Laboratory Federalism and the Kable Principle

Date01 September 2014
DOI10.22145/flr.42.3.4
Published date01 September 2014
Subject MatterArticle
LABORATORY FEDERALISM AND THE KABLE PRINCIPLE
Brendan Lim*
ABSTRACT
Federalism permits sub-national diversity and experimentation. The Kable principle
limits sub-national diversity and experimentatio n in relation to state courts. But this
apparent tension between 'laboratory' federalism and the Kable pri nciple is somewhat
illusory. Kable does not always hinder experimentation, but rather enables it by securing
its necessary preconditions. By preventing state legislatures and governments from
conscripting state courts to implement political designs, the Kable principle prevents
state legislatures and governments fro m using state courts as a 'cloak' a gainst political
accountability. This preserves the capacity of sub-national c ommunities to compare
policies across multiple jurisdictions, t o express their preferences through 'ex it and
voice', and thereby to render sub-national experimentation ef fective on its own terms.
I INTRODUCTION
Justice Heydon recently said:
A federation is a system of government permitting diversity. It allows its component units
to engage in their own legislative experiments … Kable v Director of Public Prosecutions
(NSW) cut into that concept of the Austra lian federation by reducing th e legislative
freedom of the states.1
There is, to be sure, a tension between the continuing capac ity of state legislatures to
experiment with policies that affect state courts and the harmonising effect of the Kable
principle. This tension between divergence and convergence is one manifestation of
what I identified in a previous wor k as two 'conflicting commit ments of the federal
structure': autonomous states and integrated courts. 2 Pulling in one direction, state
courts are a part of t he states in their const itutional conception a s independe nt bodies
* Barrister, New South Wales Bar; Centre Fellow, Gilbert + Tobin Centre of Public Law,
UNSW. Thanks to Gabrielle Appleby, who provoked me to develop the argument into an
article and with whom I have enjoyed a productive exchange of ideas. Thanks also to the
anonymous referees for several helpful suggestions.
1 Public Service Association and Professional Officers' Association Amal gamated (NSW) v Director of
Public Employment (2012) 250 CLR 343, 369 [61][62] (footnote omitted).
2 Brendan Lim, 'Attributes and Attribution of State Courts Federalism and the Kable
Principle' (2012) 40 Federal Law Review 31, 33–4 ('Attributes and Attribution').
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politic 'separately organiz ed'3 and endowed with the conti nuing capacities to func tion
as governments, including the c apacity to make provision for their own courts.4 Pulling
in the opposite direction, state courts are a part of the national judicial system created
by Ch III of the Constitution. State courts, therefore, are not only 'creatures of the States',
but also 'have a role and existence that transcends thei r status as courts of the Sta tes'.5
Maintaining these two conflicting commi tments is a practical exercise in federalism. It
necessarily involves trade-offs and compr omises. The more that Kable is deploye d to
integrate state courts withi n a uniform, national conce ption of what it means for a n
institution to be a 'court', the less scope there will remain for states to exercise autonomy
in respect of 'their own' courts. Conversely, the more autonomy that we permit to the
states in respect of 'their own' courts, the less integrated will be the nationa l judicial
system. A 'cou rt of a State', within the mean ing of that 'constitutional expre ssion',6 is
both a 'court of a State' and a 'court of a State'. The alternative emphases are inevitably
and constantly in tension.
In one of its several guises, however, the Kable principle actually secures a vital
precondition for policy experimentati on and diversity in the states. T hat vital
precondition is 'visibility', in the form of transp arent lines of institutional r esponsibility
and accountability, which enables the political process to discipline, a nd thereby
legitimate, experimentation and diversity. In this article, I explain why 'visibility' is a
precondition of experime ntation by the states, and I explain how the Ka ble principle
secures it. I do so in service of just one quite si mple point: the apparent tension between
laboratory federalism and the Kable principle is illusory. Sometimes, ha rmonisation will
not undermine experimentation in a federation, but will rather be an enabling
precondition. If that ba sic point is correct, then those who favour the capacity for
experimentation in a federation should nonetheless embrace the Kable principle to the
extent that it secures the preconditions of that capacity. Put another way, the desirability
of 'laboratory federalism' is no objection to the Kabl e principle, or at least this
manifestation of the princi ple.
My argument is conceptual, rather than empirical. My question is not whether Kable
has in fact stifled innovation in the states. My question is whether our c onflicting
constitutional commitments to autonomous state s and integrated courts cannot be
reconciled in this respect by comprehending that 'inte gration' can sometimes facilitate
'autonomy'. The basic for m of the argument should be familiar from other contexts.
Antitrust laws prohibit certain kinds of contract. But they do not, on one view,
undermine freedom of contract, properly understood, when they are applied to correct
or pre-empt market distortions, thereby permitting competition to occur:
Antitrust was originally conceived as a limited intervention in free and private processes
for the purpose of keeping those processes free. It tempered laissez faire in order to
preserve a free market system.7
3 Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 82 (Dixon J).
4 Austin v Commonwealth (2003) 215 CLR 185. See also Lim, 'Attribu tes and Attribution', above
n 2, 545.
5 Kable v DPP (NSW) (1996) 189 CLR 51, 1023 (Gaudron J) ('Kable').
6 Ibid 141 (Gummow J); Trust Company of Aust ralia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77,
869 [44][69] (Spigelman CJ). See also J J Spigelman, 'The Centrality of Jurisdictional Error'
(2010) 21 Public Law Review 77, 79; Lim, 'Attributes and Attribution', above n 2, 39.
7 Robert H Bork, The Antitrust Paradox: A Policy at War with Itself (Basic Books, 1978) 418.
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