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Section 51(v) of the Australian Constitution: Wikis

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Section 51(v) of the Australian Constitution, or ‘the communications power’, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia power to legislate on 'Postal, telegraphic, telephonic, and other like services'.

Contents

Postal Services

In 1901, Section 51(v) was used by the Commonwealth to merge the colonial mail systems into the Postmaster-General's Department (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.

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 Australia

Other like services

The most problematic part of this power has been the words 'other like services'. The High Court 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.

External sources

Geraldine Chin Technological Change and the Australian Constitution [2000] MULR 25

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