Justice For All Australians

A Chap III Implication for State Courts_ Kable v DPP_NSW

A Chapter III Implication for State Courts: Kable v Director of Public Prosecutions

Rohan Hardcastle*

Introduction Traditionally, State Parliaments have not been inhibited by the separation of powers doctrine.1 Indeed, State Parliaments have generally been considered to have plenary legislative power over Statecourts/ enabling them to confer non-judicial functions on such courts. Although State legislative power is granted by State constitutions, in Kable v Director ofPublic Prosecutions (Kable),3 a High Court majority held that power was limited by the Commonwealth Constitution.4 Kable declared a New South WalesAct invalid because it conferred non-judicial functions on the NSW Supreme Court which were incompatible with Chapter III of the Commonwealth Constitution.5 Kable's constraint represents a significant diminution of State legislative power. This paper examines the source and nature of the implication extrapolated from the Commonwealth Constitution in Kable. Different approaches of the Kable majority are outlined, common threads are discerned and Kable's consistency with established judicialauthority is assessed. From this foundation, the scope ofthe Chapter III limitation extrapolated in Kable can be explored.

BA,LLB(Hons)(WA). The author wishes to thank Dr James Thomson and Mr Peter Johnston for their comments on earlier drafts. See for example: S (a child) v R (1995) 12 WAR 392; City ofCollingwood v Victoria (No 2) [1994] 1 VR 652; Mabo v Queensland (No 1) (1988) 166 CLR 186 at 202 per WilsonJ; Builders Construction Employees and Builders Labourers'Federation ofNew South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372. See for example: Constitution Act 1889 (WA), 52(1); Constitution Act 1902 (NSW), s5; Constitution Act 1975 (Vic), s16; Constitution Act 1934 (SA), s5; Australia Constitutions Act 1850, s14. (1996) 138 ALR 577 (Kable). Kable, above n 3, per Toohey, Gaudron, McHugh and Gummow JJ. As above.

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B. Traditional Position at State Constitutional Law Structurally, but not explicitly, the Commonwealth Constitution incorporates the separation of powers doctrine.6However, this structural implication has not been judicially extrapolated from the State constitutions? Indeed, judicial decisions indicate that the separation of powers doctrine is not expressly or structurally embodied in the Constitution Act 1902 (NSW),8 the Constitution Act 1975 (Vic),9 the Constitution Act 1889 (WA),l0 the Constitution Act 1867 (Qld)l1 or the Constitution Act 1934 (SA)P This principle was endorsed by the High Court in Kable.13 On this basis, the recognition of a separation of powers at State level is conventional and political rather than constitutionally mandated.14 Consequently, there is no State constitutional principle to prevent State legislatures conferring non-judicial functions on State courts.IS

C. The Kable Decision Kable concerned a challenge to the Community Protection Act 1994 (NSW), described by some justices as an 'extraordinary piece of legislation'.16 The NSW Parliament passed the Act in response to the threat a convicted

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Kruger v Commonwealth (1997) 146 ALR 126 at 171 per Toohey J; Kable, above n 3, at 583 per Brennan CJ; Leeth v Commonwealth (1992) 174 CLR 455 at 485 per Deane and Toohey IT; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; R v Kirby; Ex parte Boilermakers' Society ofAustralia (1956) 94 CLR 254 at 274 per Dixon CJ, McTiernan, Fullager and Kitto IT. Note, however, that based on analysis of the 1890's Convention debates, Wheeler has argued that the framers of the Commonwealth Constitution did not expressly intend to adopt the separation of powers doctrine as a Commonwealth constitutional principle: F Wheeler, "Original Intent and the Doctrine of Separation of Powers in Australia" (1996) 7 Public Law Review 96 at 103. In fact, the trend ofjudicial decisions has been to refute the existence of such an implication. See, for example: Kable, above n 3; S (a Child), above n 1; City ofCollingwood v Victoria (No 2), above n 1; Mabo, above n 1, at 202 perWilsonJ; Builders Construction Employees v Minister for Industrial Relations, above n 1; Gilbertson v South Australia (1976) 15 SASR 66; Nicholas v Western Australia [1972] WAR 168; Clyne v East (1967) 68 SR(NSW) 385. Kable, above n 3; Building Construction Employees v Ministerfor Industrial Relations above n 1; Clyne v East, above n 7. City ofCollingwood v Victoria, above n 1. S (a child), above n 1; Nicholas v Western Australia, above n 7. Mabo, above n 1, at 202 per Wilson J, at 195 per Mason J, at 241 per Dawson J. R v Tilley (1991) 53 A Crim R 180; Gilbertson v South Australia, above n 7. Kable, above n 3, at 582 per Brennan CJ, at 591 per Dawson J, at 604 per Toohey J, at 617 per McHugh J. Gaudron and Gummow IT found it unnecessary to decide the issue. Kable, above n 3, at 593 per Dawson J; Building Construction Employees v Minister for Industrial Relations, above n 1; RD Lumb, The Constitution ofthe Australian States, 5th ed, St Lucia: University of Queensland Press, 1991 at 137; E Campbell, "The Choice Between Judicial and Administrative Tribunals and the Separation of Powers" (1981) 12 Federal Law Review 24 at 49. Kable, above n 3, at 635 per Gummow J. Kable, above n 3, at 608 per Gaudron J, at 636 per Gummow J.

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murderer, Mr Kable, posed to the NSW community. Under the Act, the NSW Supreme Court was empowered to make an order detaining Mr Kable in custody after the expiry of his sentence for a period of six months.I7 Such an order was to be made where the Supreme Court was satisfied on reasonable grounds that Mr Kable was more likely than not to commit a serious act of violence or that it was appropriate for the protection of particular people thatMr Kable be held in custody.IS As Toohey Jobserved, the '[NSW] Supreme Court is thereby required to participate in a process designed to bring about the detention of a person by reason of the court's assessment of what that person might do, not what the person had done'.19 Similar ad hominen Australian legislation had only been enacted on one previous occasion.20

D. Kable Majority The High Court, by majority, declared in Kable that non-judicial functions which the Community ProtectionAct 1994 (NSW) conferred on the NSW Supreme Court were incompatible with Chapter III ofthe Commonwealth Constitution and, hence, were invalid,2l In separate judgments, Toohey, Gaudron, McHugh and Gummow JJ discussed the source and effect of this limitation on State legislative power. Despite variations, two general approaches emerge. Firstly, Toohey Jadopted a narrow view, confining his discussion to the compatibilitybetweenState courts' non-judicial functions and Commonwealth judicial power. Conversely, Gaudron and McHugh JJ, and to some extent, Gummow J, adopted a broader 'integrated' approach, basing their enunciation of the Chapter III limitation on their vision of an integrated Australianjudicial system which required State courts invested with federal jurisdiction to be capable of exercising Commonwealth judicial power. Within the broader approach, common elements can be discerned. Firstly, the majority considered that Chapter III envisaged State courts as significant components of an integrated Australianjudicial system.22 Secondly, they considered that a Chapter III implication for State courts did not infringe the constitutional law principle, requiring the Commonwealth Parliament to take State courts as it finds them. Consequently, State courts are required to be compatible with Chapter III for the exercise of

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Community Protection Act, s3. Community Protection Act, ss5(I)(a), (b). Kable, above n 3, at 607 per Toohey J. Community Protection Act 1990 (Vic). For academic commentary on the Victorian legislation see: D Wood, "A One Man Dangerous Offenders Statute - The Community Protection Act 1990 (Vic)" (1990) 17Melbourne University Law Review 497. Kable, above n 3, per Toohey, Gaudron, McHugh and Gummow JJ. Note however, that in Kable Toohey J made no reference to an 'integrated Australian judicial system'.

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Commonwealth judicial power. On this basis, the majority assessed the compatibility of non-judicial functions conferred on the NSW Supreme Court by the Community Protection Act with Chapter III of the Commonwealth Constitution. Although no common standard is apparent, the majority's underlying concern was to maintain public confidence in the independence of State courts invested with federal jurisdiction.

