After a Referral: The Amendment and Termination of Commonwealth Laws Relying on S 51(XXXVII)

Sydney Law Review, Vol. 32, No. 3, 2010

UNSW Law Research Paper No. 2011-24

43 Pages Posted: 9 Aug 2011 Last revised: 7 Feb 2012

See all articles by Andrew Lynch

Andrew Lynch

University of New South Wales

Date Written: August 5, 2011

Abstract

The importance of State referrals under section 51(xxxvii) as a basis for Commonwealth legislation on topics of national significance continues unabated. Yet, uncertainty still lingers over several aspects of the power. This article briefly revisits some of those perennial questions before embarking on a deeper discussion of the specific issues surrounding interpretation, amendment and termination of referrals, with recourse to recent judicial opinion on the power in Thomas v Mowbray (2007). In particular, the great challenge in the area is how the States may constrain the Commonwealth’s power of amendment so as to preserve the limited nature of their initial reference. The article argues that an appreciation of the distinctive nature of s 51(xxxvii) as a means of federal co-operation must underpin the Court’s approach to its interpretation and the questions to which it gives rise.

Keywords: referrals power, co-operative federalism, co-operative legislative schemes

Suggested Citation

Lynch, Andrew, After a Referral: The Amendment and Termination of Commonwealth Laws Relying on S 51(XXXVII) (August 5, 2011). Sydney Law Review, Vol. 32, No. 3, 2010; UNSW Law Research Paper No. 2011-24. Available at SSRN: https://ssrn.com/abstract=1907085

Andrew Lynch (Contact Author)

University of New South Wales ( email )

Kensington
High St
Sydney NSW 2052
Australia

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