Callinan J's Argument Analysis

Callinan J’s judgement is divided into parts from I to X. Focusing solely on Part V titled “Constitutional Imperative of the Federal Balance,” he argues against the legislation from a federalist view. Callinan J begins by suggesting that the powers shared between the Commonwealth and the State are not necessarily “in a state of static equilibrium”. In other words, the power was never equal or balanced between the two; Commonwealth tended to have more legislative power. He then defines what is meant by the federal balance as a “sharing of power”. Being an advocate of federalism, he deems the federation to be “sacred” and looks at variety of cases which approve of a federalist approach to constitutional interpretation. Furthermore, Callinan J advocates originalism which reliance on the founder’s intent in constitutional interpretation. …show more content…
The Constitution is over a century years old and any type of historical approach can easily be criticised, including originalism. The majority deems such an approach as a “mirage” because it is an attempt to merge together, into a single ideology, the present issue of power and the past issue of power which was not existent at the time. The idea of a “federal balance” now days has become comparable to a political slogan used by politicians. If interpretation of the law is not flexible, then it fails to “serve succeeding generations”. The High Court had already discarded the idea of the federal balance of Commonwealth and State power back in 1920 in Engineers Case. The states had already lost the Work Choices case decades

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