1. Chapter III and State Courts In seeking to limit non-judicial functions exercised by State courts, the majority first had regard to the relationship between Chapter III of the Commonwealth Constitution and State courts. Of the majority, Toohey J gave the least attention to the role and status of State courts, simply referring to the constitutional scheme under Chapter I1I.23 Gaudron, McHugh and Gummow JJ placed greater emphasis on the status of State courts in their vision of an integrated Australian judicial system.24 For example, GaudronJobserved that the CommonwealthConstitutionestablished an integrated judicial system for the exercise of Commonwealth judicial power.25 Similarly, McHugh Jasserted that there is an 'integrated system of State and federal courts'.26 More specifically, Gummow Jargued that, upon federation, the Commonwealth Constitution provided for 'one Australian judicial system which was unified in structure'27 with all avenues of appeal initially leading to the Privy Counci1.28 However, Gummow J observed that the result of Commonwealth legislation enacted between 1968 and 1986 was to place the High Court at the apex of the unified system.29 On this basis he concluded that: "...since the coming into force of theAustralia Acts [on 3 March 1986] and the removal by s11 thereof of the appeal from the Supreme Courts of the States to the Privy Council, s73 of the Constitution places this court in final superintendence over the whole of an integrated national court system."30

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Kable, above n 3, at 605 per Toohey J. R French, "Parliament, the Executive, the Courts and the People" (1996) 3 Deakin Law Review 1 at 12. Kable, above n 3, at 611 per Gaudron J. Kable, above n 3, at 621 per McHugh J. Kable, above n 3, at 640 per Gummow J. Caltex Oil (Australia) Pty Ltd v XL Petroleum (NSW) Pty Ltd (1984) 155 CLR 72 at 95 per Deane J. However, note the remaining exception in section 74 of the Commonwealth Constitution which permits Privy Council appeals but requires leave of the High Court for these inter se constitutional matters. Kable, above n 3, at 619 per McHugh J, at 640 per GummowJ. For a differentview, see: JA Thomson, "The Australia Acts 1986: A State Constitutional Law Perspective" (1990) University ofWestern Australia Law Review 409 at 426. Kable, above n 3, at 640 per Gummow J. But see section 74 of the CommonwealthConstitution and section 16 of the Australia Acts 1986 (Cth) & (UK) (proViding the definition of 'Australian court'), which do not alter the section 74 Privy Council appeal.

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Further, McHugh and GummowJJ derived their vision ofan integrated Australian judicial system, not only from the structure and provisions of Chapter III,31 but from the existence of a unified common law.32 In this regard, GummowJreferred to an observationbyMason, Murphy, Brennan and Deane JJ in Fencott v Muller:33 "Subject to any contrary provision made by federal law and subject to the limitation upon the capacity of non-federal laws to affect federal courts, nonfederal law is part of the single, composite body of law applicable alike to cases determined in the exercise of federal jurisdiction and to cases determined in the exercise of non-federal jurisdiction."34 Gummow Jargued that the existence of an integratedAustralian court system ensured the 'unity of the common law of Australia'.3s McHugh J also referred to previousjudicial authority36 and extra-judicialstatements by Sir Owen Dixon.37 Based on these observations, McHugh Jnoted that the High Court has the constitutional duty of 'maintaining a unified system of common law'.3s Having set out their vision of Australia's integrated judicial system, Gaudron, McHugh and Gummow JJ examined the relationship between Chapter III of the Commonwealth Constitution and State courts. In this process, the justices utilised different interpretative techniques, placing emphasis on either Chapter III's text or the founders' intentions. In part, McHugh and Gaudron JJ adopted a literalist method of interpretation,39 focussing on Chapter Ill's specific provisions. This reliance on Chapter III's text is comparable to that of Toohey J, who specifically drew on Chapter III's constitutional scheme.4O Within Chapter III, Toohey, Gaudron and McHugh JJ focussed in particular upon sections 71, 73(ii) and 77(iii).4l Section 71 vests the exercise ofCommonwealthjudicialpower in the High Court and such other courts as the Commonwealth Parliament creates, and in such other courts as it invests with federal jurisdiction. Section 73(ii) provides that decisions of State courts, whether or not

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For example, sections 73(ii) and 77(iii) of the Commonwealth Constitution. Kable, above n 3, at 619 per McHugh J, at 640 per Gummow J. Kable, above n 3, at 639 per Gummow J. Fencott v Muller (1983) 152 CLR 570 at 607 per Mason, Murphy, Brennan and Deane JJ. Kable, above n 3, at 640 per Gummow J. Mabo, above n 1, at 15 per Mason CT, McHugh J; Environment Protection Authorityv Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 556 per McHugh J. Kable, above n 3, at 619-620 per McHugh J. As above. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 142, 148-149 per Knox CJ, Rich and Starke JJ; G Craven, "The Crisis ofConstitutional Literalism in Australia" in HP Lee and G Winterton (eds), Australian Constitutional Perspectives, Sydney: Law Book Company 1992 at 2. Kable, above n 3, at 605 per Toohey J. Kable, above n 3, at 605,609-610 per Toohey J, at 610 per Gaudron J, at 621 per McHugh J. See also: Z Cowen and L Zines, Federal Jurisdiction in Australia, 2nd ed, Melbourne: Oxford University Press, 1978 at 174.

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given in the exercise of Commonwealth judicial power, yield 'matters' from which appeals may lie to the High Court. Section 77(iii), the 'autochthonousexpedient',42 provides that the CommonwealthParliamentmay, in respect of section 75 and 76 matters, vest federal jurisdiction in any State court. Accordingly, section 39ofthe Judiciary Act 1903 (Cth) has vested federal jurisdiction in 'the several Courts of the States' with respect to those matters. From this analysis, Gaudron and McHugh H concluded that State courts are significant components of the Australian judicial system. In particular, McHugh Jnoted the 'special position of the Supreme Courts of the States'.43 He observed that 'State courts have a status and role that extends beyond their status and role as part of the State judicialsystem'.44 Further, GaudronJpointed out that various provisions of Chapter III made no distinction between federal courts and State courts.45 In the same vein as McHugh J, Gaudron Jconcluded: "[A]s I pointed out in Leeth v Commonwealth, that State Courts, when exercising federal jurisdiction 'are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States."'46 In this way, Gaudron and McHugh H's approach represents an application of what has been termed the 'Grand Design', in looking to the purpose of specific provisions of Chapter III 'as part of a very broad concept of the Australian federation'Y On the other hand, Gummow Jexplored the status of State courts by explicitly adopting an intentionalist or originalist method ofconstitutional interpretation. This interpretative technique requires a construction of the Constitution's provisions that reflects the meaning intended by the founders.48 GummowJexamined the founders' intention behind Chapter

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Commonwealth vHospital Contribution Fund ofAustralia (1982) 150CLR49 at 74 per Brennan J; R v Kirby; Ex parte Boilermakers' Society of Australia, above n 6, at 268 per Dixon CJ, McTiernan, Fullager and Kitto IT; AJ Rogers, "State/Federal Court Relations" (1981) 55 Australian Law Journal 630 at 633; N Bowen, "Federal and State Court Relationships" (1979) 53 Australian Law Journal 806; Z Cowen and L Zines, above n 41, at 174; L Street, "The Consequences of a Dual System of State and Federal Courts" (1978) 52 Australian Law Journal 434; B O'Brien, "The Law Applicable in Federal Jurisdiction" (1975) 1 University ofNew South Wales Law Journal 327 at 330; R Else-Mitchell, "Burying the Autochthonous Expedient?" (1969) 3 Federal Law Review 187. Kable, above n 3, at 618 per McHugh J. Kable, above n 3, at 621. Kable, above n 3, at 609 per Gaudron J. See for example: ss71, 78 and 79. Kable, above n 3, at 612 per Gaudron J (footnote omitted). IT Doyle, "Constitutional Law: 'At the Eye of the Storm'" (1993) 23 University ofWestern Australia Law Review 15 at 20. This notion was, in part, derived from the decision of Deane and Toohey IT in Leeth v Commonwealth, above n 6. However, the basis of Deane and Toohey IT's approach was rejected in Kruger v Commonwealth, above n 6, at 141 per Brennan CJ, at 155 per Dawson J, at 227 per Gummow J. New South Wales v Commonwealth (1990) 169CLR482; Cole v Whitfield (1988) 165CLR360. For academic support and commentary on this method ofinterpretation see: H Patapan,

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Ill's inclusion of State courts and commented that: "...[o]ne of the reasons of the framers of the Constitution in providing provision for investment ofState courts with federal jurisdiction was the saving of the expense then seen to have been involved in the immediate creation of a system of federal courts..."49 In support of this interpretation, Gummow Jnoted Sir Kenneth Bailey's observation that the original intention of Chapter Ill's provision for State courts: "...was clearly to place a State courtexercising federal jUrisdictionon the same general footing as the federal courts which should be created by the parliament. Their jurisdictionwas in both cases to be fixed by [theCommonwealthJ parliament; their decisions were alike tobe subject to appeal to the High Court. For this similarity there was, of course, good reason. The State courts were to be used, at the discretion of the Commonwealth Parliament, instead of additional federal courts: as 'substitute tribunals', in the words of Starke J."5O Without making any conclusions about lower State courts, Gummow

