A New Coat of Paint: Law and Order and the Refurbishment of Kable

AuthorJohn M Williams,Gabrielle J Appleby
Published date01 March 2012
Date01 March 2012
Subject MatterArticle
Gabrielle J Appleby and John M Williams
The Kable doctrine is, a nd has always been, a difficult legal principle to define. For
over a decade, and despite much academic attention, it had little consequence for state
power. Until recently, the High Court deftly avoided its application by employing a
number of techniques. As the politics of law and order in the states have increased,
state Parliaments have felt emboldened by these cases to test the outer limits of their
legislative power. In such an env ironment, federal anti-terrorism measures, introduced
as extraordinary responses necessary for the exceptional nature of terrorism, have
crept into general state policing and expanded. It is in this arena that the Kable
doctrine has emerged once again. The principle is n ow vital to understanding the very
real limits of state power, particularly in the law and order arena. This article traces the
Court's approach to the principle in three recent cases involving the states' anti -
organised crime measures (International Finance Trust Co v New South Wales Crime
Commission, South Australia v Totani, and Wainohu v New South Wales) before offering
some conclusions ab out where the current jurisprud ence leaves the states and their
perpetual campaign to achieve law and order.
One of the few certainties in modern Australian state
politics is that the 'law and
order' will never be far from the daily political agenda. This near iron rule of state
politics makes a political virtue out of a constitutional necessity. As a consequence of
the trajectory of Australian federalism, law and ord er is one of the few areas of
responsibility over which the states continue to hold the reins.
This situation has
We would like to thank Anna Olijnyk, Rebecca Welsh and the anonymous reviewers for
their valuable feedback on earlier drafts of this art icle. The article was first presented as a
paper at the 2011 ANU Public Law Weekend, and we would like to thank the organisers
for that opportunity. All errors and omissions, of course, remain our responsibility.
In this article, reference to 'states' will include the Australian Capital Territory and the
Northern Territory.
This general statement is with the exception of those criminal offences which are incidental
to grants of federal power, and that jurisdiction that has been referred to the
Commonwealth under s 51(xxxvii) of the Constitution (for example, in relation to anti-
2 Federal Law Review Volume 40
resulted in two inter-connected phenomena. The first is that the state political leaders
have sought to maximise political gain from tough law and order policies. Secondly,
this residual state power has become a new theatre for constitutional law. It is this
second phenomenon that will be the overriding concern of this article.
Just as industrial relations drove many key aspects of constitutional jurisprudence
in the first century after federa tion, the states' focus upon law and order has today
become a key driver of the constituti onal agenda and has become vital in defining the
limits of state power. Moreover, this new driver has emerged in a contex t where most
federal issues have now been largely resolved by the Court, which has shifted its focus
to the balance of power between the government and citizen.
Further contextualising the new concern for law and ord er politics is the fact that it
ends a period of heightened distrust for state secrecy. After the increased law and
order tensions of the Cold War period settled and the revelations of widespread abuses
of power within ASIO and the Special Branches of State police in the 1970s,
calls for tougher la w and order policies increased in the 1990s. This was led by intense
public and media focus on the atrocities of individual offenders, and the call f or
governments, that is, politicians, to do more to protect the community from such
people. Such concerns gave rise to the preventative detention regime of t he Community
Protection Act 1994 (NSW), and it was in this context that the High Court confronted
the states' new appetite for tough law and order regimes. While the Community
Protection Act was struck down as repugnant to C hapter III of the Constitution,
High Court then appeared to step back, and for over a decade no state law and order
scheme was found unc onstitutional on the basi s of repugnancy with Chapter III.
Pivotally, Queensland saw success with its Dangerous Prisoners (Sexual Offe nders) Act
2003 that achieved the substantive goals of the earlier New South Wales legislation.
Public calls for more severe law and order policies and strengthened police powers
again increa sed after the terrorist attacks of 11 September 2001 and following. These
calls led to a number of federal schemes to combat the terrorism threat.
At the state level, public concern and political focus has shifted from the moral
outrage triggered by individual offenders that drove the preventative detention
regimes, to the increased threat of organised cr ime in the states. This was led by the
proliferation, perceived or otherwise, in 'bikie'-related violence. In the pursui t of these
organisations the states have again implemented innovative law and order schemes
which have pressed hard against the guarantees found in Chapter III of the
Constitution. This culminated in the control order regimes implemented in South
Australia, New South Wales, Queensland and the Northern Terri tory.
In an ironic nod
to 'experimental' federalism, these legislative innovations draw substantially upon
Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed
(Carolina Academic Press, 2006), 139; Gavan Griffith, 'Report: Second Law Officer to the
First Law Officer 1 July 199531 December 19 96' (Solicitor-General of Australia, 1996) [1.12]
(on file with authors).
See, eg, Commonwealth, Royal Commission on Intelligence and Security, (1977) ('The
Hope Report'); South Australia, Inquiry into the Security Records Held by the Special
Branch of the South Australian Police, Initial Report (1977) ('The White Report').
Kable v DPP (NSW) (1996) 189 CLR 51 ('Kable').
Fardon v Attorney-General (Qld) (2004) 223 CLR 575 ('Fardon').
Serious and Organised Crime (Control) Act 2008 (SA); Crimes (Criminal Organisations Control)
Act 2009 (NSW); Criminal Organisation Act 2009 (Qld); Serious Crime Control Act 2009 (NT).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT