¹ This paper was presented to the 2011 Hartnell Colloquium, ‘A Half Century of Harmonisation? The 50th Anniversary of Harmonised Company Legislation in Australia', Centre for Commercial Law, Australian National University, Canberra, 18 November 2011.

² (1870) LR 3 PC 299.

³ An Act to regulate and provide for the management of the South Australian Branch of the National Bank of Australasia, and for other purposes (22 & 23 Vict,. 1859)

⁴ The National Bank of Australasia Act 1859 (Vic),

⁵ Bank of New South Wales Act 1850, 14 Vict.

⁶ The New South Wales Act later became part of the statute law of Victoria (by virtue of the Australian Constitutions Act 1850 (Imp) 13 & 14 Vict c 59) and Queensland (by virtue of the Order in Council of 6 June 1859 establishing that colony).

⁷ The Bank of New South Wales Act 1861 (NZ).

⁸ The proposition that colonial legislatures could not make laws having extra-territorial operation was later held by the High Court to be erroneous: see, eg, Wacando v Commonwealth (1981) 148 CLR 1, 21 (Mason J).

⁹ 13 Pet 519 (1839).

¹⁰ Ibid.

¹¹ For example, Muller v Boston & Maine Railroad 9 F Supp 802 (D NH, 1935); Manufacturers Hanover Trust Co v United States 300 F Supp 185 (SD NY, 1969).

¹² [1867] Mac 233.

¹³ ‘Supreme Court – Civil Side', The Western Australian Times (Perth), 8 March 1878, 2.

¹⁴ ‘Law Intelligence', The West Australian (Perth), 24 February 1880, 2.

¹⁵ (1881) 6 App Cas 386.

¹⁶ Such recognition had also been accepted by the United States Supreme Court in Bank of Augusta v Earle, above n 9, notwithstanding the view taken as to territorially confined existence. The possibility that one body might be incorporated under two Australian enactments has been firmly rejected in modern times: Australian Securities and Investments Commission v Medical Defence Association of Western Australia Inc (2005) 143 FCR 125 [22]–[23] (Emmett J). In Russian Commercial & Industrial Bank v Comptoir d’Escompte de Mulhouse [1925] AC 112, 149, Lord Wrenbury was prepared to consider the possibility denied by the Privy Council in Bateman v Service, at least where the foreign corporation had been dissolved. He ultimately found it unnecessary to answer the question ‘whether the association of persons which is in the foreign country bound together by a nexus of corporation is not in this country an association of natural persons bound together by a nexus of partnership but not corporate … whose existence is not terminated by the death of the foreign corporation …'.

¹⁷ Bernard, O’Dowd and Douglas, I Menzies, Victorian Company Law and Practice (Lawbook, 1940) 1–2Google Scholar.

¹⁸ Phillip, Lipton, ‘A History of Company Law in Colonial Australia: Economic Development and Legal Evolution’ (2007) 31 Melbourne University Law Review 805. 825–6Google Scholar.

¹⁹ The rule that dividends must not be paid except out of profits – now abandoned in Australia by amendments of 2010 – was introduced by Isaacs’ 1896 legislation: Trevor, R Johnston, Martin, O Jager and Reginald, B Taylor, The Law and Practice of Company Accounting in Australia (Butterworths, 5th ed, 1983) 125Google Scholar.

²⁰ John, Waugh, ‘Company Law and the Crash of the 1890s in Victoria’ (1992) 15 University of New South Wales Law Journal 356Google Scholar.

²¹ ‘Companies Act Amendments Passed', The Argus (Melbourne), 23 November 1938, 13.

²² A H Outhwaite, ‘Companies Act Criticised', The Argus (Melbourne), 23 May 1939, 6.

²³ SirFrancis, Gore-Browne, Handbook on the Formation, Management and Winding Up of Joint Stock Companies, (Jordan & Sons, 38th ed, 1933) 1–2Google Scholar.

²⁴ ‘Companies Act Remodelling Urged’ The Sydney Morning Herald (Sydney), 26 August 1924, 10.

