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Commonwealth Power Over Infrastructure

Commonwealth Power Over Infrastructure: Constitutional Tools for National Economic Regulation

Author(s): Fiona Wheeler

This paper considers the extent of the Commonwealth’s power under the Australian Constitution to make laws regulating economic infrastructure such as transport, communications and energy. In this context, the external affairs power in s 51(xxix) of the Constitution, the communications power in s 51(v), the corporations power in s 51(xx) and the interstate and overseas trade and commerce power in s 51(i) are all addressed. The High Court’s strongly nationalist approach to constitutional construction, most recently affirmed in 2006 in its expansive reading of the corporations power in the Work Choices Case, means that the Commonwealth has very substantial, though not unlimited, authority to deal with infrastructure regulation. While the prospect of a wider reading of the interstate and overseas trade and commerce power may further augment Commonwealth authority in this area, gaps in Commonwealth regulatory power are still likely to remain.

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Centre: CIPL

Research theme: Constitutional Law and Theory

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