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The role of negative implications in the interpretation of Commonwealth legislative powers
Citation
Stokes, M, The role of negative implications in the interpretation of Commonwealth legislative powers, Melbourne University Law Review, 39, (1) pp. 175-229. ISSN 0025-8938 (2015) [Refereed Article]
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Copyright Statement
Copyright 2015 Melbourne University Law Review
Official URL: http://law.unimelb.edu.au/mulr
Abstract
One of the bases for the view that Commonwealth powers should be interpreted broadly
is the idea that it is wrong to draw negative implications from positive grants of power.
The paper argues that far from being wrong to draw negative implications from positive
grants of power it is necessary to do so in that it is impossible to interpret such grants
sensibly without drawing negative implications from them. This paper considers Isaacs J’s
argument in Huddart Parker that it is wrong to draw negative implications from positive
grants of power, as it is the most detailed defence of that position, and the adoption of
similar arguments in Work Choices. It then considers the merits of Isaacs J’s argument,
rejecting it because it is impossible to interpret positive grants of power without drawing
negative implications from them in any context and in the Australian constitutional
context in particular. This paper looks at how the scope of such implications is to be
determined and how constitutional grants of power ought to be interpreted in the light of
negative implications. It concludes that it is possible to determine the scope of the negative
implications implicit in the s 51 grants of power and to interpret those powers in the light
of the implications while accepting that state powers are residual and that their content
cannot be determined until the content of all Commonwealth powers is known.
Item Details
Item Type: | Refereed Article |
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Research Division: | Law and Legal Studies |
Research Group: | Public law |
Research Field: | Constitutional law |
Objective Division: | Expanding Knowledge |
Objective Group: | Expanding knowledge |
Objective Field: | Expanding knowledge in law and legal studies |
UTAS Author: | Stokes, M (Mr Michael Stokes) |
ID Code: | 104857 |
Year Published: | 2015 |
Web of Science® Times Cited: | 3 |
Deposited By: | Faculty of Law |
Deposited On: | 2015-11-23 |
Last Modified: | 2018-03-08 |
Downloads: | 218 View Download Statistics |
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