Key knowledge

1. Key knowledge • The capacity of the states to refer law-making power to the Commonwealth Parliament • A third method by which the law-making division can be altered • S 51 (xxxvii) gives the Commonwealth the power to legislate in areas referred to it by the states

2. Strengths • Allows for consistency across states in situations where consistent laws would be beneficial • Ensures that laws benefit all Australians, no matter where they live • Allows the division of law-making power to be altered without requiring an amendment to the Constitution – a more efficient process than a referendum

3. Weaknesses • Some states may refer their powers while others do not, which means inconsistency may still exist • The Commonwealth can refuse to accept the referred power • The status of a referred power is unclear after its referral – does it become an exclusive power once it’s been referred? • The states are generally reluctant to refer their powers, preferring to keep the division as it is (and particularly because the High Court has historically shifted the balance towards the Commonwealth

4. Governments acting cooperatively • The Commonwealth and State Parliaments (or the State Parliaments jointly) can enact mirror or complementary legisation. This means that each state and/or the Commonwealth enacts the same legisation, therefore creating consistency across the states. • An advantage of this approach is that the states retain control of the legislation and have the capacity to amend it. • A disadvantage is that if a state or states do amend it, inconsistencies may result

5. The process • The states agree to hand over an area of law-making power to the Commonwealth • The states pass an act referring their power to the Commonwealth (e.g. the Fair Work (Commonwealth Powers) Act 2009 (Vic)) • The Commonwealth enacts legislation in relation to the referred power (e.g. the Family Law Amendment (De Facto Financial Matter and Other Measures) Act 2008 (Cth))

6. The impact • The impact of the referral of law-making powers is that there is a change in the division of powers between the states and the Commonwealth in favour of the Commonwealth • As mentioned above, it’s unclear whether the power becomes exclusive to the Commonwealth once it’s been referred, or if the power can be revoked by a state once it’s been referred

7. Some examples • De facto relationships (including property division and children) • Corporations • Workplace relations • Terrorism And to come: • Anti-gang law (http://www.theaustralian.com.au/national-affairs/pm-seeks-anti-gang-law-deal-with-states/story-fn59niix-1226591468421)

8. Property and financial matters of de facto couples • De facto relationships were not included under s 51(xxi) and s 51(xxii), therefore matters relating to de facto couples could not be heard in the Family Court. • This meant that de facto couples were denied access to the Family Court, which had the expertise to hear family matters e.g. property matters. • In 2004, the Victorian Parliament referred its power over property and other financial matters arising out of the breakdown of de facto relationships to the Commonwealth Parliament through the Commonwealth Powers (De Facto Relationships) Act 2004 (Vic). • NSW, NT, QLD passed identical legislation.

9. Terrorism • The defence power in s 51(vi) of the Constitution allows the Commonwealth to make laws on military matters, but it doesn’t specifically include internal security. • Internal security is regarded as criminal law and is the responsibility of the states. • With the threat of terrorism, the Commonwealth needed power to act for the whole of Australia (particularly after the September 11 attacks in 2001). • In 2003 all states referred a limited power to allow the enactment of the Criminal Code Amendment (Terrorism) Act 2003. This act now allows the Commonwealth to make laws regarding terrorist acts inside Australia. The Victorian act referring these powers was the Terrorism (Commonwealth Powers) Act 2003.