Jalso noted that section 73(ii) of the Commonwealth Constitution places Supreme Courts 'in a distinct position' because the High Court has appellate jurisdiction in appeals from Supreme Courts.51 McHugh J's opinion also shows traces of an intentionalist mode of constitutional interpretation. He noted, for example, that abolition of a State's courtsystemwould defeat the constitutional plan ofinvestingState courts with federal jurisdiction.52 Indeed, on this basis, McHughJargued that it could not have been 'intended that a State could defeat the exercise of grants ofpower' conferred on the Commonwealth Parliamentby abolishing its courts.53 Thus, the majority justices utilised different interpretative techniques

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"The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms inAustralia" (1997) 25 Federal Law Review 211 at 212; JGoldsworthy, "Originalism in Constitutional Interpretation" (1997) 25 Federal Law Review 1 at 19; PH Lane, Lane's Commentary on the Australian Constitution, 2nd ed, Sydney: LBC Information Services, 1997 at 24; G Craven, "The High Court of Australia: A Study in the Abuse of Power", Alfred Deakin Lecture 1997 at 14; S Donaghue, "The Clamour ofSilent Constitutional Principles" (1996) 24 Federal Law Review 133 at 144; AMason, "The Interpretation of a Constitution in a Modem Liberal Democracy" in C Sampford and K Preston, Interpreting Constitutions: Theories, Principles and Institutions, Sydney: Federation Press, 1996 at 15; JGoldsworthy, "Implications in Language, Law and the Constitution" inGJ Lindell (ed), Future Directions in Australian Constitutional Law, Sydney: Federation Press, 1994 at 179; G Craven, above n 39, at 20. Kable, above n 3, at 641 per Gummow J. KH Bailey, "The Federal Jurisdiction of State Courts" (1940) 2 Res Judicatae 109 at 109 (referring to Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 116 per Starke J). Kable, above n 3, at 642 per Gummow J. Kable, above n 3, at 618 per McHugh J. As above.

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with Gaudron and McHughII focussing on the text and structure ofChapter III of the Commonwealth Constitution and Gummow J, and McHugh J in part, relying upon the founders' intention. Despite these varying approaches, Gaudron, McHugh and GummowII all supported the proposition that State courts were necessary components of an integrated Australian judicial system.

2. 'Taking State Courts' Principle A contentious obstacle for the Kable majority in implying the Chapter III limitation on State legislative power was the judicially established principle that the Commonwealth Parliament must take State Courts as it finds them.54 This principle was central to the dissents of Brennan CJ and DawsonJ.55 Sections 71 and 77 of the Commonwealth Constitution draw a clear distinction between federal courts and State courts invested with federal jurisdiction.56 For example, under section 77(i), the Commonwealth Parliament may define the jurisdiction of federal courts, while under section 77(iii) it may invest State courts with federal jurisdiction. State courts invested with federal jurisdiction cannot be described as federal courts.57 Nevertheless, the High Court has examined the question of the 'character'58 of State courts invested with federal jurisdiction.59 Previous cases have found that while the constitution and organisation of federal courts is a matter for the Commonwealth Parliament,60 the constitution and organisation ofState courts is a matter for State Parliaments. Forexample,

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Leeth v Commonwealth, above n 6, at 469 per Mason CJ, Dawson and McHugh JJ; Brown v R (1986) 160CLR 171 at 198-199 per BrennanJ, at 218-219 per DawsonJ; Commonwealth v Hospital Contribution Fund of Australia, above n 42, at 61 per Mason J; Russell v Russell (1976) 134 CLR 495 at 516-517 per Gibbs J, at 530 per Stephen 1, at 535 per Mason J, at 554 per Jacobs J; Kotsis v Kotsis (1970) 122 CLR 69 at 109 per Gibbs J; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37 per Latham CJ; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-555; Le Mesurier v Connor (1929) 42 CLR 481 at 496, 498 per Knox CJ, Rich and Dixon JJ; Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313 per Griffith CJ; PH Lane, above n 48, at 463; Z Cowen and L Zines, above n 41, at 184-186; WAWynes, Legislative, ExecutiveandJudicial Powers, 5th ed, Sydney: Law Book Company, 1976 at 494; KH Bailey, above n 50, at 109. Kable, above n 3, at 583 per Brennan q, at 596 per DawsonJ. Kable, above n 3, at 595 per Dawson J; R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437 at 452 per Isaacs J; C Enright Constitutional Law, Sydney: Law Book Company, 1977 at 248-250; WA Wynes, above n 54, at 488. R v Murray and Carmie, above n 56, at 452 per Isaacs J; Z Cowen and L Zines, above n 41, at 179; WA Wynes, above n 54, at 497. For a different view, see: Le Mesurier v Connor, above n 54, at 514 per Isaacs J. Z Cowen and L Zines, above n 41, at 178. See for example: Russellv Russell, above n 54; Kotsis v Kotsis, above n 54; Peacock v Newtown Marrickville, above n 54; Adams v Chas S Watson PlyLtd, above n 54; Le Mesurier v Connor, above n 54. Commonwealth Constitution, Chapter III.

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criteria for the appointment, tenure and remuneration of federal61 judges are found in section 72 of the Commonwealth Constitution. Conversely, the appointment, tenure and remuneration of State court judges are determined by State Parliaments.62 Based on this division of power with respect to federal and State courts, the High Courthas held that the Commonwealth Parliament must take State courts as it finds them. In Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander63 it was held that where Commonwealthlegislation confers federal jurisdiction upon a State court, that court must be taken as it is found, including any jurisdictional limits.64 Similarly, Le Mesurier v Connor6S held that State courts are 'the judicial organs' of the States. The effect of this principle enables a State court to exercise non-judicial functions under State law which, if 'judged according to federal constitutionalstandards, would notbe regarded as pertaining to judicial power'.66 The Kable majority took two distinct approaches to this principle. Toohey J, whose concern lay with the compatibility of non-judicial functions with Commonwealth judicial power, considered that the question in Kable was not resolved by previous cases establishing the 'taking State courts' principle.67 He observed that the NSW Supreme Court was exercising federal jurisdiction under section 77(iii) of the Commonwealth Constitution and section 39 of the Judiciary Act 1903 (Cth).68 On this basis, Toohey Jconcluded that it was not the investing of jurisdiction that was in issue, but the exercise of federal jurisdiction by the Supreme Court.69 Gummow Jalso distinguished judicial authority in support of the principle on the basis that the NSW Supreme Court was exercising federal jurisdiction pursuant to sections 76(i) and 77(ii) of the Commonwealth Constitution and section 39 of the Judiciary Act 1903 (Cth).70 Consequently, he found that no question of investing a State court with federal jurisdiction arose.71

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'Federal' refers to the High Court and other courts created by the Commonwealth Parliament. Kable, above n 3, at 594 per Dawson J, at 611 per Gaudron J, at 621 per McHugh J; PH Lane, "ConstitutionalAspects of Judicial Independence"in H Cunningham (ed), Fragile Bastion Judicial Independence in the Nineties and Beyond, Sydney: Judicial Commission of New South Wales, 1997 at 66; MD Kirby, "The Independence of the Judiciary" [1996] Prima Facie 3 at 5; G Brennan, "Courts for the People - Not People's Courts" (1995) 2 Deakin Law Review 1 at 11; MD Kirby, "Judicial Independence in Australia Reaches a Moment ofTruth" (1990) 13 University ofNew South Wales Law Journal 187; G Green, "The Rationale and Some Aspects of Judicial Independence" (1985) 59 Australian Law Journal 134 at 139-141. (1912) 15 CLR 308. Federated Sawmill, Timberyard v Alexander, above n 54, at 313 per Griffith q. (1929) 42 CLR 481. E Campbell, above n 14, at 53. Kable, above n 3, at 606 per Toohey J. Kable, above n 3, at 605 per Toohey J. Kable, above n 3, at 606 per Toohey J. Kable, above n 3, at 638 per Gummow J. As above.

