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| {{Short description|Clause subordinating the Australian Parliament to the constitution}} | |||
| '''Section 51''' of the ] grants legislative powers to the ]. When the six Australian colonies joined together in ] in ], they became the original ] and ceded some of their powers to the new Commonwealth Parliament. There are 39 subsections to section 51, each of which describe something which the Parliament has the power to make laws about. | |||
| {{Use Australian English|date=November 2017}} | |||
| {{Use dmy dates|date=November 2017}} | |||
| Section 51 of the ] enumerates the legislative powers granted to the ] by the ] at ]. Each subsection, or 'head of power', provides a topic under which the parliament is empowered to make laws. There are other sections in the constitution that enable the parliament to enact laws, although the scope of those other sections are generally limited in comparison with section 51. | |||
| ==The powers== | |||
| 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. ] and ] 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 ]). | |||
| The powers enumerated within section 51 are reflective in their topics of being those that Australia's colonies perceived as being best within the purview of a national government. The full list of powers is available on the Australian Parliament's . | |||
| In modern times, the most prominent heads of power for Commonwealth legislative purposes are arguably: (i) ], (ii) the ], (xx) ], and (xxix) ]. This is because these sections have been interpreted by the High Court as wide in scope, and so are extensively relied upon by the Commonwealth when attempting legislative enactment. The wide scope of these sections have at times been legally controversial in Australia; most notably in the '']'' and '']'' cases, which expanded the understood applicable scope of the corporations power, and external affairs power, respectively. | |||
| ==Powers of the Parliament== | |||
| The most important heads of section in terms of supporting contemporary Commonwealth legislation are: | |||
| Other particularly notable powers in history have been the (vi) ], (see: '']),'' the (xix) naturalisation and aliens power, the (xxxi) ], the (xxvi) power to make ], and the s51(xxiii) & (xxiiiA) power to provide social services (notable in part for having been implemented ]) | |||
| *]: S51 (i.)Trade and commerce with other countries, and among the States: | |||
| *]: S51(xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth | |||
| *]: s51 (xxix.)External Affairs: | |||
| *]: S51 (ii.) Taxation - but so as not to discriminate between States or parts of States: (Combined with s96 –see ‘tiered grants’ below). | |||
| With some exceptions, the remainder of the powers in s51 pertain to the standardization of commerce across Australia, empowering the federal government to enact laws in relation to metrics, statistics, finance, interstate commercial disputes, and other related issues. | |||
| 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: | |||
| Additionally, two subsections provide for the referral of matters to the Australian Parliament by Australia's State Governments. Specifically, (xxxvii) allows State Parliaments to refer matters within their competence to the commonwealth, and (xxxviii) allows state parliaments to refer any matter that the UK Parliament or ] could legislate on their behalf at the establishment of the Commonwealth. | |||
| * Military defence: s51(vi) | |||
| * Quarantine: s51(ix) | |||
| * Census: 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 s51xxxii) | |||
| * ]; s51xxxi | |||
| * ] S51(v). | |||
| The incidental power (xxxix) allows the Commonwealth to act on matters 'incidental' any power of the constitution. Most notably this includes section 61 of the constitution, which vests the Australian Government with Executive Power. As a result, it is one of the most important sections in practice. | |||
| The Constitution also grants powers over: | |||
| ==Interpretive history== | |||
| * Pensions (s51(xxxiii) and s51(xxiiiA) (an amendment - see ]). | |||
| * Pacific relations 51(xxx) | |||
| * The influx of criminals s51(xxvvii) | |||
| * ]: s51(xxvi) | |||
| * Marriage and divorce (s51xxi and s51xxii) | |||
| * Copyright, patents, and trade marks s51(xvii) | |||
| * Bankruptcy: s51(xvii) | |||
| * Bills of exchange s(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) | |||
