Again, in London County Council v. Attorney-General[72] [1], the same principle is recognized. The London County Council, purporting to act under their statutory powers to purchase and work tramways, were working lines of omnibuses in connection with their tramways. The Court of Appeal, in a suit by the Attorney-General on the relation of other omnibus proprietors, being ratepayers of the City of London, and carrying on lines of omnibuses in opposition to those of the County Council, granted an injunction against the further carrying on of the omnibus business. The decision was affirmed by the House of Lords. Lord Halsbury[73] [2]:?"If there is excess of power claimed by a particular public body, and it is a matter that concerns the public it seems to me that it is for the Attorney-General and not for the Courts to determine whether he ought to initiate litigation in that respect or not."
In a unitary form of government, as there is only one community and one public which the Attorney-General represents, the question which has now been raised cannot arise. It is impossible, therefore, that there can be any decision either in England or in any of the Australian Colonies before Federation exactly in point. But it seems to me that in the working out of the federal system established by the Australian Constitution an extension of the principle is essential. The Constitution recognizes that in respect of the exercise of State powers each State is under the Crown an independent and autonomous community. Similarly the States must recognize that in respect of the exercise of Commonwealth powers all State boundaries disappear and there is but one community, the people of the Commonwealth. The proper representative in Court of each of these communities is its Attorney-General. That principle is in substance recognized by secs. 61 and 62 of the Judiciary Act 1903, enacted by virtue of sec. 78 of the Constitution, which provides that suits on behalf of the Commonwealth may be brought in the name of the Attorney-General of the Commonwealth, and suits on behalf of the State may be brought in the name of the Attorney-General of the State. Where, therefore, the complaint is, not that the State or the Commonwealth as legal entities, but that the people generally of either State or Commonwealth have been injuriously affected by some illegal exercise of State or Commonwealth power, as the case may be, it would seem to follow that the Commonwealth Court must recognize the State Attorney-General as being entitled to represent the State in any claim for relief against an illegal act so affecting the people of the State. That being so, there can be no question that the establishment of a registry purporting to be by public authority of the Commonwealth, but really in excess of its powers, which may hamper the freedom of citizens of the State in the carrying on of their businesses?for this Act may apply to any business?is an Act injuriously affecting the people of the State. For these reasons I am of opinion that the Attorney-General for New South Wales is entitled to be heard in this Court as representing the public of New South Wales in such a case as this, where the illegal act is of such a nature as to affect not only the relator but the whole trading community of the State, and that in such a case it is not necessary that any actual injury to the public should be proved. Both grounds of objection to the plaintiffs' right to proceed therefore fail, and I hold that they have established a good cause of action. It follows that on both questions of law submitted the answers of the Court should be in the plaintiffs' favour, and they are entitled to the declarations and orders and the injunction asked for in their statement of claim.[3]’
It would be interesting to note brief background of the second case wherein the constitutional validity of a provision was challenged on grounds of lack of legislative competence.
In these proceeding[4], BHPIO challenged the constitutional validity of ss 298K, 298L, 298M and associated provisions of Pt XA of the WR Act, on the ground of want of legislative power.
The central question is whether the challenged provisions, applied in conformity with s 298G(1)(a) of WR Act, constitute laws that come within s 51(xx) of the Constitution ("the corporations power"). It may be recalled that s 51(xx) confers power on the Commonwealth Parliament to make laws with respect to "Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". If a law is found to be a law on a particular subject and if that subject is found to be one within the power of the Commonwealth, then the law is within power, providing it does not infringe some other constitutional tenet[5]. Part XA of the WR Act, which is headed "Freedom of Association", only applies to the extent provided for in Division 2: see s 298C. Section 298G applies Pt XA to constitutional corporations (as defined). Subsection 298G(1) reads:
This Part applies to:
(a) conduct by a constitutional corporation; and
(b) conduct that adversely affects a constitutional corporation.