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Conversely, McHugh and Gaudron JJ incorporated a qualified form of the 'taking State courts' principle into their broader 'integrated' approach. Gaudron Jrecognised that State courts are creatures of State legislation,72but questioned whether previous cases established the unqualified proposition that the Commonwealth Parliament must take a State court in every respect as it finds it.73 lndeed, drawing on her vision of an integrated Australian judicial system, Gaudron Jargued that State legislative power was limited with respect to State courts.74 It was for State Parliaments to determine the State courts' constitutions and their organisation. However, the Commonwealth Constitution required that State courts be maintained in a way such that they remained capable of exercisingCommonwealthjudicial power.75 GaudronJobserved that the Commonwealth Constitution did not permit different'qualities of justice, depending upon whether judicial power is exercised by State courts or federal courts'.76 Therefore, from Gaudron J's reasoning it followed that if Chapter III required State courts not to exercise incompatible non-judicial functions in order to fulfil their role as repositories offederal jurisdiction, State legislatures were prohibited by the Commonwealth Constitution from conferring those functions. Similarly, McHugh J asserted that judicial authority establishing that the Commonwealth must take State courts as it finds them did not prevent ChapterIIIimplications preventingState Parliaments investing State courts with incompatible non-judicial functions.77 For McHugh J, such implications arose from the nature of the integrated Australian judicial system established by Chapter III. It is relevant to draw a parallel between this 'integrated' approach and Isaacs J's dissenting judgment in Le Mesurier v Connor, which stated that once a State court has been invested with federal jurisdiction: "...[t]heState courtbecomes ipsofacto one of the Courts described ins71 ofthe [Commonwealth] Constitution, and, pro hac vice, a component part of the Federal Judicature. True, it is and always remains a State Court, but by virtue of s71 it becomes an integral part of the 'Judicature,' that is, that portion of the political organism called the Commonwealth of Australia..."78 On Isaacs J's approach, State courts invested with federal jurisdiction remain State courtsbut, once invested withfederaljurisdiction,are an 'integral part' of the Australianjudicial system. Essentially, the 'integrated' approach ofGaudron and McHughJJ in Kable adopts this reasoning,but goes one step further in deriving a Commonwealth constitutional limitationbased on the

72 73 74 7S 76 77 78 Kable, above n 3, at 611 per Gaudron J. As above. As above. Kable, above n 3, at 612 per Gaudron J. As above. Kable, above n 3, at 611 per Gaudron J. Above n 54, at 514.

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integral role of Supreme Courts in the Australianjudicial system. Therefore, outofthe majorityin Kable, two differing approaches emerge to the 'takingState courts' principle. Toohey and Gummow JJ considered the principle irrelevant because in Kable the Supreme Court was exercising federaljurisdiction. On the otherhand, Gaudron and McHughJJ qualified established judicial authority and on this basis held that, although State courts invested with federal jurisdiction remain State courts, they are part of an integrated judicial system and must conform with Chapter III implications. On Gaudron and McHugh JJ's interpretation, the Commonwealth Parliament can unilaterally bring State courts into this integrated judicial system and subject them to its requirements by investing State courts with federal jurisdiction.79

3. Incompatibility

Next, the majority considered the content of the Chapter III implication for State courts. Specifically, they assessed whether the non-judicial functions of the NSW Supreme Court were incompatible with Chapter III. Ultimately, Toohey, Gaudron, McHugh and Gummow JJ found the NSW Act incompatible with Chapter III of the Commonwealth Constitution. However, the majority again diverged in its reasoning.80 The fact that the NSW legislation gave the Supreme Court a non-judicial function was not sufficient to establish its incompatibility.81 As GaudronJstated, the 'prohibition on State legislative power...is not at all comparable with the limitation on the legislative power of the Commonwealth enunciated in Rv Kirby; Ex parte Boilermakers' Society ofAustralia'.82 McHugh Jobserved that a State Act could invest its Supreme Court with jurisdiction similar to that exercised in 'the federal sphere by the Administrative Appeals Tribunal'.83 Similarly, State laws investing mining

Under section 77 (iii) of the Commonwealth Constitution there is no requirement for the Commonwealth Parliament to obtain the consent of State Parliaments for the investing of federal jurisdiction in State courts. See: E Campbell, above n 14, at 53. For example, in considering this point Hayne JA stated: "I do not find it easy to identify the principle that underlies Kable": R v Moffatt (1997) 9 A Crim R 557at 577 per Hayne JA; RJ Brender, "Polluting the Stream of Justice" (1997) March Law Society Joumal56 at 58; K Walker, "Persona Designata, Incompatibility and the SeparationofPowers" (1997) 8 Public Law Review 153. However, it has been suggested that "the gist of what will not be tolerated is clear": J Miller, "Criminal Cases in the High Court of Australia" (1997) 21 CrimilUll Law Review 92 at 99. Re AustralasianMemary and Corporations Law; Brien v AustralasianMemory (1997) 149 ALR 393 at 432 per Santow J; R v Moffatt, above n 80, at 577-578 per Hayne JA; Kable, above n 3, at 606 per Toohey J, at 615 per Gaudron J, at 617 per McHugh J, at 643 per Gummow J; J Miller, above n 80, at 98. Kable, above n 3, at 612 per GaudronJ (footnote omitted). This point was made bySantow J in Re Australasian Menwry and Corporations Law; Brien v Australasian Memory, above n 81, at 432 per Santow J. Kable, above n 3, at 623 per McHugh J. See also: PW Young, "Current Issues" (1996) 70 Australian Law JouTlUlI 865 at 866.

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warden's courts, licensing courts and planning courts with administrative powers would also be valid.54 Various interpretations of Kable's incompatibility standard have emerged. On one view the Kable majority may be seen as centring on the aspect of incompatibility with Commonwealth judicial power.85 For example, Toohey Jand, to a lesser extent, Gaudron Jexplicitly relied on the Grollo v Palmey86 incompatibility test.87 However, Toohey and Gaudron JJ's application of the incompatibility doctrine is unclear.88 Further, McHugh and Gummow II made no reference to Grollo incompatibility.89 Other academic opinion has argued that Kable was premised on public confidence in the State court system.90 Despite this uncertainty, the tenor of the majority judgments reveals a concern in maintaining public confidence in the independence of State courts exercising Commonwealth judicial power.91 All members of the Kable majority considered that public confidence in those courts would be jeopardised if they were vested with non-judicial functions incompatible with independent adjudication. Toohey Jexplicitly adopted the notion of incompatibility92 enunciated in Grollo v Palmer93 and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,94 which concerned the validity of federal judges exercising Commonwealth legislative or executive power as persona designata. These cases discussed the principle that federal judges may exercise nonjudicial power provided that the exercise of such powers is not incompatible with the judge's exercise of Commonwealth judicial power.95 In particular, Grollo recognised three limbs to the incompatibility doctrine.96

84 85

86 87 88 89

92 93 94

Kable, above n 3, at 583 per Brennan q. Laurance v Kafter (1996) 141 ALR 447 at 445 per Fitzgerald P. For academic commentary see: PH Lane, above n 48, at 463; E Campbell, "Constitutional Protection of State Courts and JUdges" (1997) 23 Monash University Law Review 397 at 409; E Handsley, "Do Hard Laws Make Bad Cases? - The High Court's Decision in Kable v Director ofPublic Prosecutions" (1997) 25 Federal Law Review 171 at 175. (1995) 184 CLR 348 (Crollo). Kable, above n 3, at 608 per Toohey J, at 612 per Gaudron J. K Walker, above n 80, at 165-166. For a different interpretation of the application ofthe Crollo incompatibility doctrine see: E Handsley, above n 85, at 175. R SackviIle, "Continuity and Judicial Creativity - Some Observations" (1997) 20 University ofNew South Wales Law Journal 145 at 167; R Roberts, "Retrospective Criminal Laws and the Separation of Judicial Power" (1997) 8 Public Law Review 170 at 179; M Smith, "Recent Cases" (1996) 70 Australian Law Journal 963 at 969. This was recognised by Kirby J in Nicholas v R (1998) 151 ALR 312 at para 201 per Kirby J. See also: Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1997) 145 ALR 500 at 507 per Tamberlin J. Western Australia v Ward (1997) 145 ALR 512 at 517 per Hill and Sundberg JJ. (1995) 184 CLR 348. (1996) 138ALR220. See: Western Australia v Ward, above n 92, at 517 per Hill and Sundberg JJ. See also: Western Australia v Ward, above n 92, at 517 per Hill and Sundberg JJ; Hilton v Wells (1985}157 CLR 57; PH Lane, above n 48, at 482. Crollo v Palmer (1995) 184 CLR 348 at 365 per Brennan q, Deane, Dawson and TooheyJJ.

