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Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia

Published online by Cambridge University Press:  24 January 2025

Rob McQueen
Rob McQueen*
Affiliation:
Department of Legal Studies, LaTrobe University
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Extract

The recent High Court case on the Corporations Act and the reliance therein by the majority on ‘history’ to support their reading of s 51(xx) raises the question of what were prevailing community attitudes to uniform national legislation on corporations in the late nineteenth and early twentieth century. Whilst the views of the delegates to the Conventions and the views of the justices in the High Court in the Huddart, Parker & Co Pty Ltd v Moorehead have been selectively dusted off and resuscitated by the majority justices in the Corporations Act case the broader spectrum of opinion in relation to such matters, both at the time of federation and subsequently, is less well known. Nevertheless such views are also important in arriving at a proper understanding of the meaning of placitum (xx) of s 51.

Type
Research Article
Information
Federal Law Review , Volume 19 , Issue 3 , September 1990 , pp. 245 - 265
Copyright
Copyright © 1990 The Australian National University

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Footnotes

The author wishes to acknowledge the assistance of the staff of the following institutions in the locating of material utilised in this paper: University of Melbourne Archives, National Archives of Business and Labour, the Oxley Library, the Mitchell Library and the Corporate Affairs Commission Office in Adelaide

The author also wishes to thank both Dr Mark Finnane of the Division of Humanities, Griffith University and those who attended the Company and Revenue Law Interest Group session of the ALTA Conference, 1990, at which this paper was given its first public airing, for their comments and criticisms. All errors of fact and execution of course remain the sole responsibility of the author.

References

1 New South Wales v Commonwealth (1990) 169 CLR 482. Hereafter the 'Corporations Act case'.

2 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330. Hereafter the 'Huddart Parker case'

3 (1990) 169 CLR 482, 511.

4 A, Ponelli, Oral Testimony, “The Law and the Making Of History: the 'April 7' Murder Trial”, (1985) 20 History Workshop 31Google Scholar.

5 Ford, H A J, Principles of Company Law (5th ed 1990)Google Scholar.

6 Ford, H A J, Principles of Company Law (4th ed 1986) 14Google Scholar; see also Ford, H A J, ibid 11Google Scholar.

7 Ibid 23.

8 (1920) 28 CLR 129. Hereafter the 'Engineers case'.

9 A, Castles, An Australian Legal History (1982) 456Google Scholar.

10 Michaelis Hallerslein Collection, National Archives of Labour and Industry, ANU, Letter from Morris Michaelis of 2 April 1889 to his nephew.

11 Wilabraham Collection, Mitchell Library, Book 4, letter of AB Wilabraham to Shields, 24 January 1890.

12 Ibid, Letter of AB Wilabraham to Shields, 6 June 1890.

13 Ibid,Letter of AB Wilabraham to Shields, 13 June 1890.

14 Reply of the Registrar of Companies to the Report of the Audit Inspector on the Books and Accounts of the Master of the Supreme Court and Registrar of Companies, 15 November 1905, Supreme Court Correspondence File 1905-1935, SCT A/54, Queensland State Archives.

15 Michaelis Hallerstein Collection, National Archives of Labour and Industry, ANU, Letter from Morris Michealis to J Isaac, 19 March 1895.

16 Vic Parl Deb 1896, Vol 79, 4705 (21 January 1896).

17 See G, Craven(ed), The Convention Debates 1891-1898: co-ntary, Indices and Guide (1986) 440Google Scholar.

18 Minute Book of Master of Supreme Court, South Australia, Letter of 18 August 1893, Corporate Affairs Commission Office, Adelaide.

19 Official Record of the Debates of the National Australasian Convention Debates, Sydney 1891, 332 (3 April 1891).

20 J, Crawford, “The High Court and the Corporations Power” (1990) 3 ACL Bull 33Google Scholar.

21 T, Sykes, Two Centuries of Panic (1988) 176-178Google Scholar.

22 Cited in M, Cannon, Land Boom and Bust (1972) 383Google Scholar.

23 Suppon for a national and uniform system of both company and bankruptcy law was formalised in a motion unanimously agreed to at the Conference of Commonwealth and State ministers held in Hoban in February, 1905. In the Repon of the Proceedings of this Conference, immediately after the statement by the President that 'We all agreed that there should be one Bankruptcy law', the following motion proposed by Mr Price and agreed to by those at the Conference is recited:

...in the option of this Conference, there should be uniformity of legislation in respect to the Bankruptcy Law, as well as to Companies Acts, and that the Federal Parliament be asked to legislate to that end at an early date.

(NSW Parliamentary Papers, 1905, Repon of Proceedings of the Conference between the Commonwealth and State Ministers, p 71).

