Section 52 of the Constitution of Australia

Last updated

Section 52 of the Constitution of Australia enumerates the exclusive powers granted to the Parliament of Australia by the Australian States at Federation. In contrast to Section 51, the powers granted under Section 52 are only vested in the federal parliament, to the exclusion of state parliaments.

Contents

Section 52 enumerates three categories of exclusive powers, relating to the governance of certain federally owned properties, the regulation of the specific state government agencies, and powers over "other matters" described elsewhere in the constitution.

Text

Section 52 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 [1]

Interpretation

Governance of certain properties

The power to exclusively govern certain properties, including those obtained under Section 51(xxxi), is vested with the commonwealth parliament. Certain state laws predating the acquisition remain in place, with jurisprudence similar to the federal enclave clause in the US constitution. [2] For example, Australian courts have held that laws related to indecent conduct [3] and workplace safety are inapplicable on military bases. [4]

Parliament's Section 52 powers over acquired property are distinct from its Section 122 powers over territories. [5]

Transferred agencies

Under Section 69, certain state government functions, such as the provision of a postal service, were transferred to the federal government. For such functions, the commonwealth parliament can legislate without regard to state parliaments. [6]

For transferred departments, Section 52(ii) provides a basis for the employment of ministerial advisers. [7]

The verbiage of Section 52(ii) has been argued to impact the interpretation of any potential future changes to constitutional arrangements, such as the establishment of an Indigenous Voice. [6]

References

  1. ↑ "Part V - Powers of the Parliament". aph.gov.au. Retrieved 2025-12-19.
  2. ↑ Brown, A. J. (2007). When Does Property Become Territory?: Nuclear Waste, Federal Land Acquisition and Constitutional Requirements for State Consent. Adelaide Law Review, The, 28(1/2), 113-138.
  3. ↑ Cowen, Z. (1959). Alsatias for Jack Sheppards?: The Law in Federal Enclaves in Australia. Melb. UL Rev., 2, 454.
  4. ↑ O'Brien, F. C. (1971). Worthing v. Rowell and Muston Pty Ltd and Others; the Queen v Phillips; Attorney-General (NSW) v. Stocks and Holdings (Constructors) Pty Ltd. Melb. UL Rev., 8, 320.
  5. ↑ Zines, Leslie (March 1966). "'Laws for the Government of any Territory': Section 122 of the Constitution". Federal Law Review. 2 (1): 72–94. doi:10.1177/0067205X6600200104. ISSN   0067-205X.
  6. 1 2 Aroney, Nicholas; Congdon, Peter (2023). "The Voice Referendum and the Federal Division of Powers: A New Head of Commonwealth Legislative Power to Implement the Voice's Representations?". SSRN Electronic Journal. doi:10.2139/ssrn.4589764. ISSN   1556-5068.
  7. ↑ Ng, Yee-Fui (May 2017). "Ministerial advisers and the Australian constitution". University of Western Australia Law Review. 42 (1): 1–29. doi:10.3316/informit.188018071001959.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.