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.
Constitutional Law | Legislation | Public Law and Legal Theory
Date of this Version
Andrew Lynch, "After A Referral: The Amendment and Termination of Commonwealth Laws Relying on s 51(xxxvii)" (August 2011). University of New South Wales Faculty of Law Research Series 2011. Working Paper 25.