Professor Sarah Murray provides the third 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, Dr Brendan Lim and Professor Erin Delaney, as well as the authors’ reply.

BY SARAH MURRAY

Appleby, Olijnyk, Stellios and Williams’ book, Judicial Federalism in Australia – History, Theory, Doctrine and Practice (2021, Federation Press), is nothing short of a constitutional law aficionado’s delight – unravelling the mysteries and twists and turns of Kable through the combined expertise of the authors and the historical, doctrinal and empirical insights deriving from their collaboration.

The premise of the book is an incredibly important one – that the Kable doctrine ‘represents the outworking of judicial federalism’ (p 102) and a deep understanding of this is central to getting a handle on the implications of the doctrine for state political and policy decision-making. The book, combining mixed research strategies, provides a great deal of food for thought. It explores the notion that subnational policy experimentation might give way to ‘IKEA approach’ (p 163) statutory regimes that have been constitutionally anointed by the Court. It teases out the sense that Kable is often left to do heavy-lifting in the individual rights space that it really lacks the muscle for, as well as the growing fear that the doctrine might prophylactically push more and more away from the curial gaze.

In this review written as part of the book’s launch, I want to reflect on two particularly significant contributions of the book: 1) its focus on the constitutional values brought into play by the Kable decision and 2) how a creeping state conservatism can be discerned in Kable’s wake.

The book consolidates the record of Kable by laying the historical foundations, the jurisprudence in existence when it came before the High Court and the ‘uncharted territory’ in which the Court found itself (p 93). Particularly enlightening is the discussion of the tussle between state political constitutionalism and diversity on the one hand with the federal judicial landscape of Chapter III on the other. Ultimately, state legislative choice was marginalised over what became ‘a deep integration of State courts within Chapter III’ (p 102). And it this deep focus on values which is a particularly significant contribution of the book.

This focus helps feed into a richer explanation for the doctrine even when its justifications have seemed quite shape-shifting in nature. The majority in Kable focused on the fact that public confidence in state courts would be threatened if Parliaments could make laws that undermined their roles as repositories of federal judicial power within the national integrated court structure and if different classes of justice were sanctioned (what the authors term ‘integrity justifications’ at p 96).

Later cases post-Kable became more centred on institutional integrity and what is a ‘court’ for the purposes of Chapter III’s ‘court of a State’ phraseology. This more textual focus tethered the doctrine much more tightly to the Constitution, arguably imbuing it with greater doctrinal legitimacy while also interweaving structural dimensions. However, even this has not remained steady with some cases applying a test based on repugnancy to the judicial process (International Finance Trust (2009) 240 CLR 319) while in others we see judges drawing on the inherent jurisdiction of a Supreme Court to cure injustice almost as an overlying protection of institutional integrity (Condon (2013) 252 CLR 38).

As Chapter 5 of the book notes, the Court ‘continues to straddle these structural and textual implications’ (p 97). Kirk (2010) 239 CLR 531 is a perfect exemplification of this where the Court focuses on the structural role filled by s 73(ii) and the position of the High Court while also identifying the essential characteristic of the Supreme Courts’ supervisory jurisdiction through a much criticised historical lens. More recent cases have sought to continue to tie together these doctrinal strands. For instance, in Kuczborski (2014) 254 CLR 51, French CJ stated at [38] that:

The principles developed from and since the decision of this Court in Kable preclude State legislatures from enacting a law which would be repugnant to, or incompatible with, the institutional integrity of State courts as elements of the national integrated judicial system.

As the authors explore, the result of this ‘integrationist’ and structurally-embedded approach (which reads state courts as playing a wider constitutional role within the federal architecture) has been inevitable strictures on state legislative diversity.

The constitutional values unravelled by the book also help to unpack the doctrinal choices deriving from Kable. For example, Professor George Winterton, in critiquing the Kable principle, argued that the Commonwealth Parliament is not forced to invest federal jurisdiction in a ‘court of a State’ and can ‘simply decline to invest jurisdiction, or repeal an earlier investment’ (‘Justice Kirby’s Coda in Durham’ (2001) 13 Public Law Review 165, 168). He wrote that

constitutional analysis and, perhaps, protection of State judiciaries would be enhanced if the High Court distinguished more carefully between the Kable principle and the universally-accepted requirement that only State “courts” can be invested with federal jurisdiction.

