Section 51(i) of the Constitution of Australia

Last updated August 20, 2024

Section 51(i) of the Australian Constitution enables the Parliament of Australia to make laws about:

Interpretation by the courts

"Trade" and "commerce" have been broadly construed. The early case of W & A McArthur Ltd v Queensland,^[3] declared:

"Trade and commerce" between different countries—we leave out for the present the word "intercourse"—has never been confined to the mere act of transportation of merchandise over the frontier. That the words include that act is, of course, a truism. But that they go far beyond it is a fact quite as undoubted. All the commercial arrangements of which transportation is the direct and necessary result form part of "trade and commerce." The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls "trade and commerce."^[3]^{: at pp 546–7}

"Trade and commerce" has been subsequently held to include:

financial transactions;^[4]
Federal participation in trade and commerce;^[5]
peripheral matters, such as the employment conditions of workers involved in such activity ;^[6] and
the absolution prohibition of a specific trade.^[7]

However, the High Court has also ruled that a distinction must be maintained between interstate trade and trade that is strictly within a State. In Wragg v New South Wales,^[8] Dixon J. remarked:

The distinction which is drawn between inter-State trade and the domestic trade of a State for the purpose of the power conferred upon the Parliament by s. 51 (i.) to make laws with respect to trade and commerce with other countries and among the States may well be considered artificial and unsuitable to modern times. But it is a distinction adopted by the Constitution and it must be observed however much inter-dependence may now exist between the two divisions of trade and commerce which the Constitution thus distinguishes. A legislative power, however, with respect to any subject matter contains within itself authority over whatever is incidental to the subject matter of the power and enables the legislature to include within laws made in pursuance of the power provisions which can only be justified as ancillary or incidental. But even in the application of this principle to the grant of legislative power made by s. 51 (i.) the distinction which the Constitution makes between the two branches of trade and commerce must be maintained. Its existence makes impossible any operation of the incidental power which would obliterate the distinction.^[8]^{: at p. 385-6}

But the distinction between interstate and intrastate activity is not absolute. In Airlines of New South Wales Pty Ltd v New South Wales (No 2) ,^[9] Menzies J. noted:

If control of intra-State trade is necessary to make effectual the exercise of Commonwealth power, that control may be exercised by the Commonwealth itself regardless of the control exercised by a State and regardless, too, of the fact that at some previous time the Commonwealth, because of the control exercised by a State over its intra-State trade, refrained from the full exercise of its own power. Arguments based upon the extent of State legislative power, or, the extent to which that power has been exercised, to measure or confine the legislative power of the Commonwealth, must, since the Engineers Case , fall upon deaf ears.^[9]^{: at p. 143}

To that end, it has been held:

that s. 51(i) covers both interstate and intrastate activities where they are "inseparably connected";^[10]
but the fact that an intra-state journey may economically be required to assure the operation of an interstate service has not been sufficient to allow the Commonwealth to regulate the entirety.^[11]

Intersection with Section 92

Section 92 states (in part) that:

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.^[12]

In the case of James v Commonwealth,^[13] which expanded on the previous ruling of the Judicial Committee of the Privy Council in James v Cowan,^[14] the High Court decided that this requirement restricted the Commonwealth Parliament as well as State Parliaments, thus greatly affecting the Parliament's authority under s. 51(i). In their judgement, Evatt and McTiernan JJ stated:

We are definitely of opinion that sec. 92 lays down a general rule of economic freedom, and necessarily binds all parties and authorities within the Commonwealth, including the Commonwealth itself, because, as was pointed out by the Privy Council itself, it establishes a "system based on the absolute freedom of trade among the States" (Colonial Sugar Refining Co v Irving^[15]).^[13]^{: at p. 602}

Comparisons

Commerce Clause (United States' Constitution)
Section 91(2) of the Constitution Act, 1867 (Canadian Constitution)

Related Research Articles

The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an act of the Parliament of Australia, the other an act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. They were enacted using legislative powers conferred by enabling Acts passed by the parliaments of every Australian state. The Acts came into effect simultaneously, on 3 March 1986.

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.

R v Kirby; Ex parte Boilermakers' Society of Australia, known as the Boilermakers' Case, was a 1956 decision of the High Court of Australia which considered the powers of the Commonwealth Court of Conciliation and Arbitration to punish the Boilermakers' Society of Australia, a union which had disobeyed the orders of that court in relation to an industrial dispute between boilermakers and their employer body, the Metal Trades Employers' Association.

