3.2.7 Capacity of States to refer Law-making Power Flashcards Preview

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Flashcards in 3.2.7 Capacity of States to refer Law-making Power Deck (13)
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1

Section that enables the referral of power:

S.51 (xxxvi)

2

S.51 (xxxvi):

Provides that any of the States can independently or collectively refer their law-making powers to the Commonwealth Parliament.

3

The process is:

Voluntary

4

Process of referring powers:

1. States pass legislation that transfers law-making powers to the Commonwealth Parliament
2. The Commonwealth Parliament passes an Act adopting this power from each of the States that referred its power.

5

Why refer power:

States want uniformity of laws across the country. Allows States to refer power best left to the Commonwealth to ensure a unified approach to an area of law.

6

Why refer power 2:

Consistency of laws between States is often difficult to achieve.

7

Example:

Terrorism

8

Terrorism:

In 2003, the States referred its law-making power in relation to international security to the Commonwealth. Commonwealth were then able to pass legislation regarding terrorist acts.

9

Victorian Referral Act:

Terrorism (Commonwealth Powers) Act 2003 (Vic)

10

Commonwealth acceptance Act:

Criminal Code Amendment (Terrorism) Act 2003

11

Impact on Division of Powers:

-Increases Commonwealth power
-Residual power becomes Concurrent power

12

Strengths of Referral:

- Allows for consistent national laws on a topic even when a referendum is possible
- Encourages State and Commonwealth Parliaments to work together
- Can be faster and more flexible than the referendum process

13

Weakness of Referral:

- Referrals could be seen as further centralising power in the hands of the Commonwealth
- Lack of clarity whether referrals can be repealed
- Process relies on Commonwealth and State Parliaments together cooperatively, and politics can make this difficult

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