Referral of powers

ACKNOWLEDGEMENT A summary based on: Industrial Relations: The Referral of Powers Briefing Paper, No. 7/09, by Jason Arditi, NSW Parliamentary Library Research Service, September 2009

What is the ‘referral of powers’? ‘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.’ What is the ‘referral of powers’? Section 51 (xxxvii) of the Australian Constitution allows the Commonwealth to make laws with respect to: S 51 (xxxvii) enables the Commonwealth to make laws with respect to matters referred to it by the states. States may refer a specific matter to the Commonwealth Parliament and, in turn, the Commonwealth may enact legislation with respect to the referred matter. States may refer to the Commonwealth any matter within their jurisdiction. This power does not enable the Commonwealth to refer to itself matters from the states that it deems desirable. When the Commonwealth Parliament makes a law relating to a referral, the Commonwealth laws prevail over inconsistent state laws.

What types of powers have been referred? Meat inspection Air transport Divorce Corporate law Terrorism Sometimes some states may refer a particular matter to the Commonwealth, while other states may decline to do so. A broad range of matters have been referred by the states to the Commonwealth. Sometimes not all \states refer power because: - states do not want to relinquish control over a certain matter - a certain matter may not be relevant to a state.

Why refer powers? ‘The effect of Section 51 (xxxvii) is to allow for a reallocation of powers from the States to the Commonwealth and, in doing so, injects a level of flexibility into an otherwise rigid Constitution’. Anne Twomey, Federalism and the Use of Cooperative Mechanisms to Improve Infrastructure Provision in Australia, Public Policy, Vol. 2, No. 3, 2007, p. 212 .

Advantages of referring powers The Commonwealth can legislate on matters that are most appropriately covered by a national law. The Commonwealth can act without requiring a referendum. The Commonwealth can pass legislation rather than relying on the states to pass uniform legislation—which can be delayed or amended due to political particularities in each state. Generally, the use of the referral of powers results in legislation that is uniform across all referring states. Because there is agreement between a state and the Commonwealth, referrals are generally viewed in terms of practicality and necessity, that is, they are less politically contentious.

The nature of referrals Referral of power General Text-based A general subject matter referral has an unlimited reference. A text-based referral is a more limited reference. A general referral is when states voluntarily give their power to legislate on a certain matter to the Commonwealth. When a matter is referred, the Commonwealth can make any laws it sees fit to make in relation to that power. A text-based referral sets out the exact words or draft Act that the Commonwealth should pass as law. Once the law is made, the Commonwealth may only amend it under the conditions set out in the reference. These types of references give the Commonwealth limited control.

Referral of power: issues When a state refers a power to the Commonwealth, is it a concurrent power? Can a state revoke a reference? Can a state set a time limit? Are Commonwealth laws made using a referred power still valid if the reference is repealed, amended or expires?

Are referred powers concurrent powers? Graham v Preston (1950) 81 CLR 1 Queensland’s Profiteering Prevention Act 1948 set a maximum price of 7 cents for a loaf of bread. A baker sold a loaf of bread for 8 cents. The baker (the defendant) argued that the Queensland Act was ‘ultra vires’ because the Queensland Parliament had referred the power to make laws about profiteering and prices to the Commonwealth in 1943. The High Court stated that referring power only gives an additional power to the Commonwealth. It does not take away a state power to make laws.

Are referred powers concurrent powers? The state keeps, while the Commonwealth gains, concurrent power to make laws with respect to the same subject matter. State residual powers Commonwealth powers When a state refers powers to the Commonwealth it means that the Commonwealth can make laws about the referred matter. It does not mean that the Commonwealth has to make laws about the referred matter. If the Commonwealth has not made a law then the state can continue to use this law. If both the state and the Commonwealth makes laws about the referred matter, Section 109 of the Constitution comes into effect. Section 109 of the Constitution provides that: when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Concurrent powers and matters referred by the states

Can a state revoke a reference? Graham v Preston (1950) 81 CLR 1 Chief Justice Latham: ‘Such a contention would involve the proposition that a State Parliament can pass an unrepealable statute, or at least that any attempt to repeal an Act referring a matter under s.51 (xxxvii.) would necessarily produce no result. The result of the adoption of such a suggestion would be that one State Parliament could bind all subsequent Parliaments of that State by referring powers to the Commonwealth Parliament.’ Can a state revoke a reference? This is a question that has not yet been considered by the High Court? In the Convention debates leading up to federation this question was debated. There was a view, supported by the Hon. Isaac Isaacs that the referral of powers could not be revoked. Westminster convention upholds the supremacy of parliament, that is, that parliament can repeal any Act made by the parliament.

Expiration of references A state may refer a matter for a limited time. A state may include a sunset clause that ends the referral when certain conditions are fulfilled.

What happens to the law when a referred power is revoked or expires? There is no clear answer to this question—this has not yet been considered by the High Court.

http://www.sydney.edu.au/law /slr/slr_32/slr32_3/Lynch.pdf http://www.fedcourt.gov.au/ab outct/judges_papers/speeches _frenchj6.rtf or http://www.fedcourt.gov.au/ab outct/judges_papers/speeches _frenchj.html and scroll down to the February 2003 speech http://apo.org.au/research/ind ustrial-relations-referral- powers MORE INFORMATION