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PETER JOHNSTON AND ROHAN HARDCASTLE[*]
Interaction between the Commonwealth Constitution and State constitutional powers and institutions is inherent in the Australian federal system. Covering cl 5 of the Commonwealth of Australia Constitution Act,[1] declares the Act, which includes the Commonwealth Constitution,[2] to be the paramount law for Australia.[3] By virtue of that provision, read with section 106 of the Commonwealth Constitution, the “Constitution of each State,” and hence State legislative power, is limited by the Commonwealth Constitution.[4] One aspect of this limitation was tested in Kable v Director of Public Prosecutions (Kable).[5] The High Court held in Kable that Chapter III of the Commonwealth Constitution limits the power of State Parliaments to confer non-judicial functions on State courts.[6] This implication represents a significant diminution of State legislative power, often characterised as plenary.[7] As yet, the scope and implications of this limitation have not been clearly defined. This paper considers Kable with reference in particular to the variations within the majority opinions and the ramifications of the Chapter III implication for State legislative power. These include the core requirements of independence, both institutional and personal, involving aspects such as tenure and remuneration.
On one view Kable is an extraordinary case, confined to a proscription of a particular State law which conferred on a State court non-judicial functions incompatible with Chapter III.[8] Another view – the more comprehensive and logical approach of Gaudron and McHugh JJ in Kable – encompasses additional Chapter III limits on State legislative power.[9] It is suggested that Kable’s limit on State legislative power extends to two levels. Firstly, the “integrated” approach of Gaudron and McHugh JJ has broad implications for State legislative power. For example, this approach requires State Parliaments to maintain something in the nature of State court systems for the exercise of Commonwealth judicial power.[10] Secondly, State Parliaments are prevented from conferring non-judicial functions on State courts that undermine public confidence in the independence of those courts. However, in this respect the effect on State legislative power may be confined because a high degree of incompatibility can be tolerated before State legislation will be deemed inconsistent with Chapter III.[11] In determining whether the content of Kable’s requirement for public confidence encompasses further constraints, a comparative analysis of constitutional case law[12] provides examples of issues yet to be addressed by Australian courts. The Canadian Supreme Court’s decision in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (Reference re Remuneration of Judges)[13] is of particular assistance in exploring these.
In Kable, the constitutional validity of the Community Protection Act 1994 (NSW) was challenged. The Act, described as “extraordinary”,[14] was passed in response to the threat Mr Kable, a person convicted of manslaughter of his wife, posed to the NSW community. Under the Act, the NSW Supreme Court was empowered to make an order detaining Mr Kable in custody after the expiry of his sentence for a period of six months.[15] Such an order was to be made where the Supreme Court was satisfied on reasonable grounds that Mr Kable was more likely than not to commit a serious act of violence or that it was appropriate for the protection of particular people that Mr Kable be held in custody.[16] Similar ad hominen legislation had also been previously enacted in Victoria.[17]
The High Court, by majority, Toohey, Gaudron, McHugh and Gummow JJ, Brennan CJ and Dawson J dissenting, declared in Kable that non-judicial functions which the Community Protection Act 1994 (NSW) conferred on the NSW Supreme Court were incompatible with Chapter III of the Commonwealth Constitution and, hence, were invalid. In separate judgments the majority discussed the source and effect of this limitation on State legislative power. Despite variations, two general approaches emerge.
Firstly, Toohey J adopted a narrow view, confining his discussion to the compatibility between State courts’ non-judicial functions and Commonwealth judicial power.[18] Toohey J did not rely on the role and status of State courts as part of an integrated Australian judicial system, simply referring to the constitutional scheme under Chapter III whereby State courts may exercise federal judicial power.[19] Further, he considered that the question in Kable was not resolved by previous cases establishing the “taking State courts as they are” principle.[20] He observed that when applying the Community Protection Act the NSW Supreme Court was exercising federal jurisdiction under section 77(iii) of the Commonwealth Constitution and section 39 of the Judiciary Act 1903 (Cth).[21] On this basis, Toohey J concluded that it was not the investing of jurisdiction that was in issue, but the exercise of federal jurisdiction by the Supreme Court.[22] He explicitly adopted the notion of incompatibility[23] enunciated in Grollo v Palmer[24] and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,[25] which concerned the validity of federal judges exercising Commonwealth legislative or executive power as persona designata. These cases discussed the principle that federal judges may exercise non-judicial power provided that the exercise of such powers is not incompatible with the judge’s exercise of Commonwealth judicial power. Grollo and Wilson established that incompatibility arises in three ways.
