1. Referral of Powers

2. Referral of law-making power by the states to the Commonwealth Power
Where referendum procedures have been unsuccessful in amending the wording of the Constitution, and a case is not brought before the High Court there is a third means available which is more efficient and effective
It involves the referral of powers from the states to the Commonwealth.
Importantly, it does not involve voters, so is a much more streamlined and efficient process that referendums
It does also not involve interpretation of the Constitution by the High Court, which is costly and time consuming

3. Referral of powers: definition
Referral of powers is the third way in which powers of the Commonwealth and the states can be changed
The others are:
Statutory interpretation by the High Court
Referenda via section 128 of Constitution
An individual state can refer (hand over) some of their powers to the Commonwealth
Not all states need to agree – it can be just one state
Under section 51 of the Constitution, the Commonwealth is able to legislate on matters that have been referred to the Commonwealth by any state

4. 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 .

5. Reasons for referral of powers:
1.) For consistency across the nation – some areas of lawmaking are better being consistent from state to state than different, for example de facto relationships
The States may feel that an area of lawmaking power is better being dealt with by the Commonwealth, for example terrorism

6. What types of powers have been referred?
Meat inspection
Air transport
Corporate law
Terrorism
De facto relationships
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.

7. De-facto Relationships

8. De facto relationships
The Constitution gives legislative power to the Commonwealth over marriage (in section 51) and matrimonial clauses
However the custody of children born outside of a marriage was not within the Commonwealth’s power and was therefore a residual power of the states
Between 1986 and 1990, all states except WA referred the custody, maintenance and access of ex-nuptial children to the Commonwealth
In 2003 Victoria, Queensland and NSW referred financial settlements to the Commonwealth
WA has not referred powers, and has its own specialist court, the Family Court of WA

9. Ex-nuptial children (those children born out of a de-facto relationship).
The rights of children are an essential focus of any modern society. Those rights must be shared equally regardless of the status of the child. Most Australian states have referred their powers over ex-nuptial children in order that this equality occurs.

10. Industrial Relations – Victoria
In 1996 Victoria referred industrial relation matters to the Commonwealth
This allowed Commonwealth industrial relations law to have a broader reach in Victoria

12. Terrorism
The defence power in section 51 of the Constitution allows the Commonwealth to legislate on military matters, however, it is unlikely that this power extends to laws regulating internal security
In the wake of September 11 and the Bali bombings, in all states referred a limited power to allow the enactment of the Criminal Code Amendment (Terrorism) Act 2003 (Cwlth).
The referral required that the Act not be amended without consultation with the states

13. Did you know…
It is unclear whether or not a referral of power from the states to the Commonwealth can be revoked (cancelled) by the relevant state. It is unclear also whether a power, once referred, becomes an exclusive power of the Commonwealth or a concurrent power.
The commonwealth does also not have to accept the power referred

14. 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.

15. 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

16. 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.

17. Mirror Legislation
Sometimes there is confusion between referral powers in section 51 and the creation of ‘mirror legislation’
Definition:
Mirror legislation involves each state enacting identical legislation in order to provide for consistency across the states
The important distinction is that mirror legislation is state legislation not enacted by the Commonwealth Parliament
Some states prefer mirror legislation as it allows greater control to repeal and amend legislation
The negative of this is that when legislation is amended in one state, but not another, inconsistencies occur between states

18. Strengths `
Weaknesses
The Commonwealth parliament is able to make laws that are consistent across Australia for the benefit of all Australians
Potential impact of states deciding to revoke these referred powers is unclear
Also not sure if exclsuive or concurrent (although Graham v Preston insinuates concurrent)
States have the ability to decide specific areas of law making that they feel would be best dealt with by the commonwealth
The commonwealth may refuse to accept the powers referred by the state, thereby reducing benefit of consistent laws
means to transfer or redistribute legislative power between the Commonwealth and States without the need to amend the Constitution
Some states may refer their powers in one area to the commonwealth whereas another may not which means laws will be inconsistent throughout the country
Also takes power away from the states that was intended to remain with them
Strengths `
Weaknesses
The Commonwealth parliament is able to make laws that are consistent across Australia for the benefit of all Australians
Potential impact of states deciding to revoke these referred powers is unclear
Also not sure if exclusive or concurrent (although Graham v Preston insinuates concurrent)
States have the ability to decide specific areas of law making that they feel would be best dealt with by the commonwealth
The commonwealth may refuse to accept the powers referred by the state, thereby reducing benefit of consistent laws
means to transfer or redistribute legislative power between the Commonwealth and States without the need to amend the Constitution
Some states may refer their powers in one area to the commonwealth whereas another may not which means laws will be inconsistent throughout the country
Also takes power away from the states that was intended to remain with them

19. Evaluate two weaknesses of states referring their lawmaking power to the Commonwealth (4 marks)

20. The commonwealth can legislate on areas referred to it by any State via section 51 of the Constitution. The ability of states to refer their power have significant weaknesses, however, inevitably, it is an effective method of altering division of power.
Perhaps the most significant weakness of states referring their powers to the commonwealth parliament is that the Commonwealth does not have to accept these powers. This can cause inconsistency regarding laws nation wide. However, if the Commonwealth were to accept the referral laws will be consistent across Australia, for example in the case of terrorism after the September 11 and Bali bombing incidents. Even though the Commonwealth does not have to accept these powers, the consistency gained from referring powers makes this method effective in altering the division of powers