Commonwealth and State constitutional powers

This page provides an outline of the Australian national government's constitutional powers regarding content regulation, in particular online content. It also looks at the constitutional basis of state/territory legislation. It supplements the discussion in the Censorship & Free Speech Guide on this site and the complementary profiles on Australian & New Zealand Censorship and Telecommunications.

     introduction

As highlighted in the Guide, the Commonwealth does not have explicit constitutional powers regarding regulation of pornography or, more broadly, censorship of other content. It similarly does not enshrine freedom of speech and - with the exception of personal rights such as the right to trial by jury (section 80) and the right to freedom of religion (section 116) - is largely silent on personal rights.

That absence of express provision is unsurprising: few national constitutions refer explicitly to censorship and regulation is generally based on a range of crimes, defence and telecommunication powers.

Most of the Commonwealth's legislative powers are enumerated in section 51 of the Constitution. Those of relevance to the regulation of adult content and protection of infrastructure or other aspects of public safety are highlighted below -

• postal power
• telecommunications power
• defence power
• trade and commerce power
• external affairs power
• corporations power
• territories power

     Postal power

Section 51(v) of the Constitution gives the Commonwealth power to regulate postal services. In principle the Commonwealth could thus prohibit or otherwise restrict the sending of adult content through the post. The Australian Postal Corporation Act 1989 does not contain feature a prohibition. The Corporation is however required to perform its functions consistently with obligations under any conventions ratified by Australia, under directions given by the responsible Minister under s.49 and more broadly under any general policy of the Commonwealth Government notified by the Minister under section 48 of the Act.

Section 85s of the Commonwealth Crimes Act 1914 prohibits a person from knowingly or recklessly using the post or telecommunications to menace or harass another person or in a way which reasonable persons would find offensive. It is unclear whether regulation/prohibition of pornography through the post would contravene the guarantee of free trade between the States under section 92 of the Constitution.

     Telecommunications power

Section 51(v) of the Constitution gives the Commonwealth power - subject to section 92 - to make laws with respect to telecommunications.

That power enables the Commonwealth to regulate or prohibit adult content on free to air television, subscription services (eg cable television), radio, telephones and the internet. That power embraces legislation such as the Broadcasting Services Act 1992 (here), which regulates television and radio broadcasting, and the Broadcasting Services Amendment (Online Services) Act 1999 (BSA Act) - discussed here - which provides the basis for federal regulation of online content.

     Defence power

Section 51(vi) of the Constitution provides for

the naval and military defence of the Commonwealth
and of the several States, and the control of the
forces to execute and maintain the laws of the
Commonwealth.

That power has been used in wartime for censorship by military and civilian agencies. It is reflected in legislation such as the War Precautions Act 1914 and associated regulations.

     Trade and commerce power

Section 51(i) of the Constitution allows the Commonwealth to make laws with respect to 'trade and commerce with other countries and among the states.'

Under this power the Commonwealth has passed the Customs Act 1901 and successive Regulations such as the Customs (Cinematograph Films) Regulations and Customs (Prohibited Imports) Regulations - highlighted in the Chronology here - that control the import of obscene publications or other artifacts. The power does not, however, override state legislation by allowing the Commonwealth to make laws regarding the production and sale in the states of adult content.

     External affairs power

Section 51(xxix) of the Constitution gives the Commonwealth power to make laws with respect to external affairs.

The Commonwealth has executive power to enter into international agreements on any matter, not limited by its specific legislative powers under the Constitution. That power was the basis for participation in the 1910 International Agreement for the Suppression of the Circulation of Obscene Publications and 1923 International Convention for the Suppression of and Traffic in Obscene Publications, along with more recent agreements.

The High Court has established - eg in Commonwealth v Tasmania (1983 Tasmanian Dams Case) that the external affairs power enables the Commonwealth to make laws giving effect to international obligations imposed by customary international law or by a bona fide international agreement, with the proviso that legislation based on an international agreement must be a reasonable implementation of the agreement.

The Commonwealth may also have power to legislate to implement a recommendation of an international body. It thus has the power to legislate to implement an international agreement on content regulation that Australia has ratified.

     Corporations power

Section 51(xx) of the Constitution gives the Commonwealth power to make laws with respect to

foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth.

for example the Trade Practices Act.

In relation to content the extent of activities that can be regulated under the corporations power is unclear, with suggestions that the power embraces both regulation of "acts of corporations done for the purposes of trade" and "all external activities of a trading or financial corporation".

     Territories power

Section 122 of the Constitution gives the Commonwealth plenary power to make laws for the government of the Territories, ie the Australian Capitral Territory and Northern Territory (along with the minor islands).

That power has been used in relation to the Australian Capital Territory legislation regarding adult content.



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