Firstly, where a judge’s over commitment to non-judicial functions compromises the performance of judicial functions. Secondly, where the performance of nonjudicial functions compromises the capacity of a judge to perform judicial functions with integrity. Thirdly, where a judge’s performance of a non-judicial function would undermine public confidence in the independence of the court or judge in his, or her, individual capacity.[26] Although Toohey J did not identify the species of incompatibility he applied, logic suggests it was the third limb identified in Grollo.[27] In Kable, Toohey J concluded that the Act “requires the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process”[28] and was therefore invalid. Conversely, Gaudron and McHugh JJ, and to some extent, Gummow J, adopted a broader “integrated” approach, basing their formulation of the Chapter III limitation on their vision of an integrated Australian judicial system which required State courts invested with federal jurisdiction to be capable of exercising Commonwealth judicial power.[29] Under this “integrated approach”, the Justices considered that Chapter III envisaged State courts as significant components of an integrated Australian judicial system.[30] Secondly, they held that a Chapter III implication for State courts did not infringe the constitutional law principle that requires the Commonwealth Parliament to take State courts as it finds them.[31] On this broader interpretation, State courts are still required to be compatible with Chapter III for the purpose of exercising Commonwealth judicial power.[32] Gaudron, McHugh and Gummow JJ then assessed the compatibility of nonjudicial functions conferred on the NSW Supreme Court by the Community Protection Act with Chapter III of the Commonwealth Constitution. Although different formulations of the test for incompatibility were adopted the underlying concern was to maintain public confidence in the independence of State courts.[33]
Despite the two distinct approaches of the Kable majority, the effect of the decision is to establish that State Parliaments cannot confer incompatible nonjudicial functions on State courts. This would appear to contradict earlier judicial authority that the Commonwealth Parliament must take State courts as it finds them and hence in its consistency with previous case law. It was on this authority that Brennan CJ and Dawson J relied in their dissenting judgments. Nevertheless, Gaudron and McHugh JJ’s “integrated” approach[34] largely addresses the difficulties identified by Brennan CJ and Dawson J.[35] In confronting the “taking State courts” principle, Gaudron and McHugh JJ established a two step proposition. Firstly, that the Commonwealth Constitution provides for an integrated Australian judicial system, with the High Court as the apex. Secondly, that as such State courts must be compatible with Chapter III of the Commonwealth Constitution for the exercise of Commonwealth judicial power. The premise based on the integrated approach provides in itself the resolution of the problem posed by the dissenting judgments. That is, as a preliminary matter, while the Commonwealth Parliament must take State courts as it finds them, the latter are required to conform with, and fulfil, their intended role under Chapter III.
Since Kable, this approach has received further judicial support. In Gould v Brown Kirby J stated,
In Kable v Director of Public Prosecutions (NSW), the Court emphasised the integrated system of State and Federal courts within Australia. In part, this characteristic of the system derived from the ‘autochthonous expedient’. But in part it is also an implication that may be drawn from Ch III of the Constitution with its express recognition of the Supreme Courts and of other courts of the States as potential recipients of federal jurisdiction and as participants in the integrated appellate structure of the Australian court system.[36]
Kirby J’s endorsement of the integrated approach strengthens the authority of Kable. On a strict analysis of the original majority, given the narrower view of Toohey J Kable could be said to rest on a fragile foundation. However, in light of Kirby J’s apparent endorsement, the retirement of Brennan CJ and Dawson J, and subsequent judicial references,[37] it is likely the Chapter III implication will continue to constrain State legislative power.
Essentially Kable established that Supreme Courts could not exercise non-judicial functions incompatible with Commonwealth judicial power. Under the “integrated” approach adopted by Gaudron and McHugh JJ, however, the constraint on State legislative power extends beyond this basic proposition. As will be traced in the next two sections, the approach of those Justices would ensure firstly, the continued existence of a State court structure (if not of particular courts).[38] Secondly, according to their Honours’ version, the effect of Kable is not limited to the exercise of non-judicial functions by State Supreme Courts alone. Indeed, all State courts invested with federal jurisdiction are subject to Kable’s Chapter III implication. Additionally, Kable arguably extends to State court judges in their individual capacity, that is, when acting persona designata.
Although the existence of Supreme Courts derives from state legislation,[39] ostensibly their continued existence is not guaranteed.[40] For example, section 58 of the Constitution Act 1889 (WA) gives an express power to the WA Parliament to alter or even abolish the WA Supreme Court. Can state legislation therefore abolish Supreme Courts? Alternatively, does the Commonwealth Constitution require that Supreme Courts exist to exercise Commonwealth judicial power?[41] According to Kable’s “integrated” approach, State legislatures are constrained by Chapter III from abolishing Supreme Courts.[42] In Kable, McHugh J, referring to covering cl 5 and section 73 of the Commonwealth Constitution, asserted that the Commonwealth Constitution requires and implies State courts’ continued existence.[43]
In particular, McHugh J observed that section 73 implies the continued existence of State Supreme Courts.[44] Gummow J also suggested that “[t]he continuing existence of a system of State courts is recognised not only in covering clause 5 but also in sections 73, 77(iii) and 79.”[45] He observed that “it would not be [constitutionally] open to the [NSW] legislature ... to abolish the [NSW] Supreme Court and to vest the judicial power of the State in bodies from which there could be no ultimate appeal to ... [the High] court.”[46] Similarly, on the basis of the “autochthonous expedient”, Gaudron J held that State legislatures must “maintain courts, or at least, a court for the exercise of the judicial power of the Commonwealth.”[47] This conclusion was consistent with her earlier observation in Re Tracey; Ex parte Ryan that “[i]t suffices to note that Ch III is premised on the continued existence of State courts.”[48]
