The Legal Balance Of The Federal Balance

1585 Words7 Pages
In WorkChoices, Kirby and Callinan JJ argue strongly in favour of maintaining the federal balance of power. This essay critically evaluates Kirby and Callinan judgments concerning the proper regard the federal balance should have on Constitutional interpretation. The concept of a normative framework for interpretation is discussed, and whether or not is was reasonable in this case for the minority to use the federal balance as a filter through which to characterise the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (The Act). Kirby J: Evaluation of judgment regarding the federal balance Kirby places great emphasis on the maintenance of the federal balance of power when interpreting the Constitution, especially in regard to…show more content…
However, it could be argued that because the Commonwealth is already able to legislate in almost every area of law it sees fit, with the use of the external affairs power and the grants power , it seems futile to limit the Commonwealth in this case, because the encroachment on areas of state law-making power has been taking place for decades. While the federal balance of power is described by the majority as holding a ‘misleading implication of static equilibrium’ , as Kirby rightly shows, once power is taken away from the states, there is seldom going back. . In this case it seems clear that the implications of this case led to a radical overhaul of previous decisions and law. This encroachment of powers can already be seen to be taking place, with health and safety laws now covered under federal legislation. Kirby strengthens his judgment with pointing out the oddity if s 51(xx) existed as a ‘constitutional deus ex machina’ for the Commonwealth to use to solve all of the law-making issues surrounding industrial regulations. As his Honour shows, this would render all the judgments and evolution of s 51(xxxv) meaningless, since the parliament could just use s 51(xx) to cover all of its needs under that head of power. Evidently, it would seem absurd if the framers of the Constitution intended for the
Open Document