In 1906 the desire for the enactment of uniform, national legislation relation to bankruptcy, companies and other commercial activities was reiterated at the Premiers Conference. The Prime Minister, at that Conference expressed the following view in relation to commercial legislation:

We desire to bring the laws of the Commonwealth relating thereto into a uniform state. In some of the States there are old laws, and a large number of discrepancies, and the uniformity I propose will make the Australian laws less uncenain. (NSW Parliamentary Papers, 1906, Repon of Premiers Conference, 1906, p 85).

24 T, Sykes, supra n 21, 192Google Scholar.

25 An Act to funher amend the Companies Act 1890 and for other purposes, 60 Viet no 1482, 1986. In relation to the nature of the annual balance sheet and the circumstances of its availability to shareholders note particularly ss 23-25 and Form B, Third Schedule.

26 The concern for a co-ordinated national approach to matters of commerce and finance in the wake of the commercial crisis of the 1890s is also reflected in the reasons advanced by those in the banking industry for conducting a National Conference in 189S. Turner (of the CBA) stated that one of the key factors lying behind the Conference was the desire of bankers “to secure federal legislation if possible; that is unifonn legislation throughout the colonies”. Cited in H Nunn, Select Documents, National Bank of Australia, Sydney, 1988, p 681. It has been suggested by at least one historian of the banking industry in Australia that attitudes emerging from the experience of the 1890s crisis were crucial in the final shape of the 'banking power' in the Constitution. R Holder, The Bank of New South Wales (1970). It does not seem unlikely that the same forces were at work in relation to the 'corporations power'

27 De, Lissa, Companies' Work and Mining Law in New South Wales and Victoria (1894) 1Google Scholar.

28 J, Crawford, supra n 20, 33Google Scholar.

29 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, 488 per Barwick CJ.

30 See Deane, J's remarks in New South Wales v Commonwealth (1990) 169 CLR 482, 511Google Scholar.

31 Colonial Conference, 1907, Minutes of Proceedings, 491.

32 Letter of Honorary Secretary of the Law Institute of Victoria to Hon Secs of Law Institutes/Associations in other States, dated 19 June 1906.

33 Com Parl Deb 1907, Vol XXXVII, 1088 (30 July 1907).

34 Copy of letter of the 9 June 1907 in Law Institute of Victoria Collection, 2nd accession, Melbourne University Archives, 2/42/3.

35 Law Institute of Victoria Collection, 2nd Accession, Melbourne University Archives, letter of Queensland Law Association to Law Institute of Victoria, 9 July 1907.

36 Ibid.

37 Law Institute of Victoria Collection, 2nd Accession, Melbourne University Archives, Letter of South Australian Law Institute to Victorian Law Institute, 3 July 1907.

38 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 388.

39 Minute Book of the Master of the Supreme Coun, South Australia, Letter of 11 February 1923

40 Reported in Adelaide Chamber of Commerce, General Council Minutes, 1924

41 Id.

42 Minutes of Parliamentary and Industrial Committee Meeting, Adelaide Chamber of Commerce, 28 November 1924.

43 Minutes of General Council, Adelaide Chamber of Commerce.

44 Minutes of Parliamentary and Industrial Committee, Adelaide Chamber of Commerce, 23 February 1928.

45 Proceedings of Queensland Law Society (1931) S LD 81.

46 Editorial Comment (1931) S LD 129, 129-130.

47 JD, Holmes, “A Commonwealth Companies Act” (1934) 7 ALJ 372, 375Google Scholar.

48 P, Thompson, TM Voice of tM Past:Oral History (1978) 43Google Scholar.

49 Note, for example, the comments of Ed Blackadder, chairperson of the Australian Merchant Hanken Association, to the effect that “if the drift goes on much longer, there is a danger of considerable capital outflows from Australia” cited in “A blinkered view from the Bench”, Sydney Morning Herald, 9 February 1990. See also the comments of Gough Whitlam on the Corporations Act case in the Sydney Morning Herald, 15 February 1990.

Whilst the decision in the Corporations Act case has not significantly impeded the establishment of a national regulatory scheme (with the exception of the farcical by play provided by the WA Legislative Council in its attempt to impede the introduction of the new scheme) it is nevertheless the case that it has prevented the Commonwealth from assuming undisputed control over matters relating to incorporation, and has resulted in the retention of a modified version of the arrangements prevailing under the Companies Code regime rather than pennitting the Commonwealth to make a clean break with the immediate past. The retention of the Ministerial Council, albeit with reduced powers, the 'co-operative nature' of the Corporations Law, rather than it being truly national legislation, and numerous other aspects of the new regime of corporate law which arise from the restricted reading given to the Commonwealth's power in the Corporations Act case all haveand will continue to have a potentially corrosive effect on the effectiveness of Federal administrative and legislative initiatives relating tocorporations.