59.
followed, so the joint reasons of six members of the Court continued[1], that "[t]he subject of a valid law is restricted by that phrase to corporations which have undergone or shall have undergone the process of formation in the past, present or future".
137 No party or intervener in the present matters sought to reopen The Incorporation Case and it was not in the interests of the plaintiffs to do so. It was not in the plaintiffs' interest to challenge The Incorporation Case because to do so would have challenged the premise for the reasoning of Isaacs J in Huddart Parker which the plaintiffs sought now to embrace. There is in these circumstances no occasion to consider further what was decided in The Incorporation Case.
138 Consideration of the other principal decisions of this Court concerning s 51(xx), since Huddart Parker, can be confined to examining first, what those cases have said about the reach of s 51(xx) and secondly, some of the caveats that have been entered in those cases about the breadth of that reach. In undertaking that task it will be important to keep two matters at the forefront of consideration. First, there is no decision of the Court which has decided the specific issues raised in the present matters. Secondly, it follows that what is said in the cases since Huddart Parker is to be understood against the background of the issues that fell for decision in those cases – issues different from those that must now be decided.
139 Apart from The Incorporation Case, it is necessary to say something about five other decisions – Bank of NSW v The Commonwealth ("the Banking
- ↑ (1990) 169 CLR 482 at 498.
