Dr Brendan Lim provides the second set of remarks in this special forum which accompanies the launch of: Gabrielle Appleby, Anna Olijnyk, James Stellios and John Williams, Judicial Federalism in Australia: History, Theory, Doctrine and Practice. To see all posts, click hereClick through for posts by the Hon William Gummow AC, Professor Sarah Murray, and Professor Erin Delaney, as well as the authors’ reply.

BY BRENDAN LIM

History, theory, doctrine and practice. The subtitle of this splendid new book by Gabrielle Appleby, Anna Olijnyk, James Stellios and John Williams, Judicial Federalism in Australia: History, Theory, Doctrine and Practice (Federation Press, 2021), reminds us of the many different resources on which we can draw in understanding and in making choices about the constitutional rules by which we abide and the constitutional values which we seek to uphold. History, theory, doctrine and practice present different modalities of constitutional argument and reasoning.

As to history and doctrine, we have been treated today to a personification in Justice Gummow. Theory is amply covered by Professor Murray and Professor Delaney. If only by a process of elimination, I might therefore approach the book from the perspective of practice.

In The Coming Commonwealth (Angus and Robertson, 1897) at 15, a young Robert Garran described Australian federalism as a ‘compromise … between the opposing forces of centralization [and] local independence’. Those opposing forces do their work upon various aspects of federalism, including judicial federalism. This book insightfully develops a rich description of the federal compromise in the judicial context as one between integration and diversification of the Australian court system.

The thesis pivots on the decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. Chapters 2, 3 and 4 deal with the pre-Federation colonial judiciaries, the Convention Debates, and the judicial landscape prior to Kable. A particularly valuable accompaniment to these chapters is the appendix of historical documents from the 1897 Judiciary Committee, which settled the drafting of Ch III of the Constitution. Chapters 5 and 6 deal with the so-called ‘constitutional moment of choice’ in Kable and the subsequent reception of that decision. Chapters 7, 8 and 9 reflect on broader implications of the Kable doctrine, especially outside the courts. The authors here consider the development of policy and legislative drafting, the work of tribunals and, broader still, the effect on community values associated with federalism and rights. The ambitious perspective of these chapters is enhanced by the innovative methodology of interviewing Attorneys- and Solicitors-General, government lawyers, advisers and parliamentary counsel about their professional perspectives on the influence of constitutional doctrine on their work.

From the perspective of practice, as distinct from history, theory and doctrine, one aspect of the Kable principle that receives somewhat less attention in the book is the role that legal argument has played in the “moments of choice” at which the contours of the doctrine have been worked out. Reading a judicial decision with a careful appreciation of the arguments made by the parties is sometimes essential, almost always helpful, and never a bad idea. This practice provides a particularly informative angle on the development of the Kable principle.

Federalist tensions, such as that between integration and diversification of the courts, are commonly observed in constitutional litigation when the Commonwealth and the states take opposing positions. The Commonwealth and the states have the right to be heard in constitutional cases. They frequently exercise that right and so come to operate as repeat players in constitutional litigation, often advancing very long-term strategic interests that may transcend the outcome of the particular case at hand. Despite the federal tension between integration and diversification at the heart of the Kable doctrine, there has not generally been opposition between the Commonwealth and the states, and so the full federalism implications of the doctrine have been somewhat muted in the case law.

Mr Kable’s challenge was initially framed as one about the separation of powers in New South Wales. Attorneys-General for other States—Victoria, South Australia and Western Australia—all intervened to support New South Wales. The Commonwealth Attorney-General did not intervene at that stage. But during the course of the hearing, Sir Maurice Byers QC, appearing for Mr Kable, developed the ultimately successful argument based not on a separation of powers in the states, but on the implications of Chapter III. Notice of this new argument was given to the Commonwealth, which filed written submissions.

Those submissions are summarised in the Commonwealth Law Reports: (1996) 189 CLR 51 at 60-61. They seem to have been somewhat tentative or qualified, but squarely embraced the notion that the Commonwealth Constitution creates an integrated system of law which may impliedly constrain state legislative power. If one thinks about the issue in terms of integrity versus diversity, as the book draws out in great depth, the Commonwealth’s submission can be seen to have pursued more integrity, less diversity. That may reflect the Commonwealth’s interest in the existence of a system of courts that is fit to exercise federal jurisdiction.

The next major Kable case to reach the High Court was H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547. That case concerned not liberty, but property. It involved a challenge to a planning law which had the effect of approving a development, the approval of which was the subject of contentious litigation at the time the legislation was enacted. Again, other Attorneys-General—for South Australia, Victoria and New South Wales—perceived the case to be sufficiently significant that they should intervene in support of Queensland. The Commonwealth did not intervene.

