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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.
I INTRODUCTION
The orthodox approach to the interpretation of Commonwealth grants of power which was endorsed in New South Wales v Commonwealth ('Work Choices')1 is that each power is to be interpreted broadly as a discrete standalone power. As a result, each power is usually interpreted without reference to the existence of other grants of power and the limits which they contain.2 Similarly, the impact of any interpretation on the position of the states and the scope of state residual legislative power is for the most part considered irrelevant.3 As a result of the consistent application of the orthodox approach in cases such as Commonwealth v Tasmania ('Tasmanian Dam Case')4 and Work Choices, Commonwealth legislative powers have expanded greatly, and there has been a corresponding reduction in the scope of effective state legislative power.5
There are few limits to...