Justice For All Australians

 http://www.aspg.org.au/journal/2005spring_20_2/03-Wheeler%20-%20Kable.pdf

Contests over the scope of state law-making power under the Australian

Constitution have typically been disputes about federalism. As is well-known, the

High Court’s expansive interpretation of Commonwealth legislative power —

culminating in its landmark decision in the Tasmanian Dam Case1 — has given the

Commonwealth far greater authority to override state laws than envisaged at

federation. While battles over states’ rights continue, state law-makers in the

twenty-first century now face additional constitutional hurdles. In particular, the

High Court has recognised a growing number of implied constitutional limitations

on state power with which state legislators must comply if their laws are to survive

legal challenge.2 One such implied limitation is the freedom of political

communication first recognised by the High Court in 1992 in Australian Capital

Television Pty Ltd v Commonwealth.3 This article considers a second limitation

known as the Kable doctrine. This doctrine, first recognised by the High Court in

1996, narrows state legislative power by establishing, albeit to a limited degree, a

constitutionally entrenched separation of judicial power at state level. In so doing,

the Kable doctrine has altered the traditional constitutional relationship between

state parliaments and state courts in important respects.

This article is intended to provide those involved with the legislative process in the

Australian states and territories with an account of the controversial Kable doctrine

and its uncertain sphere of application. Part I of the article explores the basic

features of the Kable doctrine, including its origins and constitutional significance.

The ‘extraordinary’4 legislation which led to the emergence of the doctrine as part

of Australian law is discussed. Part II then examines the scope of the constitutional

protection which the doctrine currently extends to state courts. In particular, this

involves assessing the effect of the decision of the High Court in 2004 in Fardon v

Attorney-General (Qld) (Fardon’s Case).5 Fardon’s Case confirms the existence of

the Kable doctrine but shows that the Gleeson Court is presently applying it in a

cautious and restrained manner. This attitude of caution is likely to characterise the

judicial development of the doctrine for the foreseeable future. The article

concludes in Part III with some reflections on whether the Kable doctrine should be

included in lists of constitutional human rights protections in Australia. Whether the

Australian community is better off because of the Kable doctrine’s existence is also

considered. As will be seen, there is room for doubt on both these matters.

The Kable doctrine is an implication from the Australian Constitution which

prevents state parliaments from making certain laws that adversely affect the

integrity of state courts. As currently understood, the doctrine has two components.

First, it prevents state parliaments from abolishing their Supreme Court,6 or, at least,

from legislating to abolish the state judiciary in its entirety.7 Secondly, and more

controversially, it prevents state parliaments from giving functions to state courts

that would undermine the ‘institutional integrity’8 of those courts as part of the

Australian judicial system, including their independence from the political arms of

government. To take a simple example, under the doctrine a state court could not be

empowered to determine the state’s budgetary priorities.9 To give a state court a

non-judicial function of this nature would clearly embed the court in the political

process and compromise its independence from government. Importantly,

legislation that infringes the Kable doctrine is invalid. The doctrine is thus a ‘hard’

as opposed to a ‘soft’ rule of constitutional law.

The Kable doctrine was first recognised by the High Court in 1996 in Kable v

Director of Public Prosecutions (NSW) (Kable’s Case).10 There a majority of the

High Court found the Community Protection Act 1994 (NSW) invalid. The

Community Protection Act was a preventive detention statute. Even when judged by

the standards of other preventive detention regimes, it contained several ‘striking’11

and unusual features. Specifically, it empowered the Supreme Court on the

application of the Director of Public Prosecutions (DPP) to order that Mr Kable be

detained in prison if the court was satisfied of two things. First, that Mr Kable was

‘more likely than not to commit a serious act of violence’ and, secondly, that his

detention was ‘appropriate’ for ‘the protection of a particular person or persons or

the community generally’ (s 5(1)). It followed that a detention order was based not

on what Mr Kable had actually done, but on an assessment by the Supreme Court

— or as one High Court judge put it ‘an educated guess’12 — as to what he might do

in the future.13 In addition, although an order under the Act resulted in Mr Kable’s

imprisonment, the DPP’s case against him only needed to be proved on the balance

of probabilities (s 15). The standard rules of evidence were also modified by

widening the range of admissible materials (s 17). The most startling feature of the

Community Protection Act, however, was its ad hominem character. Its object was

‘to protect the community by providing for the preventive detention … of Gregory

Wayne Kable’ (s 3(1)). The Act thus identified Mr Kable by name and was

expressed to apply to him alone.