Newc LR Vol 3 No 1 A Chapter III Implication for State Courts

In dissent, Dawson Jcriticised reliance on the notion of 'incompatibility', arguing that different degrees of incompatibility may exist at State and Commonwealth levels.97 Toohey J acknowledged this point, but nevertheless found the incompatibility doctrine applicable and asserted: "It is true that the proposition was enunciated in the context of the power to confer non-judicial functions on judges as designated persons but in my view itholds good whenever Ch III of the Constitution is operative."98 Although Toohey J did not identify the species of incompatibility he applied, logic suggests it was the third limb identified in Grollo.99 The third limb recognises that incompatibility arises where the nature of the non-judicial functions undermines public confidence in the integrity of the court or judge in his, or her, individual capacity.loo Toohey Jasserted the Grollo incompatibility test was applicable as the NSW Act required: "...the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution...is diminished."lOl In this case, Toohey Jconcluded that the Act '[r]equired the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process'.102 Therefore, although Toohey Jutilised the Grollo incompatibility doctrine, his underlying concern was the maintenance of public confidence in the integrity of the judiciary. Of interest is that the Grollo incompatibility doctrine was, at least in part, adopted from judicial authority in the United States, in particular Mistretta v United States.103 Reliance on the notion of incompatible functions has been the subject of increasing criticism in both Australia and the United States.104 Incomparison, McHughJadopted a broader approach, looking to the maintenance of public confidence in the 'impartial administration of the

97 98 99 100 101 102 100

104

Kable, above n 3, at 598 per Dawson J. Kable, above n 3, at 606 per Toohey J. Kable, above n 3, at 608 per Toohey J 608; K Walker, above n 80, at 166. Grollo v Palmer, above n 96, at 365 per Brennan q, Deane, Dawson and Toohey JJ. Kable, above n 3, at 608 per Toohey J (footnote omitted). As above. (1989) 488 US 361. For earlier applications of this doctrine see: Hobson v Hansen (1967) 265 F Supp 902 at 923 per Wright J (dissenting); Re Application ofthe President's Commission on Organized Crime (1985) 763 F 2d 1191 at 1197-1198 per Fayand JohnsonJJ; GubienskiOrtiz v Kanahele (1988) 857 F 2d 1245 at 1260-1263 per Kozinski J. See for example: K Walker, above n 80; E Handsley, above n 85, at 178; I Bloom, "The Aftermath ofMistretta: The Demonstrated Incompatibility ofthe United States Sentencing Commission and Separation of Powers Principles" (1996) 24 American Journal ofCriminal Law 1 at11-27;MH Redish, "Separation of Powers, JudicialAuthority and the ScopeofArticle ill: The Th>ubling Cases ofMorrison and Mistretta" (1989) 39 DePaul Law Review 299. For a discussion of the advantages of the incompatibility doctrine see: A Mason, "A New Perspective on Separation of Powers" Reshaping Australian Institutions: ANU Public Lecture 1 Canberra 25 July 1996. For judicial discussion ofSirAnthony Mason's paper see: ReAustralasianMemoryand Corporations Law; Brien vAustra1asianMemary, above n81, at435 perSantowJ.

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judicial power of State courts'.lOS In this regard, McHugh1stated that nonjudicial functions could not be conferred upon the Supreme Court 'that might lead an ordinary reasonable member of the public to conclude that the courtwas not independent of the executive government ofthatState',l06 On this basis, McHugh 1found that the NSW Act was invalid because it was 'far removed from ordinary incidents of the judicial process',l07 Similarly,Gaudron1stated that the Commonwealth constitutionallimitation flows from the 'necessity to ensure the integrity of the judicial process and the integrity of the courts specified in section 71 of the Constitution',108 This test was, at least in part, derived from the Grollo incompatibility.l09 Gaudron 1drew on the underlying concern in Grollo; namely that the judiciary's integrity is dependent upon its operation in accordance with the judicial process and the 'maintenance of public confidence in that process'.110Applying this standard, Gaudron1found that the NSW Act compromised the Supreme Court's integrity because it contemplated proceedings that 'are not proceedings otherwise known to the law' and 'do not in any way partake of the nature of legal proceedings',111 For Gummow 1, the Chapter III implication ensured the institutional impartiality of State courts,112 Accordingly, Gummow 1accepted the appellant's broad submission that the 'institutional impairment of the judicial power of the Commonwealth' was sapped to an impermissible degree by ad hominem legislation of the nature in the NSW Act,113 This variation illustrates Kable applied a high threshold of invalidation for non-judicial functions exercised by State courts,114 Although not all members of the majority explicitly referred to Grollo incompatibility, the content of this doctrine was used to determine when public confidence in the integrity of State courts would be diminished.ll5 In effect, Kable's limitation on non-judicial functions represents an application of an aspect of the separation of powers doctrine embodied in the Commonwealth Constitution,116 Indeed, McHugh1noted 'in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of

105 106 107 108

109 110 111 112 113 114

115

116

Kable, above n 3, at 624 per McHugh J. Kable, above n 3, at 623 per McHugh J. Kable, above n 3, at 627 per McHugh J. Kable, above n 3, at 612 per Gaudron J. See also: Western Australia v Ward above n 92, at 517 per Hill and Sundberg JJ. Kable, above n 3, at 612 per Gaudron J. Kable, above n 3, at 615 per Gaudron J. Kable, above n 3, at 614 per Gaudron J. Kable, above n 3, at 644 per Gummow J. Kable, above n 3, at 636, 644 per Gummow J. Re Australasian Memory and Corporations Law; Brien v Australasian Memory above n 81, at 432 per Santow J. A similar point was made by Santow Jin Re Australasian Memory and Corporations Law; Brien v Australasian Memory, above n 81, at 428 per Santow J. In dissent, Dawson J made this point, stating that under the majority approach 'a quasiseparation of power' will be established at the State level: Kable, above n 3, at 599 per DawsonJ.

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powers'.m On this basis, Kable imposes a Commonwealth constitutional doctrinal limitation on State Parliaments and State courts. Academic commentary has relied on two models, formalism and functionalism in analysing judicial interpretation of the separation of powers doctrine.us The formalist model requires the judiciary to abstain from exercisingnon-judicial power and proscribes the exercise ofjudicialpower by the executive and legislature.1l9 The functionalist model is more flexible,120 permitting a 'degree of overlap' between the functions of three branches of govemment.l21 However, where the overlap would undermine one branch's successful performance of its essential function 'the overlap will be disallowed because itviolates the separation ofpowers'.122 Kable arguably adopts a functionalist approachl23 because it allows State courts to exercise non-judicial functions so long as they do not diminish public confidence in the independence of State courts.

4. The Constitutional Source of Limiting State Legislative Power Significantly, there is also divergence among the Kable majority regarding the way in which State legislative power is limited by Chapter III of the Commonwealth Constitution. Toohey J held that the NSW Act was invalid because of its incompatibility with Commonwealth judicial power, providing no analysis of the reasons why State legislative power was limited. In contrast, McHugh J derived the limitation on State legislative power from the principle that 'a State cannot legislate in a way that has the effect of violating 'the principles that underlie Chapter III'.124 In support McHugh Jl25 cited Gibbs J in Commonwealth v Queensland.l26 However, there are several difficulties with this approach. Firstly, it is not clear whether Gibbs J was espousing a general principle that States cannot violate the principles underlying Chapter III. Gibbs J simply stated that it was implicit in Chapter III that State legislation could provide a procedure to appeal directly to the Judicial Committee of the Privy Council, in effect bypassing the High Court.127

117 118

119 120

121

Kable, above n 3, at 624 per McHugh). For a good comparison between the functionalist and fonnalist approach see: MH Redish, above n 104, at 304. K Walker, above n 80, at 163; MH Redish, above n 104, at 304-305. For a discussion of the functionalist approach see: MT Tully, "The Supreme Court's Pragmatic and Flexible Approach to Federal Judicial Separation of Powers Issues: Mistretta v United States" (1990) 39 DePaul Law Review 405 at 441; K Walker, above n 80, at 163. MH Redish, above n 104, at 304-305.

122 A Mason, above n 104, at 26; MH Redish, above n 104, at 306.

123 124 125 126 127 K Walker above n 80, at 166. Kable, above n 3, at 622 per McHugh J. As above. (1975) 134 CLR 298,314-315 per Gibbs J. Commonwealth v Queensland (1975) 134 CLR 298 at 314-315 per Gibbs J.

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Secondly, there is no suggestion within Gibbs]'s judgment as to what principles underlie Chapter III. McHugh J claimed that one principle underlying Chapter III required State courts invested with federal jurisdiction to be independent of the State legislature and executive. However, with respect, it would seem that there is no prior High Court authority supporting this assertion. Therefore, this part of McHugh]'s reasoning is at best, tenuous. On the other hand, Gaudron and Gummow II argued that while the requirement ofcompatibility is contained in Chapter III, the limit on State legislative power flows from covering cl S and section 106 of the Commonwealth Constitution.128 Covering clS provides that the Constitution is 'bindingupon the courts, judges, and people ofevery State and ofevery part of the Commonwealth, notwithstanding anything in the laws of any State'. Section 106 provides that the Constitution of each State is made subject to the Australian Constitution. Although only Gaudron and Gummow II explicitly referred to these provisions,129 they provide the most logical means by which State legislative power can be subject to an implied limitation extrapolated from the Commonwealth Constitution. Even though the status of covering clS has been questioned,l30 it provides thatState legislationis subject to the Commonwealth Constitution.131 As Quick and Garran noted, 'by this [covering clS], coupled with sections 106 to 109, all the laws of the State...will be in effect repealed so far as they are repugnant to the supreme law [Commonwealth Constitution]'.132 In Kruger v Commonwealth, Brennan CJ observed that: "...[t]he [Commonwealth] Constitution...by ss106 and 107, conferred upon the States their constitutions and powers subject to the [Commonwealth] Constitution."133 Therefore, because State constitutions aresubject to the Commonwealth