Furthermore, under the “integrated” approach, it would be unconstitutional for a State legislature to remove all non-federal jurisdiction of the Supreme Court. By a similar constitutional implication, Lederman has argued that in Canada, section 92 of the British North America Act 1867, 30 & 31 Victoria, c 3 (UK) “contemplates the continuance of provincial superior courts with a guaranteed core of substantive jurisdiction.”[49] In an Australian context the removal of such jurisdiction would be inconsistent with sections 73 (ii)[50] and 77 (iii)[51] of the Commonwealth Constitution and, thus, undermine the integrated Australian judicial system.[52] In Kable, McHugh J reasoned that State legislative power was restricted in this way because “[t]o do so would make a mockery of the principles contained in Ch III of the Constitution.”[53]
Taken to its extreme the effect of Kable on this view would be that State Parliaments are precluded from abolishing all lower State courts.[54] Such a restriction is of particular significance because of international and domestic concern over the abolition of State courts and non-reappointment of judicial officers.[55] In Kable, McHugh J observed that the intention behind Chapter III’s constitutional scheme would be defeated if State legislatures could abolish State court systems,
If a State could abolish its court system, the powers conferred by s77(ii) and (iii) would be rendered useless and the constitutional plan of a system of State courts invested with federal jurisdiction, as envisaged by Ch III, would be defeated .... It is hardly to be supposed that the [Commonwealth] Constitution intended that a State could defeat the exercise of the grants of power conferred on the Parliament of the Commonwealth by s77 by the simple expedient of abolishing its courts and setting up tribunals that were not courts.[56]
McHugh J qualified this proposition, however, reasoning that the Commonwealth Constitution only prohibited the abolition of Supreme Courts.[57] Indeed, he stated that leaving aside Supreme Courts, State legislatures could “abolish or amend the structure of existing courts and create new ones.”[58] The elevated status of Supreme Courts was premised on section 73 (ii), which provides a right of appeal to the High Court from State Supreme Courts. Gummow J also qualified the proposition, observing that “State court systems may change from time to time” but that section 73(ii) placed Supreme Courts in “a distinct position.”[59] Thus, even on the broader “integrated” approach, State legislatures could abolish State courts other than Supreme Courts.[60]
Although Kable held that the NSW Supreme Court could not validly exercise nonjudicial functions conferred by the NSW Act, this limitation is not confined to Supreme Courts. For example, Gaudron J referred to Chapter III as requiring that “State courts not exercise particular powers.”[61] Similarly, McHugh J did not limit the implication to Supreme Courts stating perceptively that “State courts have a status and a role that extends beyond their status and role as part of the State judicial systems.”[62] Gummow J, although noting that Supreme Courts were “in a distinct position”[63] referred on several occasions to the “system of State courts.”[64] Even so, several questions remain. For example, what State courts must be compatible with Chapter III? Only specifically when the State court exercises federal jurisdiction? Or more generally, when a State court is invested with federal jurisdiction?
In this context, there are three variations to which the Kable Chapter III implication potentially extends. Firstly, to State “courts” such as licensing or industrial courts that have been invested by State legislation with jurisdiction of a kind that is exclusively non-federal.[65] Secondly, to State courts that have been invested with non-federal and federal jurisdiction,[66] but in the particular litigation are only exercising non-federal jurisdiction. Thirdly, to State courts that are actually exercising federal jurisdiction.[67] The widest implied restrictions on State legislative power arise if the Kable constraint extends to the first and second variants.
The members of the Kable majority apply the Chapter III limitation differently. Toohey J’s narrow approach only applies the limitation to courts exercising federal jurisdiction. In Kable, Toohey J found the NSW Supreme Court was exercising federal jurisdiction, both at first instance and on appeal,[68] because even though the Supreme Court was considering State legislation, it was required to determine questions arising under the Commonwealth Constitution.[69] Toohey J indicated that if the Supreme Court had not been required to consider constitutional issues, Commonwealth judicial power would not have been involved and, in that case, he added inconclusively “different questions might arise.”[70] For Toohey J, the Kable limit would only seem to arise in the case of State courts actually exercising federal jurisdiction. In dissent, Dawson J observed that this approach,
may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction in ordering the preventive detention of the appellant under a New South Wales Act.[71]
Indeed, the difficulty with Toohey J’s reasoning is that in some cases State legislation may not attract the Kable limitation simply because its constitutional validity has not been challenged. As Santow J perceptively commented in Re Australasian Memory Pty Ltd and Corporations Law; Brien and Another v Australasian Memory Pty Ltd and Another,
If indeed it were the case that the same legislative provision were to be applied by a State Supreme Court in the one case without exercising federal jurisdiction and, in the other case, exercising federal jurisdiction and were the test for its constitutional validity to be failed only in the case where federal jurisdiction were exercised, then the same legislative provision would be either valid or invalid depending upon whether federal jurisdiction were being exercised. Such a result has only to be stated for its absurdity to be apparent.[72]
Toohey J’s approach, arguably, produces an “artificial result” in any circumstances akin to those in Kable: that is, State legislation may only be challenged on the ground of incompatibility with Chapter III where the State court is exercising federal jurisdiction including by virtue of the fact that it is required to consider the constitutional validity of the legislation. Besides its “artificiality”, this reasoning is not compatible with the existence of an integrated Australian judicial system in which State courts concurrently exercise federal and non-federal jurisdiction.
Gummow J also observed that the “jurisdiction exercised by the [NSW] Supreme Court was wholly federal.”[73] However, he did not limit the Kable constraint to State courts actually exercising federal jurisdiction.[74] His Honour observed that the functions of State courts are “intertwined with the exercise of the judicial power of the Commonwealth.”[75] This was because decisions of State courts, whether or not given in the exercise of federal jurisdiction, yield “matters” founding appeals to the High Court under section 73 (ii) of the Commonwealth Constitution.[76] Thus, all three variants posed above would be affected by the Kable constraint.[77] Gummow J also gave examples that could not be appealed to the High Court, and which were, therefore, not subject to the Kable limitation. For example, an appeal does not lie in relation to the exercise by a State court of a nonjudicial power or a judicial power that does not involve a “matter”.