The reserved powers doctrine was a principle used by the inaugural High Court of Australia in the interpretation of the Constitution of Australia, that emphasised the context of the Constitution, drawing on principles of federalism, what the Court saw as the compact between the newly formed Commonwealth and the former colonies, particularly the compromises that informed the text of the constitution. The doctrine involved a restrictive approach to the interpretation of the specific powers of the Federal Parliament to preserve the powers that were intended to be left to the States. The doctrine was challenged by the new appointments to the Court in 1906 and was ultimately abandoned by the High Court in 1920 in the Engineers' Case, replaced by an approach to interpretation that emphasised the text rather than the context of the Constitution.

Section 51(xxxi) is a subclause of section 51 of the Constitution of Australia. It empowers the Commonwealth to make laws regarding the acquisition of property, but stipulates that such acquisitions must be on just (fair) terms. The terms is sometimes referred to in shorthand as the 'just terms' provision.

In Australian constitutional law, chapter III courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in chapter III of the Australian Constitution.

O'Sullivan v Noarlunga Meat Ltd, was a case decided in the High Court of Australia regarding the scope of the trade and commerce power, under s 51(i) of the Australian Constitution, and inconsistency between Commonwealth and State laws, under section 109 of the Constitution.

Airlines of New South Wales Pty Ltd v New South Wales , was a High Court of Australia case about the validity of Commonwealth regulations about intrastate air navigation. Although the Commonwealth has the power to regulate interstate air navigation under s 51(i) of the Constitution, it can only regulate intrastate air navigation under the implied incidental power attached to that head of power. It was held that intrastate air navigation can be regulated to the extent that it provides for the safety of, or prevention of physical interference with, interstate or foreign air navigation.

Strickland v Rocla Concrete Pipes Ltd, also known as the Concrete Pipes Case, is a High Court of Australia case that discusses the scope of the corporations power in section 51(xx) of the Australian Constitution. This was an important case in Australian constitutional law because it overruled the decision in the earlier case of Huddart, Parker & Co Pty Ltd v Moorehead, which held that the corporations power only extended as far as the regulation of their conduct in relation to their transactions with or affecting the public. Since this case, the Commonwealth has had at least the ability to regulate the trading activities of trading corporations, thus opening the way for an expansion in Commonwealth power.

The Bank Nationalisation Case, also called Bank of New South Wales v Commonwealth (1948) 76 CLR 1, is a 1948 decision of the High Court of Australia that invalidated Chiefley government legislation that attempted to nationalise the private banking sector. Separate majorities held that the legislation breached three different provisions of the Constitution: section 92, section 51(xxxi) and section 75(iii).

Kirmani v Captain Cook Cruises Pty Ltd , was a decision of the High Court of Australia on 17 April 1985 concerning section 74 of the Constitution of Australia. The Court denied an application by the Attorney-General of Queensland seeking a certificate that would permit the Privy Council to hear an appeal from the High Court's decision in Kirmani v Captain Cook Cruises Pty Ltd .

New South Wales v Commonwealth, commonly known as the Wheat case, or more recently as the Inter-State Commission case, is a landmark Australian judgment of the High Court made in 1915 regarding judicial separation of power. It was also a leading case on the freedom of interstate trade and commerce that is guaranteed by section 92 of the Constitution.

Section 92 of the Constitution of Australia, as far as is still relevant today is:

... trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

In Australia, the doctrine of intergovernmental immunity defines the circumstances in which Commonwealth laws can bind the States, and where State laws can bind the Commonwealth. This is distinct from the doctrine of crown immunity, as well as the rule expressed in Section 109 of the Australian Constitution which governs conflicts between Commonwealth and State laws.

Section 99 of the Constitution of Australia, is one of several important non-discrimination provisions that govern actions of the Commonwealth and the various States.

Colonial Sugar Refining Co Ltd v Attorney-General (Cth), is the only case in which the High Court issued a certificate under section 74 of the Constitution to permit an appeal to the Privy Council on a constitutional question. The Privy Council did not answer the question asked by the High Court, and the court never issued another certificate of appeal.

