The Integrity of State Courts under the Australian Constitution

DOI10.1177/0067205X19875008
AuthorPatrick Emerton
Date01 December 2019
Publication Date01 December 2019
SubjectArticles
Article
The Integrity of State Courts
under the Australian Constitution
Patrick Emerton*
Abstract
The well-known Kable decision, and the line of authorities to which it has given rise, derives a
doctrine of the integrity of state courts from Ch III of the Australian Constitution. The basis for this
doctrine, however, as well as its meaning and extent, remains contentious. This article articulates a
coherent basis for the Kable doctrine, which both reveals it to rest on a genuine implication arising
from the text of Ch III and contributes to an understanding of the content of the doctrine. The
method that the article adopts to achieve a rigorous grounding of the Kable doctrine is pre-
dominantly theoretical, combining three philosophical approaches: a speech-act analysis of the
relevant constitutional provisions, the semantic externalist theory of reference developed by
Putnam and Kripke and a sociological understanding of institutions (including legal institutions)
along the lines developed by Selznick. As the Kable doctrine is one of the fundamental components
of contemporary Australian public law, showing that it is not merely a product of judicial invention
in pursuit of desirable policy, but rather is genuinely grounded in the text of the Constitution,is
important for establishing not only the legitimacy of the doctrine itself but the legitimacy of that
larger body of law.
I Introduction
The well-known decision in Kable v Director of Public Prosecutions (NSW) (‘Kable’),
1
together
with the line of authorities to which it has given rise, derives a doctrine of the integrity of state
courts from Ch III of the Australian Constitution. The basis for this doctrine, however, as well as its
meaning and extent, remains contentious: the Kable decision has been subject to a significant
amount of criticism from leading commentators, both academic and non-academic,
2
and the
subsequent decision in Kirk v Industrial Court of New South Wales (‘Kirk’)
3
has triggered addi-
tional criticism.
4
* Associate Professor, Faculty of Law, Monash University, Clayton, Melbourne, Australia. The author may be contacted at
patrick.emerton@monash.edu. A first draft of this article was presented at a conference on Judicial Independence in
Australia: Contemporary Challenges, Future Directions held at the University Queensland, July 2015. I am grateful to
participants at the conference, and in particular Rebecca Anania n-Welsh, Jonathan Crowe and Fi ona Wheeler, for
their comments. I am also grateful to Lisa Burton Crawford, Jeffrey Goldsworthy, Tria Gkouvas, Julian Sempill,
Lawrence Solum, Dale Smith an d David Tan for reading earlier dr afts and providing helpful co mments and fruitful
discussion. And I am indebted to Jeffrey Goldsworthy and Martin Krygier for discussions of the ideas and
methodological approaches that have enabled me to write this article.
Federal Law Review
2019, Vol. 47(4) 521–550
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19875008
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This article defends the Kable doctrine against this criticism. The article does not set out to
vindicate every case in the Kable line as rightly decided. It does not engage with the details of the
Kable case itself and offers (in its conclusion) only the outline of a defence of the outcome in Kirk.
Rather, the article defends the general approach and orientation of the whole line of cases. It does
this by articulating a coherent basis for the Kable doctrine, which both reveals it to rest on a
genuine implication arising from the text of Ch III and contributes to an understanding of the
content of the doctrine.
The method that the article adopts is predominantly theoretical, and in places quite technical.
This is necessary to achieve a rigorous grounding of the doctrine being defended. Nevertheless, the
hope is that this use of theory, including technical theory, will not obscure the practical signifi-
cance of the article’s argument and conclusions. The Kable doctrine is one of the fundamental
components of contemporary Australian public law. Prior to the Kable decision, it was widely
thought that Ch III of the Constitution, while giving rise to a range of express and implicit
requirements in respect of federal courts, did not do the same in respect of state courts. However,
‘[t]his view of the generally unrestricted power of the States with respect to their courts was
decisively changed by the decision in Kable’.
5
Chapter III is now understood to require states
to maintain a system of courts having institutional integrity, that is to say, both the appearance and
reality of impartiality, fairness and independence from the other arms of government.
6
Showing
that this doctrine is not merely a product of judicial invention in pursuit of desirable policy, but
rather is genuinely grounded in the text of the Constitution, is therefore important for establishing
not only the legitimacy of the doctrine itself but the legitimacy of the larger body of public law of
which the doctrine is now an integral part.
The article begins by briefly setting out the constitutional background. It then presents two
arguments. The first argument is a ground-laying one: it provides a detailed, technical account of
how it is that Ch III mandates the existence of state Supreme Courts. Because this mandate arises
by way of implication, this first argument provides a detailed account of the basis and working of
this implication, which includes showing that it is generated in a fashion that critics of the Kable
line of cases have failed to fully appreciate.
The second argument builds on the first. It shows why state courts, including the Supreme
Courts whose existence is co nstitutionally mandated, mu st answer to various constitut ionally
mandated descriptions that (taken together) constitute a requirement of institutional integrity. And
it considers the content of these constitutionally man dated descriptions that state courts must
satisfy. Key to this second argument is an explanation of why the requirement of institutional
integrity cannot be given its full content simply by attending to the formal character of colonial
Supreme Courts at the time of federation. This is why the contemporary application of the Kable
doctrine can produce results that would be surprising from the point of view of the founders of the
Constitution. To the extent that such outcomes cannot be accommodated by contemporary origin-
alist methodology, such methodology should accordingly be rejected.
7
As already noted, the article
concludes with a discussion of Kirk, thereby providing a practical illustration of the significance of
the article’s arguments.
Both arguments begin from the methodological starting point that the Constitution is a linguistic
performance—a written text inviting interpretation—and hence that methods of technical analysis
of linguistic performances can shed light on the law to which the Constitution gives rise. The view
that the technical analysis of language can aid in understanding how written instruments, like the
Constitution, create law, is widely held.
8
Recognition of the constitutional text as binding, and as
522 Federal Law Review 47(4)

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