In contrast, Gaudron and McHugh JJ did not limit the Kable constraint to State courts actually exercising federal jurisdiction. Their primary concern was that State courts capable of exercising Commonwealth judicial power should comply with certain minimal Chapter III standards. Gaudron J stated that,
Chapter III requires that the parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.[78]
Gaudron J observed that the Chapter III limitation was founded on the fact that State courts “exercise the judicial power of the Commonwealth.”[79] More explicitly, McHugh J expounded the view that a State legislature could not undermine the role of State courts as “repositories of federal judicial power.”[80] For McHugh J, a State court invested with federal jurisdiction could not exercise non-federal jurisdiction in a way that was incompatible with Commonwealth judicial power,
[I]t is a necessary implication of the [Commonwealth] Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts.[81]
His reasoning was premised on the fact that the same State judges are liable to exercise federal and non-federal jurisdiction indifferently,
Furthermore, a State court when it exercises federal jurisdiction invested under s77 (iii) is not a court different from the court that exercises the judicial power of the State. The judges of a State court who exercise the judicial power of the State are the same judges who exercise the judicial power of the Commonwealth invested in their courts pursuant to s77(iii) of the [Commonwealth] Constitution.[82]
Thus, for Gaudron and McHugh JJ the Kable limitation extends to variants two and three.
All members of the majority agreed that State courts exercising federal jurisdiction, including when considering the constitutional validity of State legislation, were subject to the Kable limitation. The majority disagreed, however, over the extension of Kable to what are effectively the first and second variants. The approach of Gaudron and McHugh JJ, it is respectfully submitted, is the most logically satisfying. It recognises that to maintain State courts fit for the exercise of Commonwealth judicial power, the Chapter III limitation must extend to such courts invested with, but not necessarily exercising federal jurisdiction. The logic in this approach was endorsed by Hayne JA, as he then was, in R v Moffatt.[83] In Moffatt Sub-Division (1A) of the Sentencing Act 1991 (Vic) was challenged as incompatible with Chapter III of the Commonwealth Constitution. The District Court acting under the legislation was not exercising federal jurisdiction because no constitutional challenge was made. Nevertheless, Hayne JA held that the Kable constraint extended to State courts not exercising federal jurisdiction.[84] Hayne JA observed,
It is enough if I say that if the provisions are to be treated as invalid in a case in which the Court considering their use is exercising federal jurisdiction because a challenge is made to the validity of the provisions, there seems no reason why the invalidity of the provisions is to be treated as limited to such cases.[85]
Consequently, under Gaudron and McHugh JJ’s approach (now apparently supported by Hayne J),[86] State legislative power is limited where a State court is invested with federal jurisdiction. Under the Judiciary Act 1903 (Cth) State courts are invested with federal jurisdiction in two ways. Firstly, under section 39(2) of that Act the “several courts of the States” are invested with federal jurisdiction in “all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it.”[87] Secondly, under section 39A of the Judiciary Act any Commonwealth Act may invest federal jurisdiction in a State court.[88] The terms “court” in section 77 (iii) of the Commonwealth Constitution and “Courts” in section 39(2) of the Judiciary Act refer to courts as institutions or organisations consisting of judges and ministerial officers.[89] Therefore, using Western Australia as an example, the Supreme Court,[90] District Court[91] and Courts of Petty Sessions[93] are subject to the Kable Chapter III requirements, being State courts invested with federal jurisdiction under section 39(2) of the Judiciary Act. Further, the Family Court of Western Australia was established pursuant to the Family Court Act 1975 (WA) and was invested with federal jurisdiction by the Family Law Act 1975 (Cth).[94] Examples of State courts not invested with federal jurisdiction and, thus, not within Kable’s reach, include the Industrial Relations Commission,[95] Commercial Tribunal of Western Australia,[97] Town Planning Appeal Tribunal,[98] and Wardens Courts.[100] This result follows either from a definitional approach, that is, those bodies do not attract section 39(2) of the Judiciary Act because they lack the characteristics of a “court”, or because, constructively, they perform non-judicial functions so obviously incompatible with Chapter III that they cannot be taken to fall within section 39(2). The conclusion is the same either way. Similar conclusions can be drawn in respect of quasi-judicial bodies in other States.