| The High Court's approach to section 51 has changed over time. Initially, the court adopted the ']' doctrine, an interpretive view that the Australian States had implicitly retained competence in core areas, which were unable to be displaced by the Commonwealth even through reliance upon the powers enumerated in s51. | |||
| Flexibility is allowed by: | |||
| This doctrine was famously, and emphatically, rejected by the ] court in the ''].'' Following this case, the reserved powers doctrine was abandoned; although it has notably reappeared a number of times in argument by State governments when arguing against Commonwealth legislation. | |||
| * ]: 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. | |||
| Since federation the enumerated powers in section 51 have tended overall to have expanded in scope. In particular, the Corporations and external affairs powers are notable for having a significantly larger breadth in modern times than at federation. | |||
| ==Judicial Interpretation== | |||
| The ] 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. | |||
| When interpreting whether a particular act of parliament is within the scope, or is incidental to an enumerated power; the dominant legal test applied by the court has been whether the law in question is a reasonable and appropriate means of furthering an object or purpose in the power.<ref name="Burgess">{{cite AustLII|HCA|52|1936|litigants=]|parallelcite=|date=10 November 1936|courtname=]}}.</ref> | |||
| ==Core and Incidental Parts of s51 Powers== | |||
| All heads of power in section 51 have an implied incidental area (''Grannall 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’. ] preferred a 'proportionality' test that took into account the adverse effects of incidental laws. | |||
| ==Tied grants== | |||
| ==Tied Grants and the Extension of Commonwealth Legislative Involvement== | |||
| {{Main|Constitutional basis of taxation in Australia}} | {{Main|Constitutional basis of taxation in Australia}} | ||
| In practice, section 51 is not a strong limit on federal involvement in Australia's political life. Section 96 of the Australian Constitution grants 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 |
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 ] 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== | |||
| *] | |||
| *] | |||
| == |
==References== | ||
| {{reflist}} | |||
| * | |||
| ⚫ | *Summers, Woodward & Parkin , ''Government, Politics, Power and Policy in Australia'', 7th edition, 2002. | ||
| ==External links== | |||
| ⚫ | *Sir Garfield Barwick |
||
| *{{cite Legislation AU|Cth|act|coaca430|Australian Constitution|51}} | |||
| ⚫ | *{{cite web |author=Sir Garfield Barwick |author-link=Garfield Barwick |url=http://www.samuelgriffith.org.au/papers/html/volume6/v6chap1.htm |title=A View of the External Affairs Power}} | ||
| ⚫ | *{{cite web |author=Bull, G |url=http://www.murdoch.edu.au/elaw/issues/v5n3/bull53.html |title=Use (Abuse) of S.51(35) of the Australian Constitution}} | ||
| ⚫ | * {{cite journal |author=Creighton, B |url=http://www.austlii.edu.au/au/journals/MULR/2000/33.html |title=One Hundred years of the Conciliation and Arbitration Power|journal=Melbourne University Law Review |date=2000 }} (2000) 24 Melbourne University Law Review 839. | ||
| ⚫ | *{{cite web |author=MacCallum, R |author-link=Ron MacCallum |url=http://www.econ.usyd.edu.au/download.php?id=4300 |title=The Australian Constitution and the Shaping of our Federal and State Labour Laws }}{{dead link|date=May 2018 |bot=InternetArchiveBot |fix-attempted=yes }} | ||
| ⚫ | *{{cite web |url=http://www.aph.gov.au/binaries/library/pubs/rn/2001-02/02rn17.pdf |title=The High Court and the Meaning of 'Marriage' in Section 51(xxi) of the Constitution |publisher=Parliamentary Library}} | ||
| {{Constitution of Australia}} | |||
| ⚫ | * |
||
| ⚫ | * |
||
| ⚫ | * |
||
| ⚫ | * |
||
| ==References== | |||
| ⚫ | *Summers, Woodward & Parkin , ''Government, Politics, Power and Policy in Australia'', 7th edition, 2002. | ||
| ] | ] | ||
| ] | ] | ||
Latest revision as of 00:09, 21 December 2024
Clause subordinating the Australian Parliament to the constitutionSection 51 of the Constitution of Australia enumerates the legislative powers granted to the Parliament of Australia by the Australian States at Federation. Each subsection, or 'head of power', provides a topic under which the parliament is empowered to make laws. There are other sections in the constitution that enable the parliament to enact laws, although the scope of those other sections are generally limited in comparison with section 51.
