71.
7(d)The Tasmanian Dam Case
166 Section 10(2) of the World Heritage Properties Conservation Act 1983 (Cth) prohibited a body corporate that is a foreign corporation, is incorporated in a Territory or, not being incorporated in a Territory, is a trading corporation formed within the limits of the Commonwealth, from doing any of a number of specified acts in certain places. Section 10(3) prohibited such corporations from doing any act (not being unlawful by virtue of s 10(2)) that damaged or destroyed any property to which the section applied. Section 10(4) provided that it was unlawful for a trading corporation to do "for the purposes of its trading activities" any of the acts specified in s 10(2) in certain places. The Court held[1] that s 10(4) was a law with respect to trading corporations.
167 It is hardly surprising that the discussion in The Tasmanian Dam Case of the ambit of the corporations power was moulded by the terms of the legislation under consideration and the arguments advanced in the case. In particular, because s 10(4) focused upon the trading activities of a trading corporation, it is not surprising that much of what is said in the case about s 51(xx) looked to the connection between a law having both those features and the power to make laws with respect to trading corporations.
168 In the present matters, the plaintiffs emphasised the conclusion[2] of Dawson J (who dissented) that s 10 of the Act there in question was "bereft of any attribute which connects it with corporations other than the fact that the command which it contains is directed to trading and foreign corporations". And in the opinion of Dawson J, the fact that the law directed its command to the object of the power given by s 51(xx) did not suffice; more must be established to show that the law was a law with respect to constitutional corporations. Dawson J concluded that the reference, in s 10(4), to activities for the trading purposes of trading corporations did not suffice: the law was "not a law in which the character of a trading corporation has any significance"[3]. Because everything that a trading company does is "for trading purposes", the activities mentioned in the Act were not confined to "trading activities".