²⁵ ‘The New Companies Act', The Advertiser (Adelaide), 8 May 1928, 13.

²⁶ ‘Companies Act', The Sydney Morning Herald (Sydney), 20 September 1934, 6.

²⁷ ‘State Companies Act Proposed Amendments', The West Australian (Perth), 8 March 1935, 20.

²⁸ ‘Secretaries Holding Annual Meeting', The Advertiser (Adelaide), 4 December 1935, 16.

²⁹ The West Australian (Adelaide), 13 August 1937.

³⁰ Rob, McQueen, ‘Why High Court Judges Make Poor Historians? The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia’ (1990) 19 Federal Law Review 245Google Scholar.

³¹ Revised and updated Acts were adopted in Queensland in 1931, South Australia in 1934, New South Wales in 1936, Victoria in 1938 and Western Australia in 1943.

³² The Barrier Miner (Broken Hill), 27 May 1907, 4, stated that such a measure was being prepared for submission to Parliament.

³³ Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330.

³⁴ See New South Wales v Commonwealth (2006) 229 CLR 1, 94 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

³⁵ Labor faced a dilemma in finding a basis on which to oppose in 1919 a measure it had itself promoted only six years earlier. A special federal conference eventually decided to contest the proposal as ‘a sham and delusion’ because of the temporary nature of the legislative power: Tommy Khashoba and Michael Lyons, ‘Politics, Pragmatism and the Platform: The ALP and federal industrial relations power’ (Paper presented to the Tenth National Labour History Conference in 2007, University of Melbourne, 4-6 July 2007) <http://www.historycooperative.org/proceedings/asslh2/khoshaba.html>.

³⁶ McQueen, above n 29, 247.

³⁷ Ibid 258.

³⁸ Commonwealth, Royal Commission on the Constitution, Report of the Royal Commission on the Constitution (1929) 209–211

³⁹ H A J, Ford, ‘Uniform Companies Legislation’ (1962) 4 University of Queensland Law Journal 133, 134Google Scholar.

⁴⁰ T E, Bostock, ‘Australia's New Insider Trading Laws’ (1992) 10 Company and Securities Law Journal 165Google Scholar.

⁴¹ W E, Paterson and H H, Ednie, Companies Act 1958 (Butterworths, 1960) 77Google Scholar.

⁴² As a result of recommendations of the Statute Law Revision Committee in 1954.

⁴³ Victoria, Victoria Government Gazette, No 718, 6 July 1956, 3867.

⁴⁴ See the description by Gummow and Hayne JJ in Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507, 528-9:

The provision was introduced as a result of the report of the Statute Law Revision Committee of Victoria, which examined the provisions of the Companies Act 1938 (Vic) with respect to certain actions taken by the directors of Freighters Ltd. The impugned actions arose from Freighters’ acquisition of Australian Machinery Co and the directors’ formation of companies that would re-sell products produced by Freighters. First, in order to raise the necessary moneys to fund the acquisition of Australian Machinery, Freighters issued shares. However, rather than offering the shares pro rata to existing shareholders for the market price of 50s, the directors of Freighters, without informing the shareholders, themselves took up the necessary shares at a reduced price of 40s. Secondly, the board of directors took over personal responsibility for distributing some of the products of Freighters by forming separate companies for this purpose. This action was taken also without informing the shareholders. The net result was that the directors fixed the prices at which Freighters’ products were to be sold to the newly formed companies for resale by them. Thus the directors dealt with Freighters through the cloak of those companies.

It also later transpired that the inspector appointed by the Attorney-General of Victoria to investigate these activities faced difficulties ascertaining the full facts because of his limited powers. Thus, the Statute Law Revision Committee's primary focus was on recommending provisions regarding disclosure of interests and provisions regarding powers of investigation with respect to preventing what is now called ‘insider trading'.

⁴⁵ SirDouglas, Menzies, ‘Company Directors’ (1959) 33 Australian Law Journal 156, 169Google Scholar.

⁴⁶ New South Wales, Parliamentary Debates, Legislative Assembly, 4 November 1959, 1757 (Norman Mannix).