128 129 130

131

132

133

Kable, above n 3, at 611 per Gaudron J, at 642 per Gummow J. As above. See for example: C Howard, Australian Federal Constitutional Law 2nd edn, Sydney: Law Book Company, 1972 at 2-3. However, for suggestions of its importance see: L Harvey and JA Thomson, "Some Aspects ofState and Federal Jurisdiction Under the Australian Constitution" (1979) 5 Monash University Law Review 228 at 229. Kable, above n 3, at 611 per Gaudron J, at 642 per Gummow J; Theophanous v Herald & Weekly Times Ltd (1994) 182CLR104at 141 per BrennanJ; Flaherty v Girgis (1987) 162CLR 574 at 601 per BrennanJ; Federated Saw Mill Timberyard and General Woodworkers' Employees' Association Australasia v James Moore, above n 54, at 535 per Isaacs J; PH Lane, above n 48, at 13; L Harvey and JA Thomson, above n 130, at 229; J Quick, The Legislative Powers of the Commonwealth and the States of Australia with Proposed Amendments, Melbourne: Maxwell, 1919 at 159. For a discussion of the relationship between covering clauses and the Commonwealth Constitution, see: JA Thomson, "Altering the Constitution: Some Aspects of Section 128" (1983) 13 Federal Law Review 323 at 331-335. J Quick and RR Garran, The Annotated Constitution ofthe Australian Commonwealth, London: Angus & Robertson, 1901 at 353. Kruger v Commonwealth, above n 6, at 139 per Brennan CJ.

Newc LR Vol 3 No 1 A Chapter III Implication for State Courts

Constitution, State legislative power may be limited by Commonwealth constitutional implications. Indeed, in Theophanous v Herald & Weekly Times Ltdl34 there were suggestions that the implied freedom of political communication limits State legislative power.l35 For example, Deane Jargued that reading sections 106 and 107 together make State legislative power subject to the Commonwealth Constitution.136 This point, was also acknowledged by Brennan CJ in McGinty v Western Australia: "The Constitutions of the several States are, by force of s106, subject to the CommonwealthConstitution, the provisions ofwhich maybeeither expressed in its text or implied in its text and structure."137 However, a majority in McGinty v Western Australia rejected section 106 as the source of transmission for a Commonwealth constitutional implication to the State leve1,138 In dissent, Toohey Jalso rejected this argument.139 The underlying reason for this refusal to rely on section 106 was the fact that the guarantee of voting equality in section 24 of the Commonwealth Constitution related to Commonwealth elections. As the 'conduct of State elections would not undermine Commonwealth elections',l40 the Commonwealth constitutional guarantee could not be translated into a State guarantee of voting equality.141 Therefore, McGinty v Western Australia represents a rejection of one specific Commonwealth constitutional implication sought to be transmitted to the State level and thus does not undermine the general effect of section 106. In contrast, the Kable Commonwealth constitutional implication is based on Chapter Ill's structure and specific provisions, including section 77 (iii), which provides for the investing of Commonwealth judicial power in State courts. Therefore, covering cl 5 and sections 106 and 107 of the Commonwealth Constitution provide the most appropriate means by which State legislative power is subject to a structural implication from Chapter III of the Commonwealth Constitution.

134 135

136 137

138

139 140

Above n 131. Theophanous v Herald & Weekly Times Ltd, above n 131, at156 per BrennanJ, at 164-166 per Deane J; G Carney, "The Implied Freedom of Political Discussion - Its Impact on State Constitutions" (1995) 23 Federal Law Review 180 at 200. Theophanous v Herald & Weekly Times Ltd, above n 131, at 165 per Deane J. McGinty v Western Australia (1996) 134 ALR 289 at 298 per Brennan CJ, at 326 per Toohey]. McGinty v Western Australia, above n 137, at 300 per Brennan J, at 311 per Dawson J, at 360 per McHugh J, at 375 per Gummow J; G Came, "Representing Democracy or Reinforcing Inequality?: Electoral Distribution and McGinty v Western Australia" (1997) 25 Federal Law Review 351 at 373-374. McGinty v Western Australia, above n 137, at 328 per Toohey J. As above.

141 G Came, above n 138, at 374. Similarly, Professor Zines has argued that section 106 does not transfer fundamental principles of the Commonwealth Constitution to State constitutions: LZines, "AJudicially Created Bill ofRights?" (1994) 16 Sydney Law Review 166 at 179-180.

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E. Dissenting Judgments In dissent, Brennan CJ and Dawson Jrejected the proposition that Chapter III of the Commonwealth Constitution precluded State legislatures from conferring non-judicial functions upon State courts. Brennan CJ found that this argument had no textual or structural foundation in the Commonwealth Constitution.142 Similarly, Dawson Jheld that no limitation could be extrapolated from Chapter III because this would carve out an inviolable realm of State judicial power establishing a 'quasi-separation of powers' at the State level,l43

1. State Courts Are Creatures of State Parliaments Confronted by the proposition that Chapter III limits State legislative power, the dissentingjudgments observed that the Commonwealth Constitution did not provide for a unified judicial system in Australia.144 In this regard, Dawson Jstated: "...[O]ur legal system, though integrated, is not a unitary system...The system is a federal system and, while the framers of the [Commonwealth] Constitution might have established ajudicial system which was neither State nor

federal but simply Australian, they did not do SO."145

By dismissing the proposition that the Commonwealth Constitution did not provide for a unitary judicial system, Brennan CJ endorsed and utilised the accepted 'taking the State courts' principle.146 In contrast to Gummow J, Brennan CJ observed that no support for a Chapter III limitation on State legislative power over State courts could be discerned from the founders' intent.147 BrennanCJ argued that ifthis intent existed it would have been contained in the 1890's Convention debates, but was not,148 Therefore, because of previous cases and lack of evidence of original intent, Brennan CJ concluded that the Kable majority's limitation gave Chapter III an unwarranted 'novel operation'.149

142 143 144 145

146 147 148

149

Kable, above n 3, at 584 per Brennan CJ. Kable, above n 3, at 643 per Dawson J. J Miller, above n 80, at 96. Kable, above n 3, at 596-597 per Dawson J. Note, that in a more recent article Sir Gerard Brennan emphasises public confidence inAustralian courts: G Brennan, above n 52, at 2-3. Kable, above n 3, at 583 per Brennan CJ; J Miller, above n 80, at 96. Kable, above n 3, at 584 per Brennan CJ. As above. This raises questions as to constitutional interpretative technique. For example, in determining the founders' intent should the court be guided by the 1890's Convention debates? Fora discussion of the difficulties associated with ascertaining the founders' intent see: D Dawson, "Intention and the Constitution - Whose Intention?" (1990) 6 Australian Bar Review 93. Kable, above n 3, at 583 per Brennan CJ.

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Similarly, Dawson Jreferred to the 'taking State courts' principieiso and observed that the appellant's argument simply denied this proposition.1S1 Further, Dawson J, in drawing on an intentionalist method of interpretation, emphasised Mason 1's statement in Commonwealth v Hospital Contribution Fund that the framers intended to give the Commonwealth Parliament a power to invest federal jurisdiction in State courts as they were constituted at that time.IS2 On the basis of this judicial authority, Dawson J concluded that so long as State courts are, in fact, courts, no limitation can be derived from Chapter III, because the Commonwealth Constitution 'is not concerned with whether State courts comply with' Chapter Ill's requirements.I53

2. Misapplication of the Incompatibility Doctrine The dissentingjudgments also discussed the majority's application of the Crollo incompatibility doctrine. Brennan CJ argued that reliance on the incompatibility qualification, as applied to the persona designata doctrine, is inappropriate because there is no counterpart in the context of limitations on State legislative power.IS4 Dawson Jnoted that Crollo concerned the Commonwealth judicial power exercised by a federal court created under Chapter III, which is premised on a separation of powers.ISS On this basis, Dawson Jdistinguished State courts, observing that what is incompatible with the exercise of Commonwealth judicial power by a Chapter III court may not be incompatible with the exercise ofsuch power by a court not restricted by the separation of powers.1S6

F. Critique Despite divergence between the majority justices, Kable establishes that State Parliaments cannot confer incompatible non-judicial functions on State courts. The apparent strength of the dissenting judgments lies in their reliance on judicial authority that the Commonwealth Parliament must take State courts as it finds them and hence in its consistency with previous case law.

150 151 152 153 154 155 156 Kable, above n 3, at 596 per Dawson J. As above. Commonwealth v Hospital Contribution Fund, above n 42, at 61 per Mason J. Kable, above n 3, at 596 per Dawson J. Kable, above n 3, at 584 per Brennan q. Kable, above n 3, at 598 per Dawson J. As above.