However, a body like the Industrial Appeal Court, as in Western Australia, occupies a more ambiguous position. It is a court established under the Industrial Relations Act 1979 (WA) to hear appeals from the Industrial Relations Commission. Though the latter is an arbitral body and hence not a court, it is arguable that the Court is a “court of the State” because sections 7 and 85 of the Industrial Relations Act require the members of court to be judges of the WA Supreme Court. Similar questions also arise in relation to the former Accident Compensation Tribunal, abolished by the Victorian Parliament in 1992.[101]
Traditionally, no constitutional constraint has prevented State court judges from performing non-judicial functions as persona designata.[102] For example, State judges have on many occasions been appointed to commissions of inquiry and Royal Commissions.[103] In Kable, McHugh J suggested that the Commonwealth constitutional limit on the exercise of incompatible non-judicial functions could in some instances extend to State judges acting persona designata,[104]
[A]lthough nothing in Ch III prevents a State from conferring executive government functions on a State court judge as persona designata, if the appointment of a judge as persona designata gave the appearance that the court as an institution was not independent of the executive government of the State, it would be invalid.[105]
This extension represents a further application of an aspect of the doctrine of separation of powers, embedded in the Commonwealth Constitution. Interesting implications may ensue. For example, can Supreme Court judges conduct Royal Commissions or sit as members of Courts of Disputed Returns? It has been suggested that when the High Court acts as a Court of Disputed Returns, some of the functions it is required to perform are “incompatible” with judicial power.[106] Similarly, if the incompatibility test applies to State judges acting persona designata, it may be unconstitutional for Supreme Court judges to sit as members of Courts of Disputed Returns, as they do, for example, in Western Australia pursuant to section 143 of the Electoral Act 1889 (WA).
For McHugh J few appointments of a State judge as persona designata would give the appearance that the judge was not independent of the State executive.[107] Examples of functions he believed did not compromise a Supreme Court’s impartiality included the Chief Justice serving as Lieutenant Governor or Acting Governor, or serving on an electoral commission.[108] Such results of applying the Grollo incompatibility doctrine suggest that McHugh J assumes a more relaxed incompatibility test for State judges than that applied to federal judges.[109] But while such a pragmatic approach preserves a large measure of State autonomy and sensibly avoids the artificiality of an overly stringent application of principle, it is open to the objection that it is inconsistent with the more rigorous standards expected of the federal judiciary. Further, it fails to recognise that the independence of the judiciary has two dimensions: institutional and individual.[110] The example of a State Chief Justice occupying the office of Lieutenant Governor entails the State’s senior judicial officer performing from time to time both legislative and executive functions as the Head of State. That of acting as an electoral commissioner, ostensibly because of the judge’s impartiality may ironically involve the judge in decisions that are highly political and controversial. If public perception of independence is the Kable touchstone, the potential for compromise in such cases is arguably overwhelming.[111]
In any event, no other member of the Kable majority suggested the limitation on State legislative power extended to State judges acting persona designata. Gaudron J observed that the Kable limitation was “confined and relates to powers or functions imposed on a State court, rather than its judges in their capacity as individuals.”[112] Toohey and Gummow JJ did not address this question.
Kable’s requirement for public confidence in the independence of State courts[113] is significant for States in two respects. Firstly, what non-judicial functions are incompatible with State courts’ independence? Secondly, are other features of State courts constitutionally guaranteed in order to maintain public confidence?
Assuming that the Kable limitation is attracted to a State court,[114] the reach of the Kable constraint on State legislative power depends on the range of non-judicial functions that are incompatible with Commonwealth judicial power. According to one judicial view the same test for constitutional validity applies in relation to State courts, whether or not federal jurisdiction is exercised.[115]
Various interpretations of Kable’s incompatibility standard have emerged. On one view the Kable majority may be seen as centering on the aspect of incompatibility with Commonwealth judicial power.[116] For example, Toohey J and, to a lesser extent, Gaudron J explicitly relied on the Grollo v Palmer[117] However, as Walker notes, Toohey and Gaudron JJ’s application of the incompatibility doctrine is unclear.[119] Further, McHugh and Gummow JJ made no reference to Grollo incompatibility.[120] Other judicial and academic opinion has argued that Kable was premised on public confidence in the State court system.[121] Despite this uncertainty, the tenor of the majority judgments reveals a concern with maintaining public confidence in the independence of State courts exercising Commonwealth judicial power.[122] All members of the Kable majority considered that public confidence in those courts would be jeopardised if they were vested with non-judicial functions incompatible with independent adjudication.
Since Kable, Commonwealth[123] legislation have been challenged as incompatible with Chapter III of the Commonwealth Constitution. However, despite Kable’s potential reach to State courts invested with federal jurisdiction, arguably a high degree of incompatibility is required to undermine public confidence in the independence of State courts.[125] In this way, Chapter III’s constitutional limitation on State legislative power is restricted. Indeed, the application of the Kable limitation may be confined to non-judicial functions representing a “usurpation” of judicial power.[126] In Kable, incompatibility arose from the punitive and ad hominen nature of the NSW Act.[127]
