Section 51 of the Australian Constitution describes the powers of the Australian federal parliament. 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 describe something which the parliament has the power to make laws about.

Powers not included in section 51 are considered "reserve powers", and remain the domain of the states (with a few exceptions, noted below).

Powers of the Parliament

Most of the powers given to the federal parliament by the states concern issues that would affect the whole nation, such as military defence of the Commonwealth (subsection vi) and international trade (subsection i).

Other notable powers include:

• Taxation (subsection ii)
• Postal and telecommunication services (subsection v)
• Immigration and emigration (subsection xxvii)
• Copyrights, trade marks and patents (subsection xviii)

Judicial Interpretation

The High Court of Australia 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 federal parliament.

In the case of R v Brislan , in 1935, the High Court decided that subsection v, which gives the federal parliament the power to make laws with respect to "postal, telegraphic, telephonic, and other like services" included the power to regulate radio broadcasting. Similar interpretations have continued as new communications technologies are invented.

One year later, in the case of James v Commonwealth , the High Court decided that the requirement that "trade, commerce, and intercourse among the States... shall be absolutely free" (in section 92 ) restricted the federal parliament aswell as state governments. This impacted on the parliament's ability to exercise powers under subsection i, regarding "trade and commerce with other countries, and among the States".

External Affairs

One of the more controversial powers given to the federal parliament is the External affairs power (subsection xxix). The case of R v Burgess in 1936 led to the decision that this power allowed the federal parliament to regulate air travel within states, based on legislation enacting an international treaty. In this way, the federal parliament has been able to legislate on entirely internal issues that were intended to be under state control, provided the legislation relates to an international treaty.

In the early 1980s, the government of Tasmania planned to build the Franklin Dam in the state's west, to provide hydroelectricity. The plan incensed conservationists, who appealed to the federal government. In 1983, the newly elected Hawke government introduced legislation to block the dam's construction.

In the resulting Tasmanian Dams Case, the High Court decided that the Hawke legislation was within the "external affairs" power, since the site for the dam had been nominated for World Heritage status, under an international heritage agreement.

The "external affairs" power has also been used to enact laws to prevent racial and sexual discrimination, based on United Nations agreements.

Tied Grants

Under section 96 the federal parliament has the power to grant money to any State, "on such terms and conditions as the Parliament thinks fit". 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.

Since a uniform federal system of income tax was introduced in 1942, the federal parliament has had a vastly larger budget. It also has control over state borrowings (under subsection iv). This has meant that the federal parliament's powers have effectively been extended beyond the constraints of section 51.

Related Links

Australian Constitution Part V - Powers of the Parliament

References

Summers, Woodward & Parkin [eds], Government, Politics, Power and Policy in Australia, 7th edition, 2002.