Section 51(xxxvii) of the Australian Constitution
Encyclopedia
Section 51 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.
Uncertain issues regard:
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 include in their terms an expiry period, after which a further referral is required. Limitations of time were upheld as valid by the High Court in 1964, although the general issue of revocability was not resolved. Uncertainty may lead to the use instead of mirror legislation (see below), in which the states retain their 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 inconsistency with Commonwealth legislation (Constitution s 109
).
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
.
, Constitution s 51(xx), empowers the Commonwealth to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". On the basis of this power, in 1989 the Commonwealth enacted comprehensive legislation on corporations in Australia, the Corporations Act 1989 (Cth).
The Act covered not only corporations already in existence but also processes of incorporation. 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. However, in the Incorporation Case (1990), the High Court
held that "formed" related to corporations only after their creation and so did not support legislation prescribing incorporation processes. To that extent, the act was invalid.
The Commonwealth then obtained power to legislate with respect to incorporation processes by persuading the states to refer their powers over incorporation processes to the Commonwealth. The current Corporations Act 2001
(Cth) is supported by the combination of the corporations power with this referral of power. The referral also allowed the passage of the Australian Securities and Investment Commission Act 2001 (Cth).
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 conciliation and arbitration power.
, Constitution s 51(vi), 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 (Cth). The referral required that that act not be amended without consultation with the states.
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.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
is a federation
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
, both states and the Commonwealth have legislative power, and the Australian constitution limits Commonwealth power (see Section 51)
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
. 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:
- Revocability: whether a State can revoke a referral or if it has the status of a quasi-amendment to Section 51Section 51 of the Australian ConstitutionSection 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
. - Exclusivity: whether a referral grants exclusive Commonwealth power or concurrent power. That is, whether the states may 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 include in their terms an expiry period, after which a further referral is required. Limitations of time were upheld as valid by the High Court in 1964, although the general issue of revocability was not resolved. Uncertainty may lead to the use instead of mirror legislation (see below), in which the states retain their 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 inconsistency with Commonwealth legislation (Constitution s 109
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
).
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 AustraliaFamily Court of Australia
The Family Court of Australia is a superior Australian federal court of record which deals with family law matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia except Western 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
1986 in Australia
-Incumbents:*Queen of Australia – Elizabeth II*Governor General – Sir Ninian Stephen*Prime Minister – Bob Hawke*Premier of New South Wales – Neville Wran, then Barrie Unsworth*Premier of South Australia – John Bannon...
and 1990
1990 in Australia
-Incumbents:*Monarch – Elizabeth II*Governor-General – Bill Hayden*Prime Minister – Bob Hawke-Premiers and Chief Ministers:*Premier of New South Wales – Nick Greiner*Premier of Queensland – Wayne Goss*Premier of South Australia – John Bannon...
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
Family Court of Western Australia
The Family Court of Western Australia is a state court that deals with family law. It was established by the passing of the Family Court Act and commenced operation in 1976. It deals with divorce, marital property settlements, child custody, adoption and surrogacy...
.
Corporations
The corporations powerSection 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
, Constitution s 51(xx), empowers the Commonwealth to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". On the basis of this power, in 1989 the Commonwealth enacted comprehensive legislation on corporations in Australia, the Corporations Act 1989 (Cth).
The Act covered not only corporations already in existence but also processes of incorporation. 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. However, in the Incorporation Case (1990), the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
held that "formed" related to corporations only after their creation and so did not support legislation prescribing incorporation processes. To that extent, the act was invalid.
The Commonwealth then obtained power to legislate with respect to incorporation processes by persuading the states to refer their powers over incorporation processes to the Commonwealth. The current Corporations Act 2001
Corporations Act 2001
The Corporations Act 2001 , sometimes referred to just as the Corporations Act , is an act of the Commonwealth of Australia that sets out the laws dealing with business entities in Australia at federal and interstate level...
(Cth) is supported by the combination of the corporations power with this referral of power. The referral also allowed the passage of the Australian Securities and Investment Commission Act 2001 (Cth).
Victorian Industrial Relations
In 19961996 in Australia
-Incumbents:*Queen of Australia – Elizabeth II*Governor-General – Bill Hayden , then Sir William Deane.*Prime Minister – Paul Keating , then John Howard-Premiers and Chief Ministers:*Premier of New South Wales – Bob Carr...
Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
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
Workplace Relations Act 1996
The Workplace Relations Act 1996 is an Australian law passed by the Howard Government after coming into power in 1996. It replaced the previous Labor Government's Industrial Relations Act 1988. It started operation on 1 January 1997 and provided for the continuation of the federal award system...
to have a broader reach in Victoria. The Workplace Relations Act is generally limited in operation by the corporations power
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
and the conciliation and arbitration power.
Terrorism
Although the defence powerSection 51(vi) of the Australian Constitution
Section 51 of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "the naval and military defence of the Commonwealth and of the several States, and...
, Constitution s 51(vi), 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 (Cth). The referral required that that act not be amended without consultation with the states.
Consumer Credit
In 2009, the National Consumer Credit Protection Act (Cth) transfers regulatory responsibility for credit from the states and territories to the Commonwealth. This is one of the most broad reaching reforms in living memory of the regulation of the consumer credit in Australia. Previously, consumer credit was regulated at state level amongst each of the states but it was agreed at a COAG meeting that this area of the law should be reformed in the wake of the global financial crisis and on a constitutional level, this was made possible because of the referral 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, perhaps through framework legislation of its own. Nonetheless, the mirror legislation itself is state legislation, 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 subsequently 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
Fiscal imbalance
- Meaning and Types :Fiscal imbalance is the term used to denote a mismatch in the revenue powers and expenditure responsibilities of a government. In the literature on fiscal federalism, two types of fiscal imbalances are measured: Vertical Fiscal Imbalance and Horizontal 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
- List of Referrals from States to the Commonwealth
- Cooperative Federalism: Referrals of State Powers to the Commonwealth and Their Consequences by Pamela Tate, Solicitor General for Victoria
- Speech of Peter Reith on the referral of Victorian Industrial Relations Matters
- Bills digest to the Australian Securities and Investments Commission Bill 2001
- The Referral Power, COAG and the National Consumer Credit Code