Two unsuccessful challenges to State sentencing legislation illustrate the limited nature of Kable incompatibility. Moffatt concerned a challenge to the constitutional validity of Sub-Division (1A) of the Sentencing Act 1991 (Vic) which provided that an indefinite sentence could be imposed by the Supreme Court on a person “convicted of a serious offence to an indefinite term of imprisonment.”[128] If that occurred, the Sentencing Act required the court to specify a “a nominal sentence.”[129] After the defendant had served the “nominal sentence”, the court that imposed the indefinite sentence was required to review the latter sentence.[130] Upon review, the indefinite sentence was to be discharged by the court unless the court was satisfied that the offender was still a serious danger to the community.”[131] Similar legislation investing State courts with the power to impose indefinite sentences has been enacted in other Australian jurisdictions.[132] For example, under the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA) the Western Australian Supreme Court was responsible for the release of juvenile repeat offenders caught by the indefinite detention provisions.[133] Indeed, in a case that in some respects prefigured Kable that Western Australian legislation was challenged on the ground that it unconstitutionally compromised the independence of the State Supreme Court.[134]
In Moffatt, the applicant in fact did not challenge the court’s power to impose an indefinite sentence, because judicial authority supported the constitutional validity of indefinite sentencing legislation. For example, there were suggestions in Kable that State legislatures may “make laws for preventative detention when those laws operate in accordance with the ordinary judicial processes of the State courts.”[135] Further, in Chester v R,[136] there had been no suggestion that imposition of an indefinite sentence was incompatible with the court’s judicial function. The applicant, however, argued that the Victorian Act was distinct from previous indefinite sentencing legislation because the court was required to review or “administer” the sentence.[137]
Nevertheless, the Victorian Court of Appeal upheld the validity of the Victorian Act’s indefinite sentencing provisions.[138] The Victorian Court of Appeal held that preventative and general sentencing legislation did not “usurp” judicial power. Winneke P held that the Victorian Act was not comparable to the NSW Act considered in Kable because the NSW Act utilised the NSW Supreme Court to legitimise a legislative ad hominem plan.[139] Similarly, Hayne JA distinguished the NSW Act on the basis that the Victorian Act provided for an indefinite sentence upon a finding of guilt and its provisions were general in their application.[140] Hayne JA also held that the Victorian Act was not invalid simply because it required that the court be involved in the “continuing administration” of the sentence.[141] This conclusion illustrates the high degree of incompatibility required at the State level because the function the Moffatt court performed in “reviewing” the sentence was non-judicial. Indeed, Morgan has argued that if this function was conferred on a federal court it would be considered a non-judicial function and therefore not exercisable by a court.[142]
Wynbyne v Marshall[143] concerned a challenge to the Northern Territory’s Sentencing Amendment Act (No 2) 1996, which introduced minimum terms for property offences.[144] In particular, section 8 of the Sentencing Amendment Act (No 2) introduced section 78A(1) to the Sentencing Act 1995 (NT) which provides “[w]here a court finds an offender guilty of a property offence, the court shall record a conviction and order the offender to serve a term of imprisonment of not less than 14 days.” Western Australia has enacted similar legislation.[145] The applicant contended that the Sentencing Amendment Act 1996 (NT), in particular section 78A, was incompatible with Chapter III of the Commonwealth Constitution because it amounted to a legislative direction to the courts to convict and sentence.[146] Indeed, the function performed by the court under section 78A is arguably not judicial because the court’s discretion to determine the sentence is removed.[147] Applying one aspect of the Kable test, the applicant argued that public confidence in the judiciary was undermined by the Northern Territory Act because it represented an arbitrary and excessive punishment imposed at the behest of the legislature.[148]
The Northern Territory Supreme Court rejected this contention.[149] In dismissing the applicant’s argument, Mildren J made reference to judicial authority from various jurisdictions confirming legislative power to prescribe a fixed punishment upon a finding of guilt.[150] For example, the High Court in Palling v Corfield unanimously held that the Commonwealth Parliament could prescribe a minimum penalty for a Commonwealth offence.[151] Indeed, Palling v Corfield held that a law prescribing a fixed penalty was a law that the court applies in the exercise of its function.[152] Barwick CJ observed that where legislation imposes a mandatory minimum penalty,
[t]he exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded.[153]
On this basis, Mildren J concluded that the requirement to impose a minimum sentence of imprisonment did not represent an interference with the independence of the judiciary.[154]
Thus, at the State and Territory level later judicial consideration of Kable has confined the notion of incompatibility to that level. Even on such a confined view, bills of attainder[155] and bills of pains and penalties[156] would probably fall within the prohibited category. This is consistent with views expressed in Polyukhovich v Commonwealth where Mason CJ, Dawson, Toohey and McHugh JJ found that a Commonwealth law which inflicted punishment on specified persons amounted to a “usurpation of judicial power.”[157] As Dawson J stated,
A court in applying such a law [bill of attainder] is in effect confined in its inquiry to the issue of whether or not an accused is one of the persons identified by the law. If he is, his guilt follows. The proper judicial inquiry as to whether an accused has been guilty of prohibited conduct has thus been usurped by the legislature.[158]
More recently, other potential examples of incompatible functions were provided by Gummow J in Nicholas v R,
[A] legislative direction requiring a court not to release a person held in unlawful custody is a direction as to the manner (and outcome) of the exercise of its jurisdiction and is an impermissible intrusion into the exercise of the judicial power. Nor would a legislative direction be valid if it required a court in exercise of the judicial power of the Commonwealth to order imprisonment, not on the basis that the persons in question had breached any criminal law, but upon an opinion formed by reference to material, not necessarily admissible in legal proceedings, that, on the balance of probabilities, they might breach such a law.[159]
To secure the NSW Supreme Court’s independence, the Kable majority effectively imposed a “quasi-separation of powers” to prevent the Supreme Court exercising incompatible non-judicial functions. However, the separation of powers between different arms of government is only one means of ensuring judicial independence. Other methods include guaranteeing the “core characteristics” of judicial independence;[160] tenure, financial security and administrative independence.[161] Kable’s requirement of public confidence in State courts’ independence arguably encompasses these additional guarantees.
