Section 51(xxxvii) of The Australian Constitution - Limitation of Conferred Power

Limitation of Conferred Power

Chief Justice French of the High Court of Australia in a speech on the Australian constitution commented:

At the outset it may be observed that the power is not, in express terms, a power to refer matters. It is a power conferred upon the parliament of the Commonwealth to make new laws with respect to matters referred. This has the important consequence that the laws so made are not federal laws. Federal laws must be uniform throughout the commonwealth and these laws only apply to certain States. These new laws made are more correctly State/Federal laws that can only be applied within a State and strictly speaking a State court exercising State/Federal jurisdiction. The legislative power conferred by section 51(xxxvii) is subject to the Constitution. A question has been raised in academic commentary about whether a law adopted by a State parliament pursuant to section 51(xxxvii) is also a Commonwealth law. The power conferred by section 51(xxxvii) is qualified so as to limit the operation of a law made under it to the referring States and to any States adopting that law.

Justice Kirby commenting on the case of Thomas v Mowbray in regard to States referring anti terrorism laws justified a narrow reading of the referral due to the ‘principle of legality’ -

Commonwealth power acquired through state references is ultimately power derived in such distinctive circumstances that a suitably different approach to its reading must necessarily follow. That approach must be to always interpret referrals strictly rather than expansively even if this runs counter to how the scope of Commonwealth power is normally viewed by the court and even if doing so inconveniences efforts at co-operative federalism.

The interpretative presumption that legislation is not intended to curtail common law rights or contravene international human rights standards.

There was ambivalence on these issues within the constitutional convention itself. The issue of revocability has not been clarified today. This explains why referrals of power are usually very narrow. Referrals usually include in their terms an expiry period, after which a further referral is required. Limitations of time were upheld as valid by the High Court in 1964, although the general issue of revocability was not resolved. Uncertainty may lead to the use instead of mirror legislation (see below), in which the states retain their legislative power.

The issue of exclusivity seems to have been resolved in favour of the concurrent legislative power approach. That is, as with other powers in section 51, states can continue to legislate subject to inconsistency with Commonwealth legislation (Constitution s 109).