The Legal Balance Of The Federal Balance

On one occasion, the majority expressed that the plaintiffs encountered obstacles in advancing their claim that the upholding of the constitutional validity would distort the federal balance. 21 The counter argument to the plaintiffs' submission was that the federal balance was non-existent. 22 Similarly, it was made apparent by the majority that there was no need for a preservation of a federal balance in order to explicate the Constitution.23 In other words, the majority disapproved the concept of a federal balance. 24

Dual Federalism also relies on the notion that in a court of law, the Tenth Amendment gives the states enough support to declare unconstitutional any act of the national government that infringes on the reserved powers given to the states. Cooperative Federalism provides an entirely different view of the relationship between the federal and state governments. Federal supremacy is the hallmark of this ideology. Supporters of the cooperative federalist view prefer to employ a broad interpretation of the Constitution. The legal basis on which cooperative federalism has been argued is threefold: (1) Enumerated powers (e.g. Commerce Clause) should be interpreted in light of an expansive Necessary and Proper Clause (2) The Supremacy Clause, as prescribed in Article 6, paragraph 2, gives federal actions supremacy over state laws when made in pursuance of the Constitution and when they are made using implied and enumerated powers (3) The Tenth Amendment does not give states the power to contest federal laws. To suggest that that these two ideologies are contradictory is an understatement. To understand which theory best identifies with the correct interpretation of the Constitution, it is necessary to understand the circumstances that created the necessity for a Constitution and the political circumstances that motivated decisions contrary to the correct interpretation of the Constitution. The

Under s 51(vi) of the Constitution, the Cth can make laws with regard to ‘the naval and military defence of the Cth and of the several States, and the control of the forces to execute and maintain the laws of the Cth’. As s 51(vi) is interpreted to be a purpose power, the test for whether a certain law is within thus power is whether it is proportionate to achieving the stated defensive purpose . The test is ‘elastic’ as the scope of s 51(vi) depends on whether Australia is at war or peace. The outcome turns on judicially noticeable facts about the existence and character of hostilities or threats. In agreeing with Brian Galligan, it is clear that during times of war, the defence power waxes to an extent where it allows the Government to become unitary. Therefore, in order to survive, the Commonwealth must “do anything which can contribute to its defence” . However, as examined later on, there is some debate as to what extent the Commonwealth may be able to go to when implementing measures to protect itself.

Finally,Sir Dingle Foot, counsel for the defendants argued that the amendments effected by the Emergency (Essential Powers) Ordinance 45 was not valid because it infringes on the legislative authority of the Federal Parliament and such powers could not have been envisioned as it centers to much power in one

Kirby places great emphasis on the maintenance of the federal balance of power when interpreting the Constitution, especially in regard to the preservation of state law making powers.

One of the tenets of law has always been the ideal that Parliament is wholly sovereign, being the conclusive controlling factor on which the United Kingdom constitution is based. Yet not all ideals are taken and translated into reality. The statement from Lord Hope in R (Jackson) v AG challenges the sovereignty of Parliament, by demonstrating that there may be limits to Parliamentary sovereignty of which can be seen through the proceedings of the R (Jackson) v AG case, Thoburn v Sunderland City Council, and HS2. Whilst conclusively determining that the rule of law is the ultimate controlling fact on which the United Kingdom’s constitution is based. Although counter-arguments can be taken from this statement and the appropriate cases, of which

These ammendents included, among other things, the introduction of a non-union/collective bargaining system in the form of Enterprise Flexibility Agreements. The intention of the 1993 Industrial Relations Reform Act, for example, was to make enterprise bargaining the main process for determining wages and other conditions of employment. Awards continued to provide effective regulation for employees who were not enjoying the benefits of enterprise bargaining, even if award wages rose slowly and fell well behind wage increases in enterprise agreements (Bray etc al, 2006). The Business Council of Australia’s strong support for enterprise bargaining and for a weakened role for arbitration tribunals gradually became the mainstream position among most Australian employers, even among those who had previously supported centralized bargaining (Thornthwaite and Sheldon, 1996). This was the first time in history, in which the unions were excluded from having any involvement in all forms of agreement in relations to employment conditions in the federal jurisdiction. It was at the time of this introduction that it became evident that these agreements would allow employers to begin to de-unionise their operations and to accelerate their move towards a non-union status.

