4. The constitution - Referral of law-making powers

Referral of law-making powers
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
 The process of referral of law-making power involves;
1) the states agreeing to hand over an area of power to the
2) When the decision has been reached, the state parliaments
pass an act giving their law-making power to the
3) The Commonwealth passes an act accepting this power from
each state that has referred its power.
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
Cases of referral of Power
Property and financial matters of de facto
 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
 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.
Cases of referral of power
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.
Other cases
Other cases of referral of
law-making powers can be
found on pages 123-125 of
your text books.
Strengths and Weaknesses of referral of power
1) The Commonwealth is able to make laws for the benefit
of the whole country
2) 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.
1) The states can agree to pass uniform laws without
losing their law-making power.
2) Reduces the law-making powers of the states.
Question Time 
 Complete questions 1-5 and 7 on page 126 of your
text book.
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
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.
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.
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
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
Practice Exam Questions
6) A recent journal article commented that ‘the
Victorian Parliament has the ability to refer lawmaking 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

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