State Referrals and Terrorism Law Reform Paralysis: Cause and Effect?
Public Law Review, Vol. 21, pp. 155-159, 2010
7 Pages Posted: 14 Oct 2011 Last revised: 7 Feb 2012
Date Written: September 8, 2011
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.
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