Huddart, Parker & Co Pty Ltd v Moorehead is a leading decision by the High Court of Australia that dealt with two issues under the Australian Constitution, the identification and extent of judicial power that is vested in the courts and the corporations power of the Parliament. The Court unanimously held that the inquiry provisions of the Australian Industries Preservation Act 1906 were not an exercise of judicial power. The judgement of Griffith CJ in particular continues to be cited in relation to its examination of the identification and extent of judicial power. The court, however, divided on the proper approach to the corporations power. The majority, Griffith CJ, Barton & O'Connor JJ, strongly influenced by the now discredited doctrine of reserved State powers, held that the corporations power was to be construed narrowly because the trade and commerce power did not include intrastate trade and commerce. While the reserved powers doctrine was unambiguously rejected by the High Court in 1920, Huddart, Parker was not formally overruled by the High Court until Strickland v Rocla Concrete Pipes Ltd (1971).

Australian Boot Trade Employees Federation v Whybrow & Co, commonly known as Whybrow's case or the Boot Trades case, was the third of a series of decisions of the High Court of Australia in 1910 concerning the boot manufacturing industry and the role of the Commonwealth Court of Conciliation and Arbitration in preventing and settling industrial disputes. In doing so the High Court considered the constitutional power of the Federal Parliament to provide for common rule awards and the jurisdiction of the High Court to grant prohibition against the Arbitration Court. The majority held in Whybrow that the Arbitration Court could not make an award that was inconsistent with a State law, but that different minimum wages were not inconsistent as it was possible to obey both laws. In Whybrow the High Court established the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" being treated "prima facie as genuine and real", with the majority holding that the High Court had power to order prohibition to correct jurisdictional error as part of its original jurisdiction. Finally in Whybrow the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.

SS Kalibia v Wilson, was the first decision of the High Court of Australia on the extent of the power of the Australian Parliament to make laws about shipping and navigation, including the Admiralty jurisdiction of the High Court. The High Court held that the power was limited to overseas and interstate trade and commerce. There was no separate power about navigation and shipping.

Section 122 of the Constitution of Australia deals with matters relating to the governance of Australian territories. It gives the Commonwealth Parliament complete legislative power over the territories. This power is called the territories power. The extent and terms of the representation of the territories in the House of Representatives and the Senate are also stated as being at the discretion of the Commonwealth Parliament.

References

↑ Constitution (Cth) s 51 Legislative powers of the Parliament.
↑ Constitution (Cth) s 98 Trade and commerce includes navigation and State railways.
1 2 W & A McArthur Ltd v Queensland [1920] HCA 77 , (1920) 28 CLR 530 (29 November 1920), High Court (Australia).
↑ Commonwealth v Bank of NSW [1949] UKPC 37 , [1950] AC 235; [1949] UKPCHCA 1 , (1949) 79 CLR 497(26 October 1949), Privy Council (on appeal fromAustralia).
↑ Australian National Airways Pty Ltd v Commonwealth (No 1) ("Airlines Nationalisation case") [1945] HCA 41 , (1945) 71 CLR 29 (14 December 1945), High Court (Australia)
↑ R v Foster; Ex parte Eastern & Australian Steamship Co Ltd [1959] HCA 10 , (1959) 103 CLR 256(12 March 1959), High Court (Australia).
↑ Murphyores Inc Pty Ltd v Commonwealth ("Fraser Island case") [1976] HCA 20 , (1976) 136 CLR 1(14 April 1976), High Court (Australia).
1 2 Wragg v New South Wales [1953] HCA 34 , (1953) 88 CLR 353(9 June 1953), High Court (Australia).
1 2 Airlines of NSW Pty Ltd v New South Wales (No 2) [1965] HCA 3 , (1965) 113 CLR 54(3 February 1965), High Court (Australia).
↑ Redfern v Dunlop Rubber Australia Ltd [1969] HCA 9 , (1964) 110 CLR 194(25 February 1964), High Court (Australia).
↑ Attorney-General (WA) v Australian National Airlines Commission ("Western Australia Airlines case") [1976] HCA 66 , (1976) 138 CLR 492(17 December 1976), High Court (Australia).
↑ Constitution (Cth) s 92 Trade within the Commonwealth to be free.
1 2 James v Commonwealth [1935] HCA 38 , (1935) 52 CLR 570 (11 June 1935), High Court (Australia).
↑ James v Cowan [1932] UKPC 43 , [1932] AC 542; [1932] UKPCHCA 2 , (1932) 47 CLR 386(21 June 1932), Privy Council (on appeal fromAustralia).
↑ Colonial Sugar Refining Co Ltd v Irving [1906] UKPC 20 , [1906] AC 360 at p. 367, Privy Council (on appeal from Qld).