Section 51 of the Australian Constitution
Encyclopedia
Section 51 of the Constitution of Australia
grants legislative powers to the Australian (Commonwealth) Parliament
only when subject to the constitution. When the six Australian colonies joined together in Federation
in 1901, they became the original States
and ceded some of their powers to the new Commonwealth Parliament. There are 39 subsections to section 51, each of which describes a "head of power" under which the Parliament has the power to make laws.
The Commonwealth legislative power is limited to that granted in the Constitution. Powers not included in section 51 are considered "residual powers", and remain the domain of the states, unless there is another grant of constitutional power (e.g. Section 52 and Section 90
prescribe additional powers). Matters covered in section 51 may be legislated on by the states, but the legislation will be ineffective if inconsistent with or in a field 'covered by' Commonwealth legislation (by virtue of s109 inconsistency provision
).
Federation was intended to address problems caused by having separate colonies on the one island continent. Section 51 therefore encompasses a group of ‘nationhood’ powers which reflect what powers a ‘nation’ was viewed as possessing. These include:
The Constitution also grants powers over:
Flexibility is allowed by:
has the jurisdiction to interpret the constitution, an often controversial ability. Many of the court's interpretations have focused on section 51, from cases arising out of disputes between the states and the Commonwealth Parliament.
Section 96 does not compel a state to accept a grant, so constitutionally a state may refuse a grant and not implement any policy conditions. However, since a uniform federal system of income tax was introduced in 1942 (under s51(ii)) a vertical fiscal imbalance
has arisen and the Commonwealth Parliament has had a vastly larger budget. It also has control over state borrowings (under subsection iv). This has meant that the Parliament's powers have effectively been extended beyond the constraints of section 51 and other explicit grants of legislative power (e.g. section 52 and section 90).
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
grants legislative powers to the Australian (Commonwealth) Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
only when subject to the constitution. When the six Australian colonies joined together in Federation
Federation of Australia
The Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
in 1901, they became the original States
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
and ceded some of their powers to the new Commonwealth Parliament. There are 39 subsections to section 51, each of which describes a "head of power" under which the Parliament has the power to make laws.
The Commonwealth legislative power is limited to that granted in the Constitution. Powers not included in section 51 are considered "residual powers", and remain the domain of the states, unless there is another grant of constitutional power (e.g. Section 52 and Section 90
Constitutional basis of taxation in Australia
The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51, section 90, section 53, section 55, and section 96...
prescribe additional powers). Matters covered in section 51 may be legislated on by the states, but the legislation will be ineffective if inconsistent with or in a field 'covered by' Commonwealth legislation (by virtue of s109 inconsistency provision
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
).
Powers of the Parliament
The most important heads of section in terms of supporting contemporary Commonwealth legislation are:- ‘the interstate trade and commerce power’Section 51(i) of the Australian ConstitutionSection 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
: s51(i) Trade and commerce with other countries, and among the States: - ‘the corporations power’Section 51(xx) of the Australian ConstitutionSection 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
: s51(xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth - ‘the external affairs power’Section 51(xxix) of the Australian ConstitutionSection 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
: s51(xxix) External Affairs: - 'Taxation power': s51(ii) Taxation - but so as not to discriminate between States or parts of States: (Combined with s96 –see ‘tied grants’ below).
Federation was intended to address problems caused by having separate colonies on the one island continent. Section 51 therefore encompasses a group of ‘nationhood’ powers which reflect what powers a ‘nation’ was viewed as possessing. These include:
- Military defence:s51(vi)Section 51(vi) of the Australian ConstitutionSection 51 of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "the naval and military defence of the Commonwealth and of the several States, and...
- Quarantine: s51(ix)
- Census and Statistics: s51(xi)Section 51(xi) of the Australian ConstitutionSection 51 of the Australian Constitution is the subsection of Section 51 of the Australian Constitution granting the Commonwealth the power to make laws on "census and statistics".- Historical Context to the inclusion of the Census Power :...
- Currency: s51(xii)Section 51(xii) of the Australian ConstitutionSection 51 is a subsection of Section 51 of the Constitution of Australia that gives the Commonwealth Parliament the right to legislate with respect to “currency, coinage, and legal tender.”...
- Weights and measures: s51(xv)
- Service and execution of court processes: s51(xxiv) and the recognition of judgements s51(xxv)
- Naturalisation and aliens: s51(xix) and immigration s51(xxvii)
- Powers for implementation of a uniform railway system (s51(xxxiii), s51(xxxiv), and s51(xxxii))
- The acquisition of property ‘on just terms’ for a commonwealth purposeSection 51(xxxi) of the Australian ConstitutionSection 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia providing that the Commonwealth has the power to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the...
