Section 51(xxxv) Of The Australian Constitution

Section 51 of the Constitution of Australia enumerates the legislative powers granted to Federal Parliament by the Australian States at Federation.

The list contains 39 subsections, each referred to as a 'head of power' under which the parliament is empowered to make laws.

The section is not an exhaustive list, as the federal parliament is authorized to enact legislation outside of those topics by certain other sections in the Constitution, such as sections 52 and 128.

Australian States may still enact legislation upon the topics in section 51; but Federal law prevails to the extent of any conflict of laws.

Powers of the Parliament

Federation was intended to address problems caused by having the separate colonies on the one continent. Section 51 therefore encompasses a group of powers (known as heads of power) which reflect what powers the Commonwealth was viewed as needing to solve those problems.

The most important heads of power in terms of supporting contemporary Commonwealth legislation are:

* 'the interstate trade and commerce power': s51(i) trade and commerce with other countries, and among the States:
* 'the corporations power': s51(xx) "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"
* 'the external affairs power': 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).

Other heads of power include:

* Military defence: s51(vi) (see '' Australian Communist Party v Commonwealth'' for a landmark decision on the use of this power).
* Quarantine: s51(ix)
* Census and Statistics: s51(xi)
* Currency: s51(xii)
* 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 from any State or person for any purpose in respect of which the Parliament has power to make laws"; s51(xxxi)
* "postal, telegraphic, telephonic, and other like services" s51(v).
* Pacific relations, s51(xxx)
* The influx of criminals, s51(xxviii)
* 'Special laws' for people of any race: s51(xxvi)
* Marriage and divorce, per s51(xxi) and s51(xxii).
* Social security, per s51(xxiii) and s51(xxiiiA) (an amendment – see Social Services Referendum 1946).
* Copyright, patents, and trade marks per 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)

Flexibility for the Commonwealth to act outside of the above explicitly enumerated areas is allowed by:

* 'the referral power': s51(xxxvii) allows State parliaments to refer matters they can legislate on to the Commonwealth.
* Section 51(xxxviii) allows state parliament(s) to refer to the Commonwealth Parliament any matter that the Parliament of the United Kingdom or the Federal Council of Australasia could legislate on their behalf at the establishment of 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 Australia has the jurisdiction to interpret the constitution. 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.. 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.. Other tests are the 'reasonably necessary' test or 'reasonable fulfilment of the purpose'. Justice Mason preferred a 'proportionality' test that took into account the adverse effects of incidental laws.

Tied grants

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 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).

See also

* Section 51(xxxviii) of the Constitution of Australia

References

*Summers, Woodward & Parkin ds ''Government, Politics, Power and Policy in Australia'', 7th edition, 2002.

External links

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* (2000) 24 Melbourne University Law Review 839.
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{{Constitution of Australia

Australian constitutional law
Federalism in Australia