A "constitutional corporation", as defined in s 4(1), is a corporation of the kind specified in s 51(xx) of the Commonwealth Constitution, a body incorporated in a Territory, or a Commonwealth authority. BHPIO admits that it is a constitutional corporation, being a trading corporation of the kind referred to in s 51(xx).o0f the constitution. The scope of the corporations power has been delineated in a series of decisions of the High Court. Plainly enough, the subject-matter of the power is the corporations to which it refers. On the one hand, it is now generally accepted that the power is not confined in its application to the trading activities of trading corporations or to the financial activities of financial corporations.[6]. On the other hand, as DEANE J observed in The Commonwealth v Tasmania[7], a law does not necessarily come within the corporations power "simply because" it happens to apply to constitutional corporations[8] In Re Dingjan, four of the seven members of the Court acknowledged that a law which regulates the business functions, activities and relationships of corporations of the kind referred to in s 51(xx) of the constitution is within power.[9]
It has been observed in Re Dingjan: ‘Where a law purports to be `with respect to' a s 51(xx) of the constitution, corporation, it is difficult to see how it can have any connection with such a corporation unless, in its legal or practical operation, it has significance for the corporation. That means that it must have some significance for the activities, functions, relationships or business of the corporation. If a law regulates the activities, functions, relationships or business of a s 51(xx) corporation, no more is needed to bring the law within s 51(xx). That is because the law, by regulating the activities, etc, is regulating the conduct of the corporation or those who deal with it. Further, if, by reference to the activities or functions of s 51(xx) corporations, a law regulates the conduct of those who control, work for, or hold shares or office in those corporations, it is unlikely that an further fact will be needed to bring the law within the reach of s 51(xx). It is not enough, however, to attract the operation of s 51(xx) that the law merely refers to or operates upon the existence of a corporate function or relationship or a category of corporate behaviour. The activities, functions, relationships and business of s 51(xx) of the constitution, corporations are not the constitutional switches that throw open the stream of power conferred by s 51(xx). [Citations omitted][10].
It was also observed that:”[T]he power conferred by s 51(xx) extends, at the very least, to the business functions and activities of constitutional corporations and to their business relationships. And those functions, activities and relationships will, in the ordinary course, involve individuals, and not merely individuals through whom the corporation acts, as in Fencott v Muller[11], or the control of whose conduct is directly connected with the regulation or protection of the corporation, as in Actors and Announcers Equity Association.[12]Once it is accepted that s 51(xx) extends to the business functions, activities and relationships of constitutional corporations, it follows that it also extends to the persons by and through whom they carry out those functions and activities and with whom they enter into those relationships.[13]’
In Re Dingjan at 336, BRENNAN J explained his approach to s 51(xx) of the Constitution in the following way:
‘A law supported by s 51(xx) will ... be characterised by its effect on corporations of a kind mentioned in that paragraph, that is, trading or financial corporations formed within the limits of the Commonwealth. In the Act, those corporations are called `constitutional corporations' .... To attract the support of s 51(xx), it is not enough that the law applies to constitutional corporations and to other persons indifferently. To attract that support, the law must discriminate between constitutional corporations and other persons, either by reference to the persons on whom it confers rights or privileges or imposes duties or liabilities or by reference to the persons whom it affects by its operation. A validating connection between a law and s 51(xx) may consist in the differential operation which the law has on constitutional corporations albeit the law imposes duties or prescribes conduct to be performed or observed by others.’ [Citations omitted].
It was held that ‘It follows that there is no need to rely, as the applicants did, on s 51(xxix) of the Constitution to support the provisions under challenge. It suffices to find that they are a valid exercise of s 51(xx) of the Constitution.[14]’
[1] (1902) A.C., 165.
[2] (1902) A.C., 165, at p. 168
[3] Quoted from Attornry Journal [supra] per O”CONNOR J
[4] Australian Workers' Union v BHP Iron-Ore Pty Ltd (includes summary dated 10 January 2001) [2001] FCA 3 (10 January 2001)
FEDERAL COURT OF AUSTRALIA per KENNY J
[5] cf Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 605 per GUMMOW J, quoting Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603 at 611 per JACOBS J
[6]see, e.g., Re Dingjan; ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 ("Re Dingjan") at 333 per MASON CJ, 336 per BRENNAN J, 352 per TOOHEY J, 364 per GAURDON J, and 368 per McHUGH J
[7] The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 272,
[8] See also Re Dingjan at 344-5 per DAWSON J
[9] see 183 CLR at 333-4 per Mason CJ, 364 per GAURDON J (with whom DEANE J agreed at 342) and 368 per McHUGH J. According to the reasons for judgment of their Honours, the power may very well extend further, presumably to the regulation of all the activities and relationships of constitutional corporations. It is unnecessary in this case to decide whether or not it does.
[10] Re Dingjan per McHUGH J
[11] Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570
[12] Actors and Announcers Equity Association [1982] HCA 23; (1982) 150 CLR 169 per GAURDON J with whom KENNY J also agreed.
[13] Re Dingjan [supra] per GAURDON J
[14]Australian workers [supra] per KENNY J
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