The circumstances that led to Gregory Wayne Kable being targeted in this way bear

all the hallmarks of contemporary law and order politics. Mr Kable had been

convicted in 1990 of the manslaughter of his wife and sentenced to several years

imprisonment. The Community Protection Act was passed shortly before he was due

to be released. The legislation was initiated by the minority Fahey Government and,

when introduced into Parliament, was of general application.14 It was widely

understood that Mr Kable was the ‘genesis of th[e] legislation’, however.15 Thus,

when Opposition and other non-government members expressed concern about the

far-reaching nature of the proposed law, it was amended to apply to Mr Kable

alone.16 In subsequent debate on the Community Protection Bill the Minister for

Police told Parliament that Mr Kable had ‘come to the notice’ of the government

because of letters he had written while in prison containing ‘veiled threats of

violence’ to others. To protect the public ‘every avenue which might allow for Mr

Kable’s detention beyond his release date’ had been explored. The existing law had

been ‘found wanting’, however, prompting the Bill.17 The Minister conceded that

the government was ‘aware of the unprecedented nature of the proposed

legislation’18 but claimed that Mr Kable’s civil rights had not been neglected, one

safeguard being the Supreme Court’s involvement in the detention process.19

Independent MP John Hatton, however, forcefully condemned the Bill as ‘enacted

specifically to deprive an individual of his rights before the law’ and as ‘passed

because a State election is approaching’.20

Despite the Community Protection Act’s extraordinary features, the decision in

Kable’s Case that the Act was invalid surprised many constitutional commentators.

In particular, decisions prior to Kable’s Case appeared to accept that state

parliaments had general law-making power over state courts.21 In successfully

challenging the established constitutional position, Mr Kable was fortunate to be

represented in the High Court by the late Sir Maurice Byers QC in one of Sir

Maurice’s final High Court appearances.22 Sir Maurice was a constitutional

advocate of rare ability. In addition to Kable’s Case, his many High Court victories

included the Tasmanian Dam Case and Australian Capital Television Pty Ltd v

Commonwealth.23 In Kable’s Case a majority of the High Court accepted Sir

Maurice’s novel constitutional arguments and struck down the Community

Protection Act on the basis that it undermined the Supreme Court’s independence

from the New South Wales government and required that court to act inconsistently

with its traditional functions. This in turn was incompatible with the Supreme

Court’s wider role under the Australian Constitution as a body capable of exercising

both state and federal judicial functions.24 Writing in Kable’s Case, McHugh J

identified the Act’s fatal flaws as follows:

imprison a person.25

Thus, Mr Kable was freed from the continuing threat of civil detention because of a

finding that the Act damaged the institutional integrity of the Supreme Court. In

accordance with the Kable doctrine, it was the effect of the Act on the Supreme

Court, rather than on Mr Kable, which was the source of invalidity.

A full analysis of the basis upon which the High Court found the Kable doctrine to

be implicit in the Australian Constitution is beyond the scope of this article.26 In

essence, however, the High Court derived the Kable doctrine from a broad reading

of the Constitution that emphasised the role played by state courts within the

Australian judicial system as a whole. Specifically, the majority in Kable’s Case

reasoned that the Constitution contemplates a system where the functions of state

and federal courts are integrated with each other.27 Two forms of integration were

highlighted. First, the majority drew attention to the fact that the Constitution

expressly allows the Commonwealth Parliament to invest state courts with federal

judicial power (ss 71 and 77(iii)). Indeed, under the umbrella of these provisions,

state courts have decided federal matters throughout the history of the

Commonwealth and continue to play a vital role in the federal justice system. Trials

of federal offences, for example, take place almost exclusively in state and territory

courts.28 Secondly, it was pointed out that the Constitution recognises that a federal

court — the High Court of Australia — is the final court of appeal for state and

federal courts on questions of both state and federal law, including the common law

