The gratuitous provision of a public welfare service substantially at government expense does not constitute 'trade' for the purposes of s 51(xx) of the Constitution, even where the funding is provided under a formal contract rather than a grant. A non-profit organisation providing legal aid services to Indigenous Australians under a government contract, where services are provided free of charge to eligible clients, the organisation makes no profit, and services are controlled by government, is not a trading corporation. However, [name withheld]'s dissent demonstrates that the characterisation is finely balanced and may depend on whether the court focuses on the contractual form of the arrangement or its welfare substance.
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