Changing the balance of powerWednesday 18 April
How this relates to the other topicsWe have already learnt about the Referendum processA successful referendum may change the balance of power between the Commonwealth and the State parliamentsFor example, after the 1967 referendum the Commonwealth was allowed to make laws regarding Aboriginals because the restriction regarding them was removed from the Constitution
Think of the balance of power asStatesCommonwealth
The High CourtThe High Court can also alter the balance of power between the States and the CommonwealthIt can do this by interpreting the words of the ConstitutionHOWEVER, it cannot change the wording of the Constitution [see page 113 of your textbook]Section 76 of the Constitution gives the High Court the power to decide cases arising under the Constitution or in relation to its interpretation
An example of a High Court decision
In 1983, the High Court decided in the Tasmanian Dams Case that the external affairs power meant the Commonwealth could pass laws to implement a treaty even if it didnt have any specific powers covering the topic of the treaty.
States can change the balance of power tooState parliaments can change the balance of power ONLY in the Commonwealth Parliaments favourSection 51(xxxvi) of the Constitution gives the Commonwealth power to make laws over any topic that a state parliament gives to it.The laws will apply only to that particular stateIn 1996, then Victorian Premier Jeff Kennett referred the power to make law regarding workplace relations to the Cth Parliament.
Advantages of referring powersThe Commonwealth can legislate on matters that are most appropriately covered by a national law. The Commonwealth can act without requiring a referendum. The Commonwealth can pass legislation rather than relying on the states to pass uniform legislationwhich can be delayed or amended due to political particularities in each state. Generally, the use of the referral of powers results in legislation that is uniform across all referring states. Because there is agreement between a state and the Commonwealth, referrals are generally viewed in terms of practicality and necessity, that is, they are less politically contentious.
The nature of referralsA general subject matter referral has an unlimited reference.A text-based referral is a more limited reference.
Referral of power: issuesWhen a state refers a power to the Commonwealth, is it a concurrent power?Can a state revoke a reference?Can a state set a time limit?Are Commonwealth laws made using a referred power still valid if the reference is repealed, amended or expires?
Are referred powers concurrent powers?Graham v Preston (1950) 81 CLR 1 Queenslands Profiteering Prevention Act 1948 set a maximum price of 7 cents for a loaf of bread. A baker sold a loaf of bread for 8 cents. The baker (the defendant) argued that the Queensland Act was ultra vires because the Queensland Parliament had referred the power to make laws about profiteering and prices to the Commonwealth in 1943. The High Court stated that referring power only gives an additional power to the Commonwealth. It does not take away a state power to make laws.
Are referred powers concurrent powers?
The state keeps, while the Commonwealth gains, concurrent power to make laws with respect to the same subject matter.
Concurrent powers and matters referred by the states
Can a state revoke a reference?Graham v Preston (1950) 81 CLR 1 Chief Justice Latham: Such a contention would involve the proposition that a State Parliament can pass an unrepealable statute, or at least that any attempt to repeal an Act referring a matter under s.51 (xxxvii.) would necessarily produce no result. The result of the adoption of such a suggestion would be that one State Parliament could bind all subsequent Parliaments of that State by referring powers to the Commonwealth Parliament.
This is a question that has not yet been considered by the High Court?
Expiration of referencesA state may refer a matter for a limited time.A state may include a sunset clause that ends the referral when certain conditions are fulfilled.
What happens to the law when a referred power is revoked or expires?
There is no clear answer to this questionthis has not yet been considered by the High Court.
MORE INFORMATIONhttp://www.sydney.edu.au/law/slr/slr_32/slr32_3/Lynch.pdfhttp://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj6.rtfor http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj.html and scroll down to the February 2003 speech http://apo.org.au/research/industrial-relations-referral-powers
Only a successful referendum can change the actual wording of the Constitution**A general referral is when states voluntarily give their power to legislate on a certain matter to the Commonwealth. When a matter is referred, the Commonwealth can make any laws it sees fit to make in relation to that power.
A text-based referral sets out the exact words or draft Act that the Commonwealth should pass as law. Once the law is made, the Commonwealth may only amend it under the conditions set out in the reference. These types of references give the Commonwealth limited control.**When a state refers powers to the Commonwealth it means that the Commonwealth can make laws about the referred matter. It does not mean that the Commonwealth has to make laws about the referred matter. If the Commonwealth has not made a law then the state can continue to use this law.
If both the state and the Commonwealth makes laws about the referred matter, Section 109 of the Constitution comes into effect.
Section 109 of the Constitution provides that: when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
*In the Convention debates leading up to federation this question was debated. There was a view, supported by the Hon. Isaac Isaacs that the referral of powers could not be revoked.
Westminster convention upholds the supremacy of parliament, that is, that parliament can repeal any Act made by the parliament.**