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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 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 Jís 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 Jís 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
Research Division:Law and Legal Studies
Research Group:Law
Research Field:Constitutional Law
Objective Division:Expanding Knowledge
Objective Group:Expanding Knowledge
Objective Field:Expanding Knowledge in Law and Legal Studies
Author:Stokes, M (Mr Michael Stokes)
ID Code:104857
Year Published:2015
Deposited By:Faculty of Law
Deposited On:2015-11-23
Last Modified:2018-03-08
Downloads:202 View Download Statistics

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