Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power

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[This article reviews the High Court's emerging jurisprudence on the institutional integrity of state courts. It begins by surveying the Court's recent decisions in this area. The authors argue that these decisions can usefully be placed into four interrelated categories, concerning the constitution of state courts, impermissible grants of jurisdiction, impermissible withdrawal of jurisdiction and procedural guarantees. After summarising the central principles arising from the rulings, the authors consider four possible broader implications, focusing particularly on Kirk v Industrial Court of New South Wales. It is argued that Kirk has potentially wideranging implications for the powers of state legislatures to restrict judicial review and modify the requirements of natural justice.]


I   Introduction
II  The Constitution of a Court
III Impermissible Jurisdiction
    A Control Orders
    B Declarations of Incompatibility
IV  Withdrawal of Jurisdiction
V   Procedural Guarantees
    A Confidentiality of Criminal Intelligence
    B Suppression Orders
    C Ex Parte Orders
VI  Broader Implications
    A Jurisdiction of Inferior Courts and Tribunals
    B Errors of Law Affecting Jurisdiction
    C The Right to Factual Particulars
    D Denial of Natural Justice
VII Conclusion


It has been the longstanding judicial view, repeatedly affirmed by state supreme courts, the High Court and the Privy Council, that the doctrine of the separation of powers is not constitutionally entrenched at state level. (1) This orthodox view, we argue, no longer represents the constitutional law of Australia following a series of judgments of the High Court commencing with Kable v Director of Public Prosecutions (NSW) ('Kable'). (2) The High Court declared in Kable that state and federal courts form an integrated hierarchy and, for that reason, that state legislatures do not have unrestricted power to alter the constitution, jurisdiction or procedures of state courts. In that case, the High Court invalidated New South Wales legislation that empowered the Supreme Court to order the continued detention of a named prisoner beyond his imposed prison sentence, not on the grounds of violating the law but on account of the likely danger he posed to others.

In the words of Gaudron J in Kable, s 5 of the Community Protection Act 1994 (NSW) 'makes a mockery of [the judicial] process' and

   because the judicial process is a defining feature of the judicial
   power of the Commonwealth, the Act weakens confidence in the
   institutions which comprise the judicial system brought into
   existence by Ch Ill of the Constitution. (3)

McHugh J remarked that although the separation of powers doctrine was inapplicable to the states, 'in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers.' (4)

Two High Court cases decided after Kable--Fardon v Attorney-General (Qld) ('Fardon') (5) and Baker v The Queen ('Baker') (6)--upheld state laws that empowered the respective supreme courts to order further detention not of named individuals, but of categories of offenders considered to endanger society. These decisions prompted Kirby J to wonder in 2004 whether Kable was 'a constitutional guard-dog that would bark but once'. (7) This was not strictly true at the time, as the Supreme Court of Queensland had applied the Kable rule to invalidate legislation dealing with the proceeds of crime, (8) an implication later confirmed by the High Court. (9) At any rate, it is certainly not true now, given the recent proliferation of cases on institutional integrity considered in this article.

This article reviews the current state of the High Court's jurisprudence on institutional integrity. We begin by surveying the Court's recent decisions in this area. We argue that these decisions can usefully be placed into four interrelated categories. …