66.
trading activities of corporations of the kind mentioned" in s 51(xx)[1] that Barwick CJ said[2] that:
"it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, from the validity of those sections [of the Australian Industries Preservation Act], that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a law with respect to the subject matter of s. 51 (xx.). Nor does it follow that any law which is addressed specifically to such corporations or some of them is such a law."
155 The plaintiffs in the present matters attached a deal of significance to this statement, and on occasions in argument came close to submitting that Barwick CJ had decided that in no case could a law be a law with respect to constitutional corporations unless more was demonstrated than that the law was addressed specifically to such corporations. But Barwick CJ stated no such negative and absolute proposition. Rather, what was said was no more than the proper marking of a limit to what was being decided in a case where the law in question was addressed to all persons, not constitutional corporations in particular. And in any event, a negative proposition of the kind described would appear to assume that a court may take a piecemeal or sequential approach to characterisation of a law: by first considering whether one aspect of the law sufficed to make it a law with respect to a particular head of power before passing on to consider the whole of "the nature of the rights, duties, powers and privileges which [the law in question] changes, regulates or abolishes"[3]. That would not be a proper approach to the task.
156 The plaintiffs also emphasised the statement by Menzies J[4] that "[a] law is not to be described as with respect to the various persons or classes of persons
- ↑ (1971) 124 CLR 468 at 525 per Gibbs J.
- ↑ (1971) 124 CLR 468 at 489–490.
- ↑ Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7 per Kitto J. See also Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at 386–387 [122], 411 [202], 416 [217], 444–445 [287].
- ↑ (1971) 124 CLR 468 at 502.
