63.
State banking; also State banking extending beyond the limits of the State concerned" (emphasis added).
148 The laws in question in the Banking Case could be characterised, in at least their major aspects, as laws with respect to foreign corporations or financial corporations, as well as laws with respect to banking, and laws with respect to the acquisition of property. Latham CJ concluded[1] that s 51(xx) should not be construed as giving "complete power to pass any law of any description in so far as it is made applicable to banking corporations". To do so would deny the qualification to the power to make laws with respect to banking provided by the words "other than State banking". The conclusion reached by Latham CJ was expressed in words of great generality. He said[2] that s 51(xiii) is to be interpreted "as a special provision which provides for the whole legislative power of the Commonwealth Parliament so far as laws with respect to banking corporations and banking are concerned". Accordingly, Latham CJ continued[3], s 51(xx) "should be regarded as not applying to corporations so far as they are engaged in banking". It is not necessary to decide whether these statements are cast in terms that are too absolute.
149 Latham CJ recorded[4] the Commonwealth's argument, in the Banking Case, that s 51(xx) "gave full power to make any law upon any subject so long as it was a law which applied to and controlled the conduct" of constitutional corporations. Although it is evident that Latham CJ did not favour this aspect of the Commonwealth's argument about s 51(xx), he treated the decisive point as being the relationship between s 51(xiii) and s 51(xx), and expressed no concluded view about the wider issue. It is to be noted, however, that Latham CJ considered[5] that what had been said[6] to be inconvenient consequences of construing s 51(xx) as the Commonwealth submitted it should be, were not conclusive of that wider issue.
