Meaning of referring State
19 Meaning of referring State
Meaning of referring State
A State is a referring State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:
has referred the matters covered by subsections (3) and (4) to the Commonwealth Parliament; or
has:
adopted the relevant version of this Act and the relevant version of the Transitional Act; and
referred the matter covered by subsection (4) to the Commonwealth Parliament.
A State is a referring State even if the State’s referral law provides that:
the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (4) is to terminate in particular circumstances; or
the adoption of the relevant version of this Act or the relevant version of the Transitional Act is to terminate in particular circumstances; or
the reference to the Commonwealth Parliament of the matter covered by subsection (4) does not include:
the matter of making provision with respect to the imposition or payment of State taxes, duties, charges or other imposts, however described; or
the matter of making provision with respect to the general system for the recording of estates or interests in land and related information; or
the matter of providing for the priority of interests in real property; or
the matter of making a law that excludes or limits the operation of a State law, to the extent that the State law makes provision with respect to the creation, holding, transfer, assignment, disposal or forfeiture of a State statutory right; or
the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (4) has effect only:
if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under section 51(xxxvii) of the Constitution); or
if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
Reference covering the relevant versions of this Act and the Transitional Act
This subsection covers the matters to which the referred provisions relate to the extent of the making of laws with respect to those matters by including the referred provisions in the relevant version of this Act and the relevant version of the Transitional Act.
Reference covering amendments of this Act or the Transitional Act
This subsection covers a referred credit matter (see section 20) to the extent of the making of laws with respect to that matter by making express amendments of this Act or the Transitional Act.
Effect of terminating reference or adoption of relevant versions
A State ceases to be a referring State if:
in the case where the Parliament of the State has referred to the Commonwealth Parliament the matters covered by subsection (3)—that reference terminates; or
in the case where the Parliament of the State has adopted the relevant version of this Act and the relevant version of the Transitional Act—the adoption of the relevant version of this Act or the relevant version of the Transitional Act terminates.
Effect of terminating amendment reference
A State ceases to be a referring State if:
the State’s amendment reference terminates; and
subsection (7) does not apply to the termination.
A State does not cease to be a referring State because of the termination of its amendment reference if:
the termination is effected by the Governor of that State fixing a day by Proclamation as the day on which the reference terminates; and
the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the Proclamation is published; and
that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.
Definitions
In this section:
amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matter covered by subsection (4).
express amendment of this Act or the Transitional Act means the direct amendment of the text of this Act or the Transitional Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the Transitional Act.
forfeiture means confiscation, seizure, extinguishment, cancellation, suspension or any other forfeiture.
referral law, of a State, means the Act of the State that refers the matter covered by subsection (4) to the Commonwealth Parliament.
referred provisions means:
the relevant version of this Act; and
the relevant version of the Transitional Act;
to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.
relevant version of the Transitional Act means the Transitional Act as originally enacted.
relevant version of this Act means:
if, at the time the State’s referral law was enacted, this Act had not been enacted—this Act as originally enacted; or
otherwise—this Act as originally enacted, and as later amended by the National Consumer Credit Protection Amendment Act 2010.
State law means:
any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time; or
the general law, being the principles and rules of common law and equity to the extent that they have effect in the State from time to time.
State statutory right means a right, entitlement or authority that is granted by or under any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time, other than a right, entitlement or authority that relates to:
credit covered by paragraph (a) of the definition of referred credit matter; or
a consumer lease covered by paragraph (b) of that definition.
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