Is a constitutional principle making states too cautious with law and order policies?

The so-called Kable principle has imposed constitutional restrictions on the way States can use their courts and judges when designing law and order policies. In the article below, Dr Anna Olijnyk and Dr Gabrielle Appleby say the principle has been able to achieve important protections for individual rights, in a roundabout way. But they ask whether a lack of certainty and understanding about how it works is also making States too cautious in the justice arena.

Their project on whether and how the Kable principle affects law and order policies is focused on three case studies: anti-organised crime legislation; specialist courts dealing with issues such as drug addiction; and tribunals dealing with a broad range of minor disputes.

In the law and order arena, Governments are faced with constant, pressing and complex problems. Bikies. Drug addiction. Serial violent offenders. High incarceration rates in the Indigenous population. The eye-watering expense and delay of court proceedings.

In Australia, the States continue to experiment with new solutions in the hope of solving, or at least alleviating, these problems. They have attempted to break up bikie gangs by criminalising associations between gang members and giving the courts power to issue control orders against them. Preventative detention regimes have been introduced to prevent serial violent offenders from being released onto the streets. Courts have been asked to supervise rehabilitation for minor drug offenders. Judges are assisted by Indigenous Elders when sentencing Indigenous offenders. Speedy, low-cost tribunals have been created to keep small disputes out of the courts.

But there’s a catch. There are constitutional restrictions on the way States can use their courts and judges when designing law and order responses. While the restriction, known as the Kable principle, has been expressed in different ways over the years, it’s generally understood that the Australian Constitution requires State courts to retain their ‘defining characteristics’ and their ‘institutional integrity’. To put it another way, courts must remain court-like. They must remain independent from the political branches of government. They must – usually – conduct their proceedings in open court, give all parties an opportunity to be heard, and provide reasons for their decisions.

This constitutional restriction is less than 20 years old. It first surfaced in a 1996 case involving Gregory Wayne Kable. While serving his sentence for the manslaughter of his wife, Mr Kable wrote letters to his wife’s relatives threatening acts of violence against them. As Mr Kable’s sentence neared its end, the New South Wales Parliament felt the need to act. It passed the Community Protection Act 1994.

The Community Protection Act was a most unusual law. It applied to only one person: Mr Kable. It allowed the Supreme Court to order the imprisonment of Kable, not because he had committed a crime (he’d already served his sentence) but because he might commit crimes in the future. It required the court to abandon some of the formal procedures courts use to ensure fairness and accuracy.

The High Court struck the law down. The function it conferred on the Court was so ‘grossly unjudicial’, so different from what courts are supposed to do, that it changed the very character of the court. Mr Kable was released. His subsequent attempt to receive damages from New South Wales for false imprisonment was recently thrown out by the High Court.

The Kable principle is implied, rather than stated expressly in the text of the Constitution. Perhaps because of this, the principle is notoriously difficult to pin down. What exactly is ‘institutional integrity’? When is a court no longer a court? The High Court’s reasoning in cases considering the Kable principle hasn’t made things much easier. Followers of the High Court’s constitutional decisions (such as lawyers, academics and public servants) have all but given up predicting the result of Kable challenges with any confidence. Ask one of us what the result of the next Kable case will be, and we’ll show you a furrowed brow, a shrug, and hands spread in despair.

There are expectations that the government will develop innovative policy to meet the evolving and complex security and justice needs of the community. Yet when they use courts and judges in novel ways, there is the risk the initiative will be struck down as unconstitutional. That was the fate of attempts by the South Australian and New South Wales governments to introduce control orders for members of bikie gangs. It was the fate of New South Wales proceeds of crime legislation. It was almost the fate of Victoria’s Charter of Human Rights and Responsibilities.

Our working hypothesis is that the uncertainty of the Kable principle makes development of law and order policy at times detrimentally difficult for the States.

The problem isn’t just that Kable stops State governments from doing what they want. That is an acceptable (indeed an inherent) price to pay for having a government subject to a constitution. There are many things the States and the Commonwealth can’t do under the Constitution. And thank goodness for that. The Kable principle provides a minimum constitutional guarantee for fundamental individual liberties – including the freedom from arbitrary detention and the right to a fair trial – against incursion by the government. This is, undoubtedly, a good thing.

The problem that we have identified, however, is that the uncertainty of Kable discourages legitimate, constitutionally permissible, innovation. All constitutional limits are a bit fuzzy around the edges, but the Kable principle is particularly problematic for a number of reasons. The first is that it’s implied, but unlike the other implied limitation in our Constitution, the protection for political communication, the Court has consistently refused to proclaim a test that can be applied to all future cases. The second is that there is no inbuilt flexibility in the Kable principle. Under the implied freedom of political communication (as with most constitutional rights protections granted in other constitutions) governments are permitted to burden political communication, provided such burden is a proportionate pursuit of a legitimate objective, such as public safety. Finally, few constitutional restrictions have been applied by the High Court in such apparently contradictory ways as the Kable principle, making predicting how it might do so in the future almost impossible.

How can States keep their law and order policies within the field of constitutional play when they don’t know where the boundary of Kable lies? We think States might do one of three things.

They might risk making a law that strays into uncharted constitutional territory, then hope the law won’t be challenged and struck down. This is a politically and financially risky play, and one that many, although not all, governments have avoided.

They might play it safe by copying legislation that has survived a Kable challenge in another State. So, for example, Queensland’s control order regime was eventually upheld as valid by the High Court. That model was swiftly adopted in other States. On one level this is beneficial. But it can also undermine one of the supposed advantages of a federation: to facilitate diversity and policy experimentation across the different governments and allow governments to be responsive to the policy needs and wants of their individual communities.

Finally, States might legislate conservatively, giving a wide berth to anything that might raise a constitutional issue. The result is a drop in the number of options available to governments when devising new law and order policies. They might choose a policy that’s constitutionally certain, but second-best for the community, over one that’s best policy but constitutionally risky.

We are testing our theory by conducting interviews with State and Territory law- and policy- makers and advisors. This is part of a larger project, funded by a Discovery Grant from the Australian Research Council, on the effect of constitutional restrictions on State law and order policy. We’re asking how the Kable principle affects the law and order policies they are able to implement.

Specifically, we’re focusing on three case studies: anti-organised crime legislation; specialist courts dealing with issues such as drug addiction; and tribunals dealing with a broad range of minor disputes. All three case studies represent efforts by State governments to bring a fresh approach to complex law and order challenges. We’ll explore the way constitutional restrictions have shaped these innovations.

Constitutional restrictions on the use of State courts are necessary and beneficial. That is, we agree that courts have special characteristics that are worth protecting. By protecting the characteristics of the courts, important protections are also secured for individual liberties. The Kable principle can act as a check on populist policies that trespass on the rights of less-than-popular individuals (like Mr Kable, or the bikies). But all of this shouldn’t blind us to the cost of the current formulation and application of these principles for State governments and, ultimately, the people they govern.

Dr Anna Olijnyk is a Lecturer at the Adelaide Law School, University of Adelaide

Dr Gabrielle Appleby is Associate Professor at UNSW Law and Co-director of The Judiciary Project, Gilbert + Tobin Centre of Public Law