The court always has been there to determine the limits of state and federal power, but this year it did it differently. In the past, the great majority of cases limiting federal and state power have centred around two sections of the Constitution: Section 51 and Section 92. Section 51 lists the powers of the Federal Parliament: powers such as coinage, light houses, corporations and external affairs. Section 92 says trade, commerce and intercourse between the state shall be absolutely free. Section 92 cases are about whether a state of Federal law are invalid because they offend the section. They usually take the form: does a Tasmanian law stopping the sale of all “”undersize” 25cm crayfish illegally prevent the interstate trade in 20cm South Australian crayfish imported into the Hobart seafood market? Does a Federal law requiring margarine to have a set level of preservative stop free interstate trade in free-range margarine. And so on.
This year, however, the five cases which gave rise to most comment, while still addressing the main questions of Federal and state power, did so from other parts of the Constitution, or were implied from the Constitution as a whole, or were radical reinterpretations of the common law. The five were: Mabo on indigenous title, Cleary on who can be an MP, the case on the right to legal representation, the free-political-speech case and the boat-people case. Here was brave new ground.
Gone was the traditional yes-no question on whether a Federal law prohibiting a dam on a river was or was not a valid law under the Section 51 external affairs power because the Australian Government had signed a treaty on the environment. In its place were far more woolly questions: does the general framework of the Constitution allow the Federal/State Parliament and or Government to: 1. stop people speaking their minds on television; 2. deport detained boat people without a court hearing; 3. permit a trial to continue even thought the accused cannot afford legal aid; 4. take land away from Aborigines who have lived on it continuously since before the white man came near the place?
Note the difference in emphasis. This year the High Court is saying “”No” to both State and Federal Governments. In previous years it was saying yes to one and no to the other.
From 1903 to 1925 the general trend in High Court judgments was to favour state power over federal power. From 1925 to about 1946 the trend was to favour federal power, especially during World War II when Australian nationalism was high and the need for the nation to survive came first, even if it meant giving the central government increased power. From 1946 to 1949, when the banking cases were heard, the tide went against the central government. From 1949 to 1992 cases generally favoured the central power. In these years the interpretation of the foreign-affairs and corporations power gave the central government huge powers which, with the tax power granted in 1942, enabled it to do much as it pleased.
Now we have a different ball game. We have a High Court willing to assert certain fundamental principles in the framework of the Constitution itself. These principles give rights and power to the people which governments and Parliament (Federal and state) cannot transcend.
For its troubles, the court has come in for a lot of flak, mainly from conservatives. The conservatives greeted the possibility of an implied Bill of Rights within the Constitution with horror. They thought this would open the way for social engineering and the replacement of the law enacted by the elected Parliament with the law proposed by the unelected leftist ideological judges. Nothing could be further from the truth.
In 1992, the High Court’s five main decisions were ones of profound conservatism and 18th century liberalism. In a way, they dragged Australia back to 1788 and replaced the foundation stones. Fundamental British-inherited rights could not be taken away: the right to a fair trial and access to the courts (representation and boat people) and the right to free political speech. The court held Australians could only be represented by Australians who had no allegiance to a foreign power or to the executive. And it reassessed on 18th century principles of prior occupation by an organised people original title to the land.
It was a brave court in 1992. It went into uncharted waters and upheld people’s rights over Government’s and Parliament’s rights. In doing so, it got up the nose of a lot of people in positions of power and privilege. The rest of us can only applaud.