The powers
The powers enumerated within section 51 are reflective in their topics of being those that Australia's colonies perceived as being best within the purview of a national government. The full list of powers is available on the Australian Parliament's website.
In modern times, the most prominent heads of power for Commonwealth legislative purposes are arguably: (i) the interstate trade and commerce power, (ii) the taxation power, (xx) the corporations power, and (xxix) the external affairs power. This is because these sections have been interpreted by the High Court as wide in scope, and so are extensively relied upon by the Commonwealth when attempting legislative enactment. The wide scope of these sections have at times been legally controversial in Australia; most notably in the Workchoices and Tasmanian dams cases, which expanded the understood applicable scope of the corporations power, and external affairs power, respectively.
Other particularly notable powers in history have been the (vi) defence power, (see: Australian Communist Party v Commonwealth), the (xix) naturalisation and aliens power, the (xxxi) 'just terms' property acquisition power, the (xxvi) power to make special laws in relation to peoples of a particular race, and the s51(xxiii) & (xxiiiA) power to provide social services (notable in part for having been implemented in 1946 via referendum)
With some exceptions, the remainder of the powers in s51 pertain to the standardization of commerce across Australia, empowering the federal government to enact laws in relation to metrics, statistics, finance, interstate commercial disputes, and other related issues.
Additionally, two subsections provide for the referral of matters to the Australian Parliament by Australia's State Governments. Specifically, (xxxvii) allows State Parliaments to refer matters within their competence to the commonwealth, and (xxxviii) allows state parliaments to refer any matter that the UK Parliament or Federal Council of Australasia could legislate on their behalf at the establishment of the Commonwealth.
The incidental power (xxxix) allows the Commonwealth to act on matters 'incidental' any power of the constitution. Most notably this includes section 61 of the constitution, which vests the Australian Government with Executive Power. As a result, it is one of the most important sections in practice.
Interpretive history
The High Court's approach to section 51 has changed over time. Initially, the court adopted the 'Reserved Powers' doctrine, an interpretive view that the Australian States had implicitly retained competence in core areas, which were unable to be displaced by the Commonwealth even through reliance upon the powers enumerated in s51.
This doctrine was famously, and emphatically, rejected by the Isaacs court in the Engineers' Case. Following this case, the reserved powers doctrine was abandoned; although it has notably reappeared a number of times in argument by State governments when arguing against Commonwealth legislation.
Since federation the enumerated powers in section 51 have tended overall to have expanded in scope. In particular, the Corporations and external affairs powers are notable for having a significantly larger breadth in modern times than at federation.
When interpreting whether a particular act of parliament is within the scope, or is incidental to an enumerated power; the dominant legal test applied by the court has been whether the law in question is a reasonable and appropriate means of furthering an object or purpose in the power.
Tied grants
Main article: Constitutional basis of taxation in AustraliaIn practice, section 51 is not a strong limit on federal involvement in Australia's political life. Section 96 of the Australian Constitution grants 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
References
- R v Burgess; Ex parte Henry [1936] HCA 52, (1936) 55 CLR 1 (10 November 1936), High Court.
- Summers, Woodward & Parkin , Government, Politics, Power and Policy in Australia, 7th edition, 2002.
External links
- Australian Constitution (Cth) s 51
- Sir Garfield Barwick. "A View of the External Affairs Power".
- Bull, G. "Use (Abuse) of S.51(35) of the Australian Constitution".
- Creighton, B (2000). "One Hundred years of the Conciliation and Arbitration Power". Melbourne University Law Review. (2000) 24 Melbourne University Law Review 839.
- MacCallum, R. "The Australian Constitution and the Shaping of our Federal and State Labour Laws".
- "The High Court and the Meaning of 'Marriage' in Section 51(xxi) of the Constitution" (PDF). Parliamentary Library.