60.
Case")[1], the Concrete Pipes Case[2], Fontana Films[3], The Commonwealth v Tasmania (The Tasmanian Dam Case)[4] and Re Dingjan; Ex parte Wagner[5]. It is convenient to deal with them chronologically, and to do so recognising what the plaintiffs contended was to be derived from them.
140 The plaintiffs submitted that in the cases decided after Huddart Parker there could be found views "as to the scope of's 51(xx), or the appropriate test for characterisation of a law with respect to foreign, financial and trading corporations". Two tests were said to be thus revealed – a "distinctive character test", and an "object of command test" – the former of which was to be preferred, and the latter to be regarded as having been rejected, or at least not endorsed, in the cases. The "distinctive character test" was said to be: "the fact that the corporation is a foreign, trading or financial corporation should be significant in the way in which the law relates to it"[6] if the law is to be valid. The "object of command test" was said to be: that a constitutional corporation is "an 'object of command' [of a law], permitting or prohibiting a trading or financial corporation from engaging in conduct or forming relationships"[7]. It was not suggested that the distinction drawn between external and internal relationships by Isaacs J in Huddart Parker was taken up in the later cases.
141 At once it should be said that the plaintiffs' argument against the object of command test and in favour of the distinctive character test has several difficulties. It seeks to build upon some statements made in judgments of the Court which, read in their context, constitute no more than an explicit limitation upon what was being decided in the particular case. In so far as it seeks to build
- ↑ (1948) 76 CLR 1.
- ↑ (1971) 124 CLR 468.
- ↑ (1982) 150 CLR 169.
- ↑ (1983) 158 CLR 1.
- ↑ (1995) 183 CLR 323.
- ↑ cf The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 316 per Dawson J.
- ↑ cf Fontana Films (1982) 150 CLR 169 at 212 per Murphy J and Huddart Parker (1909) 8 CLR 330 at 348 per Griffith CJ.
