Gabrielle Appleby, Anna Olijnyk, James Stellios and John Williams, respond to reflections by the Hon William Gummow AC, Dr Brendan Lim, Professor Sarah Murray and Professor Erin Delaney, on their book Judicial Federalism in Australia: History, Theory, Doctrine and Practice. To see all posts, click here.

BY GABRIELLE APPLEBY, ANNA OLIJNYK, JAMES STELLIOS AND JOHN WILLIAMS

This book is the result of years of collective and collaborative thinking around Chapter III of the Australian Constitution, and, to use Professor Sarah Murray’s phrase, the ‘unique form of Australian judicial federalism’ that it reflects today. We are delighted to see the book launched, and humbled by the engagement with our work and arguments by the esteemed authors in this forum.

Judicial federalism, the institutional design of judiciaries in a federal system, is, as Professor Erin Delaney points out, an often-overlooked dimension of federalism design. Judicial federalism is unique in federal institutional design, because it brings federalism values – local autonomy in decision making, diversity, innovation and competition – together, and potentially in conflict with, judicial values – including judicial independence, the rule of law, the separation of powers, the restraint of individual liberty and the protection of individual liberty.

Judicial Federalism and the Framers

At the core of this book is a desire to explore the dynamics of the intersection of these values in Australia’s judicial federalism. We do this by focussing on the impact of the framers’ decision – a decision, as Professor William Gummow has indicated, that was driven by economic concerns – to provide colonial-turned-state courts with the capacity to receive federal judicial power from the new Commonwealth Parliament.

As we look at in Chapter 2 of the Book, there are many unique features of Australia’s pre-federation arrangements – not least the truncation of rights and liberties through the rough circumstances of colonisation. What emerges is a slow evolution in the structure and independence of the colonial courts and tribunals. Notable in these chapters is the place of the First Peoples in relation to the law and the judicial system that arrived upon them.

Drawing on legal historians, and noting the successive imperial legislative indulgencies, the second chapter concludes that on the eve of Federation two major themes emerge:

  1. The institutional blindness of the pre-existing legal and dispute resolution systems of the First Peoples. This situation meant that they would largely be overlooked by the framers.
  2. The distance of travel between 1788 and the 1890s in terms of the rule of law and the judiciary. There was a maturation of the constitutional system with disengagement from the imperial oversight and greater self-government.

What we see is a certain uniformity between the colonies – there was no strict separation of powers between the judicial and other arms of the state. While there is an intermingling of governmental powers in the colonies, which was to be expected given the circumstances of colonisation, there nonetheless were moves for greater judicial independence with certain guarantees of tenure and the establishment of processes for ‘amoval’. Finally, the Privy Council remained as the apex judicial institution. This colonial landscape largely informed the framer’s compass of possibilities when they considered the design of Chapter III of the Constitution.

Chapter 3 of the book deals with the Federation period between the late 1880s and 1901. It commences with the intervention of Walter Hartwell James, the 34-year-old former jackeroo and delegate from Western Australia. At the 1897 Adelaide Convention he proposed in the Judiciary Committee that state courts should be able to exercise federal judicial power. This initiative was primarily an exercise in frugality. It was designed largely to alleviate the need to establish federal courts early on in the life of the Commonwealth. This practical addition to the 1891 Draft Constitution was blessed by Samuel Griffith and found favour – without much discussion – with the other framers. The ‘autochthonous expedient’, as Sir Owen Dixon later described it, was to have significant ramifications.

The themes that are developed in these historical chapters are relatively straightforward. First, the framers were well aware of the need to have a High Court to police the boundaries of state and federal authority. Secondly, the status and standing of that Court was itself wedged between those who might be described as judicial nationalists (such as Andrew Inglis Clark, Alfred Deakin, HB Higgins, Josiah Symon and CC Kingston) and others who maintained there was a need for imperial oversight from the Privy Council. For many in this latter camp, it was an emotional, rather than a jurisprudential, connection that they wished to maintain to Home. For others there was the practical concern about a flight of British capital if there was not an appeal to London.

Thirdly, thrift and cost were also preoccupations for colonial politicians who were largely attempting to limit the size and reach of the new Commonwealth. Further, after 1895 they had an eye to ensuring a successful referendum on the adoption of the Constitution in 1899.