⁴⁷ Ross, W Parsons, ‘Uniform Company Law in Australia’ [1962] Journal of Business Law 235Google Scholar.

⁴⁸ New South Wales, Parliamentary Debates, Legislative Assembly, 9 November 1960, 1860 (Norman Mannix).

⁴⁹ Commonwealth, Parliamentary Debates, House of Representatives, 26 August 1959, 565 (Sir Garfield Barwick).

⁵⁰ Geoffrey, Sawer, ‘Federal-State Co-operation in Law Reform: Lessons of the Australian Uniform Companies Act’ (1963) 4 Melbourne University Law Review 238, 239Google Scholar.

⁵¹ New South Wales, Parliamentary Debates, Legislative Assembly, 9 November 1960, 1862 (Kenneth McCaw).

⁵² Ibid 1868 (Norman Mannix).

⁵³ Commonwealth, Parliamentary Debates, House of Representatives, 25 August 1960, 410–11 (Sir Garfield Barwick).

⁵⁴ New South Wales, Parliamentary Debates, Legislative Assembly, 31 October 1961, 1956 (Norman Mannix).

⁵⁵ Later Sir Kevin Ellis, Speaker of the Legislative Assembly.

⁵⁶ New South Wales, Parliamentary Debates, Legislative Assembly, 31 October 1961, 1960 (Kevin Ellis).

⁵⁷ Commonwealth, Parliamentary Debates, House of Representatives, 3 October 1961, 1544 (Sir Garfield Barwick).

⁵⁸ New South Wales, Parliamentary Debates, Legislative Assembly, 23 November 1961, 2959-62.

⁵⁹ Commonwealth, Parliamentary Debates, House of Representatives, 17 October 1962, 1659-60 (Sir Garfield Barwick).

⁶⁰ W E, Paterson and H H, Ednie, Australian Company Law (Butterworths, 2nd ed, 1972) vol 2, 1627-8Google Scholar.

⁶¹ Marketable Securities Act 1967 (NSW), Marketable Securities Transfer Act 1967 (Vic), Marketable Securities Transfer Act 1970 (WA), Marketable Securities Act 1971 (Tas), Marketable Securities Transfer Act 1967 (SA), Marketable Securities Transfer Ordinance 1967 (NT), Australian Capital Territory Tax (Sales of Marketable Securities) Act 1969 (ACT), Australian Capital Territory Tax (Purchases of Marketable Securities) Act 1969 (ACT).

⁶² Some of the recommendations of the Company Law Advisory Committee appointed by the Standing Committee of Attorneys-General in August 1967 were adopted on a uniform basis but many were not. The committee's task was to inquire into the extent of the protection afforded by the uniform legislation to the investing public. The committee was chaired by Sir Richard Eggleston and became known as the ‘Eggleston Committee'. Its remit was very broad. Seven so-called ‘interim reports’ were delivered between October 1968 and July 1972: see New South Wales, Accounts and Audit, Parl Paper No 143 (1970)(first); Commonwealth, Disclosure of Substantial Shareholdings and Takeover Bids, Parl Paper No 43 (1969)(second); Commonwealth, Investigations Provisions of the Uniform Companies Act, Parl Paper No 23 (1970)(third); Commonwealth, Misuse of Confidential Information Dealings in Options Disclosures by Directors and Summary of Recommendations, Parl Paper No 24 (1970)(fourth); Commonwealth, Fundraising by Corporations, Parl Paper No 99 (1971)(fifth); Commonwealth, Share Hawking, Parl Paper No 56 (1972)(sixth); Commonwealth, Registration of Charges, Parl Paper No 230 (1972)(seventh). These are conveniently collected at <http://www.takeovers.gov.au/content/Resources/eggleston_committee_reports.aspx>. There was apparently no final report.

⁶³ These are among the powers of the Board of Trade noted in Gore-Browne, above n 22. The functions of the Board of Trade extended into many aspects of British commercial life beyond the administration of companies (such as patents, trade marks, merchant shipping, regulation of factories, mines and agriculture).

