The Legal Balance Of The Federal Balance

1585 WordsSep 4, 20167 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 the preservation of state law-making powers. His Honour reasons that if the Commonwealth’s argument were upheld, there would be a drastic encroachment onto many areas of state law-making power. Such areas could include healthcare and education, as many of these areas are becoming, if not already incorporated. This contention seems rational. There are few areas of law that have not been incorporated in some manner already, and with state governments often outsourcing or privatising to fund projects, there would be almost limitless scope to the Commonwealth’s law-making abilities under the corporations power. Additionally, with the High Court’s broad interpretation to the meaning of ‘trading corporation’ in s 51(xx) by using the object of

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