What does emerge from these chapters is a relative disinterest on the part of the framers in relation to the terms and structure of state courts. These were rarely discussed, and where they were, the decision was to allow the states autonomy. So, for example, there was a minor and tangential debate at the Adelaide Convention about whether it would be permissible for a state to elect its Supreme Court. This unwise step, it was concluded, was not a matter for the Commonwealth Constitution to prohibit.

The framers completed their work with a primary focus on the High Court and other federal courts. The state courts, from our reading of the Convention Debates, were to have a momentum of their own with no expectation that the draft Constitution would dictate their structure. The inheritance of the colonial intermingling of judicial and non-judicial powers, as well as flexibility, was untouched.

In addition to canvassing this history, the book, in Appendix B, highlights a number of historical documents that trace some of the developments in Chapter III. These include the minutes of the 1897 Judiciary Committee, where Higgins kept the minute taker busy with his unsuccessful amendments.

The Judicial Choice in Kable

This historical decision paved the way for a future High Court, in the 1996 decision in Kable v DPP (NSW), to establish a judicially enforceable limitation on state Parliaments, requiring them to maintain a system of state courts that meet minimum judicial institutional requirements. While pre-Kable doctrinal developments resulted in an increased centralisation of judicial power in Australia, state courts remained institutions of the state body politic, unaffected by constitutional limits. Kable, however, dramatically changed the constitutional landscape.

In this book we bring together the historical, theoretical, doctrinal and practical aspects and implications of this decision. As Professor Murray notes, the book explores the competing values that informed High Court decisions prior to Kable, Kable itself and the subsequent developments.

While doubts have been expressed about the legitimacy of drawing the Kable limitations from Chapter III, which is largely silent on state legislative authority over state courts, Professors Gummow and Murray refer to the important role that Kable played in providing the Commonwealth Parliament a real and effective choice in the administration of federal judicial power. The book highlights the way that this feature of the Chapter III architecture influenced the shape of the federal judicial system, not only in the recognition of the Kable principles, but also in making room for the establishment of lower federal courts and in preventing state tribunals from exercising judicial power over federal matters. There is, therefore, a design coherence to be found across Chapter III principles.

Dr Brendan Lim provides us with a reminder – that is echoed in Professor Gummow’s reference to the role of Maurice Byers – that understanding this shift, and its development, requires attention also to be paid to the legal arguments that were placed before the Court. And that ‘moments of choice’ reflect a judicial response to these arguments, particularly the positions put to the Court by repeat and institutional players.

This is, undoubtedly, true and Dr Lim’s own work is revealing in tracing particularly the influence that the Commonwealth’s submissions have had on the trajectory of the development of the Kable principle, as a repeat-institutional actor with a particular set of Chapter III interests it is itself subject to.

But we would also note that the High Court’s decisions reflect not just judicial responses to the arguments and submissions before it, but also its own agency – the important role the Court must play itself. This is perhaps most telling in the case of Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008), where it was only at the suggestion of the High Court that parties developed the more strained interpretation of the criminal intelligence provision that allowed the High Court to hold the institutional integrity of the state court was not undermined. It was an interpretation not advanced by the parties, or offered by the Court, in the decision of the Western Australian Supreme Court from where it came. This heralded an era of the High Court’s approach to the Kable principle that we describe in the book (at p 112) as follows:

… the Court might eschew Kable issues by reading statutory provisions in a way that avoided the more contentious areas.

It was an approach that was initiated by the High Court, and followed by parties in the subsequent cases. It also underscores Professor Gummow’s observations that, even when Kable appeared to be in decline, the Court maintained an important presence in shaping the Kable principles.

From Political to Legal Constitutionalism

Professor Delaney refers to the development of the Kable doctrine as representing a ‘shift’, from a period of political constitutionalism, where states were free to design their judicial branches, to one of legal constitutionalism, with judicially enforceable standards of judicial integrity.

This shift also represents a shift in the elevation of values by the Court. A system of political constitutionalism allows for state parliamentary innovation, and thus the elevation of judicial federalism values. A system of legal constitutionalism creates, as does any constitutional limitation on power, a limit on legislative design at the state level.

