Transfer of Powers Flashcards
What is section 99 of the Constitution?
S 99 prohibits the Commonwealth from making laws that discriminate unfairly against individual states in matters of trade, commerce and revenue
What happened in Elliot v Commonwealth (1963) and what is this an example of?
This case considered whether a licencing system for seamen offended s 99 of the Constitution by giving preference to a state or part of a state.
Example of preservation of state powers
Where are state powers protected in the constitution?
- s106 protects state constitutions
- s107 protects powers of state parliaments
- s108 protects the laws of the states
How does judicial review protect state powers?
S76 allows the states to challenge the validity of legislation made by the Commonwealth Parliament
How can a transfer of powers between states and the commonwealth occur?
- High Court decisions
- Cooperative Federalism
- Referral of Power (voluntary handover)
- Tied Funding
- Referenda
- Unchallenged legislation
- Bullying
What is cooperative federalism?
- All of the members of the Commonwealth (States & Federal govt) negotiate to pass similar legislation to achieve a consistent outcome.
What is the council of the Australian government an example of?
example of cooperative federalism
what is the council of the Australian government?
- COAG- In 1992 the Federal Council created the Council of the Australian Government.
- Members of COAG include:
Heads of Government of the Commonwealth, States and Territories and President of the Australian Local Government Association. - COAG meets to debate and co-ordinate govt activities.
- These partners try to make intergovernmental agreements –called Federal co-operative agreements- to create uniformly consistent laws in areas where the Commonwealth lacks power to legislate.
What is an example of cooperative federalism?
One of the most well-know examples- Tightening of gun laws following the Port Arthur Massacre. National firearms agreement
What is the referral of powers?
Under section 51 of the Constitution, the states can voluntarily refer (transfer) power to the Commonwealth.
What is an example of referral of powers?
Example- In 1987 four States referred power over ex-nuptial children (children born outside of wedlock) to the Commonwealth.
This allowed the Commonwealth to establish the Family Court of the Federal Circuit Court to resolve all disputes regarding children following the breakdown of their parents relationship regardless of whether they were married.
Is referral of powers successful?
only had limited success as the states are understandably reluctant to give up their powers.
What is the grants power (tied funding)?
- The Commonwealth controls the majority of taxes and funding. Particularly GST and income tax.
- This money is distributed by the Commonwealth to the states.
- Section 46 allows the Commonwealth to give funding to the states subject to certain conditions.
- Essentially the Commonwealth provides financial inducements to the states to enact legislation (using their residual powers) consistent with Commonwealth policy.
- The Commonwealth can ‘tie’ funding to requirements.
What is an example where the commonwealth may have or may wish to pay tied grants?
- Example- Commonwealth does not have power to legislate in relation to education (this is a residual power). However, if a state wants funding for education the Commonwealth can make this conditional on the state passing reforms relating to education.
- If SA wants to build an new school the Commonwealth can dictate where that is built by threatening to withdraw funding.
What is a referendum?
The Constitution can only be changed through a successful referendum.
In order for any alterations to be made changes need a double majority. That is they need to receive a majority of votes (50% +1) in a majority of states.
