3.2.7 Capacity of States to refer Law-making Power Flashcards
Section that enables the referral of power:
S.51 (xxxvi)
S.51 (xxxvi):
Provides that any of the States can independently or collectively refer their law-making powers to the Commonwealth Parliament.
The process is:
Voluntary
Process of referring powers:
- States pass legislation that transfers law-making powers to the Commonwealth Parliament
- The Commonwealth Parliament passes an Act adopting this power from each of the States that referred its power.
Why refer power:
States want uniformity of laws across the country. Allows States to refer power best left to the Commonwealth to ensure a unified approach to an area of law.
Why refer power 2:
Consistency of laws between States is often difficult to achieve.
Example:
Terrorism
Terrorism:
In 2003, the States referred its law-making power in relation to international security to the Commonwealth. Commonwealth were then able to pass legislation regarding terrorist acts.
Victorian Referral Act:
Terrorism (Commonwealth Powers) Act 2003 (Vic)
Commonwealth acceptance Act:
Criminal Code Amendment (Terrorism) Act 2003
Impact on Division of Powers:
- Increases Commonwealth power
- Residual power becomes Concurrent power
Strengths of Referral:
- Allows for consistent national laws on a topic even when a referendum is possible
- Encourages State and Commonwealth Parliaments to work together
- Can be faster and more flexible than the referendum process
Weakness of Referral:
- Referrals could be seen as further centralising power in the hands of the Commonwealth
- Lack of clarity whether referrals can be repealed
- Process relies on Commonwealth and State Parliaments together cooperatively, and politics can make this difficult