The power state Supreme Courts have to influence legislatures when constructing legislation is an interesting premise. When contrasted against judicial activism, the concept of judges whom take liberties applying unique interpretation to laws, the premise becomes even more intriguing. This journal article examines those issues.

In addition, clause 9 of the legislation proposes to implement the requirement of “Army Reserve’ training to at least 5% of the teachers of a ‘constitutional college’. This proposed of federal regulation on constitutional colleges can be analysed using the decision reached in the Work Choices case. In this, the Court reaffirmed the “object of command test’ as the preferred test to determine whether or not a law falls within the core of the corporations power, and therefore can be validly applied to a corporation. This test dictates that a ‘constitutional corporation is an object of command of a law, permitting or prohibiting a trading or financial corporation from engaging in conduct or forming relationships’.

In several historical and contemporary cases, the HCA ruled in favour of the Commonwealth, resulting in a gradual shift of power away from the states. The essay will argue that a lack of clear definition of the legislative jurisdiction between the Commonwealth and the states has resulted caused a significant increase of power to the Commonwealth. This will be explored through the framers vision of federalism, the division of powers as defined in the Constitution and the approaches used by the HCA to interpret the Constitution in four

Due to the dynamic nature of the Australian labour market, we are able to respond to technological, economic, demographic and social changes that affect demand and supply of labour, at both a macroeconomic and microeconomic level. However the Australian labour market is not perfectly competitive as change in the demand and supply of labour through wage and employment levels in the many industries and occupations are not always responded perfectly. Thus, there are labour market institutions that intervene within the labour market to create changes and the two main institutions addressed in this report are the unions and the government.

“What light is to eyes – what air is to the lungs – what love is to the heart, liberty is to the soul of man,” Robert Green Ingersoll once said. The United States was born out of a fight for liberty, and Americans continue to fight for those very rights today. Part of this fight is the constant power struggle between the States and Federal Government. Federal power evolved throughout history and has acquired many different shapes. Ultimately, the goal is to properly distribute powers between the Government and the States (Dautrich & Yalof, 2013).

But, as a matter of legal precedent and technical legislating, such a determination is monumentally important in terms of how future cases of congressional power will be decided, as well as how bills are crafted for consideration. The Chief Justice’s opinion recognized the long-standing history of Congress attaching conditions upon states in exchange for receiving federal funding under Congress’ Article I, Section 8, Clause 1 spending power.17 The legitimacy of this power “...rests on whether the State voluntarily and knowingly accepts the terms of the contract,” since the “Constitution has never been understood to confer upon Congress the ability to require States to govern according to Congress’s instructions.”18 When “pressure turns into compulsion, the legislation runs contrary to our system of federalism,” (Teller, 2012).

“Our constitutional structure is conventionally depicted two-dimensionally: horizontally, power is dispersed among the federal branches; and vertically, power is dispersed between the federal and state governments.”(179, Rubenstein) Both the federal and state government are very influential in different areas. Each level of government has it’s own set of powers and responsibilities. The federal government takes on a lot of these responsibilities and between the two, is the more superior level of government. Whatever tasks and activities that the federal government does not take control of, is left to the state and local governments to handle. Nonetheless, the federal and state government are relatively alike in many ways. For

This paper will critically review the major opposing perspectives on arbitration and industrial relations, with particular attention to how government regulation and intervention relate to the changes made to the system after 1996. The major focus of this brief paper will be to demonstrate that Howard’s industrial relations policies resemble those of the late 1800’s, where the Master and Servant Act’s regulated the relationships between employer and employee. These were replaced with the introduction of the Commonwealth Court of Conciliation and Arbitration (1904-1921). The outcome from such dramatic change in industrial relations was the forming of unions and major strikes. Subsequently, the new system of employer and employee relations