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.
Limitations of time were upheld as valid by the High Court in 1964,[3] although the general issue of revocability was not resolved.
Between 1986 and 1990 all states, except for Western Australia, referred the custody, maintenance, and access of ex-nuptial children to the Commonwealth.
Given that abuse of children is frequently a matter of contention in family law cases that reach litigation, this limitation is important in that it establishes a split system and creates bureaucratic hurdles.
The referral also did not refer to property matters arising at the end of de facto relationships.
These States referred de facto matters under section 51(xxxvii) of the Constitution of Australia.
The Commonwealth power to legislate for marriage and 'matrimonial causes' is supported by paragraphs 51(xxi) and (xxii) of the Constitution, whereas the power to legislate for de facto financial matters relies on referrals by States to the Commonwealth in accordance with paragraph 51(xxxvii) of the Constitution.
Unlike a marriage which has a recognised legal status in the Constitution and is also internationally recognised, the legal status of a de facto relationship and a 'de facto financial cause' can only be applied within a participating State due to the limitations of section 51 (xxxvii) where it states the law shall extend only to States by whose Parliaments the matter is referred, or which afterward adopt the law.
The referral also allowed the passage of the Australian Securities & Investments Commission Act 2001 (Cth).
Although Section 51(vi) of the Constitution of Australia (the defence power) empowers the Commonwealth to legislate on military matters, it is considered unlikely that this power extends to the making of laws relating to internal security.
In 2002–2003, all states referred a limited power to allow the enactment of the Criminal Code Amendment (Terrorism) Act 2003 (Cth).
Previously, consumer credit was regulated at state level amongst each of the states but it was agreed at a COAG meeting that this area of the law should be reformed as a result of the 2007–2008 financial crisis and on a constitutional level, this was made possible because of the referral power.
By contrast, the areas where s51(xxxvii) have been used generally reflect a consensus that differing state systems are undesirable.