(s 73).29 In light of this ‘constitutional scheme’, the High Court reasoned that state

courts cannot be given functions that would ‘undermine the[ir] role’ as part of the

wider Australian judiciary, particularly as bodies capable of deciding federal

cases.30 Thus it followed that there was a limitation on state power protecting the

institutional integrity of state courts against the threat posed by incompatible

functions such as those contained in the Community Protection Act.31

The Kable doctrine was accordingly based on the need to uphold the basic design or

scheme of the Constitution’s judicature provisions. It was the result of a broad,

purposive reading of the constitutional text, rather than a formal examination of the

meaning of specific constitutional language. Given the bold and expansive nature of

this reasoning, it is not surprising that a number of constitutional commentators

have found the Kable doctrine limitation on the functions of state courts difficult to

accept.32

The constitutional significance of the Kable doctrine lies in the fact that it

transforms longstanding assumptions about the extent of the protection which the

Australian Constitution confers on federal and state courts respectively. On the one

hand, Commonwealth legislative authority has always been regarded as limited by a

binding separation of judicial power.33 As expounded by the High Court since 1909,

the federal separation doctrine limits Commonwealth power in two main ways.

First, the Commonwealth Parliament, when conferring judicial power, must vest

that power in a court as opposed, for example, in an administrative tribunal.

Secondly, under the federal separation doctrine, federal courts cannot validly be

given legislative or executive functions such as making industrial awards or

undertaking merits review of administrative action.34 Both these limitations operate

in practice as important constraints on Commonwealth law-making. In particular,

they have shaped the federal industrial relations system35 as well as the framework

for review of federal administrative action36 and enforcement of federal human

rights law.37 In 1999 in Re Wakim; Ex parte McNally,38 the principles associated

with the federal separation doctrine led to the collapse of a major part of the

national scheme for cross-vesting the jurisdiction of Australian courts.

State parliaments, by contrast, have traditionally been regarded as possessing

unlimited power over state courts. Thus historically an enforceable separation of

powers has not operated at state level, under either the state constitutions or the

Australian Constitution.39 Clearly, the outcome in Kable’s Case now alters this,

bringing state courts and their functions within the control of the Australian

Constitution to an extent that had not been anticipated prior to that decision. In this

sense, the Kable doctrine is a ‘radical’40 addition to the body of Australian constitutional

law. Nonetheless, there remain major differences between the Kable doctrine

and the federal separation doctrine.41 The Kable doctrine does not prevent state

courts receiving non-judicial functions as such. It is only when those functions are

‘incompatible’ with their ‘institutional integrity’ as components of the ‘integrated

Australian court system’ contemplated by the Constitution for the exercise of state

and federal judicial power that the doctrine is engaged.42 Thus unlike the federal

doctrine, the Kable doctrine does not shield state courts from all types of legislative

and executive power. Moreover, Kable’s Case still allows state parliaments to vest

state judicial functions in tribunals and other non-judicial bodies.43 It follows that

while the Kable doctrine is an important inroad on state power, it is much more

confined than the corresponding limitation on the Commonwealth.

Since the constitutional changes brought about by the Kable doctrine in 1996, the

High Court, which now includes four Howard Government appointees, has arguably

become more conservative in its approach to the Australian Constitution.44

available at http://www.hcourt.gov.au/publications_05.html (viewed 10 February 2005).

Nonetheless, in Fardon’s Case in 2004 the Gleeson Court affirmed that the Kable

doctrine remains part of Australian law. Fardon’s Case represents the High Court’s

most significant re-examination of the Kable doctrine since Kable’s Case itself.

Although in Fardon’s Case the High Court upheld the validity of the state law

under challenge, no judge queried the legitimacy of the Kable doctrine. In addition,

in another recent judgment — North Australian Aboriginal Legal Aid Service Inc v

Bradley45 (NAALAS v Bradley) — the High Court extended the Kable doctrine’s

coverage to the territories, accepting that it limits both state and territory legislative

power.46 Thus, in light of Fardon’s Case and NAALAS v Bradley, the Kable

doctrine, despite recent changes in High Court membership, must now be regarded

as an established feature of the constitutional landscape.47 The critical question is

instead its scope.

