"Again, to restrict its operation to internal company regulation would be absurd. Apart from the inherent improbability of investing the national authority with merely subordinate functions while retaining to the State the superior power of incorporation which, effectively exercised, could go far to nullify the inferior power, there are serious practical difficulties. I am unable, therefore, to accept the argument that what the Constitution has handed over to the Federal Parliament is simply the body of company law. That would include all the prohibitory and creative provisions contained in the State Statutes; it would also include the power to alter the conditions of a company's existence, which is equivalent to creation, and to annihilate the corporation altogether which I think is equally with creation, outside the region of federal competency., The power does not look behind the charter, or concern itself with purely internal management, or mere personal preparation to act; it views the beings upon which it is to operate in their relations to outsiders, or, in other words, in the actual exercise of their corporate powers, and entrusts to the Commonwealth Parliament the regulation of the conduct of the corporations in their transactions with or as affecting the public. Many of the matters that in one aspect are internal-such as balance-sheets, registers of members, payment of calls, &c.-may in another aspect and in certain circumstances be important elements in connection with outward transactions, and have a direct relation to them, and so fall incidentally within the ambit of federal power. The same may be said of legal proceedings, remedies, and so on, including winding up proceedings so far as necessary to satisfy creditors, but not so far as extinction. But whether any given provision is part of the federal power or not must, as I view it, depend on whether it includes or is necessarily incidental to the control of the conduct of the corporations in relation to outside persons. This follows from the process of reasoning and elimination that the language itself forces upon us when effect is given to every word. To some extent the grant of power has admittedly overstepped the line of demarcation separating jurisdiction as to interstate and foreign trade from that concerning purely intra-state trade. See the judgment of the learned Chief Justice in The King v. Barger, 6 C.L.R., 41, at p. 69. And once that line is passed, where is the new line to be consistently drawn, except where I have drawn it? I have shown that on the affirmative side the words are not satisfied by mere recognition; and on the negative or prohibitory side, what is the authority for drawing it at exclusion which, besides recognition, is also admitted by my learned brother's view? Nothing in the Constitution lends itself to that result—no solitary authority English or American gives any countenance to it. So far as they go the American cases are opposed to it. In Pembina Mining Co. v. Pennsylvania, 125 U.S., 181, at p. 186, FIELD, J., basing his statement on several authorities, says :- The absolute power of exclusion includes the right to allow a conditional and restricted exercise of its corporate powers within the State.' Per ISAACS, J., 8 C.L.R., at pp. 394-396, 402. PROPOSED CONSTITUTIONAL AMENDMENTS RELATING TO CORPORATIONS. On 26th April 1911, the following proposed amendment of section 51 (xx.) was submitted to the people of the Commonwealth by referendum : 51. (xx.) "Corporations including: (a) The creation, dissolution, regulation, and control of Corporations; (c) Foreign Corporations including their regulation and control. This amendment failed to secure the necessary constitutional ratification, supra p. 21. On 31st May 1913, the following proposed constitutional amendment was submitted to the people : (a) the creation, dissolution, regulation, and control of corporations; (b) Corporations formed under the law of a State, including their dissolution, regulation, and control; but not including municipal or governmental corporations, or any corporation formed solely for religious, charitable, scientific, or artistic purposes, and not for the acquisition of gain by the corporation or its members; and (c) foreign corporations, including their regulation and control.” This proposed amendment failed to secure the necessary constitutional ratification, p. 23. Objections Stated. Federalists object to the Commonwealth Parliament receiving special and discriminating powers of legislation which may be directed against, for the purpose of penalizing, corporations, and regulating them by laws which do not apply to private individuals. Under the same circumstances of trade and commerce or industry, the laws which apply to private individuals should be applicable to corporations. There should be no discriminating legislation against corporations, otherwise there would be, in the same State, two sets of laws relating to trade and commerce and industry, one by the State, applicable to private individuals, and the other by the Federal Parliament, applicable to corporations. Such a power vested in the Federal Parliament would be unfederal and would lead to confusion and anomalies inconsistent with the Federal system. On the other hand Federalists would be quite prepared to support an amendment of the Constitution enabling the Federal Parliament to prescribe uniform company laws authorizing the creation and winding up of companies which desire to carry on business operations in all the States of the Commonwealth. This is a real need and would be a practical improvement. 