Section 51(xxxvii) of the Australian Constitution

Section 51(xxxvii) of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian constitution limits Commonwealth power (see Section 51). Section 51(xxxvii) was therefore framed to allow a degree of flexibility.

In practice, the referral power has been quite important in allowing the Commonwealth to enact legislation.

Uncertainty Regarding the Scope of Section 51(xxxvii)

The text of Section 51(xxxvii) grants power regarding::matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law. Uncertain issues regard:
*Revokabilty: whether a State can revoke a referral or if it has the status of a quasi-amendment to Section 51
*Exclusivity: whether a referral grants exclusive Commonwealth power or concurrent power. That is, whether the states continue to legislate on fields referred to the Commonwealth.

There was ambivalence on these issues within the constitutional convention itself. The issue of revocability has not been clarified today. This explains why referrals of power are usually very narrow. Referrals usually generally include, in their terms, an expiry period after which a further referral is required. Limitations of time were upheld as valid in "The Queen v Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty Ltd" (1964) 113 CLR 207, although the general issue of revocability was not resolved. Uncertainty may lead to the use of mirror legislation (see below) rather than a s51(xxxvii) referral, in order to reassure the states that they will not lose legislative power.

The issue of exclusivity seems to have been resolved in favour of the concurrent legislative power approach. That is, as with other powers in section 51, states can continue to legislate subject to Section 109. This was the decision of "Graham v Paterson" (1950) 81 CLR 1.

Examples of the Use of Section 51(xxxvii)

This list is not comprehensive. Rather, this article intends to highlight some significant examples of referral of powers and demonstrate how and why the power is used.

De Facto Relationships

The Australian Constitution confers legislative power to the Commonwealth over marriage (Section 51(xxi)) and matrimonial causes (Section 51xxii)). The Australian Commonwealth created the Family Court of Australia as a specialist court dealing with divorce, including custody of children. However, the custody of children born outside of a marriage was outside of the Commonwealth’s jurisdiction. As a result, these matters had to be litigated in non-specialist state courts.

Between 1986 and 1990 all states, except for Western Australia, referred the custody, maintenance, and access of ex-nuptial children to the Commonwealth. This referral excluded child welfare matters. Given that abuse of children is frequently a matter of contention in family law cases that reach litigation, this limitation is important in that it establishes a split system and creates bureaucratic hurdles. The referral also did not refer to property matters arising at the end of de facto relationships. As a result, maintenance orders are made in the Family Court and property settlements in state courts, although the matters may be inter-related. In 2003 Victoria, Queensland, and New South Wales referred financial settlements to the Commonwealth. However, the issue remains unresolved in relation to other states.

Western Australia has not referred powers, and has its own specialist court, the Family Court of Western Australia.

Corporations

The corporations power (Section 51(xx)) confers power to the Commonwealth in respect to trading and financial corporations. On the basis of this power the Commonwealth attempted, in 1989, to enact comprehensive legislation on corporations in Australia.

In "The Incorporations Case" the High Court held that the corporations power related to the power to regulate existing corporations. Therefore, the power did not support legislation prescribing incorporation processes.

However, having different sets of rules in each jurisdiction for the establishment of companies, and different registers for the existence of companies, created red-tape and legal hurdles for business. After the incorporation case, the states agreed to refer powers to the Commonwealth. The current Corporations Act 2001 is, in part, supported by this referral of power. The referral also allowed the passage of the Australian Securities and Investment Commission bill.

Victorian Industrial Relations

In 1996 Victoria referred certain industrial relations matters to the Commonwealth, in the "Commonwealth Powers (Industrial Relations Act) 1996 Vic". This allowed Commonwealth industrial relations law the Workplace Relations Act 1996 to have a broader reach in Victoria. The "Workplace Relations Act" is generally limited in operation by the corporations power and the the conciliation and arbitration power.

Terrorism

Although the defence power in section 51(vi) of the Constitution allows the Commonwealth to legislate on military matters, it is unlikely that this power extends to laws regulating internal security.

In 2002-2003 all states referred a limited power to allow the enactment of the "Criminal Code Amendment (Terrorism) Act 2003". The referral required that that act not be amended without consultation with the states.

Alternatives to Section 51(xxxvii) when the Commonwealth Lacks Power

Mirror Legislation

The referral power in section 51(xxxvii) should not be confused with the practice of ‘mirror legislation’. Mirror legislation occurs when state parliaments enact identical legislation to achieve consistency across the states. Such legislation may be led by the Commonwealth, but the enacting legislation is state legislation and based on state powers. Mirror legislation may be preferred by the states as it gives them control over subsequent repeal and amendment. However, this can introduce inconsistencies when different amendments are made in different jurisdictions.

Tiered Grants

A ‘tiered grant’ is when the Commonwealth dictates state policy direction by granting funding to the states under section 96 of the constitution subject to the ‘terms and conditions’ that a certain policy be implemented. As with mirror legislation, the enacting legislation is state legislation and based on state legislative power, although the grant is made by the Commonwealth.

Tiered grants have often been ‘forced’ upon states due to the vertical fiscal imbalance between states and the Commonwealth. By contrast, the areas where s51(xxxvii) have been used generally reflect a consensus that differing state systems are undesirable.

External links

* [http://www.gtcentre.unsw.edu.au/publications/papers/docs/2005/5_PamelaTate_Table.pdf List of Referrals from States to the Commonwealth]
* [http://www.gtcentre.unsw.edu.au/publications/papers/docs/2005/5_PamelaTate.pdf Cooperative Federalism: Referals of State Powers to the Commonwealth and Their Consequences] by Pamela Tate, Solicitor General for Victoria
* [http://mediacentre.dewr.gov.au/mediacentre/AllReleases/1996/November/TheReferralOfVictoriasIndustrialRelationsPowersToTheCommonwealth.htm Speech of Peter Reith on the referral of Victorian Industrial Relations Matters]
* [http://www.aph.gov.au/library/pubs/bd/2000-01/01BD144.htm Bills digest to the Australian Securities and Investments Commission Bill 2001]