Across all jurisdictions in Australia it’s mandatory for all bike riders to wear an approved bike helmet. All of this came to pass because the federal government (due to a fair bit of pressure from lobby groups and public opinions) said so.
So how did the Commonwealth make bike helmets mandatory across Australia if nothing in the Constitution allows for the Government to make laws regarding bike helmets?
Well, sort of.
Section 51 of the Constitution of Australia outlines the powers of the Federal Government. These are usually powers that a national government is expected to have to make it possible for it to govern. Like the ability to make laws with regards to armies, units of measurement, postal services, lighthouses, banking, international treaties and agreements and so on and so on.
Nothing in section 51 gives the Commonwealth the power to make laws with regards to the roads of individual states and the types of laws those states need to enact when it comes to their own roads.
Meet Section 96 of the Constitution:
“During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit” — Section 96
Ok, now for some history.
In the late eighties then Prime Minister Bob Hawke announced funding for a Commonwealth funded program to target road safety. He had earlier promised upon winning the 1984 election that one of his priorities would be to increase road safety. In a statement in 1989 he put out the government’s road safety package which involved several million dollars to combat what he termed traffic “black spots”. Spots that were known to be dangerous and prone to accidents.
Enter the Constitution of Australia.
The Commonwealth can’t on its own legislate to make laws to control how bike riders behave on state road, we’ve been through this, but they did have a nice big load of cash that they were willing to give to the states under Section 96.
The government offered the states a great, big, juicy carrot of several millions under a Section 96 grant, the stickwas that the states, if they wanted the money, had to make laws regarding compulsory helmet wearing by cyclists.
Remember, Section 96 says that the Commonwealth can give the states however much money it wants on such terms and conditions as it feels. It felt like demanding the states implement helmet laws.
Sure, the governments of each respective state and territory was free to say “no” to the Commonwealth. Have you ever known anybody to say “no” to free money.
So, the states did what anyone who wants a cool several million in cash would do: dance to the pipers tune. Each state and territory began implementing laws requiring helmets to be worn by bike riders and by the mid nineties they all had all fallen in to line, they had to if they wanted to see any money.
Moral of the story?
Well, sure Section 51 of the Constitution outlines what heads of power the Commonwealth will have: defence, postage, lighthouses, whatever. Section 96 of the Constitution gives the Commonwealth the power to influence areas where it really doesn’t have an express head of power just by swinging a big bag of money around. Section 96 then gives the Commonwealth a lot of sway and authority over state policies probably more than the framers of the Constitution intended.
This plays itself out in all sortsof ways and in all sorts of policy areas, from health, to roads, to education; areas that are usually the domain of the state governments.
This little conundrum is symptomatic of the federal imbalance we have in Australia. The state governments are responsible for most of the services we all use on a daily basis but it’s the Commonwealth that takes most of the revenue and then gives it back to the states, either in specific grants like the example above or through the regular taxation distribution. The formula that is used to calculate who gets what is witchcraft and divination.
The Constitution people, it touches your life daily, and in ways you probably don’t even realise.