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However, Gaudron and McHugh JJ's 'integrated' approach157 largely addresses the difficulties identified by Brennan CJ and Dawson J.158 In confronting the 'taking State courts' principle, Gaudron and McHugh JJ establish two propositions. Firstly, that the Commonwealth Constitution provides for an integratedAustralianjudicialsystem, with the High Court as the apex.159 Secondly, State courts, as necessary components of that judicial system, must be compatible with Chapter III of the Commonwealth Constitution for the exercise of Commonwealthjudicial power. In this way, the 'integrated' approach refutes the dissentingjudgments. That is, as a preliminary matter, while the Commonwealth Parliament must take State courts as it finds them, State courts are required to conform with, and fulfil, their intended role under Chapter III. Prior to Kable, Chapter III's relationship with State courts had not been subjected to extensive analysisYill However, Gaudron and McHugh JJ's approach raises questions as to the fundamental nature of the Australian judicial system. The real question is whether the Australian judicial system is either unified, national, federal or dual. Several factors undermine the proposition that the Commonwealth Constitutionprovides for an integratedAustralian judicialsystem. Firstly, central to the vision of an integrated Australian judicial system is the role of the High Court as the 'final court of appeal'.161 However, a theoretical avenue for appeal from State courts to the Privy Council exists under section 74 of the Commonwealth Constitution.162 The definition of 'Australian court' in the Australia Act 1986 (Cth) does not alter Privy Council appeals from the High Court.l63 On this basis, the Privy Council may determine inter se questions upon the High Court granting a section 74

157

158

159 100

161

162

163

Although Gummow J held that the Commonwealth Constitution provided for an integrated Australian judicial system, he did not use this proposition to address judicial authority establishing that the Commonwealth Parliament must take State courts as it finds them. In this regard, one academic commentator has observed 'the majority approach is surely to be preferred', although not specifying which members of the majority: J Miller, above n 80. For a different view, see: E Handsley, above n 85, at 175, 179. However, see n 161, and 162 and accompanying text. See: JA Thomson, "State Constitutional Law: The Quiet Revolution" (1990) 20 University ofWestern Australia Law Review 311 at 322.Academic commentary prior to Kable includes: M Byers, "Federal/State Judicatures" (1984) 58 The Australian Law Journal 590; CD Gilbert, "Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from. State Supreme Courts" (1978) 9 Federal Law Review 348; 0 Dixon, "The Common Law as an Ultimate Constitutional Foundation" (1957) 31 Australian Law Journal 240; KH Bailey; above n SO. In Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194 at 208, Mason q, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the High Court as the 'final court of appeal'. JA Thomson, above n 29, at 426; HE Renfree, The Federal Judicial System ofAustralia, Sydney: Legal Books, 1984 at 783-795; CD Gilbert, above n 160, at 348. For a different view, see: J Goldring, "The Australia Act and the Formal Independence of Australia" [1986] Public Law 192 at 202. Australia Act 1986 (Cth), s16; JA Thomson, above n 29, at 426.

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certificate.164 While McHugh Jin Kable noted the existence of this avenue of appeal prior to the Australia Acts, he made no reference to the continued possibility ofsuch an appeal.165 However, the High Courthas granted only one section 74 certificate,166 and it is unlikely to grant another.167 As Dixon J stated in Nelungaloo Pty Ltd v Commonwealth 'nothing but some very exceptional element in a case should lead it [the High Court] to grant a certificate'.l68 Further, even assuming a theoretical 'right' of appeal under section 74, the High Court remains the 'controlling' court with respect to the disposition of an appeal. Secondly,judicialauthority169 and academic commentary170have questioned whether there is a common law ofAustralia. Even if there was an Australian common law, it is arguable that the abolishment of the common law and replacement by legislation171 would undermine the vision of an integrated Australian judicial system.172 Thirdly, based on Chapter III's language and the Commonwealth Constitution's scheme for a federal judicial system,173 there is support for the dissenting judgments that State courts should not be regarded as part of the federal judicature.174 Indeed, it may be that a 'unitary judicial system' is only created where State court judges are appointed by the Federal Parliament.175 However, widespread academic opinion176 and more recent judicial

164

165 166

167 168 169

170

171

172

173 174

175

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See: Smith Kline & French Laboratories (Australia) Ltd v Commonwealth, above n 161, at 208 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; JAThomson, above n 29, at 426; CD Gilbert, above n 160, at 348. Kable, above n 3, at 619-620 per McHugh J. Attorney-General (Cth) v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644; Z Cowen, "In_ ter Se Questions and Commonwealth Exclusive Powers" (1961) 35 Australian Law Journal239 at 239. PH Lane, above n 48, at 550-551; JA Thomson, above n 29, at 426. Nelungaloo v Commonwealth (1952) 85 CLR 545 at 570 per Dixon J. Anderson v Eric Anderson Radio & TV Ply Ltd (1965) 114 CLR 20; Washington v Commonwealth (1939) 39 SR (NSW) 133 at 139 per Jordan q. LJ Priestley, "AFederal Common Law inAustralia?" (1995) 6 Public Law Review 221 at 232; Z Cowen, "DiversityJurisdiction: TheAustralian Experience" (1955) 7 Res Judicatae 1 at 29. In Kruger v Commonwealth, above n 6, at 158, DawsonJ observed that the common law can be amended by the CommonwealthParliament: '[T]he supremacy of parliament, which is itself a principle of the common law, necessarily leaves the common law subject to alteration'. Further, academic commentaryhas noted the fragility of the common law: J Beatson, "Has the Common Law a Future?" (1997) 56 Cambridge Law Journal 291 at 292-293. Note, however, that Gaudron, McHugh and Gummow JJ's vision of an integrated Australian judicial system also rests on Chapter III's provisions. Compared to a 'unitary' judicial system. Kable, above n 3, at 596-597 per Dawson J; J Crawford, "The New Structure ofAustralian Courts" (1978) 6 Adelaide Law Review 201 at 233; WA Wynes, above n 54, at 179. Reference re Remuneration ofJudges of the Provincial Courts of Prince Edward Island (1997) 150 DLR 577 at para 88 per Lamer q. L Zines, "The Nature of the Commonwealth" (1997) (unpublished paper) at 7; J Miller, above n 80, at 100; G Nicholson, "The Concept of 'One Australia' in Constitutional Law and the Place of Territories" (1997) 25 Federal Law Review 281 at 283; M Crock and R McCallum, "TheChapterill Courts: The Evolution ofAustralia's FederalJudiciary" (1995) 6 Public Law Review 187at 190; RD Lumb and GA Moens, The Constitution ofthe Commonwealth ofAustralia 5th ed, Sydney: Butterworths, 1995 at 544; R Else-Mitchell, above n 42, at 187.

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statementsl77 support the existence of an integrated Australian judicial system. This support rests on two factors. Firstly, that Chapter III of the Commonwealth Constitution provides the High Court with supervision of the Australian judicial system as the expositor of a national common law.178 Secondly, State courts are integrated into the Australian judicial system by Chapter Ill's provision for the investing of federal jurisdiction in them.179 The High Court's supervision is premised on section 73 of the Commonwealth Constitution which provides the High Court with appellate jurisdiction over 'judgements, decrees, orders and sentences' of any justice of the High Court exercising original jurisdiction, any other federal court or court exercising federal jurisdiction, or of the Supreme Courtl80 of any State.181 Based on this supervisory role,Quick and Garran observed that the High Court would engage in a process of shaping an Australian common law: "Throughout the Commonwealth of Australia, the unlimited appellate jurisdiction of the High Court will make it - subject to review by the Privy Council - the final arbiter of the common law in all the States; and thus the rules of common law will be - as they have always been - the same in all the States. In this sense, that the common law in all the States is the same, it may certainly be said that there is a common law of the Commonwealth."182 In this regard, Sir Owen Dixon also noted that Australian common law can be regarded as'a unit'.l83 However, emphasis on the existence of a unified common law is to be distinguished from a 'federal common

177

178 179 180

181

182 183

Gould v Brown (1998) 151 ALR 395 at paras 125-127 per McHugh J, paras 192-194 per Gummow J, paras 275, 312 per Kirby J; Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 108-109 per Brennan q, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; Kruger v Commonwealth, above n 6, at 244 per Gummow J; Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 487 per Mason q, Brennan, Deane, Toohey, Gaudron and McHugh JJ; Environment Protection Authority v Caltex Refining above n 36, at 556 per McHugh J. Commonwealth Constitution, s73. Commonwealth Constitution, s77 (iii). For a discussion of appeals to the High Court from State courts exercising federal and state jurisdiction see: E Campbell, above n 14, at 55-57. Commonwealth Constitution, ss73 (i), (ii) and (iii). Although the High Court has appellate jurisdiction under these constitutional provisions, it is arguable that this jurisdiction is based on Commonwealth legislation given the exceptions clause in section 73 of the Commonwealth Constitution. Section 73 provides that '[t]he High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals'. The constitutional validity of Commonwealth legislation (Judiciary Act 1903 (Cth), s35 & Federal Court ofAustralia Act 1976 (Cth), 533) requiring special leave to appeal to the High Court was upheld in Smith Kline & French Laboratories (Australia) Ltd v Commonwealth, above n 161. For a discussion of this case see: AMason, "The Regulation ofAppeals to the High Court ofAustralia: The Jurisdiction to Grant Special Leave to Appeal" (1996) 15 University ofTasmania Law Review 1. J Quick and RR Garran, above n 132, at 785. 0 Dixon, "Address by the Hon. Sir Owen Dixon" (1943) 17 Australian Law Journal 138 at 139.

