The Referral of
Powers
Section 51(xxxvii) grants power regarding:
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.
The Referral of Powers
• Factors that increase the impact on
the division of law making powers
• Factors that limit the impact on the
division of law making powers
The Referral of Powers
The states can refer any of their residual law-making powers to the
Commonwealth.
WHY?
States may do this when they believe there is an area of law-making that
would be better under Commonwealth jurisdiction because the laws
need to be uniform across the country.
OR
States may believe that the issue is best dealt with by the
Commonwealth, due to its expertise.
The Referral of Powers
HOW?
They simply pass an act giving their law-making power
to the Commonwealth and the Commonwealth
Parliament passes an act accepting this power from
each state that has referred its power.
EXAMPLE:
Terrorism (2003)
In the wake of September 11 all states referred a
limited power to allow the enactment of the Criminal
Code Amendment (Terrorism) Act 2003 (Cwlth)
Factors that increase the impact on the
division of law making powers
• Easy to achieve--- states pass an act referring the power over to
the Commonwealth (this is much easier than a referendum)
• Unified approach--- allows states to refer powers to ensure
consistent laws across the country (eg Terrorism)
• State control--- states are able to decide whether they would like
to hand their power over to the Commonwealth
Factors that reduce the impact on
the division of law making powers
• States are reluctant– only rarely do states wish to refer
their power to the Commonwealth (fear of further
centralising legislative power to the Commonwealth)
• Mirror legislation– states can all pass similar acts to
ensure consistency without referring their power over to
the Commonwealth.
(example: Port Arthur Massacre gun reform)
• Power uncertain- not always clear whether this power
becomes concurrent or exclusive or whether the states
can ‘take their power back’.
Factors that reduce the impact on
the division of law making powers
• Political barriers- The process relies on the state and
Commonwealth governments working together
cooperatively, and politics can make this difficult.