In the video that I did about the implied intergovernmental immunities, I referred to a North American case called McCulloch and Maryland from 1819. In that case, the US Supreme Court devised the theory of implied powers. That is that the existence of an express power implies the existence of an incidental power that is necessary for the proper exercise of the express power. If you're given a certain power, with it also comes all the means necessary for you to exercise this power. These are incidental powers necessary for the exercise of the express power. In a case in 1955, the majority of the High Court said that every legislative power carries with it authority to legislate in relation to acts, matters and things, the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter.
Now, what if I told you that the Commonwealth has not only these incidental aspects that are part of the express head of power in the Constitution, but also an express incidental power? Hello everyone! My name is Renato Costa, this is Aussie Law and today we will talk about section 5139 of the Australian Constitution, the incidental power of the Commonwealth.
Section 5139 says that the Commonwealth Parliament can make laws with respect to matters incidental to the execution of any power vested by this constitution in the parliament or in either house thereof or in the government of the commonwealth or in the federal judicature or in any department or officer of the commonwealth. After reading this you may be thinking, wait, if the theory of implied powers is real, what's the point of section 5139 of the Australian constitution? If the Commonwealth can exercise all of those powers listed in section 51, then it can also exercise all of the incidental powers to those express powers, right? Yeah, you're right.
But that's not all. There's something else to that provision as well. Some consider this provision to have been inserted in the Constitution just for caution.
Justice Barton, for example, once said that though the incidental power would have been exercisable, without this express grant, the subsection, section 5139, makes assurance doubly sure. For him, the provision exists to make sure that the Commonwealth Parliament can legislate about certain matters that are not at the core of the head of power, but that are still necessary for its execution. So, these incidental powers of section 5139 can be described as lying outside of the heart. of the heads of power but they still belong to its periphery they are boundary powers that can if needed guarantee that the core of the head of power can be exercised so look each head of power has matters therefore within its core but also matters they are incidental to the head of power the core of the head of power is the subject matter of the power And the incidental powers are composed of the peripheral matters that touch on that subject matter. This incidental power, however, is not unrestricted.
It is not a peace, welfare and good government power as implied by the caput of section 51. No, it is a power necessary to the exercise of the core of the head of power. Now, I have talked about only one side of the answer. why we have section 5139 at all.
This part of the answer is that it exists as a guarantee that the incidental powers can also be exercised in not only the core of the head of power. But the other part of the answer also deserves attention. It says that section 5139 guarantees that the Commonwealth Parliament can legislate about certain things that are typical of the other branches.
As it is interpreted, section 51.39 is of most importance in allowing the Commonwealth Parliament to exercise certain powers that are closer to the executive or the judiciary. Did you notice that the second part of the section refers to it? Because it says, matters incidental to the execution of any power vested by this Constitution in the Government of the Commonwealth, the Federal Judicature, or in any Department or Officer of the Commonwealth. Look at what Chief Justice Mason once said.
Section 5139 is directed not so much to matters incidental to the nominated subject of legislative power, but rather to the execution of the various powers vested in the three branches of government. As Lam and Moen stated, the bulk of judicial opinion favours the proposition that the incidental power has its main operation in relation to executive and judicial powers, and that, so far as the exercise of legislative power is concerned, it affirms in a clear manner what would otherwise be a matter of implication. The High Court has recognized these incidental powers, for example, in Pape's case.
There, the Commonwealth expenditure was authorized under the nationhood power as an incident to the execution of the executive powers in section 61. We talked about the case in the video that is appearing on the card above. So, this is what section 5139 is about. It gives a double assurance that the Commonwealth Parliament can exercise those powers that are incidental to the court. to the heart of the heads of power expressed in the constitution and it also says that it can exercise certain ancillary executive and judicial powers as incidents to the exercisable heads of power in the constitution hey did you find this content useful if you did click the like button leave a like in this video now i have one last point before you go it's about the characterization of laws if you were paying attention and if you watched our last video about the characterization of laws, you're probably wondering, could the Commonwealth exercise any powers it wants through section 5139?
Since this is a constitutional head of power in itself, can the Commonwealth just argue that any power can fall within section 5139? That's a good question, I'm glad you asked it, but the answer is quite complex. The Commonwealth cannot just legislate about anything.
I've told you before, this is not an unrestricted power. But at the same time, this head of power guarantees that the Commonwealth can exercise certain powers that are not typically granted to the Commonwealth Parliament. So here are some examples from this book. The incidental dimensions of legislative power have been held to support laws that authorise or require the imposition of penalties for feature of poor property.
Reporting of transactions, issue of licenses, establishment of agencies and incorporation of companies for purposes associated with the head of power. The Commonwealth has no explicit power to do these things, but they have been upheld as constitutional, provided they are necessary to achieve objectives lying within the Commonwealth's legislative power. It's all a matter of interpretation, and this is what the High Court has been doing. It has been interpreting the incidental powers in a case-by-case basis.
As Chief Justice Dixon once said, these matters of incidental powers are largely questions of degree. So, I'll finish the video by citing Justice Kirby in what he said in Lisk and Comra from 1996. He said, Unavoidably, such decisions involve an exercise of judgment. It is futile to pretend that words and phrases are sufficient, without more, to yield the solution in every case. Were it so, there would be no dissenting opinions in cases of constitutional characterisation. Disagreement exists because different judicial minds see the boundaries of constitutional power differently located.
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