Opinion Number. 306



Key Legislation

CONSTITUTION, ss. 51 (i), (ii), (iii), (v), (viii). (ix), (xi), (xxvii), (xxix). 52 (ii). 69,81,86, 90, 98,122


The question naturally arises whether the Commonwealth has power to establish an Australian Bureau of Agriculture. It is submitted that ample power is contained in the Constitution to enact the necessary measures. Our power in this respect is similar to that of the Congress of the United States. Under section 51 of the Commonwealth Constitution, sub-section (ii)-

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . Taxation; but so as not to discriminate between States or parts of States.

Section 81 provides:

All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

The Commonwealth Parliament has therefore power to raise revenue and to appropriate it 'for the purposes of the Commonwealth'.

In the United States, under Section VIII, sub-section 1, in the practice of government 'appropriations have never been limited by Congress to cases falling within the specific powers enumerated in the Constitution, whether those powers be construed in their broad or their narrow sense': Story on the Constitution, paragraph 991.

The interpretation first placed on the clause by Secretary Hamilton in his Report on Manufactures, in 1791, has prevailed. Speaking on the terms 'general welfare' he says:

The terms 'general welfare' were doubtless intended to signify more than was expressed or imported in those which preceded; otherwise numerous exigencies, incident to the affairs of the nation, would have been left without a provision. The phrase is as comprehensive as any that could have been used, because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the general welfare, and because this necessarily embraces a vast variety of particulars which are susceptible neither of specification nor of definition. It is therefore of necessity left to the discretion of the national Legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems no reason for doubt that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, so far as regards an application of money. The only qualification of the generality of the phrase in question which seems to be admissible is this: that the object to which an appropriation of money is to be made must be general and not local, its operation extending in fact, or by possibility, throughout the union, and not being confined to a particular spot. No objection ought to arise from this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the general welfare. A power to appropriate money with this latitude, which is granted in express terms, would not carry a power to do any other thing not authorized in the Constitution, either expressly or by fair implication.

Though this interpretation has been adversely criticised (see Tucker, Constitution of the United States, Vol. I, p. 476 et seq.), yet it has been adopted from the earliest times by the Congress and Governments of the United States.

As regards the Commonwealth power of appropriation, the words are in terms as general as those contained in the United States Constitution, and are accompanied by no specific words of limitation, the only condition being that the appropriation must be 'for the purposes of the Commonwealth'.

Moreover, the power to organize such a Department is incidental to the grant of the various specific powers under the Constitution. Under section 51, sub-section (i), Parliament under its powers of trade and commerce may appoint officers to inspect both imports and exports of agricultural products and stock. Under sub-section (iii), Parliament may grant bounties on the production or export of goods, and accordingly may appoint expert officers to give advice as to the growth and production of various agricultural and pastoral products. In pursuance of the power to deal with quarantine (sub-section (ix)), expert officers must of necessity be appointed. Under its navigation law, the Commonwealth may make provision for the regulation of the carriage of stock and may also deal with other matters of a similar nature. The power to deal with meteorology includes the power to furnish special reports for the use of those engaged in the primary industries (sub-section (viii)); and under the post and telegraph and telephone services (sub-section (v)) the means of distributing this information are under the control of Parliament. Moreover, in the power to deal with mail contracts the Commonwealth may make provision for such matters as cold storage. The officers appointed to the Statistical Department (sub-section (xi)) may collect information dealing with production and land settlement; and under sub-section (xxvii) the power to deal with immigration implies the power to collect and furnish all such information of the industries of Australia as may be of assistance to induce immigrants to come to Australia. The power to deal with external affairs (sub-section (xxix)) enables the Commonwealth to appoint agents abroad who may act on behalf of the primary producers of the Commonwealth. Moreover, in connection with the power to deal with customs and excise, necessary officers may be appointed to furnish such advice and information as may be required. Finally, the Commonwealth has complete power to legislate for territories under its control.

Possessed of all these different powers, the Commonwealth may organize the members of the Public Service into a department and utilize their services on behalf of those engaged in the primary industries of Australia.(2)

(1) This date is derived from the presentation by command of the Memorandum containing this opinion (see endnote (2)).

(2) This opinion is not in the Opinion Books but was published in Commonwealth of Australia, Parl. Papers I907-8, Vol. II, p. 1151 (being part of an undated Memorandum, on the Establishment of an Australian. Bureau of Agriculture, headed