Who has legislative power in Australia?

Clause subordinating the Australian Parliament to the 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)[1]
• 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.[2] 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.[3] 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

Main article: Constitutional basis of taxation in Australia

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

1. ^ Australian Communist Party v Commonwealth [1951] HCA 5, (1951) 83 CLR 1, High Court.
2. ^ Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6, (1955) 93 CLR 55] (3 March 1955), High Court.
3. ^ R v Burgess; Ex parte Henry [1936] HCA 52, (1936) 55 CLR 1 (10 November 1936), High Court.

• Summers, Woodward & Parkin [eds], 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. "One Hundred years of the Conciliation and Arbitration Power". (2000) 24 Melbourne University Law Review 839.
• MacCallum, R. "The Australian Constitution and the Shaping of our Federal and State Labour Laws".[permanent dead link]
• "The High Court and the Meaning of 'Marriage' in Section 51(xxi) of the Constitution" (PDF). Parliamentary Library.

Retrieved from "https://en.wikipedia.org/w/index.php?title=Section_51_of_the_Constitution_of_Australia&oldid=1115564403"

There are three levels of government in Australia:

• federal government;
• state (or territory) government; and
• local government.

These three levels developed at different times.

Colonial governments, which later became state governments, were the first level of government to be established after the British began settling on the continent in 1788.

Throughout the 1800s, local governments were progressively created by the six self-governing colonies. Later, following a series of referendums held in the 1890s, a federation was created under the Australian Constitution—in 1901, the six colonies became states to form the new nation of Australia with a national, or federal, government.

The two territory governments (the Australian Capital Territory [ACT] and the Northern Territory [NT]), were created by legislation of the Federal Parliament—the NT in 1978 and the ACT in 1988.

Under the constitution, the state/territory governments and the Federal Government have different powers and responsibilities. Local governments are not mentioned in the Constitution.

Federal

The Federal Parliament has four main functions:

• a legislative function (making laws);
• a representative function (representing the interests of voters and citizens);
• forming a government to administer laws and managing the affairs of the Commonwealth; and
• a scrutiny and accountability function (questioning the government to see if it is doing a good job).

The powers of the Federal Parliament are listed under Section 51 of the Australian Constitution and include responsibility for foreign policy, defence, income taxation, social services, migration, trade and currency. The Federal Parliament is bicameral, which means it has two houses:

• The House of Representatives, also called the ‘lower house’, is made up of 151 members elected from individual electorates all around Australia.
• The second house—the Senate or ‘upper house’—has 76 elected representatives elected by voters from each state and territory. Each state has 12 elected senators, and the territories each have two senators representing them. One of the reasons the constitution created an upper house was to ensure the interests of the states, particularly the smaller states, were adequately represented in the Commonwealth Parliament.

In bicameral parliaments (federal and state), legislation has to pass with a majority vote in both the lower and upper houses before it becomes a law.

State/Territory

State/territory government responsibilities include everything not listed as a federal responsibility in the Constitution, including:

• hospitals and schools;
• emergency services;
• law and order;
• public transport; and
• the distribution of water, gas and electricity.

State governments raise revenue through indirect taxes such as banking and gambling taxes and by charging for services such as public transport. They are not permitted to raise other taxes such as income taxation but they do receive federal funding to help pay for the services they deliver.

Just like the Federal Parliament, all the state parliaments except Queensland, are bicameral. The lower houses in these parliaments are called either the Legislative Assembly or House of Assembly, and upper houses are named Legislative Councils. The parliaments of Queensland, Australian Capital Territory and Northern Territory are unicameral—they only have one house called the Legislative Assembly.

The Legislative Assembly for the ACT is the only parliament with responsibility for both state/territory and local government functions.

Local

Every state/territory, except the ACT, has a separate system of local government. States and territories have local government regions are known as councils, shires, boroughs, or municipalities. Each is administered by a council (or equivalent) which makes decisions on local, town or city matters. In addition to receiving federal and state grants, local government authorities also raise money from their residents, usually through rates and other fees and charges. Local governments do not have the power to raise taxes.

In the ACT, the Legislative Assembly is accountable for local government functions (for example: garbage collection; looking after parks and gardens; libraries; and maintaining drains, roads and footpaths), as well as all the normal state responsibilities.

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