What sorts of laws does the Kable doctrine, as re-examined in Fardon’s Case,

prevent state and territory parliaments from enacting? The concepts that underpin

the Kable doctrine — in particular the idea that certain functions are incompatible

with the institutional integrity of a state court — are flexible enough, at least in

theory, to support a wide range of limitations on state legislative power over state

courts. Can it be argued, for example, that the application by a state court of a

racially discriminatory law would undermine its ‘institutional integrity’ as part of

the Australian judicial system? Although a majority of the current High Court

would almost certainly say no — there is no general constitutional prohibition

against discrimination in Australian law48 — the leading High Court cases on the

Kable doctrine fail to define the concepts of incompatibility and integrity ‘in terms

which necessarily dictate future outcomes’.49 Instead the High Court has tended to

explore the question whether a function or arrangement is incompatible with the

institutional integrity of a state court on a case-by-case basis, focusing on the

specific features of the state legislation under challenge. While this incremental

approach is consistent with traditional judicial method, it provides limited guidance

for state law-makers concerned to ensure the validity of their legislative schemes.50

What is clear is that the High Court, with the exception of Kirby J, is currently

applying the Kable doctrine in a guarded and restrained way. Gummow J in

Fardon’s Case suggested that the doctrine will invalidate legislation ‘infrequently’.

51 In the same case, McHugh J claimed that ‘Kable is a decision of very limited

application’.52 Indeed, despite considerable litigation involving the Kable doctrine,

the Community Protection Act remains the only law struck down by the High Court

on this basis. Moreover, there has been only one successful Kable doctrine

challenge in the state courts.53 Bearing these matters in mind, a series of propositions

designed to provide state law-makers with general guidance concerning the

scope of the Kable doctrine follow. The propositions and accompanying examples

draw largely from Kable’s Case, Fardon’s Case and NAALAS v Bradley. In the

course of this discussion, the actual decision in Fardon’s Case is also explored.

1. First, as stated above, the Kable doctrine limits both state and territory

legislative power. Theoretically, it also limits Commonwealth legislative power.54

In practice, however, the Kable doctrine is unlikely to add to the significant

constitutional limitations to which the Commonwealth’s power to affect state courts

is already subject.55 While NAALAS v Bradley shows that Kable’s Case applies in

the territories, the state and territory limitations are not necessarily identical in

scope. The special status of the territories under the Australian Constitution —

territories are subject to the general overriding power of the Commonwealth

Parliament (s 122) and territory courts, unlike state courts, are not mentioned in the

Constitution — means that the possibility of some difference in operation of the

doctrine there cannot be excluded.56 It seems unlikely, for example, that the

Constitution guarantees the existence of a system of territory courts.57 The

incompatibility limb of the Kable doctrine, by contrast, is likely to constrain state

and territory legislative power to a similar extent.

2. Secondly, under the Kable doctrine, a state court can still exercise nonjudicial

functions so long as the functions concerned are compatible with the court’s

institutional integrity as part of the wider Australian judicial system. For example,

there is little doubt that the activity of independent merits review of administrative

action, although forbidden to a federal court, can validly be conferred on a state

court consistently with Kable’s Case.58 By parity of reasoning it follows that if a

particular function can be classified as ‘judicial’ and can validly be conferred by the

Commonwealth on a federal court, it can also be given by a state to a state court

without infringing the Kable doctrine.59 Over many years, the High Court has given

the constitutional concept of ‘judicial power’ a broad interpretation. It has

recognised, for example, that ‘discretionary powers, and jurisdiction to apply broad

standards’60 are part of normal judicial activity. Thus under the Kable doctrine, state

parliaments can continue to confer judicial functions of this kind, such as those

commonly found in fair trading and contracts review legislation, on state courts.

3. Thirdly, and as also stated above, the High Court has not developed a single

unifying test for identifying those functions that state parliaments can no longer

confer on state courts. Proceeding case-by-case, the High Court has instead

considered a number of factors when determining whether a particular use of a state

court undermines its constitutionally entrenched institutional integrity.61 Kable’s

Case and Fardon’s Case suggest that functions which undermine the independence

and impartiality of state courts — whether in actuality or appearance — are

particularly vulnerable to Kable doctrine invalidity.62 Situations in which the

political branches of government seek to ‘co-op’ state courts into reaching a

particular outcome or which involve courts acting in a manner significantly at odds

with traditional judicial procedure — such as contrary to the rules of natural justice

— are also suspect.63 Significantly, all three factors were present on the facts of

Kable’s Case and each contributed to the High Court’s finding that the Community

Protection Act was invalid. As discussed in Part I, the disabling features of that Act

