Sep 30

Sep 30 The constitutional bike helmet

In the eighties, the late Bob Hawke, announced funding for a Commonwealth funded program to target road safety. He had earlier promised that 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. He also wanted to introduce other road safety measures, like compulsory bike helmets.

Fast forward to today where in Australia it's mandatory for all bike riders to wear an approved bike helmet.

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?

First, let me explain two sections of the Constitution that are responsible for your helmet hair.

Section 51

Section 51 of the Constitution of Australia is where the powers of the Federal Government are outlined, that is, the things that the Commonwealth Parliament has the power (either exclusively or shared with the states) to make laws about.

These are the usual type of things that you would expect a national government to control, like the ability to make laws with regards to the armed forces, units of measurement, postal services, lighthouses, international treaties, and so on.

However 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. This is where Section 96 comes in, also known as “the grants power”.

Section 96

Section 96 of the Constitution reads:

“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”

The magic words here are: “on such terms and conditions as the Parliament thinks fit.” The Commonwealth can't on its own legislate control how bike riders behave on state roads but they can entice the states to do so, with a big wad of cash.

The Hawke Government offered the states free cash under a Section 96 grant, however, if they wanted the money they 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.

The governments of each respective state and territory was free to say "no" to the Commonwealth but have you ever known anybody to say "no" to free money.

No.

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.

An overreach?

Section 96 of the Constitution does give 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 sorts of 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 used on a daily basis but it's the Commonwealth that takes most of the revenue and gives it back to the states, either in specific grants like the example above or through the regular taxation distribution.

The Constitution, it touches your life daily, and in ways you probably don't even realise.

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