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.
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