Comparative constitutional law analysis often provides valuable insight into the operation of principles existing across constitutions.[162] In the context of constitutional implications for Australian State courts, Reference re Remuneration of Judges[163] is of particular significance. In that case, the Canadian Supreme Court held that in order to preserve public confidence in the judicial independence of Provincial courts, Provincial legislatures are prevented from reducing Provincial court judges’ remuneration.[164]
Nevertheless, from a State constitutional perspective, generally no express entrenched constitutional limitation prohibits State legislatures reducing State court judges’ remuneration.[165] For example, in Western Australia, the Judges’ Salaries and Pensions Act 1950 (WA)[166] provides for the remuneration of Supreme Court judges. Although in most States judicial remuneration is determined by an independent statutory tribunal,[167] State Parliaments are not constitutionally restricted from reducing that remuneration.[168] As the Western Australian Premier stated in 1983,
As the Committee [of the whole House] would know, the Law Society in a public statement raised a question as to the constitutionality of any effort to reduce judicial salaries. Our best advice was that it was entirely constitutional, and that if the Government wanted to, it could propose to this Parliament legislation to reduce the salaries of judicial officers.[169]
Similarly, State judicial tenure[170] is subject to amendment by ordinary State legislation.[171] So, even though provisions such as section 54 of the Constitution Act 1889 (WA) prescribe that judges’ tenure shall “continue, and remain in full force during their good behaviour”[172] that section is not entrenched by a second provision like section 73 of the Western Australian Constitution or otherwise. It is true that as an exception to the lack of entrenched judicial protection, in Victoria, section 85 of the Constitution Act 1975 (Vic) establishes the Victorian Supreme Court’s constitution and powers, its position as a court of record and tenure and remuneration requirements for its judges.[173] Under section 85(5), manner and form requirements are prescribed for section 85’s alteration.[174] Also, in New South Wales the independence of “judicial officers” has, to a degree, been entrenched as a result of popular referendum. In 1995, sections 53, 54 and 55 were inserted into the Constitution Act 1902 (NSW) so that they now enjoy secure judicial tenure.[175] It would require a further referendum to effect any amendment. These limitations, however, only concern removal from office (including suspension or abolition).[176] No limitation is therefore imposed on alteration of terms such as remuneration.
On the other hand, Kable’s emphasis on independent State courts[177] and the Canadian constitutional implication extrapolated in Reference re Remuneration of Judges provide the foundation for a Commonwealth constitutional guarantee of State court judges’ tenure and remuneration.[178] Reference re Remuneration of Judges concerned the constitutional validity of salary reductions for Canadian Provincial court judges by Provincial legislatures.[179] Following reductions, numerous accused persons challenged the constitutionality of Provincial court proceedings, claiming that, as a result of the salary reductions, the court was no longer an independent and impartial tribunal under section 11 (d) of the Canadian Charter of Rights and Freedoms (Canadian Charter).[180] Previous cases established that section 11(d) encompassed a guarantee of financial security for courts and tribunals coming within the scope of that provision.[181] Reference re Remuneration of Judges considered whether the constitutional guarantee extended to inferior courts, that is Provincial courts,[182] which are not included in section 11(d).[183]
In considering this argument, the majority observed that judicial independence was not exhaustively defined in the Canadian Constitution, but instead represented an “unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Act.”[184] Similarly, Lederman has argued that that “essential provision for the independence of the judiciary generally has long been deeply rooted as an original principle in the basic customary law of the [Canadian] constitution.”[185] This unwritten norm was supported by the preamble to the Constitution Act 1867, which was said to give textual recognition to the principle of judicial independence.[186] In this way, the preamble was used in Reference re Remuneration Judges to “fill in the gaps”[187] with respect to the guarantees contained in section 11(d) of the Canadian Charter. Given the significant function that Provincial courts play in enforcing “the provisions and protecting the values of the [Canadian] Constitution”, the Canadian Supreme Court extended the principle of judicial independence to those courts.[188] It is notable, however, that in dissent, La Forest J argued that the preamble to the Constitution Act did not guarantee judicial independence. La Forest J argued that at the time of Confederation there were no enforceable limits on the power of the British Parliament to interfere with the judiciary.[189] Thus, the framers of the Constitution Act 1867, by expressing a desire to have “a Constitution similar in Principle to that of the United Kingdom”, did not give the courts power to strike down legislation violating the principle of judicial independence. Indeed, for La Forest J, the only courts accorded constitutionally protected judicial independence were those superior courts identified in sections 99–100 of the Constitution Act. In accordance with the unwritten norm of judicial independence, the majority argued that the core characteristics of judicial independence – tenure, financial security and administrative independence[190] – were constitutionally guaranteed for Provincial courts. They reasoned that the proposed reduction of judicial salaries had to be consistent with the second core characteristic of judicial independence, financial security.[191] The majority considered that this required Provincial courts to be,
free and appear to be free from political interference through economic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from the public purse.[192]
As in Kable, the Canadian Supreme Court’s concern was to maintain public confidence in the independence of the judiciary. Thus,
Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation.[193]
Accordingly, Reference re Remuneration of Judges concluded that although the salaries of Provincial court judges could be reduced, Provincial legislatures had to establish an independent “judicial compensation commission”[194] The commission’s role was to assess judicial remuneration to avoid the possibility and appearance of political interference through economic manipulation.[196] The majority considered that, in maintaining public confidence in the Provincial courts’ independence, Provincial legislatures were constitutionally prevented from reducing the salaries of Provincial Court judges without first having recourse to this “judicial compensation commission.”
