Section 51(xxxvii) of the Australian Constitution

Section 51(xxxvii) of the Australian Constitution permits the Commonwealth to legislate on matters referred to it by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian constitution limits Commonwealth power (see Section 51). Section 51(xxxvii) allows for a degree of flexibility in the allocation of legislative powers.

In practice, the referral power has been quite important in allowing the Commonwealth to enact legislation.

Section 51(xxxvii) grants power regarding:

Uncertain issues concern:

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

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’ -

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).

This list is not comprehensive. Rather, this article intends to highlight some significant examples of referral of powers and demonstrate how and why the power is used.

The Australian Constitution confers legislative power to the Commonwealth over marriage (Section 51(xxi)) and matrimonial causes (Section 51xxii)). The Australian Commonwealth created the Family Court of Australia as a specialist court dealing with divorce, including custody of children. However, the custody of children born outside of a marriage was outside of the Commonwealth’s jurisdiction. As a result, these matters had to be litigated in non-specialist state courts.

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