Changing the balance of power Wednesday 18 April

How this relates to the other topics  We have already learnt about the Referendum process  A successful referendum may change the balance of power between the Commonwealth and the State parliaments  For example, after the 1967 referendum the Commonwealth was allowed to make laws regarding Aboriginals because the restriction regarding them was removed from the Constitution

Think of the balance of power as… States Commonwealth

The High Court  The High Court can also alter the balance of power between the States and the Commonwealth  It can do this by interpreting the words of the Constitution  HOWEVER, it cannot change the wording of the Constitution [see page 113 of your textbook] Section 76 of the Constitution gives the High Court the power to decide cases arising under the Constitution or in relation to its interpretation

An example of a High Court decision In 1983, the High Court decided in the Tasmanian Dams Case that the external affairs power meant the Commonwealth could pass laws to implement a treaty even if it didn’t have any specific powers covering the topic of the treaty.

States can change the balance of power too…  State parliaments can change the balance of power ONLY in the Commonwealth Parliament’s favour  Section 51(xxxvi) of the Constitution gives the Commonwealth power to make laws over any topic that a state parliament gives to it.  The laws will apply only to that particular state In 1996, then Victorian Premier Jeff Kennett referred the power to make law regarding workplace relations to the Cth Parliament.

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  A general subject matter referral has an unlimited reference.  A text-based referral is a more limited reference.

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  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 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.’ This is a question that has not yet been considered by the High Court?

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.

MORE INFORMATION  /slr/slr_32/slr32_3/Lynch.pdf /slr/slr_32/slr32_3/Lynch.pdf  outct/judges_papers/speeches _frenchj6.rtf outct/judges_papers/speeches _frenchj6.rtf or outct/judges_papers/speeches _frenchj.html and scroll down to the February 2003 speech outct/judges_papers/speeches _frenchj.html  ustrial-relations-referral- powers ustrial-relations-referral- powers