‘included the apparent legislative plan to conscript the Supreme Court … to procure

the imprisonment of … [Mr Kable] by a process which departed in serious respects

from the usual judicial process’.64

By contrast, in Fardon’s Case state legislation with similar policy objectives to that

considered in Kable’s Case survived constitutional challenge. Fardon’s Case

concerned the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). This Act

allowed the Supreme Court on the application of the Attorney-General to order that

a serious sexual offender remain in prison even though the offender’s term of

imprisonment had expired. Under the Act the Supreme Court could make such an

order if ‘satisfied the prisoner is a serious danger to the community’ because of ‘an

unacceptable risk that the prisoner will commit a serious sexual offence’ (s 13(1)

and (2)). In distinguishing this law from the failed Community Protection Act, the

majority in Fardon’s Case highlighted several elements of the Queensland

preventative detention scheme. For example, unlike the Community Protection Act,

the Queensland Act was of general application and permitted the Supreme Court to

make a detention order only if ‘satisfied by acceptable, cogent evidence and to a

high degree of probability’ (s 13(3)). If this standard was met, the Court had a

choice whether to order continuing detention or the prisoner’s supervised release (s

13(5)). The Act also provided for regular review by the Supreme Court of the

continued need for a detention order (Pt 3). In this setting, it was accepted by the

High Court that the law did not threaten the Supreme Court’s independence — in

contrast to Kable’s Case no perception could arise that the Supreme Court was

being used ‘as a mere instrument of government policy.’65 Moreover, the Supreme

Court was required to act consistently with judicial process.66

Fardon’s Case demonstrates that despite the outcome in Kable’s Case, state courts

can still validly be empowered to order preventative detention. However, this is

provided the relevant legislative scheme preserves judicial independence and

respects basic judicial procedure. The difference between the legislation considered

in Kable’s Case and Fardon’s Case was one of degree only, however. In this

regard, Fardon’s Case highlights the subtle distinctions the Gleeson Court is

inclined to draw in its constitutional reasoning. Whether the legislation considered

in Fardon’s Case was properly distinguishable from that in Kable’s Case is clearly

open to debate.67

4. Fourthly, while Fardon’s Case shows that careful legislative drafting and

design will do much to shield a state law from a successful Kable doctrine

challenge, the decision offers few specific insights into the Kable doctrine’s

application beyond preventative detention. Nonetheless, Fardon’s Case may signal

that legislation giving state courts power to impose an indefinite sentence upon a

defendant found guilty of a criminal offence is valid.68 If so, this outcome would be

consistent with the decision of the Victorian Court of Appeal in R v Moffatt which,

in the immediate wake of Kable’s Case, upheld the validity of Victorian indefinite

sentencing laws.69 Curiously, the High Court in Fardon’s Case did not comment

upon the decision of the Queensland Court of Appeal in Re Criminal Proceeds

Confiscation Act 200270 — the only state court decision striking down legislation on

Kable doctrine grounds. There a Queensland law that required the Supreme Court to

hear an application by the State for a property restraining order in the absence of the

affected person and without that person having notice of the proceedings was held

invalid. In reaching this conclusion, the Court of Appeal accepted that the law

required the Supreme Court to act contrary to natural justice and to proceed ‘in a

manner which ensures the outcome will be adverse to the citizen and deprives the

court of the capacity to act impartially’.71 Although this decision turned on quite

specific legislative provisions, the outcome seems correct in the circumstances.

5. Fifthly, it is important to recall that the Kable doctrine, at least as currently

understood, does not prevent state judicial power being exercised by state

legislatures or state executive bodies such as non-judicial tribunals.72 In other

words, the doctrine does not dictate that only courts can exercise state judicial

functions. This is a significant qualification upon the scope of the Kable doctrine

when compared with the federal separation of judicial power.73 In recent decades,

state and territory parliaments have conferred a range of judicial responsibilities on

administrative tribunals — such as the Victorian Civil and Administrative Tribunal

— usually with the object of promoting accessible and relatively inexpensive

dispute resolution.74 At the federal level, by contrast, the federal separation doctrine

largely prevents the use of non-judicial tribunals in this flexible way. Nonetheless,

were a state parliament to strip its courts, especially its Supreme Court, of judicial

power and transfer that authority to non-judicial bodies, the Kable doctrine would

arguably be infringed.75 Such action would be tantamount to abolishing the

Supreme Court, a step which the Kable doctrine prohibits.

