Professor Erin Delaney provides the final 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 Sarah Murray, as well as the authors’ reply.

BY ERIN F DELANEY

If, as A.V. Dicey once wrote, ‘federalism means legalism,’ it is particularly surprising that studies of federalism so often overlook a federal system’s judicial architecture and its operation. Exploring the ‘predominance of the judiciary in the constitution’ often begins and ends with analysis of an apex court and its role in mediating the various tensions arising from multi-level power-sharing. There has been far less attention to the design elements of the broader judicial system(s) that undergird or interact with the ‘ultimate arbiter.’   

 One possible reason for this scholarly lacuna is the sheer complexity of judicial federalism in any individual federation.[1] Understanding the nuances of one system is a tall order. Acquiring a sufficient breadth of knowledge to theorise systematically about design is a life’s work. The publication of Judicial Federalism in Australia, therefore, is something to be celebrated—not only for its interventions in scholarly debates within Australia, but also for what it brings to comparativists and those eager to study and learn from Australian judicial federalism. The authors have produced a fantastic guide to the historical and contemporary judicial structure, while highlighting existing and developing areas of contestation. 

In setting the scene for their evaluation of the broader judicial architecture, the authors describe the Australian federation as an unusual amalgam of legal and political constitutionalism. The Constitution introduces legal constitutionalism to the federal level, but as they explain, it ‘gives the Court little role in protecting individual liberty or reviewing the wisdom of governments’ policy choices’ at the state level (p 2). At the state level, political constitutionalism reigns: ‘choices about institutional design, rights and policy are choices to be made by democratically accountable officials’ (p 2). They argue that in its jurisprudence the High Court of Australia has shifted this balance, often at the expense of state courts and legislatures: first by ensuring itself sufficient room to adjudicate, then by making space for a lower federal court, and finally by imposing constitutional constraints on state courts. The Court took this last step in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, the case at the heart of the book (Chapter 5). 

In 1994, Gregory Kable was to be released from prison, having served his sentence for manslaughter, but due to the threatening letters he sent to the victim’s family (his former in-laws), New South Wales enacted legislation ‘to protect the community by providing for [his] preventive detention’ (p 84). This ad hominem scheme, which relied on the state courts to order detention, eventually was challenged before the High Court. The Court used a structural interpretation of the Australian Constitution to find the law invalid, and the majority concluded that ‘state parliaments cannot confer powers or functions on state courts which are repugnant to or incompatible or inconsistent with their exercise of Commonwealth judicial power’ (p 86). Chapter III of the Constitution envisioned an integrated judicial system, with appeals from state courts to the High Court, and provided that the Commonwealth Parliament could vest federal jurisdiction in state courts. These principles suggested that state courts should ‘satisfy a baseline constitutional character for the exercise of federal jurisdiction (p 90). (The authors are careful to point out nuances in this reading of the case, and they raise other explanations for the result, including a narrower derivation based on the constitutional meaning of a ‘court’ itself.) As outlined in Chapter 6, Kable and its sequelae have been used to reinforce requirements of judicial process impugned by state laws, including by protecting judicial independence and a court’s ability to make credibility determinations and provide written reasons, as well as monitoring the judiciary’s relationship with the state executive. And some understand the doctrine to focus on ‘liberty-protecting values’ within the inherited common law tradition (p 122).  

Thorny doctrinal analyses aside, at bottom, ‘Kable has reduced the range of choices available to State and Territory governments, introducing a new factor – constitutional validity – into the policy-making process’ (p 128). In other words, legal constitutionalism has come to the states. And in Chapter 8, “Kable, Federalism and Rights,” the authors shift their focus to the practical and normative implications of the Kable doctrine as it has developed. They pose challenging empirical questions: Is it possible to say whether Kable is rights-protecting or rights-limiting? Is it democracy-protecting or democracy-limiting? And what do the answers mean for Australian judicial federalism, or Australian federalism more generally?  

There is evidence that Kable has had a ‘prophylactic effect on policy development’ (p 151), and, indeed, the authors cite policymakers who acknowledge it acts ‘as a check on impulses to engage in rights-destructive legislating’ (p 151). But the authors also note that ‘as the High Court has increasingly articulated more minimum expectations, with greater specificity, often by reference to the presumed-to-be more exact federal requirements’ (p 148), the danger rises of homogenisation in the ‘development of State policies across the federation in key policy areas’ (p 148).    

