Attributes and Attribution of State Courts — Federalism and the Kable Principle

Published date01 March 2012
AuthorBrendan Lim
Date01 March 2012
Subject MatterArticle
Brendan Lim*
'State courts' can be understood in at least two ways. Their 'attr ibutes' are the
characteristics that define them as 'courts'. Their 'attribution' is the extent to which they
are regarded as emanations of a 'state' in its constitutional conception as a constituent
unit of the federation. The principle first articulated in Kable v Director of Public
Prosecutions (NSW) (1996) 189 CLR 51 ensures the institutional integrity of state courts
by protecting from legislative impairment their defining chara cteristics as 'courts'. It
therefore u nderstands state courts almost exc lusively by their 'attributes'. This article
examines the significance to the Kable principle of also understanding state courts by
their 'attribution'. There are different conceptions of the proper attribution of state
courts, coincident with different visions of how to accommodate simultaneous
constitutional commitments to autonomous states and integrated courts. Those
conceptions influence the content and application of the Kable principle in ways that
are insufficiently appreciated. This insight permits a new perspective on the Kable
principle as a doctrine of federalism, and its recent applications in International Finance
Trust Co Ltd v NSW Crime Commissio n (2009) 240 CLR 319; Kirk v Industrial Court (NSW)
(2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1; and Wainohu v New South
Wales (2011) 243 CLR 181. It also prompts an analysis of a contemporaneous evolution
in the constitutional policy of the Commonwealth, whose Attorney-General typically
intervened in Kable cases in support of the states, until recently seeking to extend to
them certain Chapter III limitations.
* LLM (Yale), LLB(Hons), BMus(Hons), BMa&CompSc (Adel). I profited from opportunities
to present earlier versions of this work, first in a public seminar for the Centre for
International and Public Law (CIPL) at the Australian National University on
19 November 2010, and again to colleagues in the doctoral program a t Yale Law School on
4 November 2011. I thank Professor Kim Rubenstein for the invitation to develop my work
in the CIPL forum; those who attended my presentations, for the stimulating discussions;
and the anonymous referee, and editors, for several helpful suggestions.
32 Federal Law Review Volume 40
DAWSON J: … There are Chapter III courts and there are State courts. Th ey belong to
different judicial institutions.
SIR MAURICE: They are different in many respects.
DAWSON J: They are different in fundamental respects.
SIR MAURICE: They may be, but not in the fundamental respect I am se eking to submit
to your Honours. How can they be different?
DAWSON J: Because they are different institutions, that is why.
KIRBY J: Kable was already a big step for the Court to take, but once you enter upon the
notion that Chapter III speaks to the State judiciary you have to have a theory of how the
State judiciary operates within the aegis of the j udicature, as it is called in the
Constitution, and the whole nation.
The Kable principle is a doctrine of federalism. This deceptively simple truth has been
obscured in the 15 years since the seminal decision in Kable v Director of Public
Prosecutions (NSW).
In that time, the constitutional imperative of the 'institutional
integrity' of state courts has emerged as the touchstone of the principle and has come
to be understood as a function of the 'defining characteristics' or 'attributes' of a
court. The Kable principle now articulates what is and what is not cour t-like.
Accordingly, the considerations it engages a re cognate with conceptions of the
separation of powers rather than conceptions of federalism. This article seeks to recover
the understanding of the Kable principle as an expression of federalism conceptions:
one that is as much about 'state' courts as it is about state 'courts'.
The principle should be stated at the outset. Attempts at neat formulation, however,
risk being either over- or under-inclusive. For now, it suff ices to say that the principle
disables legislatures from impairing the 'instituti onal integrity' of non-federal courts
capable of receiving fed eral jurisdiction,
whether impairment be inflicted by
conferring an incompatible function,
removing an essential function,
impermissibly the court 's composition,
modifying repugnantly the court's procedures
Transcript of Proceedings, Kable v DPP (NSW) (High Court of Australia, S114/1995,
Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, 7 December 1995)
Transcript of Proceedings, Fardon v AG (Qld) [2004] HCATrans 039 (2 March 2004) 3318
(1996) 189 CLR 51 ('Kable').