In the Commonwealth’s absence, the High Court developed the Kable principle in a way that profoundly affected the Commonwealth’s long-term interests. Although the challenge to the law was dismissed, the Court explained the operation of the Kable principle by saying that if a law could be validly passed by the Commonwealth Parliament consistent with the separation of judicial power at the Commonwealth level, then an equivalent law at the state level would not contravene the Kable principle (at 561-562). In other words, valid Commonwealth law implies valid state law. Left unsaid, but logically entailed by that proposition, was that invalid state law implies invalid Commonwealth law. This new way of describing the Kable principle gave the Commonwealth a significant interest in defending the validity of state laws: its own power to enact equivalent laws for federal courts would now be squarely at stake in Kable cases. And from that point onwards, by and large, defending state laws against Kable challenges is precisely what the Commonwealth did.

In not quite the next Kable case, Baker v The Queen (2004) 223 CLR 513, Mr Henry Burmester QC, appearing for the Commonwealth, expressly embraced the logic of Bachrach. He commenced his oral submissions by saying that the starting point for analysis in a Kable case is to ask whether the Commonwealth Parliament could have legislated as the state had done. With the issue framed in that manner, the Commonwealth’s interest is clearly in defending the validity of the law. Thus, the polity with the strongest interest in an integrated conception of courts turned out to have an even stronger interest in defending the breadth of legislative power to innovate with respect to courts, judicial structures, and judicial procedures. So in case after case, such as Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, and Hogan v Hinch (2011) 243 CLR 506, the Commonwealth defended the diversity conception that might otherwise have been more readily associated with state interests.

Things changed in around 2009, which roughly coincides with a series of cases where Kable arguments began to have more success than they had in the preceding decade. In several significant cases, the Commonwealth intervened against the states and propounded a more integrationist view of the judicial system. This tended to occur when it was already clear that there was some relevant limitation on Commonwealth power, such that the Commonwealth had less of its own power at stake, and the Kable principle could function as a vehicle for extending a similar limitation to the states in service of the integrationist vision of the judicial system.

In Kirk v Industrial Court (NSW) (2010) 239 CLR 531, the successful argument was not that of the appellant but rather of the Commonwealth intervening. That case recognised by implication an entrenched judicial review jurisdiction of the state Supreme Courts substantially identical to the federal jurisdiction entrenched by s 75(v) of the Commonwealth Constitution. Commonwealth privative clauses had already been neutered in Plaintiff S157 v Commonwealth (2003) 211 CLR 476, so there was no reason for the Commonwealth not to argue that the states were subject to similar limits.

In Wainohu v New South Wales (2011) 243 CLR 181, perhaps the most significant point of principle was advanced not by the successful plaintiff, but by the Commonwealth intervening. And substantive contradiction was provided not by New South Wales but by Victoria intervening. That case established that the incompatibility doctrine, which limits the powers that may be validly conferred on a federal judge acting in a personal capacity, has an equivalent companion doctrine in relation to state judges.

Momcilovic v The Queen (2011) 245 CLR 1 is another example. The Commonwealth argued that state courts, just like federal courts, cannot exercise a legislative function that is blended with its judicial functions and, somewhat more subtly, that state courts, even when exercising state jurisdiction, must not be required to apply interpretive principles that could not also be applied in the exercise of federal jurisdiction. That particular argument did not need to be decided, but nonetheless illustrates the fertile grounds of potential divergence between Commonwealth and state interests about the extent to which Australian courts are integrated in one system.

There are some interesting exceptions where the Commonwealth did not seek to extend federal limitations to the states. I have in mind the cases of North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 and Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 in relation to issues of security of judicial tenure. Each of those cases involved independent Commonwealth interests apart from judicial federalism. Bradley was a Northern Territory case which implicated the Commonwealth’s legislative power under s 122 of the Constitution. And Forge was a case in which ASIC relied on the validity of the impugned law. Whether different positions might have been taken had the issue arisen in a different context cannot be known.

But these kinds of circumstances remind us of the various practical contingencies that can affect the arguments a party or intervener might make in a constitutional case. And those arguments in turn become their own contingencies on which the development of legal doctrine depends. The practically contingent nature of constitutional law means that it is important to understand not only the cases themselves, but also the history, theory, doctrine and practice that sits underneath a constitutional position such as judicial federalism. This wide-ranging book is a fine compilation, and a sophisticated synthesis, of those diverse resources and insights, which will be of considerable assistance in understanding the future development of the law in this field.

Author’s note: These remarks are being cross-published in Bar News: The Journal of the New South Wales Bar Association. They draw heavily on my previously published work: ‘Attributes and Attribution of State Courts: Federalism and the Kable Principle’ (2012) 40 Federal Law Review 31 at 59-67; see also ‘Laboratory Federalism and the Kable Principle’ (2014) 42 Federal Law Review 519.

Brendan Lim is a barrister at Eleven Wentworth Chambers and a Centre Fellow at the Gilbert + Tobin Centre of Public Law.

Suggested citation: Brendan Lim, ‘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-brendan-lim/>.