Section 51(v) of the Australian Constitution
Encyclopedia
Section 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia
that gives the Commonwealth Parliament
of Australia
power to legislate on "postal, telegraphic, telephonic, and other like services".
(or PMG). This body was responsible for telegraph and domestic telephone
operations as well as postal mail. In 1975 the Australia Post
was formed, taking over the postal functions of the PMG. Australia Post was corporatised in 1989, and its existence is therefore now supported under the corporations power
.
The power also supports the issue of Australian postal stamps
.
has taken a flexible approach to interpreting this provision that has recognised that technology has changed since the constitution was written.
In the case of R v Brislan, in 1935, the High Court decided that s51(v) included the power to regulate radio broadcasting. However, in Brislan four of the judges held radio to be a wireless type of ‘telegraphic or telephonic service’, rather than an ‘other like service’.
In the 1965 case of Jones v Commonwealth (No 2) the High Court found that television broadcasting also fell under the ambit of s51(v). In his ratio decidendi
Knox CJ expanded the definitions in s.51(v) to future development, a view shared by Higgins J.
Although the communications power is often presumed to apply broadly as new technologies arise, it is uncertain, in the absence of litigation, whether Commonwealth regulation will be supported. For example, it is unclear whether regulation of internet content would be supported under Section 51(v).
The Commonwealth has already relied on Section 51(v) to regulate parts of the internet. For example, the Interactive Gambling Act, which regulates the operation of online casinos within Australia and advertising of online gambling, was based on s51(v). Other forms of gambling are a state and territory responsibility.
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
that gives the Commonwealth Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
power to legislate on "postal, telegraphic, telephonic, and other like services".
Postal Services
In 1901, Section 51(v) was used by the Commonwealth to merge the colonial mail systems into the Postmaster-General's DepartmentPostmaster-General's Department
The Postmaster-General's Department was created at Federation in 1901 to control all postal services within Australia. Its minister was the Postmaster-General. In mid-1975 it was disaggregated into the Australian Telecommunications Commission and the Australian Postal Commission...
(or PMG). This body was responsible for telegraph and domestic telephone
Telephone
The telephone , colloquially referred to as a phone, is a telecommunications device that transmits and receives sounds, usually the human voice. Telephones are a point-to-point communication system whose most basic function is to allow two people separated by large distances to talk to each other...
operations as well as postal mail. In 1975 the Australia Post
Australia Post
Australia Post is the trading name of the Australian Government-owned Australian Postal Corporation .-History:...
was formed, taking over the postal functions of the PMG. Australia Post was corporatised in 1989, and its existence is therefore now supported under the corporations power
Section 51(xx) of the Australian Constitution
Section 51 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 or financial corporations formed within the limits of the Commonwealth"...
.
The power also supports the issue of Australian postal stamps
Postage stamps and postal history of Australia
This is an overview of the postage stamps and postal history of Australia.- Postal history :The six self-governing Australian colonies that formed the Commonwealth of Australia on 1 January 1901 operated their own postal service and issued their own stamps – see articles on the systems on New South...
.
Telephonic services
The power has supported Australia’s regulatory environment for telecommunications in Australia, such as the telecommunications part of the Trade Practices Act. See Communications in AustraliaCommunications in Australia
Telecommunications in Australia deals with telecommunications in Australia, involving the availability and use of electronic devices and services, such as the telephone, television, radio or computer, for the purpose of communication.-Early:...
Other like services
The most problematic part of this power has been the words 'other like services'. The High CourtHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has taken a flexible approach to interpreting this provision that has recognised that technology has changed since the constitution was written.
In the case of R v Brislan, in 1935, the High Court decided that s51(v) included the power to regulate radio broadcasting. However, in Brislan four of the judges held radio to be a wireless type of ‘telegraphic or telephonic service’, rather than an ‘other like service’.
In the 1965 case of Jones v Commonwealth (No 2) the High Court found that television broadcasting also fell under the ambit of s51(v). In his ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
Knox CJ expanded the definitions in s.51(v) to future development, a view shared by Higgins J.
Although the communications power is often presumed to apply broadly as new technologies arise, it is uncertain, in the absence of litigation, whether Commonwealth regulation will be supported. For example, it is unclear whether regulation of internet content would be supported under Section 51(v).
The Commonwealth has already relied on Section 51(v) to regulate parts of the internet. For example, the Interactive Gambling Act, which regulates the operation of online casinos within Australia and advertising of online gambling, was based on s51(v). Other forms of gambling are a state and territory responsibility.