Section 51(v) of the Constitution of Australia (commonly referred as thepost and telegraph power) is a subsection ofSection 51 of the Constitution of Australia[1] that gives theAustralian Parliament power to legislate on "postal,telegraphic,telephonic, and other like services".
In 1901, one of the first Acts of the federal parliament was the Post and Telegraph Act 1901, relying on Section 51(v).[2] The Act created thePostmaster-General's Department (PMG) which took over the colonial mail systems. The PMG was responsible fortelegraphic and domestictelephone operations as well as postal mail.
In 1975 the Postmaster-General's Department was separated into theAustralian Telecommunications Commission (nowTelstra) which was responsible for telephone services,[3] and theAustralian Postal Commission (nowAustralia Post) which was responsible for postal services.[4]
The power also supports the issue ofAustralian postal stamps.
The power has supported Australia’s regulatory environment for telecommunications in Australia, such as the telecommunications part of theTrade Practices Act. (SeeCommunications in Australia.)
The most problematic part of this power has been the words “other like services”. TheHigh 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 ofR v Brislan,[5] in 1935, the High Court decided that s.51(v) included the power to regulate radio broadcasting. However, inBrislan 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 ofJones v Commonwealth (No 2),[6] the High Court found that television broadcasting also fell under the ambit of s.51(v).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 s.51(v).
The Commonwealth has already relied on s.51(v) to regulate parts of the internet. For example, theInteractive Gambling Act (Cth), which regulates the operation of online casinos within Australia and advertising of online gambling, was based on s.51(v).[7] Other forms of gambling are a state and territory responsibility.
In March 2013 Australia's accession to the Council of Europe'sBudapest Convention on Cybercrime came into force following theCybercrime Legislation Amendment Act 2012 (Cth).[8] The amendments to theCriminal Code which removed the earlier "carriage service" (telephone and internet) elements of some computer offences (in part 10.7) were apparently supported by thes.51(xxix) external affairs power (arising from obligations under an international treaty). This may mean that ratification of the Convention extended the Commonwealth power in this area beyond the s.51(v) power, avoiding the need to rely on the definition of 'other like services'.
Geraldine ChinTechnological Change and the Australian Constitution [2000] MULR 25