The Kable principle poses a particular challenge in this respect. There is the rigidity inherent in the doctrine itself, drawing on ideas of integrity and minimum standards. There is the ambiguity that is latent and, the High Court tells us, intentionally unresolved, so as to act as a prophylactic restraint on state parliamentary power.

This elevation has the potential to stifle innovation, or to create policy distortion at the state and territory level. We suspected state and territory governments were giving Chapter III constraints a wide berth, avoiding options that were even constitutionally questionable, thereby rejecting some good policies that may well survive constitutional challenge.

The High Court cases give us limited information on this question. Publicly available sources such as second reading speeches give us a little more, but far from the complete picture. We wanted to know about the ‘prophylactic’ operation of Chapter III: policy options that were never pursued, and policy tweaks aimed at Chapter III compliance.

To find the hidden impact of Chapter III, we interviewed 48 state and territory law- and policy-makers. These included current and former Attorneys-General, Solicitors-General, government lawyers, parliamentary counsel, and policy advisors.

The interview data provided some support for that hypothesis. But it also revealed a far more complex reality. There was ample evidence of governments taking calculated constitutional risks after a careful cost-benefit analysis of a given policy. Participants spoke, too, of the political benefits of passing popular legislation even in the face of likely invalidity.

Acceptance of constitutional risk was related to a range of variables including the importance and political sensitivity of the relevant policy, the clarity and stability of the constitutional jurisprudence, and the internal culture of the government. There was much variation, too, across three case studies we explored: anti-organised crime law, specialist courts, and tribunal design.

Kable as a Backstop?

Professor Delaney asks us whether there is an assumption in our analysis that, ‘If the legislatures did the tough rights analysis work themselves, the results would be normatively better than the regime created by Kable’?

Our analysis reveals that there are examples of this occurring: in the absence of a High Court finding of the minimum requirements of Kable, or in jurisdictions where there are explicit rights-deliberative schemes, the state Parliaments have enacted legislative schemes that are more rights-protective than those schemes that follow High Court Kable decisions. Kable decisions do set a minimum “backstop”, but this backstop can be less than state Parliaments might have set following their own rights-policy analysis.

But, we also take Professor Delaney’s point, that ‘… an anxious reader might wonder: How can we be sure of this assumption?’ Our data also demonstrates that policy and law makers and their advisers are themselves aware of the political imperatives to pursue tough on law and order policies, to the detriment of rights protections. As Professor Delaney notes, ‘federalism has a dark side. Federalism can facilitate and perpetuate stable pockets of injustice.’

This is undoubtedly the important role that Kable plays in our system of judicial federalism. But, what we hope to reveal in the analysis of the impact of the doctrine’s development is how it is being used in political debates, how legal constitutionalism is intersecting with political constitutionalism, and the range and exercise of choice that state Parliaments retain. As Justice Walter Sofronoff, President of the Queensland Court of Appeal and former Solicitor-General of Queensland, appearing as counsel for Queensland in many Kable challenges, as well as providing advice to the state on the question, said (quoted at p 191 of the book):

Those of us who have the good fortune to practise in the field of public law, particularly within government, have a keen appreciation of the difficulties that can emerge at the border between judicial statements and practical implementation by a government. Among other things, your forthcoming work will be helpful in showing individual government lawyers that they are not alone in facing these particular problems. It may also prompt judges to be alive to the possibility that words that are conceived for the sole purpose of explaining a judicial conclusion will, in due course, have to be used by other servants of the public as a practical handbook for executive and legislative action.

Gabrielle Appleby is a Professor at UNSW Law & Justice.

Anna Olijnyk is a Senior Lecturer and Director of the Public Law and Policy Research Unit at the University of Adelaide. 

James Stellios is a Professor at the ANU Law School. 

John Williams is the Acting Provost and Executive Dean of the Faculty of the Professions at The University of Adelaide.

Suggestion citation: Gabrielle Appleby et al, ‘Authors’ Response: Book forum on Appleby, Olinjyk, Stellios and Williams Judicial Federalism in Australia‘ on AUSPUBLAW (3 November 2021) <https://auspublaw.org/2021/11/judicial-federalism-book-forum-authors-response/>