6. Sixthly, in several respects the ultimate institutional boundaries of the

Kable doctrine remain to be determined. For example, and as several commentators

have noted, there is lingering uncertainty over whether the Kable doctrine limits the

functions that may be conferred on all state and territory courts. The activities of

state Supreme Courts are clearly subject to the Kable doctrine, but what about

District or County Courts and Magistrates Courts?76 The constitutional theory that

supports the Kable doctrine suggests that it should logically operate to shield all

state and territory courts that decide federal cases from incompatible functions. On

this basis, District and Magistrates Courts fall within the ambit of the limitation.77

NAALAS v Bradley, in which the High Court entertained a Kable doctrine challenge

to provisions of the Magistrates Act (NT), reinforces this view. Although the High

Court decided NAALAS v Bradley on the basis that the relevant territory legislation,

properly understood, did not undermine the magistracy’s institutional integrity, the

decision indicates that the High Court regards the incompatibility doctrine as

operating in regard to both Supreme Courts and Magistrates Courts.78 Given the

significant role played by lower state courts in the wider Australian justice system,

this is an appropriate outcome. The real question is likely to be whether the

incompatibility test is stricter in the case of higher as opposed to lower courts. There

are hints in NAALAS v Bradley that this might be so.79

Law, Sydney, 16 February 2005) 3 available at http://www.gtcentre.unsw.edu.au/ Conference-

Papers-February-2005.asp (viewed 29 June 2005).

In addition, there are live questions about the effect, if any, that the Kable doctrine

has on the conditions under which state judges are appointed, including their tenure

and remuneration.80 In NAALAS v Bradley six members of the High Court raised the

question of ‘the application of Kable to a series of acting rather than full [judicial]

appointments which is so extensive as to distort the character of the court

concerned’.81 Acting appointments were not under consideration in NAALAS v

Bradley, so the Court tantilisingly left the question open. This passage is significant,

however, because it suggests that the Kable doctrine may limit state power in

relation to the structure and composition of state courts as well as the functions they

perform.82 If so, this would be an important expansion in the reach of the doctrine.

Moreover, since some state courts have made heavy use of acting judges in recent

times — in its 2003 Annual Review, the District Court of New South Wales

reported that 35 individuals held a commission that year as an acting judge of the

court83 — the High Court’s sensitivity to this particular practice cannot be ignored.

The use of an acting judge or judges may, of course, depending on the

circumstances compromise judicial independence.84

7. Seventhly and finally, the Kable doctrine, as it emerges from the above

propositions, is clearly a constitutional work in progress. How it develops from this

point will depend largely on shifting patterns of interpretation in the High Court.

The extent to which the states seek to reform their judicial procedures and court

structures and the ingenuity of leading barristers and constitutional advisers in

shaping the course of constitutional litigation will also be significant. For the time

being, it appears that the doctrine will evolve slowly and in a piecemeal fashion,

imposing only relatively narrow limitations on state power. In the hands of a more

adventurous High Court, however, the doctrine could be readily refashioned to

protect an expansive range of due process interests traditionally associated with the

work of the courts.

http://www.lawlink.nsw.gov.au/dc.nsf/pages/Annual%20Review%202 (viewed 29 June 2005). In

Reflecting on the wider impact and significance of the Kable doctrine, the question

whether the doctrine should be regarded as an addition to the armoury of

constitutional human rights protection in Australia is an important one. The answer

has the potential both to shape general understanding of the role of the Australian

Constitution and to guide future development of the doctrine itself, whether that

development proceeds cautiously or at greater pace. Taken at face value, the

outcome in Kable’s Case clearly suggests that the Kable doctrine is rights protective

in nature. The doctrine led to the invalidity of a contentious piece of legislation that,

to repeat the assessment of MP John Hatton, was designed to ‘deprive an individual

of his rights before the law’.85 In addition, the fact that the Kable doctrine creates a

separation of judicial power in the states and protects the existence and

independence of state courts as part of the Australian judicial system — albeit to a

qualified extent — also lends the doctrine a rights protective claim. All western

liberal democracies accept that an independent judiciary is an essential requirement

for the maintenance of individual liberty and the rule of law.86

On the other hand, in an article published shortly after Kable’s Case was decided,