Reference re Remuneration of Judges raises the potential extension of Kable to prevent State legislatures undermining State courts’ independence by reducing the remuneration of State court judges. Arguably, the judicial independence of State court judges is affected by a reduction in remuneration in two situations. Firstly, where a reduction in remuneration applies to all public servants, judicial independence may be undermined because a perception is created that judges are public servants and thus are not independent of the government. Secondly, if a reduction in remuneration applies only to judges, judicial independence may be undermined by the perception that the legislature is punishing the judiciary for adjudicating cases in a particular way. The risk of political interference through economic manipulation may be greater when judges are treated differently from public servants.[197]
Kable’s extension to a guarantee of remuneration would provide constitutional protection from political interference through economic manipulation.[198] However, the text of Chapter III of the Commonwealth Constitution may preclude this constitutional implication by omission. Though section 72 of the Constitution expressly provides for the tenure and remuneration of federal court judges, it does not refer to State court judges.[199] While Kable’s “integrated” approach requires State courts to be capable of exercising Commonwealth judicial power, the express terms of Chapter III may therefore inhibit a further extension of the constitutional implication extrapolated from Kable. The organisation and structure of State courts, including State court judges’ tenure and remuneration, remain matters for State Parliaments.[200] This point was recognised by McHugh J in Harris v Caladine where he stated,
[t]hough the Parliament might confer federal jurisdiction on a State court whose members did not have the security of tenure and remuneration afforded by s72, this result would only ensue because the State concerned did not want its judicial officers to have the same security of tenure as given by s72.[201]
Hence, State court judges would only receive constitutional protection for these characteristics by entrenchment in State constitutions[202] or amendment of the Commonwealth Constitution.[203]
Variation in constitutional protection afforded to Australian State courts and Canadian Provincial courts is relevant because there are intriguing similarities between the Australian and Canadian judicial systems. Firstly, Provincial courts are creatures of statute and their continued existence is not explicitly guaranteed by the Canadian Constitution.[204] Secondly, under section 92 of the Canadian Constitution,[205] Provincial legislatures are granted legislative power over the “[a]dministration of justice in the Province, including the Constitution, Maintenance, and Organisation of Provincial Courts.”[206] Consequently, Provincial legislatures may invest their courts with federal or provincial jurisdiction, with an appeal from the Provincial court to the Supreme Court of Canada.[207] Similarly, Australian State Parliaments determine State courts’ structure and organisation, with appeals from State Supreme Courts to the High Court.[208]
Despite institutional and structural similarities, the Australian and Canadian constitutional implications requiring public confidence in the independence of State and Provincial courts were extrapolated from different sources. The Canadian implication was based on the existence of an “unwritten constitutional norm”[209] guaranteeing judicial independence. In some ways this “unwritten constitutional norm” is comparable to what Brennan CJ and Dawson J have described as an impermissible extra-constitutional principle.[210] For example, Brennan CJ has stated,
[i]mplications are not devised by the judiciary; they exist in the text and structure of the Constitution and are revealed or uncovered by judicial exegesis. No implication can be drawn from the [Commonwealth] Constitution which is not based on the actual terms of the Constitution, or on its structure .... It is logically impermissible to treat ‘representative democracy’ as though it were contained in the Constitution.[211]
Although the concern underlying Kable was to secure the independence of State courts, the Chapter III limitation was not derived from a fundamental norm of judicial independence.[212] Rather, the Kable constitutional implication was derived from Chapter III’s structure and text, which recognised that, although they must be compatible with the exercise of Commonwealth judicial power, State courts are organised and maintained under State legislation.[213] In this way, the development of the Australian requirement of public confidence in the independence of State courts may be limited to a regulation of the non-judicial functions those courts exercise.[214]
State Parliaments can no longer claim plenary power over their courts. Kable, and in particular Gaudron and McHugh JJ’s “integrated” approach, represents a significant diminution of State legislative power over State courts. Prior to Kable, Chapter III’s “autochthonous expedient”[215] did not limit State legislative power. The Commonwealth Parliament was required to take State courts as it found them.[216] Kable establishes that State courts are not immune from Chapter III implications. As integral components of the Australian judicial system, State courts invested with federal jurisdiction must remain capable of exercising Commonwealth judicial power free from executive or legislative imposition. Accordingly, State legislative power is “vulnerable” to Chapter III’s implied limitations.
Kable’s limitation on State legislative power exists on two levels. Firstly, Gaudron and McHugh JJ’s broad approach necessitates the continued existence of State Supreme Courts. Further, in addition to Supreme Courts, other State courts invested with federal jurisdiction are required to be compatible with Chapter III of the Commonwealth Constitution. Secondly, State Parliaments cannot undermine public confidence in the independence of State courts invested with federal jurisdiction.
Nevertheless, the content of Kable’s concept of public confidence requires further judicial elucidation. A similar notion has been applied by the Canadian Supreme Court to prevent Provincial legislatures reducing the salaries of Provincial court judges so as to undermine their judicial independence.[217] This Canadian constitutional implication stems from an unwritten norm of judicial independence. In the Australian context, the absence of an analogous constitutional norm means that the concept of public confidence will not guarantee State judges’ judicial independence, because these remain matters for State Parliaments. Therefore, in spite of Gaudron and McHugh JJ’s vision of an integrated Australian judicial system, Chapter III’s textual distinction between federal and State courts may ultimately inhibit further extensions of Kable’s constraint on State legislative power.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/10.html