The Referral of Powers Section 51(xxxvii) grants power regarding: matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

The Referral of Powers Factors that increase the impact on the division of law making powers Factors that limit the impact on the division of law making powers

The Referral of Powers WHY? OR The states can refer any of their residual law-making powers to the Commonwealth. WHY? States may do this when they believe there is an area of law-making that would be better under Commonwealth jurisdiction because the laws need to be uniform across the country. OR States may believe that the issue is best dealt with by the Commonwealth, due to its expertise.

The Referral of Powers HOW? They simply pass an act giving their law-making power to the Commonwealth and the Commonwealth Parliament passes an act accepting this power from each state that has referred its power.

EXAMPLE: Terrorism (2003) In the wake of September 11 all states referred a limited power to allow the enactment of the Criminal Code Amendment (Terrorism) Act 2003 (Cwlth)

Factors that increase the impact on the division of law making powers Easy to achieve--- states pass an act referring the power over to the Commonwealth (this is much easier than a referendum) Unified approach--- allows states to refer powers to ensure consistent laws across the country (eg Terrorism) State control--- states are able to decide whether they would like to hand their power over to the Commonwealth

Factors that reduce the impact on the division of law making powers States are reluctant– only rarely do states wish to refer their power to the Commonwealth (fear of further centralising legislative power to the Commonwealth) Mirror legislation– states can all pass similar acts to ensure consistency without referring their power over to the Commonwealth. (example: Port Arthur Massacre gun reform) Power uncertain- not always clear whether this power becomes concurrent or exclusive or whether the states can ‘take their power back’.

Factors that reduce the impact on the division of law making powers Political barriers- The process relies on the state and Commonwealth governments working together cooperatively, and politics can make this difficult.