Referral Of Powers Flashcards
What types of powers can be referred to the commonwealth
The states can refer or give any of their residual law-making powers to the Commonwealth.
What section of the constitution gives the commonwealth parliament the power to make Laws in areas referred to it by the states.
S51(xxxvii) of the Constitution gives the Commonwealth Parliament power over any matters referred to it by the states, but that power can only operate in those states that have referred their power to the Commonwealth.
Why do you think that the states would refer some of their law making powers. Use an example
This may occur when the states find there is an area of law-making that would be better under Commonwealth jurisdiction because the law needs to be uniform across the country.
One example when this has happened is Following the attack on the twin towers of New York city’s World Trade Center in September 2001, there was great concern about similar acts of terrorism occurring in Australia. In 2003, it was agreed between the Commonwealth and the states of Australia that it was necessary to expand the defence power contained in S51(vi) to include internal security. This was done by all states referring their power to make laws regarding terrorism to the Commonwealth.
How do the states refer some of their law making powers
The process of referral of law-making power involves the states agreeing to hand over an area of power to the Commonwealth, such as terrorist acts inside Australia. When this decision has been reached, the state parliaments 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.
What uncertainties exist in relation to the referral of powers x2
• Is a referral of powers able to be REVOKED? – If a state has referred power to the Commonwealth,
can the state decide to cancel this referral of powers, or would a referendum be needed to make a
change to a referral of powers?
• Is a referral of powers EXCLUSIVE? – If a state has referred power in an area of law-making to
the Commonwealth, does the state still have the power to make laws in this area or does it automatically become an area of exclusive power once the referral has been made?
3 advantages of referral of powers
• The states are able to discuss the issue thoroughly and decide which law-making powers are to be referred to the Commonwealth. DISCUSSION
• The Commonwealth is able to make laws for the benefit of the whole country in areas not originally given to the states under the Commonwealth Constitution. NATIONAL
• It is difficult to get the states to pass uniform laws on a particular issue. There are likely to be small differences. However, if the power has been referred to the Commonwealth, then the Commonwealth Parliament is able to pass one law that affects the whole country. EASE
3 weaknesses of referral of powers
• States may find that it would have been better for them to keep control of the area of law that has been referred to the Commonwealth. MISTAKE
• The states can agree to pass uniform laws without losing their law-making powers. NECESSITY
• It is another way of centralising law-making and reducing the law- making powers of the states. REDUCTION
