State Referrals and Terrorism Law Reform Paralysis: Cause and Effect?

Public Law Review, Vol. 21, pp. 155-159, 2010

UNSW Law Research Paper No. 2011-35

7 Pages Posted: 14 Oct 2011 Last revised: 7 Feb 2012

See all articles by Andrew Lynch

Andrew Lynch

University of New South Wales

Date Written: September 8, 2011

Abstract

The purpose of this comment is to challenge the claim made by the Commonwealth Attorney-General, Robert McClelland, that a range of amendments to the anti-terrorism laws in Part 5.3 of the Criminal Code (‘the Code’) cannot be enacted without prior amendment by State legislatures of their earlier referrals on this subject to the Commonwealth under section 51(xxxvii) of the Constitution. That assertion is surprising in light of the relevant underlying intergovernmental agreement, the provisions of the State referrals themselves and past experience of quite radical amendment of this Part of the Code unaccompanied by any need for State legislative attention. If correct, the Attorney-General’s view threatens to substantially inhibit the flexibility of the reference power which underpins other laws of national significance. Lastly, the comment asks why the Attorney-General’s Department appears reluctant to acknowledge and act upon the High Court’s confirmation, since Part 5.3 was first enacted, that the Commonwealth’s legislative power with respect to defense is sufficiently broad to support laws responding to domestic threats of political violence.

Suggested Citation

Lynch, Andrew, State Referrals and Terrorism Law Reform Paralysis: Cause and Effect? (September 8, 2011). Public Law Review, Vol. 21, pp. 155-159, 2010; UNSW Law Research Paper No. 2011-35. Available at SSRN: https://ssrn.com/abstract=1944014

Andrew Lynch (Contact Author)

University of New South Wales ( email )

Kensington
High St
Sydney NSW 2052
Australia

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