Elizabeth Handsley convincingly argued that Mr Kable may have enjoyed more

‘rights protection’ under the Community Protection Act — which at least meant that

his continued detention was subject to some form of judicial scrutiny — than the

alternative of detention by direct legislative decree.87 For, as explained in Part II

above, if courts are kept out of the decision-making loop, then the Kable doctrine,

as currently understood, is not engaged. Of course, a parliament or minister that

orders the imprisonment of a person in circumstances like those involving Mr

Kable, or that gives that task to another non-judicial body, must face the political

consequences of their actions. But as Handsley points out, in the current political

climate such actions may be electoral pluses, rather than liabilities.88 In Fardon’s

Case, Gleeson CJ similarly recognised the ‘paradox’ inherent in the Kable doctrine,

hinting that the doctrine could potentially result in certain decisions about individual

rights being transferred from the judiciary to the executive where diminished due

process safeguards apply.89 By contrast Kirby J, who has applied the Kable doctrine

more broadly than any other current member of the High Court, clearly regards the

doctrine as protecting civil liberties. In his dissent in Fardon’s Case he emphasised

the role of the doctrine in protecting ‘the rights of unpopular minorities’.

Specifically, he claimed that the doctrine helped prevent ‘serious injustices’ against

such groups being cloaked ‘with the semblance of judicial propriety’.90

Which of these two perspectives is correct? It may be that both have validity and

that the Kable doctrine and the outcome in Kable’s Case resist neat classification.

For whether broadly or narrowly applied, the Kable doctrine remains grounded in

the need to preserve the institutional arrangements adopted by the Australian

Constitution for the exercise of judicial power. Given these institutional

foundations, the doctrine — like the federal separation of judicial power — cannot

be directly rights protective in the same way as, for example, the express

constitutional guarantee against discrimination on the basis of interstate residence (s

117). However the Kable doctrine may — again like the federal separation doctrine

— produce a rights protective effect, particularly in maintaining judicial

independence and the rule of law.91

In addition, despite Handsley’s argument that Kable’s Case was a setback for civil

liberties, as a landmark ruling the decision retains the capacity to shape our legal

and political culture in a way that promotes human rights. An imperfect analogy

in this regard is with the constitutional demise of another piece of ad hominem

legislation, the Communist Party Dissolution Act 1950 (Cth). That Act famously

failed in the High Court because of a doctrine based on the rule of law under a

federal Constitution92 — in essence, the High Court found that the Commonwealth

Parliament did not have power to make laws about communism. The fact that state

parliaments could have legislated to dissolve the Communist Party and were free

to impose a greater range of civil disabilities upon communists than the

Commonwealth, has not prevented the outcome in the Communist Party Case being

regarded as a victory for civil rights in Australia.93 Kable’s Case can be seen in a

similar light. Thus, while many civil libertarians would condemn the legislation

upheld in Fardon’s Case, that legislation — which significantly retains a role for

the courts in ordering preventative detention — surely contains more safeguards for

the defendant than if Kable’s Case had never been decided.

In conclusion, is the Kable doctrine a worthwhile constitutional innovation?

Acknowledging its place in our constitutional jurisprudence following Fardon’s

Case, should Australians be applauding it? The uncertain scope of the doctrine, in

particular the lack of a clear framework for its application, is a continuing cause for

concern.94 Given the general language in which much of the Australian Constitution

is written and its role as ‘an instrument of government meant to endure’,95

uncertainty in constitutional interpretation is inevitable. But if a constitutional

doctrine exists, it must be possible to frame that doctrine in a way that provides

reasonable clarity and predictability for those bound to observe it. Viewed from this

perspective, the Kable doctrine, a decade after its appearance, is under-performing.

On the other hand, the recognition of a basic level of constitutional protection

for state courts within the state governmental systems is surely a desirable outcome,

especially when compared to the constitutional position that prevailed at state

level prior to Kable’s Case. In an era in which there are recurring tensions between

the courts and the political arms of government, the limited legal and symbolic

protection that the Kable doctrine places around state courts will arguably

improve overall legislative outcomes for Australians. The need to ask the Kable

doctrine question whenever legislation affects state courts will necessarily lead to

closer consideration being given to the impact of state laws on core values of

judicial independence and due process. So long as the political process forestalls

any significant transfer of functions away from the courts, thereby meeting

Handsley’s concerns, increased attention to the integrity of our courts is surely

a good thing. ・｣