73.
purposes of, the business of a constitutional corporation. But the provision also applied to a contract relating to trade or commerce to which s 51(i) of the Constitution applied, a contract so far as it affects matters that take place in or are otherwise connected with a Territory, and a contract to which the Commonwealth or a Commonwealth authority is a party. Was this a law with respect to constitutional corporations? A majority of the Court held in Re Dingjan[1] it was not.
174 Each member of the majority expressed the reasons for concluding that the provision was invalid in different words. There are obvious difficulties, then, in proffering any single comprehensive statement of the reasoning. It is nonetheless right to say that the majority focused upon whether a law permitting review of a contract "relating to the business" of a constitutional corporation had a more than insubstantial, tenuous or distant connection[2] with the relevant head of power. Holding that it did not, the majority concluded that it was not possible to read down or sever the provision and that, accordingly, it was wholly invalid.
175 The explanations given for why the impugned law lacked the requisite connection with the relevant head of power contained a number of elements which should be identified. Dawson J, amplifying the approach reflected in his reasons in The Tasmanian Dam Case, said[3] that "[i]t has long been recognised that a law is not a law with respect to foreign corporations or trading or financial corporations within the meaning of s 51(xx) of the Constitution merely because its provisions are addressed to constitutional corporations" (emphasis added). Because s 51(xx) is a power about persons, Dawson J said[4] that "a different approach is required in determining whether a law falls within its terms" (emphasis added). Before a law may be said to be with respect to constitutional corporations "the way in which the law operates upon them must be such that they impart their character to the law … [T]he fact that it is a trading or financial corporation should be significant in the way in which the law relates to it."[5]
