Law Assignment 1

Question 1

Section 51(xx) – the ‘corporations power’ - of the Australian Constitution empowers the Commonwealth Parliament to make laws with respect to :

(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth ;

(xxxvii)  matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law,

The uncertain constitutional position of the Commonwealth in this area was confirmed by the High Court in 1990 when it considered Section 51(xx) of the Constitution in the context of an attempt by the Commonwealth Parliament to enact a national Corporations Act. In NSW v Commonwealth (1990) 169 CLR 482 the High Court refused to alter its interpretation of Section 51 (xx) in the Huddart Parker case, and again held that the Commonwealth did not have power to pass law that dealt with the incorporation of companies.

Corporate law is state law but with a number of federalising features. In other words, the Corporations Law is an act of each of the states. The reason for this lies in the High Court judgment in New South Wales v Commonwealth (1990) 169 CLR 482 where the High Court considered section 51(xx) of the constitution in the context of an attempt by the commonwealth parliament to enact a national Corporations Act. Section 51(xx) gives the commonwealth parliament power to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". In this 1990 judgment, the High Court (by a majority of six to one) held that section 51(xx) did not confer on the commonwealth parliament power to deal with the incorporation of companies. Only the state parliaments have this power.

Question 2

1. ASIC’s main functions in connection with the regulation of companies are:

* Registering...