⁶⁴ Hence, for example, the uncharacteristically inquisitorial role of Australian courts in relation to inquiries into the conduct of liquidators: see, eg, BL & GY International Co Ltd v Hypec Electronics Pty Ltd (2010) 79 ACSR 558 (Barrett J).

⁶⁵ Rob, McQueen, ‘Limited Liability Company Legislation – The Australian Experience’ (1991) 1 Australian Journal of Corporate Law 22, 25Google Scholar.

⁶⁶ Afterwards Fox J of the Federal Court of Australia.

⁶⁷ Russell W Fox, extracted in J M, Young and J M, Rodd ‘“Companies in Uniform“: Observations on the recent legislation’ (1963) 36 Australian Law Journal 330, 346Google Scholar.

⁶⁸ Rob McQueen, ‘An Examination of Australian Corporate Law and Regulation 1901-1961’ (1992) 15 University of New South Wales Law Journal 1, 11.

⁶⁹ State Records Archives Investigator, Government of New South Wales, Agency Detail, <http://investigator.records.nsw.gov.au/Entity.aspx?Path=%5CAgency%5C78>.

⁷⁰ Western Australia became a party the following year.

⁷¹ The text is set out in W E, Paterson and H H, Ednie, Australian Company Law (Butterworths, 2nd ed, 1976) vol 1, 1136-1136.3Google Scholar.

⁷² Commonwealth, Parliamentary Debates, Senate, 19 March 1970, 489-500 (Lionel Murphy).

⁷³ Paul, Redmond, Companies and Securities Law Commentary and Materials, (Lawbook, 5th ed, 2009) 43Google Scholar.

⁷⁴ Senate Select Committee on Securities and Exchange, Parliament of Australia, Australian Securities Markets and their Regulation (1974) 1.1.

⁷⁵ The text of the agreement appears in the schedule to the National Companies and Securities Commission Act 1979 (Cth). It is unlikely that this agreement or the ICAC agreement was binding except by way of political obligation: see South Australia v The Commonwealth (1962) 108 CLR 130.

⁷⁶ See especially Companies (Acquisition of Shares) Act 1980 (Cth), Securities Industry Act 1980 (Cth) and Companies Act 1981 (Cth).

⁷⁷ And later the Northern Territory.

⁷⁸ Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, The Role of Parliament In Relation to the National Companies Scheme (1987).

⁷⁹ The narrow view of Commonwealth legislative power in relation to corporations that had stood largely unchallenged since Huddart, Parker & Co. Pty. Ltd v Moorehead (1909) 8 CLR 330 was called into question in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, 488-9 (Barwick CJ, with whom McTiernan, Owen and Walsh JJ agreed), 512-3 (Windeyer J), 525 (Gibbs J).

⁸⁰ Providing for a species of closely held corporation recommended by the Companies and Securities Law Review Committee in its report of September 1985. This proposed legislation did not form part of the package ultimately adopted after the successful constitutional challenge.

⁸¹ New South Wales v Commonwealth (1990) 169 CLR 482.

⁸² The so-called National Scheme based on adoption by legislation in each state of the ‘Corporations Law’ set out in s 82 of the Corporations Act 1989 (Cth) as amended by the Corporations Legislation Amendment Act 1990 (Cth).

⁸³ Re Wakim; Ex parte McNally (1999) 198 CLR 511.

⁸⁴ New South Wales referred legislative power to the Federal parliament by the Corporations (Commonwealth Powers) Act 2001 (NSW). The reference was in relation to particular Commonwealth bills, supplemented by an amendment power also related to those bills. The initial references were for a period of five years only. The resultant federal legislation is the Corporations Act 2001 (Cth).

⁸⁵ Unhindered, that is, by s 109 of the Constitution.

⁸⁶ These matters were examined in HIH Casualty & General Insurance Ltd v Building Insurers’ Guarantee Corporation (2003) 188 FLR 153.

⁸⁷ Ibid.

⁸⁸ Australian Jockey and Sydney Turf Clubs Merger Act 2010 (NSW).

⁸⁹ Irrigation Company Act 2011 (Tas).

⁹⁰ Dust Diseases Tribunal Act 1989 (NSW).