This includes state Supreme Courts: Kable (19 96) 189 CLR 51; lower state courts: South
Australia v Totani (2010) 242 CLR 1 ('Totani'); and territory courts: North Australian Aboriginal
Legal Aid Service Inc v Bradley (2004) 218 CLR 146 (' Bradley'), 163 [27][29] (McHugh,
Gummow, Kirby, Hayne, Callinan and Heydon JJ). The article focuses on state courts.
Much of what is said can apply with appropriate modification to the territory context,
although different considerations also arise.
Kirk v Industrial Court (NSW) (2010) 239 CLR 531 ('Kirk').
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 ('Forge').
2012 Attributes and Attribution of State Courts 33
or processes,
enlisting the court in service of political ends,
or using incompatibly
members of the court acting as personae designatae.
The apparent reach of the
principle so-stated should be tempered by recognition of the fact that, Kable itself aside,
the High Court did not invalidate any statute on Kable grounds until 2009.
Since then,
the principle has been revived in a number of cases.
The article seeks to understand
not only the principle's substance, but also its waning and waxing over time.
It is u ncontroversial that 'the source of [the Kable principle] is not the separation of
which has no constitutional basis in the states.
As presently understood,
however, the function of th e principle is to protect from impairment those attributes of
state courts that are said to be their 'defining characteristics ',
including impartiality,
decisional independence, adherence to the open court principle and observance of
procedural fairness. Identifying those attributes and their impairment shades into
separation-of-powers analysis because it engages efforts to 'mark a court apart from
other decision-making bodies'.
The theory of the 'defining characteristics' of courts, I
will argue, does not explain why some but not other attribu tes are 'defining' or
'essential', nor can it usefully i nform the pivotal evaluative judgmen t involved in
assessing a specific law against a protected attribute. Recognising that the source of the
Kable principle is not t he separation of powers, the function of the Kable principle ought
now be examined more critically. The article contends that the function of the Kable
principle is t o give effect to incidents of the federal structure. The content of those
incidents is, of course, deeply contested. But it is that contestation, and not contestation
about attributes of courts, that in this context matters most. Thi s is not to say that the
'defining characteristics' of a state court are unimportant. My claim is that the selection
of those characteristics, and the assessment of their impairment in any given case, is
secondary to and dependent upon contested federalism principles.
The Kable principle negotiates two conflicting commitments of the federal structure.
The first commitment is to the continued existence of the states, endowed with the
International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 ('International
Totani (2010) 242 CLR 1.
Wainohu v New South Wales (2011) 243 CLR 181 ('Wainohu').
See, eg , H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 ('Bachrach'); Silbert v DPP
(WA) (2004) 217 CLR 181; Bradley (2004) 218 CLR 146; Baker v The Queen (2004) 223 CLR 5 13
('Baker'); Fardon v AG (Qld) (2004) 223 CLR 575 ('Fardon'); Forge (2006) 228 CLR 45; Gypsy
Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 ('Gypsy Jokers'); K
Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 ('KGeneration').
International Finance (2009) 240 CLR 319; Totani (2010) 242 CLR 1; Wainohu (2011) 243 CLR
181. See also Kirk (2010) 239 CLR 531; Momcilovic v The Queen (2011) 85 ALJR 957
('Momcilovic') (Gummow J, Hayne J and Heydon J).
Wainohu (2011) 243 CLR 181, 208 [43] (French CJ and Kiefel J); see also at 209 10 [45], citing
Totani (2010) 242 CLR 1, 81 [201] (Hayne J).
Totani (2010) 242 CLR 1, 45 [66] (French CJ), citing: Clyne v East (1967) 68 SR (NSW) 385;
Building Construction Employees' and Building Labourers' Federation (NSW) v Minister for
Industrial Relations (1986) 7 NSWLR 372; Nicholas v Western Australia [1972] WAR 168;
Gilbertson v South Australia (1976) 15 SASR 66; City of Collingwood v Victoria [No 2] [1994] 1
VR 652; Gerard Carney, The Constitutional Systems of the Australian States and Territories
(Cambridge University Press, 2006) 3449.
Forge (2006) 228 CLR 45, 76 [63] (Gummow, Hayne and Crennan JJ).

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