Senior counsel for X Corp also drew support for this position from the fact that the reporting notice must be complied with within a particular period of time. Senior counsel for X Corp further submitted that ss 56–7 should not be construed by reference to "abusive phoenixing exercises".
106 For the following reasons, I do not accept the submission of X Corp that the issues in this proceeding are to be resolved solely by reference to ss 56(2) and 57 of the Online Safety Act, and on the bare premise that the Commissioner gave the notice to Twitter Inc, which on the agreed facts ceased to exist after being given the notice.
107 I accept that the starting point of the analysis is provided by the terms of s 57. The fundamental question in this part of the case is whether X Corp is "[a] person" who "must comply with a notice under subsection 56(2) to the extent" that it can do so.
108 X Corp is, and Twitter Inc was, a foreign corporation. Foreign corporations are not natural persons, nor are they given artificial legal personality directly by the laws of Australia. Nevertheless, the common law has long recognised that companies may be incorporated under the laws of foreign countries. As Lord Wright put it in Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 (Lazard Brothers) at 297, "English Courts have long since recognized as juristic persons corporations established by foreign law in virtue of the fact of their creation and continuance under and by that law".
109 The statutory expression "person" in s 57 directs attention to the juristic status of an entity that is said to be subject to an obligation under s 56(2). (See also Acts Interpretation Act 1901 (Cth) s 2C.) Where that "person" is said to be a foreign corporation, the juristic status of that entity falls to be determined by reference to foreign law, at least to this extent. The reference in s 57 to a "person" must be understood in the light of the common law's longstanding approach to the question of the legal personality of foreign corporations.
110 But once it is accepted that s 57 directs attention to foreign law for the purpose of deciding whether a given foreign corporation is a "person", certain consequences follow. Relevantly, s 7 of the Foreign Corporations (Application of Laws) Act 1989 (Cth) assumes significance. Section 7 relevantly provides –
7 Law applied in place of incorporation applicable law in determining questions relating to status of foreign corporation etc.
(1) The section applies in relation to the determination of a question arising under Australian law (including a question arising in a
