Part V – Powers of the Parliament
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51. Legislative powers of the Parliament.
The Parliament shall, subject to this Constitution, have pwer to make laws for the peace, order, and good government of the Commonwealth with respect to:--
(i.) Trade and commerce with other countries, and among the States:
(ii.) Taxation; but so as not to discriminate between States or parts of States:
(iii.) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:
(iv.) Borrowing money on the public credit of the Commonwealth:
(v.) Postal, telegraphic, telephonic, and other like services:
(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:
(vii.) Lighthouses, lightships, beacons and buoys:
(viii.) Astronomical and meteorological observations:
(ix.) Quarantine:
(x.) Fisheries in Australian waters beyond territorial limits:
(xi.) Census and statistics:
(xii.) Currency, coinage, and legal tender:
(xiii.) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money:
(xiv.) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:
(xv.) Weights and measures:
(xvi.) Bills of exchange and promissory notes:
(xvii.) Bankruptcy and insolvency:
(xviii.) Copyrights, patents of inventions and designs, and trade marks:
(xix.) Naturalization and aliens:
(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:
(xxi.) Marriage:
(xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:
(xxiii.) Invalid and old-age pensions:
(xxiiiA.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:
(xxiv.) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:
(xxv.) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:
(xxvi.) The people of any race for whom it is deemed necessary to make special laws:
(xxvii.) Immigration and emigration:
(xxviii.) The influx of criminals:
(xxix.) External affairs:
(xxx.) The relations of the Commonwealth with the islands of the Pacific:
(xxxi.) 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:
(xxxii.) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:
(xxxiii.) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:
(xxxiv.) Railway construction and extension in any State with the consent of that State:
(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:
(xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:
(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:
(xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:
(xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
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I do not know if it is coincidence that the Constitution takes exactly 50 sections to lay out the terms of how the parliament is constituted. Given that this was written by a bunch of sweaty beardy men in places like the Sydney and Melbourne Town Halls and in the middle of summers past, it would not surprise me.
Section 51 is possibly the most legislated and argued over, source of contention within the whole document; with good reason. Sections 51 and 52 are the shopping lists of powers which the Federal Government of the Commonwealth of Australia is deemed to have. This is where the parliament gets it lists of things that it is allowed to do. Moreover, case law which is pursued through the High Court, is mostly about determining what the Federal Government does not have the power to do. Courts are mostly places about establishing guilt, blame and or remedy if something has gone awry.
Section 51 (xxxv.) for instance, which has to do with "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" was famously visited in the so-called "Engineers' Case" of the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) [28 CLR 129, [1920] HCA 54]. This particular case overturned the assumed doctrine of implied intergovernmental immunities and reserved state powers. Arguably it is this case which established the most critical basis for the modern understanding of federalism as it applies in Australia.
This case which saw the Amalgamated Society of Engineers take an award case which affected 844 employers across Australia to the High Court, asked the question of whether or not Commonwealth law made under the "Conciliation and Arbitration" power regarding industrial disputes (s.51 xxxv.) could bind employers across the country. The bench which included the first Prime Minister Edmund Barton and started under the Judiciary Act 1903 meanders all over the place including the Acts Intepretation Act 1901. Ultimately it held that because the Commonwealth of Australia is a sovereign State, then the powers ceded to it by the Constitution are in fact valid and just.
That sovereignty was again brought into question with Mabo and Others v Queensland (No. 2) (1992) [175 CLR 1, [1992] HCA 23]. The Mabo Case decided that when acquiring property in a Territory or in a State, the Commonwealth must do so on "just terms". It then further goes on to suggest that there is an original unextinguished native sovereignty, overturned the doctrine of 'terra nullius' in favour of the common law doctrine of aboriginal title, and in effect recognised native title in Australia for the first time. The Constitutional basis for this was that Commonwealth had infringed section 51 (xxxi) - "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".
On that note...
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Any sensible reading of the Constitutional Convention debates of the late 1890s, makes it clear that the bunch of sweaty beardy men in places like the Sydney and Melbourne Town Halls and in the middle of summers past, intended that section 51(xxvi.) be a source of power for parliament of tne new Commonwealth Parliament to deliberately enact racially discriminatory laws.
(xxvi.) The people of any race for whom it is deemed necessary to make special laws:
Having learnt from the American experience, it seemed a bit gauche to mention 'coloured races' or 'aboriginal natives' specifically; so this power is deliberately vague, even though everyone knows exactly what it was supposed to mean.
122 years' later, groups like the IPA who do not want to acknowledge or recognise aboriginal sovereignty want to make the race provision to disappear but not for the same reason. The existence of the race provision in the Constitution means that rich and powerful people (ie. their patrons) might incur some kind of disadvantage, and racist and supremacist groups do not want to acknowledge or recognise aboriginal sovereignty because they might have to give that advantage up.
https://ipa.org.au/ipa-review-articles/race-has-no-place-in-constitutional-reform
"Now, recognition advocates wish to adopt the spirit of 1967 yet rather than remove the remaining references to race in the constitution, they wish to insert provisions of race in. This is a step backwards.
Saddest of all, Aboriginal and Torres Strait Islanders taken collectively have fallen behind. Well-intentioned but misplaced government assistance has led to welfare traps in many communities, and the response is too often an ever-more paternalistic response from the federal government. Symbolic changes to the constitution will not remedy this."
- Simon Breheny, Morgan Begg, The IPA, 1st Apr 2016
This is the IPA wanting to whitewash the Constitution and never recogise that first peoples exist, much less that they have any dignity and deserve to have that dignity recognised.
