proceeding in an Australian court) where it is necessary to determine the question by reference to a system of law other than Australian law.
(2) Any question relating to whether a body or person has been validly incorporated in a place outside Australia is to be determined by reference to the law applied by the people in that place.
(3) Any question relating to:
- (a) the status of a foreign corporation (including its identity as a legal entity and its legal capacity and powers); or
- …
- (h) the validity of a foreign corporation's dealings otherwise than with outsiders;
- is to be determined by reference to the law applied by the people in the place in which the foreign corporation was incorporated.
(4) A matter mentioned in subsection (2) or (3) is not to be taken, by implication, to limit any other matter mentioned in those subsections.
111 I am not persuaded that ss 56–7 should be understood as operating in isolation from these provisions. Rather, in my view, it is implicit in ss 56–7 that the law will supply a means of ascertaining the juristic personality of corporations. Sections 56(2) and 57 do not supply that means themselves, as they well might. In the case of foreign corporations, that means is supplied by s 7(3)(a).
112 For these reasons, identifying whether a given foreign corporation is a "person" subject to an obligation imposed by s 57 of the Online Safety Act requires regard to be had to the "status" of the foreign corporation by reference to the law of the place where the corporation is incorporated.
The relevant choice-of-law analysis concerns the status of X Corp, not Twitter Inc
113 In itself, this analysis may not establish whether it is the status of X Corp or of Twitter Inc that must be decided. The Commissioner submitted that s 7(3)(a) of the Foreign Corporations (Application of Laws) Act directs the Court to go to the law under which the status of the company with which the Court is concerned is governed. The Commissioner submitted that, in this case, the Court is concerned with the status of Twitter Inc. On this footing, the Commissioner submitted that s 7(3)(a) selected the law of Delaware as supplying the relevant law concerning the status of Twitter Inc.
