Referral of Powers in Australia

Referral of Powers

Referral of powers, as outlined in section 51 xxxvii of the Australian Constitution, enables states to hand over their powers to the Commonwealth.

• A referral of power only impacts the referring state, not other states.
• States may choose to adopt Commonwealth legislation under the "adopting power" in section 51 xxxvii.
• States cannot reclaim powers once referred to the Commonwealth.

Examples of Referral of Powers

• Custody and Maintenance of Children of Divorced Parents (1986-1990): All states except WA referred powers, leading to the creation of the Family Court of Australia under section 7 (Judiciary).
• Defacto Relationships (1975): WA did not refer its power.
• Industrial Relations (1996): Victoria referred powers after Premier Jeff Kennett's changes to state industrial relations laws.
• Anti-Terrorism Laws:
  • The Howard Government sought uniform national laws against emerging criminal threats, using the external affairs power in section 51 xxix.
  • The Commonwealth signed the International Convention for the Suppression of Terrorist Bombings in 1997, enabling the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002.
  • The defence power in section 51 vi was insufficient for Commonwealth anti-terror laws.
  • The Security Legislation Amendment (Terrorism) Act 2002 failed initially, as crime was a state responsibility.
  • States referred necessary crime powers following the Howard government's request. Specifically, the context was shaped by the Port Arthur Massacre, and the Criminal Code was kept as a residual power by states.
• Murray-Darling Basin Plan:
  • The Howard Government aimed to create laws for the river system across four states.
  • NSW, Victoria, Queensland, and South Australia were requested to refer powers.
  • Victoria initially refused, but the Rudd Darling Basin Plan was enacted via the Water Act 2007.
• Gonski Education Funding Reforms
• South Australia Railways: South Australia referred authority due to debt, with the Commonwealth providing financial assistance and gaining decision-making power.
• Corporations Power: Through the Corporations Bill 2001, this influenced Work Choices in 2006.

Strengths of Referral of Powers (Section 51 xxxvii)

• The Commonwealth cannot compel a state to refer its power or force another state to adopt Commonwealth legislation.
• Enables the Commonwealth to legislate in areas where it lacks constitutional head of power due to state powers.
• Helps modernize Australia's 19th-century constitution.
• Conservative outcomes of the referendum process result in slow change to the constitution.
• Federal and State Corporation (COAG and national cabinet)

Weaknesses of Referral of Powers

• States may feel pressured to refer powers to the Commonwealth.
• The lack of a referendum prevents citizen input, undermining sections 7 and 24 of the constitution.
• Undermines the powers outlined in the constitution, making it difficult for consistent updates to sections regarding concurrent/residual/exclusive powers.
• States may be unwilling to transfer legislative authority or revenue areas.