If this ever gets to a referendum, which by the way has been a standing wish of the IPA for quite some time, then this will be promoted under the guise of "equality". One should always be suspicious of championing equality when the underlying motive is precisely the opposite.
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(ii.) Taxation; but so as not to discriminate between States or parts of States:
I have real doubts whether things like the Zone Rebate which is contained with the Income Taxation Assessment Act 1997 is in fact legal. My guess is that it being a "rebate", which is a sort of forgiveness of taxation, is one of those lovely grey areas that no parliament has the inclination to want to change.
There was also a High Court challenge to do with the passage of the Income Tax Assessment Act 1936; presumably in the same vein that people objected to the income tax being imposed in the United States. The Australian Constitution at s51(ii.) contains one word "Taxation" as being the scope of what it is allowed to pass laws on. That scope is practically prefectly plenary for any purpose and premise.
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(iv.) Borrowing money on the public credit of the Commonwealth:
Contained within Section 51, (iv). remained like a dormant land mine for more than 70 years. During the Whitlam Government, the Liberal Opposition who really objected to the Government's policy plan, decided to choke the treasury and restrict the supply of money. Whitlam, upon not being able to procure the necessary funds to undertake his design, used s.51(iv) to procure loans from various parties in Saudi Arabia, which became known as the imaginatively named "Loans Affair". This was one of many steps on the path towards the 1975 Constitutional Crisis but nevertheless, Whitlam borrowing monies from international markets on the public credit of the Commonwealth made use of an express power contained within the Constitution.
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(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:
Nominally the Governor-General is the head of the armed forces through the reserve powers. Part (vi.) explicitly hands the control of the "forces to execute and maintain the laws of the Commonwealth" to the parliament. What this means in practical terms of that the parliament could in theory declare martial law but by the same token, to do so probably requires the consent of disparate and often disagreeable factions and parties within that same parliament. I can understand that this might be important in terms of repelling foreign invasion and this might in fact be the basis for parliament deploying the military in cases of natural disaster but it doesn't quite hand absolute control over to the parliament or the relevant ministers in the same way that the US Constitution does.
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(viii.) Astronomical and meteorological observations:
I would like someone to explain to me exactly what the framers of the Constitution were thinking when they installed this. I can imagine that the setting up of the Bureau of Meteorology was at least partly on their minds because the ability to predict weather is incredibly useful for things like the safety of shipping. What I do not understand is why Astronomical observations are a thing that there would need to be laws for.
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(xii.) Currency, coinage, and legal tender:
I find it pretty wild that in 1901 at the inception of the Commonwealth, the only native coins of the various states, were either the remnants of the Holey Dollar and Dump (5/- and 1/3) and the gold coins which had been made. Australia practically had no native circulating small coinage at all. Silver coins (2/- 1/-, 6d. 3d.) were minted in 1910 and copper coins (1d. 1/2d.) followed a year later.
There are other provisions within the constitution which bar the states from coining money; which makes sense if you want to control the money supply, but I still think it madness that for the opening few decades of the Commonwealth, if you wanted to buy milk, bread, or a pie, Britannia not only ruled the waves but also people's pockets. From 1910-1936, Australia had some of the most boring coinage in the world.
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(xv.) Weights and measures:
I love that in the 1890s that the framers of the Constitution were aware of the metric system. Ounces, pounds, furlongs, chains, inches, pints, firkins, tons, acres... the imperial system of measurement is one glorious rectangle: it is a wreck and a tangle.
Hooray it's the Metric System! No way. We'll keep out bonkers measurement system, including the currency which has subunits in 3, 4, 6, 8, 12, 14, 16, 20... until the 1970s, thank you. Even now, as someone who was born after the correction/imposition, I will think of feet and inches and speed in miles, like some kind of withered appendix.
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(xxx.) The relations of the Commonwealth with the islands of the Pacific:
Go right back to the beginning of the Constitution and you will find that New Zealand has been tentatively pencilled in. In the early conventions, delegates from both New Zealand and Fiji showed up to see if they wanted to join the new Commonwealth. It could have been that apart from Tonga which still retains its own monarchy, that the entire Pacific could have been one giant far flung Commonwealth. As it is, New Caledonia is part of France in the same way that Tasmania is part of Australia.
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52. Exclusive powers of the Parliament.
The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to--
(i.) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes:
(ii.) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth:
(iii.) Other matters declared by this Constitution to be within the exclusive power of the Parliament.
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s.52(i) is the mechanism which allowed the Federal Government to select and designate territory upon which to place the nation's capital, Canberra. Australia had an almighty cat fight between Sydney and Melbourne which both wanted their city to be the capital and in the end, the solution was a kind of Solomon's Baby, which attempted to slice the problem in half and pleased nobody.
s.52(ii) underpins the regulations relating to the public service and which also became a point of contention with the setting up of the Australian Taxation Office. In the end, the Commonwealth eventually won the exclusive right to impose income tax and I suppose that if given the chance, there are those who want to reignite this bunfight.
I love s.52(iii). Any piece of legislation, company constitution or replaceable rules, or set of accounts, or rules and laws in general that contains the word "other", I always find amusing. I think of Babar's friend Zephyr, who when placed in charge of a bunch of records and filing system, filed everything under S for "Stuff" and O for "Other Stuff". Section 52 (iii) is like placing everything that they didn't think of in the rest of Section 51 and 52, into the file of O for "Other Stuff".
Of course it makes sense the parliament has the power to make law with regard matters which are declared by this Constitution to be within the exclusive power of the Parliament. Why even say it at all? Because as 55 men were yelling at each other in the sweaty basements of the Melbourne and Sydney Town Halls, they knew that if anything can be argued over, it will be.
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