Kirby J's Influence Of Federal Balance On Constitutional Interpretations

Kirby J’s judgement focused primarily on section 51 (xxxv) in relation to section 51(xx). He discusses two limitations imposed on section 51 (xx) as a result section 51 (xxxv). The first limitation is interstateness: the presence of a dispute and the second limitation is independent resolution: the inability to legislate “generically and directly,” but must provide a conciliator or arbitrator. From this, we can gather that Kirby J’s argument is that the Constitution must be read in its entirety. Kirby J’s judgement also looks at the historical background of the High Court and Constitutional interpretation arguing that giving power to the Commonwealth is waste of a centuries of decisions. In regards to the influence of federal balance on Constitutional interpretation, Kirby J contends that the federal structure leads to the “subtracting’ of Commonwealth power. The Court needs “rediscover the federal character of the Constitution” and its importance in protecting the over-concentration and abuse of power. He further explores the potential reduction on state powers in other fields outside of corporation powers if the legislation is deemed to be valid.
By extending Commonwealth power to include internal industrial affairs means reducing State power. This could also be further applied in regards to the internal affairs of other corporations that include education, healthcare and state governments. As a result, there poses the potential for a dramatic reduction of state power. This is a good use of the federal balance of power and its effect on