After a Referral: The Amendment and Termination of Commonwealth Laws Relying on S 51(XXXVII)
Sydney Law Review, Vol. 32, No. 3, 2010
43 Pages Posted: 9 Aug 2011 Last revised: 7 Feb 2012
Date Written: August 5, 2011
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
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