; s51(xxxi) - Postal, Telegraphic, Telephonic, and Like ServicesSection 51(v) of the Australian ConstitutionSection 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia that gives the Commonwealth Parliament of Australia power to legislate on "postal, telegraphic, telephonic, and other like services".-Postal Services:...
s51(v).
The Constitution also grants powers over:
- Pensions (s51(xxiii) and s51(xxiiiA) (an amendment - see Social Services Referendum 1946Australian referendum, 1946 (Social Services)Constitution Alteration 1946 proposed to extend the powers of government over a range of social services. The question was put to a referendum in the Australian referendum, 1946 with two other questions...
). - Pacific relations 51(xxx)
- The influx of criminals s51(xxvvii)
- ‘Special laws’ for people of any raceSection 51(xxvi) of the Australian ConstitutionSection 51 of the Australian Constitution, commonly called 'the race power', is the subsection of Section 51 of the Australian Constitution granting the Australian commonwealth power to make special laws for people of any race....
: s51(xxvi) - Marriage and divorce (s51xxi and s51xxii)
- Copyright, patents, and trade marks s51(xviii)
- Bankruptcy: s51(xvii)
- Bills of exchange s51(xvi)
- Banking (other than state banking) s51(xiii)
- Insurance other than state insurance s51(xiv)
- Conciliation and arbitration of industrial disputes: s51(xxxv) (NB: this power was used to support the conciliation and arbitration system, but future legislation is intended to be based on the broader corporations power)
Flexibility is allowed by:
- ‘the referral power’Section 51(xxxvii) of the Australian ConstitutionSection 51 of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian constitution limits Commonwealth power...
: s51(xxxvii) allows State parliaments to refer matters to the Commonwealth - ‘the incidental power’ s51(xxxix) allows the Commonwealth to act on matters ‘incidental’ to an enumerated head of power.
Judicial Interpretation
The High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has the jurisdiction to interpret the constitution, an often controversial ability. Many of the court's interpretations have focused on section 51, from cases arising out of disputes between the states and the Commonwealth Parliament.
Core and Incidental Parts of s51 Powers
All heads of power in section 51 have an implied incidental area (Lindfield v Marrickville). The incidental area arises when the law operates on persons, acts, or things outside the actual subject matter of the head of power. Valid laws in the incidental area will have an indirect, but sufficient connection to the head of power. Different judicial tests have arisen to test if the connection is sufficient. The dominant test is if the law in question is a reasonable and appropriate means of furthering an object or purpose in the power (R v Burgess). Other tests are the ‘reasonably necessary’ test or ‘reasonable fulfillment of the purpose’. Justice Mason preferred a 'proportionality' test that took into account the adverse effects of incidental laws.Tied Grants and the Extension of Commonwealth Legislative Involvement
Section 51 appears to limit the areas of federal involvement. However, under section 96 of the Australian Constitution the Commonwealth Parliament has the power to grant money to any State, "on such terms and conditions as the Parliament thinks fit". In effect, the Commonwealth can make grants subject to States implementing particular policies in their fields of legislative responsibility. Such grants, known as tied grants (since they are tied to a particular purpose), have been used to give the federal parliament influence over state policy matters such as public hospitals and schools.Section 96 does not compel a state to accept a grant, so constitutionally a state may refuse a grant and not implement any policy conditions. However, since a uniform federal system of income tax was introduced in 1942 (under s51(ii)) a vertical fiscal imbalance
Fiscal imbalance
- Meaning and Types :Fiscal imbalance is the term used to denote a mismatch in the revenue powers and expenditure responsibilities of a government. In the literature on fiscal federalism, two types of fiscal imbalances are measured: Vertical Fiscal Imbalance and Horizontal Fiscal Imbalance...
has arisen and the Commonwealth Parliament has had a vastly larger budget. It also has control over state borrowings (under subsection iv). This has meant that the Parliament's powers have effectively been extended beyond the constraints of section 51 and other explicit grants of legislative power (e.g. section 52 and section 90).
Related links
- Full text of Section 51 of the Australian Constitution on Austlii
- Australian Constitution Part V - Powers of the Parliament
- Sir Garfield Barwick, A View of the External Affairs Power
- Breen Creighton, One Hundred years of the Conciliation and Arbitration Power