DP 7: THE CAPACITY OF THE STATES TO REFER LAW MAKING POWER TO THE COMMONWEALTH PARLIAMENT Unit 3 AoS 2 Legal Studies revision

Question Explain a way, other than High Court interpretation or a referendum, that the division of power between the Commonwealth and the State Parliaments can be altered.

Answer Referral of powers – the states referring or giving some of their law making powers to the Commonwealth Parliament. Section 51 (xxxvii) gives the Commonwealth Parliament the power to make laws on matters referred to it by the parliament of any state. Why would the states do this?

Answer The states may choose to do this when they think that an area of law-making is best dealt with my the Commonwealth due to its expertise, or so that laws can be consistent across a number of states (assuming that a number of states refer their powers in the same area). However, states are reluctant to hand over their law- making powers. Why?

Question Explain what is meant by the referral of powers and explain why this is done. 2 marks.

Answer When states give some of their law-making powers to the Federal Parliament so that the latter can make laws in those areas it is called ‘referral of powers’. States may choose to do this if they feel that the Federal Parliament is better about to legislate on an issue than the state; or, if several states refer their power in the same area, then the Federal Parliament is able to pass legislation that applies to all of those states. 1 mark for explanation of referral of powers. 1 mark for suggestion – why states refer the powers.

Question Explain some examples of referred powers.

Answer Ex- nuptial children. The Constitution gives the commonwealth power to make laws relating to marriage and divorce, however, this power does not extend to de facto relationships, which remain an area of residual power. The Commonwealth Parliament created the Family Court to specialise in cases involving the dissolution of marriage, custody, maintenance and related issues. States have decided that similar disputes relating to breakdown of de facto relationships should be treated similarly and have referred their powers in this area to the Commonwealth Parliament to be dealt with by the Family Court. The Commonwealth Powers (Family Law – Children) Act 1986 (Vic.) referred Victoria’s powers to resolve custody disputes involving ex-nuptial children to the Commonwealth.

Analysing and evaluating methods used to change the division of powers MethodStrengthsWeaknesses ReferendaDouble majority provision ensures that only the proposals with overwhelming public support are successful. The lengthy process means that proposals are considered fully, thereby protecting Constitution from changes without merit. Small states are protecting from domination by more populated states (due to provision – 4/6 states must have majority of population voting ‘yes). As proposals must be passed through Commonwealth Parliament, the process is largely controlled by the Commonwealth, which often proposes increase in power. Referendums are costly. The low success rate (because of voter conservatism, lack of understanding and distrust of politicians) can lead to people saying no. Needs bipartisan support to be successful, otherwise voter loyalties are divided and referendum will fail.

High Court interpretation MethodStrengthsWeaknesses High Court interpretation of the Constitution High Court judges are experts on constitutional law and its implication, so are best placed to interpret its meaning. High Court interpretation has had the most success in changing law making powers and updating them with modern use. High Court is the guardian of the Constitution and can act (provided that someone has brought forward a case) to ensure the parliaments do not abuse their law-making powers A change relies on someone being willing and able to challenge a case in the High Court which can be expensive. The composition of the High Court can effect the interpretation given. For example, conservative judges may be reluctant to change law-making powers but progressive judges are more inclined to do so.

Referral of powers MethodStrengthWeakness Referral of powers* The Commonwealth Parliament is able to make laws that are consistent across Australia for the benefit of all Australians. States have the ability to decide specific areas of law making that they feel would be best dealt with by the Commonwealth The potential impact of states deciding to revoke the referred powers is unclear. The Commonwealth may refuse to accept the powers referred to it by the states, thereby reducing the benefit of consistent laws.

Can you… Explain what is meant by ‘referral of powers’; Give an example of referral of powers; Explain the impact of referral of powers on the division of law making powers?