Newc LR Vol 3 No 1 A Chapter III Implication for State Courts

law',184 Judicial authority prior to Kable is also supportive of the notion of a uniform common law. For example, in Western Australia v Commonwealth (Native Title Act Case),t85 the majority stated: "But the laws of the Commonwealth [Parliament] operate in the milieu of the common law. As Sir Owen Dixon observed '[w]e act every day on the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute'."186 More recently, in Kruger v Commonwealth, Gummow J referred to the 'entrusting by Ch TIl, in particular by s 73, to [the High Court] of the superintendence of the whole of the Australian judicial structure [and] its position as ultimate interpreter of the common law of Australia'.187 The relationship between the common law and the Commonwealth Constitution was most recently examined in Lange v Australian Broadcasting Commission. In this case, the High Court supported the existence of a unitary system of common law, stating that 'there is but one common law in Australia which is declared by this court as the final court of appeal'.188 More specifically, the court stated: "[T]hat one common law operates in the federal system established [sic] by the [Commonwealth] Constitution. The [Commonwealth] Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified sovereignty of the legislature. It placed upon the federal judicature the responsibility for deciding the limits of the respective powers of State and Commonwealth governments. The Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form'one system of jurisprudence'."189 Therefore, analysis indicates that the notion of a unified common law,

184

185 186

187 188

189

Judicial authority has acknowledged the existence of a United States 'federal common law'. The federal common law exists in the'gaps' of the federal statutory scheme and is distinct from state common law. See for example: FDIC v Myer (1994) 510 US 471; Erie Railroad v Tompkins (1938) 304 US 64; Hinderlider v La Plata River & Cherry Creek Ditch Co. (1938) 304 US 92; P Lund, "The Decline of Federal Common Law" (1996) 76 Boston University Law Review 895; L Kramer, "The Lawmaking Power of the Federal Courts" (1992) 12 Pace Law Review 263; PM Bator, DJ Meltzer, PJ Mishkin and DL Shapiro Hart and Wechsler's The Federal Courts and the Federal System 3rd ed, New York: Foundation Press, 1988 at 849-959; TW Merrill, "The Common Law Powers of Federal Courts" (1985) 52 University of Chicago Law Review 1; MA Field, "Sources of Law: The Scope of Federal Common Law" (1986) 99 Harvard Law Review 883. (1995) 183 CLR 373. Western Australia v Commonwealth, above n 177, at 487 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (footnote omitted). Kruger v Commonwealth, above n 6, at 244 per Gummow J (footnotes omitted). Lange v Australian Broadcasting Corporation, above n 177, at 108-109 per Brennan q, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. Lange v Australian Broadcasting Corporation, above n 177, at 109 per Brennan q, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ (footnotes omitted). The Full Court cited McArthur v Williams (1936) 55 CLR 324 at 347 in support of this proposition.

ROHAN HARDCASTLE (1998)

based on the High Court's appellate jurisdiction, has increasing potency. Integration in the Australian court system also stems from Chapter III's provision for federal and State courts to be invested with federal jurisdiction.l90 In this way, the integrated Australian judicial system, established by Chapter III to include federal and State courts, may be seen as applying a unified common law. Thus, there appears to be a 'symbiotic' relationship developing between two unified systems: a national common law and an integrated Australian court system. Kable demonstrates one consequence is the emergence of a Commonwealth constitutional constraint on State Parliaments and courts.191 Gaudron and McHugh JI's second proposition placed State courts as significant components ofthe integratedAustralianjudicialsystem. However, the separate nature of State court systems was recognised by Mason q,Dawson and McHughJJ in Leeth v Commonwealth: "The Constitution plainly envisages the continuation of separate State legal systems and, by empowering [the Commonwealth] Parliament under s 77(iii) to invest any court of a State with federal jurisdiction, provides a means whereby the Commonwealth may participate in those systems. In investing State courts with federal jurisdiction, the Commonwealth must take the courts as it finds them, notwithstanding the differences that exist from State to State."192 Although Gaudron and McHugh JJ acknowledged this principle they embraced the elevated role of State courts under Chapter III of the Commonwealth Constitution to confront it. Under an 'integrated' interpretation, States determine the constitution and organisation of State courts, provided that they remain courts compatible with Chapter III for the exercise of Commonwealth judicial power.193 Indeed, it has been suggested that '[a]s Federation wrote a fresh institutional basis for politics, government and law on a national level, the notion that State courts negotiated that part of history and remained unaffected is implausible'.194 In contrast, Toohey and Gummow JJ dismissed the principle on the basis that in Kable the NSW Supreme Court was exercising federal jurisdiction, rather than a case dealing with the validity of Commonwealth legislation investingfederal jurisdictionin a State court. However, it would seem that this approach does not adequately deal with judicial authority establishing that State courts are creatures ofthe States. The tenor ofthese previous cases is that Chapter III does not seek to regulate the composition, structure or organisation of State Courts as vehicles for the exercise

1!KJ 191

192 193 194

Commonwealth Constitution, Chapter III, ss 71 and 77(iii). Although Kable did not concern Territory courts, Professor Zines has argued that failure to extend the Kable limitation to Territory courts undermines Gaudron and McHugh IT's approach: L Zines, above n 176, at 7. Leeth v Commonwealth, above n 6, at 468-469 per Mason CT, Dawson and McHugh JJ. Kable, above n 3, at 617 per McHugh J. JMiller, above n 80, at 100-101.

Newc LR Vol 3 No 1 A Chapter III Implication for State Courts

of invested federal jurisdiction.195 As Dawson Jargued in dissent, Chapter III 'accepts those courts as existing institutions'.196 Although in Kable the Supreme Court may have been exercising federal jurisdiction, the limitation imposed by the majority encroaches on the 'taking State courts' principle. Therefore, it is not sufficient to distinguish this judicial authority because Kable, unlike for example, Russell v Russell, was not a case concerning the Commonwealth Parliament investing a State court with federal jurisdiction. According to Gaudron and McHugh IT's interpretation, State courts invested with federal jurisdiction remain State courts, but are regarded as part of the Australianjudicial system, and consequently mustbe courts capable of exercising Commonwealth judicial power. In Re Australasian Memory and Corporations Law Brien v Australasian Memory,Santow Jconcurred with this approach, observing that: "...while the court as a State court is not subject to division of powers and "must be taken as exists", it is also a court which exists to exercise the judicial power of the Commonwealth. In doing so it must not contaminate that power by having imposed upon it incompatible functions as weaken public confidence in the court's independence."I97 In this way, the doctrine that the Commonwealth Parliament must take State courts as it finds them is preserved, subject to limitations derived from the integrated judicial system under Chapter III.198 What is not preserved is plenary State legislative power over State courts. Although State courts are not Chapter III courts,199 when invested with federal jurisdiction, State courts must be capable ofexercising Commonwealth judicial power. Thus, under Kable, State Parliaments cannot confer on State courts non-judicial functions that undermine public confidence in their independence. Despite the apparent variation within the Kable majority, the retirement of Brennan CJ and Dawson Jcoupled with Kirby J's endorsement of the 'integrated' approach200 suggests that State legislative power will remain subject to the Kable Chapter III implication. Nevertheless, the scope and content of this limitation remains an elusive subject warranting and enticing further judicial exploration.

195

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198 199 200

See for example: Commonwealth v Hospital Contribution Fund ofAustralia, above n 42, at 61 per Mason Ji N Bowen, above n 42, at 815. Kable, above n 3, at 597 per Dawson J. Re Australasian Memory and Corporations Law; Brien v Australasian Memory, above n 81, at 429 per Santow J. For a different view see: E Handsley, above n 85, at 175. Kable, above n 3, at 611 per Gaudron J, at 617 per McHugh J. Gould v Brown, above n 177, at 485-486 per Kirby J.