'Trading or financial corporations' under section 51(xx) of the constitution: A multifactorial approach

Abstract

The Commonwealth has legislative power with respect to 'trading or financial corporations' under s 51(xx) of the Constitution. An important question is thus how to identify a trading or financial corporation. For around 30 years, the accepted doctrine has been that a court looks at a corporation's activities. This article examines the justifications for and application of this activities test in the High Court and in recent lower court decisions. It argues that the activities test should be replaced by a multifactorial approach. Such an approach is more transparent and informative, and also better reflects what the courts actually do when deciding cases in this area.