but not any subsequent solicitation for, or engagement of, employees. Moreover, the inherent instability of the distinction can be illustrated further by considering three ways in which a corporation could raise capital – by borrowing from a bank or raising debt finance from the public, or by issuing shares (either by private placement or by public issue). There seems little reason to distinguish between the three. Yet it seems that borrowing from a bank would be an "external" matter and issuing shares to existing shareholders would be an "internal" matter. But where would an issue of unsecured notes to the public or a public offering of shares sit in this taxonomy?
91 A distinction between "internal" and "external" matters relating to a corporation, whether made at the point chosen by Isaacs J or made at some other point, is a distinction that may have utility in the context of choice of law. That was its origin. Its utility in that context is that it may inform consideration of what law is to be chosen as the law governing particular questions relating to a particular form of juristic person. In particular, it may assist the formulation of choice of law rules to distinguish (as Anglo-Australian choice of law rules have, and still do[3]) between questions of status and power on the one hand, and questions concerning the regulation of particular aspects of the conduct of that juristic person on the other.
- ↑ See, for example, Herald and Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418; Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1.
- ↑ (1909) 8 CLR 330 at 396.
- ↑ Chaff and Hay Acquisition Committee v J A Hemphill and Sons Pty Ltd (1947) 74 CLR 375; Risdon Iron and Locomotive Works v Furness [1906] 1 KB 49; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 972; Hohfeld, "The Individual Liability of Stockholders and the Conflict of Laws", (1909) 9 Columbia Law Review 492.