51. (xxI.) Marriage724 : § 72A. "MARRIAGE." There has, as yet, been no Commonwealth legislation passed with respect to marriage. This paragraph was mentioned incidentally in the High Court in Attorney-General for New South Wales v. Brewery Employees Union, 6 C.L.R., at pp. 585, 601, 610. Prohibited Degrees. The marriage laws of England were part of the body of English law introduced into the Colony of New South Wales on its first settlement. Marriages within the prohibited degrees prescribed in 28 Henry VIII. c. 7, are therefore voidable during the lifetime of the parties, by the Supreme Court of that State in its matrimonial causes jurisdiction. Decision of the Supreme Court, Major (f.c.Miller) v. Miller, (1906) 6 S.R. (N.S.W.), 24, affirmed. Per GRIFFITH, C.J.: There can be no doubt that amongst the laws introduced upon the settlement of the Colony of New South Wales were the marriage laws of England. There can be no doubt, also, that amongst the prohibited degrees prescribed in the Act, 28 Henry VIII. c. 7, is the case of a man who marries his wife's daughter. That has always been accepted as the law of Australia, and I see no reason to doubt that it is so. The only doubt that has been thrown upon it now arises from the fact that when Australia was settled there was no Court that could declare such a marriage to be void, and it had, some time before the settlement, been determined by the English Courts that, as recited in the Act 5 & 6 William IV. c. 54, marriages within the prohibited degree were voidable only by Ecclesiastical Courts in the lifetime of the parties. There are only three possible alternatives :-(1) That such marriages were void in Australia; (2) that they were valid and cannot be impeached at all; and (3) that they were, as in England, voidable, but, owing to the circumstances of the country, there was no immediate available means open to persons seeking to have such a marriage declared void. The third view is the one that has always been accepted, and, I think, is the sound one." BARTON and O'CONNOR, JJ., concurred. Miller v. Major, (1906) 4 C.L.R., 219. 51. (XXII.) Divorce72B and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants: §72B. "DIVORCE." There has, as yet, been no Commonwealth legislation under this head. The paragraph was incidentally referred to in the High Court in Attorney-General of New South Wales v. Brewery Employees Union, 6 C.L.R., at pp. 602, 610. The necessity of a Federal law relating to domicil has been frequently commented upon in divorce and matrimonial cases, both by the judges and counsel. 51. (XXIII.) Invalid13 and old-age pensions : § 73. "INVALID AND OLD-AGE PENSIONS." LEGISLATION. INVALID AND OLD-AGE PENSIONS ACT 1908-1912. Provision is made for the appointment of a Commissioner of Pensions who, subject to the control of the Minister, is the general administrator of the Act. There is a Deputy Commissioner in each State. Subject to the Act, every person who has attained the age of 65 years, or who, being permanently incapacitated for work, has attained the age of 60 years, is, whilst in Australia, qualified to receive an old-age pension. The Governor-General may by proclamation declare that the age at which women shall be qualified to receive an old-age pension shall be sixty years, instead of sixty-five (A proclamation accordingly was made in November 1910). The following persons are not qualified to receive an old-age pension, namely:-Aliens; Asiatics (except those born in Australia), or aboriginal natives of Australia, Africa, the Islands of the Pacific, or New Zealand and a person whose accumulated property in or out of Australia exceeds £310 in capital value. Among the necessary conditions to the receipt of a pension are the following: the applicant must be of good character, must have resided continuously in Australia for at least 20 years, must not have deserted wife, husband or children without just cause. A scheme of invalid pensions applicable to persons above the age of 16 years who are permanently incapacitated from work by reason of an accident or illness, did not come into operation until a date fixed by proclamation (19th November 1910). The amount of a pension may not exceed the rate of £32/10/ per year in any event, nor can it be at such a rate as will make the pensioner's income together with pension exceed £58/10/- per year. A scale of deductions from the maximum rate of pension on account of accumulated property and other sources of income is given in Part V. of the Act. Persons over the age of 16 years and permanently blind are entitled to pensions. INVALID AND OLD-AGE PENSIONS ACT 1917. This Act amends the definition of income under the principal Act by providing that money paid by the Commonwealth to any pensioner by reason of his dependence on a member of the Forces within the meaning of the War Pensions Act 1914-1916, or money paid by the Commonwealth in pursuance of an allotment made by members of the Forces within the meaning of that Act or money paid by way of war pensions to any person who is a dependent within the meaning of the War Pensions Act shall not be deemed to be income within the meaning of the Invalid and Old-age Pensions Act, so as to reduce the claims of the pensioner. |