Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth) 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 describes a head of power about which the Parliament has the power to make laws. Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ... Parliament House Canberra: The main entrance and the flag The Parliament of Australia is the legislative branch of Australia. ... The federation of Australia was the process by which the six separate British colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed a federation. ... 1901 (MCMI) was a common year starting on Tuesday (link will display calendar) of the Gregorian calendar (or a common year starting on Wednesday of the 13-day-slower Julian calendar). ... The states and territories of Australia make up the Commonwealth of Australia under a federal system of government. ...

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. Section 52 and Section 90 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 s109 inconsistency provision). The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51(ii), section 90, section 53, section 55, and section 96. ... In Australia, legislative power is held concurrently by the Commonwealth and the States. ...

Powers of the Parliament

The most important heads of section 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).

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: Section 51(i) of the Australian Constitution enables the Commonwealth government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. ... Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to foreign corporations, and trading for financial corporations formed within the limits of the Commonwealth. This power has become known as the... Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to external affairs. In recent years, most attention has focused on the use of the power to pass legislation giving... The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51(ii), section 90, section 53, section 55, and section 96. ...

• Military defence:s51(vi)
• 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’ for a commonwealth purpose; s51(xxxi)
• Postal, Telegraphic, Telephonic, and Like Services S51(v).

The Constitution also grants powers over: Section 51(vi) of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to the naval and military defence of the Commonwealth and of the several States, and the control... Section 51(xi) of the Australian Constitution is the subsection of Section 51 of the Australian Constitution granting the Commonwealth the power to make laws on census and statistics. The first version of the Constitution included a census power. ... Section 51(xii) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to “currency, coinage, and legal tender. ... Section 51(xxxi) of the Australian Constitution provides that the parliament has the power to make laws for the peace, order and good government of the Commonwealth with respect to: The acquisition of property on just terms from any State or person for any purpose in respect of which the... S51(v) of the Australian Constitution: Postal, Telegraphic, Telephonic and like Services This is a part of Section 51 of the Australian Constitution that gives the Commonwealth power to legislate on postal, telegraphic, telophonic, and other like services. The High Court has taken a flexible approach to interpreting this provision...

• Pensions (s51(xxxiii) and s51(xxiiiA) (an amendment - see Social Services Referendum 1946).
• Pacific relations 51(xxx)
• The influx of criminals s51(xxvvii)
• ‘Special laws’ for people of any race: s51(xxvi)
• Marriage and divorce (s51xxi and s51xxii)
• Copyright, patents, and trade marks s51(xviii)
• 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)

Flexibility is allowed by: Constitution Alteration (Social Services) 1946 proposed to extend the powers of government over a range of social services. ... Section 51(xxvi) of the Australian Constitution, commonly called the race power, is the subsection of Section 51 of the Australian Constitution granting the Australian commonwealth power to make special laws for people of any race. ...

• ‘the referral power’: 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.

Section 51(xxxvii) of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. ...

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 Commonwealth Parliament. High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ...

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’. Justice Mason preferred a 'proportionality' test that took into account the adverse effects of incidental laws. Sir Anthony Mason KBE AC, former Chief Justice of the High Court of Australia. ...

Tied Grants and the Extension of Commonwealth Legislative Involvement

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. The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51(ii), section 90, section 53, section 55, and section 96. ...

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). Year 1942 (MCMXLII) was a common year starting on Thursday (the link is to a full 1942 calendar). ... Fiscal imbalance can refer to: Vertical fiscal imbalance Horizontal fiscal imbalance See also Fiscal equalization Vertical fiscal imbalance in Canada Canada Health and Social Transfer Equalization payments Transfer payment This is a disambiguation page — a list of articles associated with the same title. ...

Related links

• Full text of Section 51 of the Australian Constitution on Austlii

• Australian Constitution Part V - Powers of the Parliament

• Sir Garfield Barwick, A View of the External Affairs Power

• Geoff Bull, Use (Abuse) of S.51(35) of the Australian Constitution

• Breen Creighton, One Hundred years of the Conciliation and Arbitration Power

• Ron MacCallum, 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

References

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