This tension between uniformity and democratic diversity is a familiar one in federal systems, but it takes on an additional layer in the Australian context, as the authors explain why homogenisation is problematic: The tradition of political constitutionalism is under threat. They argue that Kable has shifted state-level political deliberations to derivative questions of constitutional validity from first-order questions of rights balancing. In other words, policymakers attempt to divine the likely result at the High Court if a law is challenged, rather than deciding for themselves what incursions on rights are acceptable in a democratic society. The High Court’s views are ‘pre-empt[ing] the democratic choices of State legislatures’ (p 148). And, ultimately, Kable is   

not a framework that will deliver locally tailored regimes to deal with complex law and order issues in ways that appropriately respect individual rights and liberties. To deliver this, executives and legislatures need to undertake their own constitutionally mandated responsibilities seriously (p 170).

There is a not-so-hidden assumption operating in conjunction with the critique: If the legislatures did the tough rights analysis work themselves, the results would be normatively better than the regime created by Kable (p 168). Here, the authors of Judicial Federalism in Australia assume the best of Australian states, and maybe there are reasons to do so. But an anxious reader might wonder: How sure can we be of this assumption? Anti-democratic state governments are not unknown in Australian history. And not every Australian state or territory has imposed an obligation on legislators to take account of individual rights in passing legislation (only VictoriaQueensland, and the Australian Capital Territory have obligations under Human Rights Charter statutes). Indeed, the authors’ description of the evolution of law-and-order legislation relating to organised crime suggests that political desires to look tough on crime may have produced results that were insufficiently attentive to liberty and process rights. And the argument that the Kable doctrine should be rethought because it may encourage the use of executive or legislative processes to insulate laws from review—or from the imposition of judicial oversight—is hardly comforting. Rather than a critique of Kable, the argument seems to predict a political willingness to dispense with core elements of rule-of-law protections.   

It may be that getting rid of the Kable doctrine could usher in a new era of varied, vibrant, Waldronian, rights-protective political constitutionalism at the state level. But the normative benefit depends on a second assumption: that homogenisation in this arena—judicial process and judicial structure—is problematic. In its much-lauded effort to protect autonomy and diversity, federalism has a dark side. Federalism can facilitate and perpetuate ‘stable pockets of injustice.’ It does this in any number of ways and under various conditions: for example, where minorities are territorially dispersed, or where political parties and political governance are structured so as to empower subnational leaders at the federal level while insulating them from national attention at home. These types of weaknesses at the state level can threaten the integrity of the whole. One solution to these challenges has been to outline a set of uniform national rights. And process rights tend to be among the first to be ‘nationalised.’[2] 

At core are broader questions about the interplay between legal and political constitutionalism in federal systems. One reason Dicey was so certain that federalism would be the end of flexible political constitutionalism in Britain was that the delimitation of power among multiple levels would require a neutral arbiter and thus be incompatible with parliamentary sovereignty. But another aspect of a federal arrangement is the expectation that certain norms will be shared across the federation—those elements of uniform right or duty that create cross-jurisdictional cohesion. And, like delineating the division of competences, ensuring key areas of federal uniformity may also require legal constitutionalism. Of course, exploring the extent of political constitutionalism’s compatibility with federalism is not the goal of Judicial Federalism in Australia—but the book provides rich material for further thought. 

[1] There are at least six major generalist “federal courts” casebooks in the United States, as well as many more focused on specific areas of procedure or substance.

[2] For example, the United States Supreme Court nationalised process rights through selective incorporation of the Bill of Rights. Early cases included Mapp v. Ohio, 367 U.S. 643 (1961) (prohibiting the admission in state court of evidence seized in violation of the Fourth Amendment) and Gideon v. Wainwright, 372 U.S. 335 (1963) (guaranteeing state court defendants the right to counsel in noncapital cases under the Sixth Amendment). In its early years, the European Court of Human Rights adjudicated civil litigant and prisoner’s rights cases, such as Golder v United Kingdom [1975] 1 EHRR 524, Airey v Ireland [1979] 2 EHRR 205, and Silver v United Kingdom [1983] 5 EHRR 347, through broad process-based applications of Article 6 (including right to a fair trial and access to the court) and Article 8 (interpreted as freedom of correspondence with counsel) of the European Convention on Human Rights.

Erin F Delaney is Professor of Law at Northwestern University Pritzker School of Law. 

Suggested citation: Erin F Delaney, ‘Book forum on Appleby, Olinjyk, Stellios and Williams Judicial Federalism in Australia‘ on AUSPUBLAW (3 November 2021) <https://auspublaw.org/2021/11/kable-federalism-and-political-constitutionalism/>.