State of New South Wales v The Commonwealth of Australia; State of Western Australia v The Commonwealth of Australia; State of South Australia v The Commonwealth of Australia

[1990] HCATrans 272

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S92 of 1989

B e t w e e n -

THE STATE OF NEW SOUTH WALES

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Perth No P24 of 1989

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Adelaide No A32 of 1989

B e t w e e n -

NSW(3) 1 9/11/90

THE STATE OF SOUTH AUSTRALIA

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Application by the Commonwealth

in respect of undertaking given

to the Chief Justice on

13 September 1989

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 NOVEMBER 1990, AT 3.34 PM

Copyright in the High Court of Australia

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friend, MR D.J. ROSE, for the applicant defendant

on this motion. (instructed by the Australian

Government Solicitor)

MR K. MASON, QC, Solicitor-General for the State of New

South Wales: If the Court pleases, I appear with

my learned friend, MR R. SACKVILLE, for the

plaintiff and also for the other two States in the

corresponding actions. (instructed by the Crown

Solicitor for New South Wales)

MASON CJ: Yes, Mr Solicitor?

MR GRIFFITH: If the Court pleases, by way of explanation

for this somewhat unusual motion, the Court will

recollect that these actions concern claims by New

South Wales, South Australia and Western Australia.

There was also an action by Queensland which did

not proceed and was discontinued, that the

Corporations Act 1989 was substantially invalid in

its application to the States, principally as not

being supported by the Corporations power.

The questions reserved by Your Honour

the Chief Justice on 13 September 1989 were

directed to the issue whether provisions of the Corporations Act and the Close Corporations Act

were valid, in particular by reference to the issue

of whether section Sl(xx) authorizes the Parliament

to make laws providing for the incorporations of

trading and financial corporations. In that

context, as was recited in the order of Your Honour

NSW( 3) 2 MR GRIFFITH, QC 9/11/90

the Chief Justice on 13 September 1989 stating a

question to the Court, I stated on behalf of the

Commonwealth:

If the Court decides that section Sl(xx) does not authorize the Parliament to make laws providing for the incorporation of trading and

financial corporations, the defendant will not

proclaim the Corporations Act 1989,

Chapters II to Vin the Close Corporations

Act 1989.

This statement is recited in the judgment of the

Court after the Court referred to the fact that the

underlying question which is raised by this case is

whether section Sl(xx) of the Constitution empowers

the Parliament to legislate for the incorporation

of tradimg and financial corporations.

Since the Court's judgment there have been

discussions leading to heads of agreement between

the Commonwealth and the States concluded in Alice

Springs on 29 June 1990. The matters agreed to in

the heads of agreement are translated into a scheme

to which the Corporations Legislation Amendment

Bill 1990 gives effect. This was introduced in

Parliament last night and may I give the Court a copy of the front page and also Part II of that

Bill.

MASON CJ: Could I ask you, Mr Solicitor, what is the object

of this statement?

MR GRIFFITH:  Yes, Your Honour. I was going to say that

next, Your Honour.

MASON CJ: Perhaps you might say it then.

MR GRIFFITH:  Your Honour, it is necessary to explain the

position we have reached to give content to the

nature of the application so may I proceed in that

order, Your Honour?

MASON CJ: Yes.

MR GRIFFITH: Your Honours will see that the effect of this

bill, as evidenced by the front sheet and Part II,

is to convert the Corporations Act 1989 into a law

for the government of the Australian Capital

Territory under section 122 of the Constitution to

be known as the corporations law of the ACT.	No
provision of the amended Corporations Act 1989,

which is picked up by this bill, will be supported

by section Sl(xx) of the Constitution and its

operation will be amended to apply its provisions

only to the Australian Capital Territory, including

NSW(3) 9/11/90

amended Chapters 2 to 5 of the Corporations Act

1989.

It is intended under the heads of agreement that the corporations law will be applied by the

States and the Northern Territory by Application of

Laws Acts as corporation laws of each of these

jurisdictions.

The Commonwealth regards the statement made in

the proceedings which I have referred to and

referred to in the Court's judgment as operating,

in effect, as an undertaking between the parties

and takes the view that it is applicable only so

far as and as long as the legislation under

challenge was based wholly or partly under

section SO(xx) of the Constitution and applied to

the States.

The Commonwealth considers that if the

Corporations Amendment Bill was passed as proposed

in terms relying entirely on section 122 of the

Constitution and not applying to the States, its

proclamation would not in any way be inconsistent

with the statement made to the Court. The

Commonwealth has notified the three States of its

understanding as to the application of this

statement but, as we understand it, counsel for the

States are not in a position to express the

concurrence of the States to this understanding.

In the circumstances - and this is to answer

Your Honour's question - and because the statement

was made to Your Honour the Chief Justice and

recited in the order and also in the judgment, the the Court of the matters that I have referred to leading to the Commonwealth taking the position it

has on this issue and introducing the bill which

does, in fact, proceed to amend Chapters 2 to 5 of

the Corporations Act 1989 in the process of

converting that legislation to be law of the

Australian Capital Territory only.

The Commonwealth does not at this time ask the

Court to make any ruling or for the States to

express to the Court the States' position on this

issue. Indeed, we take the view that the absence

of any response by the State to us making this

statement to the Court today is not, and certainly

will not be regarded by the Commonwealth, as any

way acknowledgment or acquiescence that the States accept the position as stated by the Commonwealth.

So, the matter is moved before the Court for

the purpose of publicly informing the Court of the

position having regard to the statement made to the

NSW(3) 9/11/90

Court on 13 September and recited in the judgment.

I should add, Your Honours, that we take the view

that because of these developments there is no

relevant outstanding issue in the actions

themselves and consideration be given to applying
to the Court in due course for those actions to be

dismissed.

But if I could indicate to the Court, because

this is a matter of public undertaking between the appropriate that the Court be informed publicly of

this position so that one could be in the position,

Your Honours, of not making any assumption, having

regard to the recital of the Commonwealth's
position, that there was on the face of the bill

introduced last night an apparent repudiation or

breach of the statement I made to the Court.

Your Honours, we seek no order from the Court

and we seek no response from my learned friend

representing the three defendants. That is the

motion we desire to make, Your Honours.

MASON CJ: Yes. We have listened and that apparently is our

only role.

MR GRIFFITH: If the Court pleases.

MASON CJ: But I should perhaps ask the Solicitor-General

for New South Wales whether, in the circumstances,

as he is a respondent to the motion and he

represents the other respondents, whether he has

anything to say.

MR MASON:	No.
MASON CJ:	Very well.  The Court will adjourn.

AT 3.41 PM THE MATTER WAS ADJOURNED SINE DIE

9/11/90