Constitutional Checklist Are we dealing with Corporations Power? Is the Company incorporated? Yes its a Constitutional Corporation – Is the Commonwealth regulating act to trade’ ‘preliminary Company is incorporated but not trading Yes, per Commonwealth v Tasmania No, ignore. Is the company trading? Current Activities Test Detail examples of what it is trading Is the Commonwealth Regulating trading activities? S51(xx) Strickland v Rocla Concrete Pipes Can only regulate activities which are ‘trading activities’ Is sufficient connection to trading? NSW v Commonwealth (Work Choices) of Commands Test’ ‘Objects Can regulate internal powers and internal agreements Incidental Scope of the Power? Has the corporation engaged in trading? No - cant held a organisation liable for conduct it has not engaged in Actors Equity case Yes, comes within scope of incidental power NSW v Commonwealth to simply relate ‘enough to the business’ No its not incorporated yet – Is the Commonwealth attempting to regulate Not permissible within the of the s51(xx) power NSW v Commonwealth (Incorporation Case) Cannot regulate pre-incorporation
Constitutional Checklist Are we dealing with Corporations Power? Is the Company incorporated? Yes – its a Constitutional Corporation Is the Commonwealth regulating act ‘preliminary to trade’ Company is incorporated but not trading Yes, per Commonwealth v Tasmania No, ignore. Is the company trading? Current Activities Test Detail examples of what it is trading Is the Commonwealth Regulating trading activities? S51(xx) Strickland v Rocla Concrete Pipes Can only regulate activities which are ‘trading activities’ Is sufficient connection to trading? NSW v Commonwealth (Work Choices) ‘Objects of Commands Test’ Can regulate internal powers and internal agreements Incidental Scope of the Power? Has the corporation engaged in trading? No - cant held a organisation liable for conduct it has not engaged in Actors Equity case Yes, comes within scope of incidental power NSW v Commonwealth ‘enough to simply relate to the business’ No – its not incorporated yet Is the Commonwealth attempting to regulate Not permissible within the of the s51(xx) power NSW v Commonwealth (Incorporation Case) Cannot regulate pre-incorporation
Constitutional_Notes.docx