10 November 2012


'A New Coat of Paint: Law and Order and the Refurbishment of Kable' by Gabrielle Appleby n John Williams in 40 Federal Law Review (2012) argues that
The Kable doctrine is, and 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 environment, 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 now 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' antiorganised 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 about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.
The authors conclude
The High Court, in International Finance Trust, Totani and Wainohu, has reinvigorated the Kable doctrine. This has manifested itself in three ways. First, with the exception of Heydon J, there is a discernible shift away from the trends of the Court in the initial post-Kable period, which saw a focus on narrow application of principle and construction of statutes to avoid its application altogether. Secondly, the Court seems to be embracing, once again, the necessity of protecting the judicial process. Finally, with the extension of Kable to the conferral of functions on individual judges, Wainohu has also demonstrated the majority will focus upon maintaining the institutional integrity of the Court against any intrusion, regardless of its form. The reinvigoration of Kable has left all the decisions of the post-Kable period intact; so the Court has had to navigate around its precedent (for example, those cases that focus upon the retention of discretion or the giving of reasons). We have argued that this has been done, at times, with little persuasiveness.
The cases have done little to settle the debates as to its basis or scope. Reasons for the doctrine's continued lack of clarity can be posited. First, the stricter, more rigid doctrine of separation of powers at the federal level is itself plagued with uncertainty; a fortiori the Kable principle with its lack of bright lines and tests revolving around the needs of 'institutional integrity', 'independence and impartiality', 'judicial process' and 'public confidence'. Despite the Court's attempts to redefine the basis for the doctrine, these issues around its scope have remained. This must be because the changing basis for the doctrine has led to little change in the focus of its scope. Secondly, the Kable doctrine is now a legal principle that protects the institutional integrity of the state courts from any number of incursions: from the bestowal of functions that undermine their integrity to measures that change their structure and constitution, changes in the process by which they exercise their curial functions, or, as in Wainohu, persona designata conferrals on individual judges. On one view, the protection of the Supreme Court's supervisory jurisdiction as a 'defining characteristic' may also fall within the scope of the principle. If it is to be used as such a large umbrella, it must be capable of adapting to any type of measure that can be concocted by the states that makes incursions into the institutional integrity of the Court.
What are the reasons behind the reinvigoration? There have certainly been significant changes to the composition of the High Court bench and the new appointees have largely moved away from the pragmatism that was often evident in Gleeson CJ's judgments and remains a core of Heydon J's jurisprudence. The state regimes have also changed. The cues from the Court in the post-Kable period undoubtedly encouraged the states to push at the limits of the Kable principle. While the state control order regimes were loosely modelled on the preventative detention and federal anti-terrorism control order schemes, in many respects the states took the measures further. There is definitely a sense in French CJ's Totani judgment that the States had stopped approaching the Kable principle with the 'prudence' that it deserves.
Where does this reinvigoration leave state law and order policies? In Wainohu, the High Court left the way open for the states to redesign the control order schemes within a more palatable framework. However, the approach has recreated a great deal of uncertainty — akin to that following the Kable decision itself. This uncertainty was particularly manifest in the application of the Kable principle in the most recent High Court decision in Momcilovic v The Queen. On one view, such ambiguity plays to the detriment of government and citizen alike, making legislating with constitutional certainty difficult.194 One the other hand, two advantages can be identified. The first is the move away from the uncertainty engendered by the Court's previous approach to statutory construction: the strained constructions that the High Court took of the criminal intelligence provisions in Gypsy Jokers and K-Generation led to anything but certainty. The second is that the demarcation of the Kable principle has been given a new coat of paint (albeit without any clear edges). Kable itself originally set these boundaries, and the subsequent state law and order schemes carefully worked within them. There is no doubt that while the Dangerous Prisoners (Sexual Offenders) Act remained unpalatable to some, it was distinctly more palatable because of the Kable decision. It does not look like the states will be abandoning control orders in the fight against organised crime anytime soon, and the High Court has not indicated the need to; but they may look distinctly more palatable after the Totani and Wainohu decisions.
A counter argument to this position is, of course, if pushed back too far by the Court, states may always choose to vest the power in the executive without any safeguards in the courts.195 This is not, however, constitutionally certain; at least one judge (Gummow J) has indicated that, where executive detention is involved, this raises potential constitutional difficulties. Further, as a matter of practice, this fear has simply not been realised, as the latest versions of the control order regimes in New South Wales, South Australia and Western Australia demonstrate. There is a strong policy drive to use the courts in these types of schemes. And provided the High Court leaves the ground open to the states, there seems to be no reason to believe it will not be occupied.