Judicial Power

The Court unanimously held that the power of inquiry or investigation was not the exercise of judicial power. Griffiths CJ, with whom Barton J agreed, relied on the decision in Cox v Coleridge^[15] holding that a preliminary inquiry as to whether there was sufficient ground for a person to be tried was not a judicial function. His Honour held that 'judicial power' means the power to

decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.^{[1]: at p. 357}

The other judges reached a similar conclusion, for reasons that were largely consistent. O'Connor J held that the power of inquiry was necessarily included in the executive functions of government.^{[1]: at p. 378} Issacs J held that judicial power connected the determination of rights in relation to life, liberty or property of a person.^{[1]: at p. 382} Higgins J did not refer to the argument in any detail, noting simply that he concurred with his colleagues on the issue.^{[1]: at p. 418}

The conclusion that these were powers of inquiry or investigation, and the failure to answer the questions asked would appear to preclude any suggestion of a denial of natural justice and the reasons for judgement did not address that issue.

Corporations power

The Court held that the Corporations power did not enable the Parliament to make a valid law controlling the intra-State trading operations of foreign, trading or financial corporations. In giving their reasons, each member of the Court held that the corporations power does not confer on the Commonwealth Parliament power to create corporations. While four of the judges agreed as to the outcome, there was no majority view of the meaning of the corporation power. As all five members of the Court had been leading participants in the Constitutional Conventions and are properly seen as among the framers of the Constitution, these differences of opinion deny that there was then any settled understanding, accepted by these framers of the Constitution, of what meaning or effect was to be given to the corporations power.^{[7]: at [69], [82]} Three of the judges, Griffith CJ, Barton & O'Connor JJ, relied upon the doctrine of reserved powers, holding that intra-State trading activities were reserved to the States. The importance of the reserved powers doctrine does not however explain all aspects of the differences in opinion about the ambit of the corporations power, in particular the distinction between regulating a corporations relations with outside parties and regulating the internal affairs of a corporation.^{[7]: at [74] [16]}

Griffith CJ distinguished between a law denying the capacity to enter into a contract with a law governing the validity of a contract, holding that the corporations power does not authorize "the Commonwealth to invade the field of State law as to domestic trade, the carrying on of which is within the capacity of trading and financial corporations formed under the laws of the State." The corporations power permits "the Commonwealth to prohibit a trading or financial corporation formed within the Commonwealth from entering into any field of operation, but does not empower the Commonwealth to control the operations of a corporation which lawfully enters upon a field of operation, the control of which is exclusively reserved to the States."^{[1]: at p. 354}

Barton J held that the corporations power did not "constitute an exception to the otherwise exclusive reservation to the States of the power to deal by legislation with matters within the field of their internal or domestic trade"^{[1]: at pp. 363–4}

O'Connor J held that "the Constitution, whilst empowering the Parliament of the Commonwealth to legislate with respect to foreign corporations and financial and trading corporations formed by the laws of any State, also vests in each State exclusive control over its own purely internal trade and commerce. The corporations power extended "no further than the regulation of the conditions on which corporations of the class described shall be recognised, and permitted to carry on business throughout the Commonwealth" so "as to be consistent as far as possible with the exclusive control over its internal trade and commerce vested in the State."^{[1]: at p. 370}

Higgins J agreed with the majority that sections 5 and 8 of the Act were beyond power, but, having rejected the reserved powers doctrine in his dissent in R v Barger,^[17] and the Union Label case,^[18] his Honour reasons were significantly different. Higgins J distinguished between the status of corporations and the rights and liabilities attaching to that status, holding that the trade and commerce power and the corporations power were mutually exclusive. In this case the Act was substantially with respect to trade and commerce and thus it could not validly be a law with respect to corporations.^{[1]: at p. 401}

Issacs J had also rejected the reserved powers doctrine in R v Barger,^[17] and the Union Label case.^[18] His Honour, in dissent, gave a broad meaning to the corporations power but attempted to set limits to the power, in particular holding that the corporations power does not "concern itself with purely internal management, or mere personal preparation to act; it views the beings upon which it is to operate in their relations to outsiders, or, in other words, in the actual exercise of their corporate powers, and entrusts to the Commonwealth Parliament the regulation of the conduct of the corporations in their transactions with or as affecting the public." It would appear, for reasons that are not explained in the judgement, that his Honour saw manufacturing and mining corporations as falling outside the class of trading or financial corporations.^{[1]: at pp. 393 & 395}