Referral of law-making powers

1. Referral of law-making powers

2. Referral of law making powers The states can refer any of their residual powers to the Commonwealth. This may occur when the states find there is an area of law that needs to be uniform across the country. States are usually reluctant to do this. S51(xxxvii) gives the Commonwealth Parliament power over any matters referred to it by the states, but that power can only operate in the states that have given up their power to the Commonwealth. The process of referral of law-making power involves; the states agreeing to hand over an area of power to the Commonwealth. When the decision has been reached, the state parliaments pass an act giving their law-making power to the Commonwealth The Commonwealth passes an act accepting this power from each state that has referred its power.

3. Impact of referral of law-making powers 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.

4. Cases of referral of Power Property and financial matters of de facto couples De facto relationships were not included under s51(xxi) and s41(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.

5. Cases of referral of power Terrorism The defence power in s51(vi) of the Constitution allows the Commonwealth to make laws on military matters. International 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.

6. Other cases Other cases of referral of law-making powers can be found on pages 123-125 of your text books.

7. Strengths and Weaknesses of referral of power STRENGTHS The Commonwealth is able to make laws for the benefit of the whole country It is difficult to get the states to pass uniform laws on a particular issue. There are likely to be small differences. If power has been referred to the Commonwealth, then it can pass one law that affects the whole country. WEAKNESSES The states can agree to pass uniform laws without losing their law-making power. Reduces the law-making powers of the states.

8. Question Time  Complete questions 1-5 and 7 on page 126 of your text book.

9. Practice Exam Questions 1) Explain, using examples, the distinction between the exclusive powers of the Commonwealth, the concurrent powers of the Commonwealth and the states, and the residual powers of the states. • How to answer – p90-95 of text books • Be able to define each of the powers • Provide a detailed example of each

10. Practice Exam Questions 2) How can s109 of the Constitution be seen as a restriction on States’ powers? • How to answer – p95 of text books • What does s109 provide a mechanism for • Why does it do this • Provide an example: Marriage is an area of concurrent power. The Marriage Act 1958 (Vic.) provided laws for a valid marriage. When the Commonwealth Parliament passed the Marriage Act 1961 (Cth), it rendered the pre-existing Victorian legislation largely redundant because it covered the same areas and the Commonwealth law prevails. Since this time the inconsistent areas of the Victorian act have been repealed.

11. Practice Exam Questions 3) Explain one way in which the commonwealth Constitution restricts the Commonwealth parliament’s law-making powers. • How to answer –p93-94 of text books • Know examples and be able to explain HOW they act as restrictions! • The Commonwealth Parliament is restricted from legislating in areas of residual powers; it can only pass laws on areas of power given under the Constitution. • Certain sections of the Constitution impose restrictions on law-making by the Commonwealth Parliament. For example, S116 prevents the Commonwealth Parliament from legislating with respect to religion. S106 and S108 restrict the Commonwealth Parliament from interfering with the states’ powers and laws.

12. Practice Exam Questions 4) Evaluate the process of changing the Constitution as outlined in Section 128. • How to answer –p100-109 of text books • What does s128 outline? • Know the process of a referendum • Evaluate!!! What is effective what is ineffective • Understand the double majority and its importance (explain the two steps) • provide examples of successful and failed referendums

13. Practice Exam Questions 5) Discuss the significance of two High court cases that have interpreted Commonwealth Constitution. In your answer, indicate the impact these cases have had on the law-making powers of the state and commonwealth parliaments. • How to answer –p117 - 120 of text books • s71 & s76 of the constitution • What does it mean for the High Court to interpret the Constitution • Provide two examples • For each example explain the case • For each example explain how it impacted on law-making powers

14. Practice Exam Questions 6) A recent journal article commented that ‘the Victorian Parliament has the ability to refer law-making powers to the Commonwealth Parliament’. Explain what this statement means using examples in your response. • How to answer –p123 of text books • Explain that laws can be referred • Explain the impact it has • Provide at least two examples