However, in K-Generation (2009) 237 CLR 501, contrary to this position, the Court confirmed that a law would be invalid if it conferred incompatible functions and such a court could not just be excluded from the gift of the autochthonous expedient when this approach would ‘weaken the effectiveness of the distinctive feature of Australian federalism represented by the general words of s 77(iii) of the Constitution’ (per Gummow, Hayne, Crennan and Kiefel JJ at [153]). And, as Kirby J opined, it ‘in practical terms, would make the Kable principle impotent’ (at [243]). As the book’s authors elucidate (at p 94),

Section 77(iii) [of the Constitution] was not just a facility available to the Commonwealth Parliament if there happened to be State courts: the scheme in s 77(iii) would be undermined if State courts were not available for the exercise of federal jurisdiction across the federation.

What we see is that the Court prioritised ‘integrity’ (p 96) by ensuring that the ‘Commonwealth Parliament should be able to make real and effective choices for the exercise of federal jurisdiction’ (p 101). As the book lucidly describes, what has developed is a unique form of Australian judicial federalism, which the Kable line of cases and decisions like Burns v Corbett (2018) 265 CLR 304 have continued to develop (described as representing ‘two pieces in the same Ch III puzzle in their effect on State political constitutionalism’ – p 187).

The insights of the book are many but its focus on what the Kable doctrine means at the coalface of state legislative design is a distinguishing contribution, particularly enriched by the multifaceted research methods adopted. Its legislative case studies leave one reflecting on the degree of state conservatism emerging as part of Kable’s legacy or the sense that state legislative innovation has to be hermeneutically contained (p 169). In North Australian Aboriginal Justice Agency v NT (2015) 256 CLR 569 (NAAJA), for example, Gageler J acknowledges that it is ‘a constitutional doctrine which limits legislative design’ (at [135]). This results from a combination of the rigidity of the doctrine, the perceived fuzziness in its application and a desire not to stray too far from particular statutory formulations given the High Court’s blessing.

Astutely, the authors identify this as raising Mark Tushnet’s ‘policy distortion’ concerns (p 149) whereby the constitutional risks and dictates become too overbearing and undermine policy choice; ultimately the Kable tail can’t help but wag the dog of state legislative policy. A further risk articulated by some of the interviewees in the book is that more and more will be hived off to the executive or legislative branches and haziness remains around what role the ‘court[s] of a State’ will play and whether representative government and political accountability can fill any breach.

We also can see acute constructional and interpretational distortions. For example, in NAAJA, Gageler J reflects at [75] on how parties position their construction of provisions to the extreme, and in such a way that their reading is counter-intuitive to their self-interest with the challenger reading a provision at its most harsh to argue it should be invalidated and the state (or the territory in that case) adopting an excessively temperate interpretation to keep it constitutionally safe. It is such unanticipated effects that we need to recognise and understand and I think it is why this book is so important and so timely.

As a bright-eyed law student in 1996 the Kable doctrine seemed to infuse constitutional law with a new exciting electricity. The federal ‘outworking’ and practical implications of the doctrine, which this book lays bare, make its constitutional possibilities seem like they may have short-circuited, at least to some extent. And while this path was far from foreseeable at the time of Walter James’ constitutional drafting suggestion way back in 1897 (p 32), this book is a must-read in illuminating the doctrine’s true underpinnings and its resolute influence on the direction of Australian judicial federalism ever since.

Sarah Murray is a Professor at the University of Western Australia.

Suggested citation: Sarah Murray, ‘Book forum on Appleby, Olinjyk, Stellios and Williams Judicial Federalism in Australia‘ on AUSPUBLAW (3 November 2021) <https://auspublaw.org/2021/11/judicial-federalism-in-australia-book-forum-sarah-murray-staying-out-of-the-twilight-judicial-federalism-in-australia-history-theory-doctrine-and-practice/>.