Key knowledge :. Key Skills: • explain the methods and processes of changing constitutional power • analyse the impact of referendums, High Court interpretation of the Constitution, and the referral of powers on the division of law-making powers.
• explain the methods and processes of changing constitutional power
• analyse the impact of referendums, High Court interpretation of the Constitution, and the referral
of powers on the division of law-making powers
• the capacity of the states to refer law-making power to the Commonwealth Parliament
through a referendum
by the High Court’s interpretation of the words in the Constitution
referral of power by the States to the Commonwealth Parliament
Referral of power is when States voluntarily hand over responsibilities to the Commonwealth. Under Section 51 (xxxvii) of the Constitution , any State or States may ask the Commonwealth Government to be responsible for certain areas. This is known as the of referral power. It means that the Commonwealth has the power to make laws if the State (or States) refers that matter to them or hands over those powers to the Commonwealth. In 1977, the South Australian and Tasmanian governments transferred ownership and control of their country railway systems.
Under S 51 (xxxvii) the Commonwealth can make laws in an area referred to it by the states.
If one state refers its power to the Commonwealth, does this then apply to all the states?
No. The commonwealth will only make laws for those states which have referred their power it.
Does this happen often?
No, as the states are generally reluctant to hand over any of their power to the Commonwealth Parliament.
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.
What is the process to allow this?
The states agree to hand over an area of power to the commonwealth. The states 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 then is the impact on the division of power?
There is a change in the division of power between the states and the Commonwealth in favour of the Commonwealth.
Examples of referral of power are:
ex-nuptial children in family law matters
2. Internal Security and terrorism laws (p 124)