The Kable Principle is a commentary on the right of law under our Commonwealth of Australia Constitution Act 1901 extracted from the 64 pages of the court case: Kable V DPP of New South Wales (1996) 96/027
In 1996 the “Kable Principle” was established and it is the definitive decision on S 79 Constitution, S 79 which is simple and straight forward: The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.
Neither a Judge nor a Judicial Registrar can constitute a court without judges plural, either State or Federal and Article 9 of the International Covenant on Civil and Political Rights confirms that any Arbitrary decision, (i.e. made by one person) is now a totally criminal offence against S 268 :12 Criminal Code Act 1995 (Cth) and S 43 Crimes Act 1914 (Cth). All Judges and Judicial Registrars of the any Court are deemed to know that fact.
If you have been targeted by the unlawful corporate entity purporting to be the Government of Australis, or any of its departments or ministries that are causing you harm, you need to read the Kable Principle carefully. Then read it again, and again, until you fully comprehend what it means to you, your rights, and your freedoms.
Here is the extract:
Four Judges out of six constitutes a binding majority.
Toohey J: (Judge 3)
The Supreme Court of New South Wales was required, at first instance and on appeal, to determine questions arising under the Constitution. In those circumstances s 39(2) of the Judiciary Act, read with s 77(iii) of the Constitution, conferred jurisdiction on the Supreme Court to determine those questions. Section 71 of the Constitution ensured that the judicial power of the Commonwealth was engaged in those circumstances.
20 To the extent that they are invested with federal jurisdiction, the federal courts and the courts of the States exercise a common jurisdiction (136). It follows that in the exercise of its federal jurisdiction a State court may not act in a manner which is incompatible with Ch III of the Commonwealth Constitution.
- However the Act is invalid by reason of the incompatibility with Ch III of the Commonwealth Constitution that its implementation produces. If the Act operated on a category of persons and a defence to an application for a preventive detention order was confined to a challenge that the criteria in s 5(1) had not been met, different questions might arise. In that situation the judicial power of the Commonwealth might not be involved; that is something on which it is unnecessary to comment. But here the judicial power of the Commonwealth is involved, in circumstances where the Act is expressed to
operate in relation to one person only, the appellant, and has led to his detention without a determination of his guilt for any offence. In that event validity is at issue, not simply the reach of the Act in a particular case.
Gaudron J: Judge 4.
- Several arguments were advanced in favour of the appellant’s contention.
I need deal with one only, namely, that Ch III of the Constitution impliedly prevents the Parliament of a State from conferring powers on the Supreme Court of a State which are repugnant to or inconsistent with the exercise by it of the judicial power of the Commonwealth.
- If Ch III requires that State courts not exercise particular powers, the Parliaments of the States cannot confer those powers upon them. That follows from covering cl 5, which provides that the Constitution is “binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State”, and from s 106, by which the Constitution of each State is made subject to the Australian Constitution.
- Were they free to abolish their courts, the autochthonous expedient, more precisely, the provisions of Ch III which postulate an integrated judicial system would be frustrated in their entirety. To this extent, at least, the States are not free to legislate as they please.
McHugh J. Judge 5.
- In the case of State courts, this means they must be independent and appear to be independent of their own State’s legislature and executive government as well as the federal legislature and government. Cases concerning the States, the extent of the legislative powers of the States and the actions of the executive governments of the States frequently attract the exercise of invested federal jurisdiction. The Commonwealth government and the residents and governments of other States are among those who litigate issues in the courts of a State. Quite often the government of the State concerned is the opposing party in actions brought by these litigants. Public confidence in the exercise of federal jurisdiction by the courts of a State could not be retained if litigants in those courts believed that the judges of those courts were sympathetic to the interests of their State or its executive government.
25: But under the Constitution the boundary of State legislative power is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court.
30: But the most significant of them is that, whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree.
- However the Act is invalid by reason of the incompatibility with Ch III of the Commonwealth Constitution that its implementation produces. If the Act operated on a category of persons and a defence to an application for a preventive detention order was confined to a challenge that the criteria in s 5(1) had not been met, different questions might arise. In that situation the judicial power of the Commonwealth might not be involved; that is something on which it is unnecessary to comment. But here the judicial power of the Commonwealth is involved, in circumstances where the Act is expressed to
operate in relation to one person only, the appellant, and has led to his detention without a determination of his guilt for any offence. In that event validity is at issue, not simply the reach of the Act in a particular case.
Gummow J: Judge 6.
- The appellant points to the particular characteristics of the provision made by the Constitution for the federal judicial power, which were identified by Deane J in Re Tracey; Ex parte Ryan (231). His Honour said: “The power to adjudge guilt of, or determine punishment for, breach of the law, the power to determine questions of excess of legislative or executive power and the power to decide controversies about existing rights and liabilities all fall within the concept of judicial power. The Executive Government cannot absorb or be amalgamated with the judicature by the conferral of non-ancillary executive functions upon the courts. Nor can the Executive itself exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree. The guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III court acting as such, that is to say, acting judicially. For its part, the Parliament cannot legislate either to destroy the entrenched safeguards of Ch III or to itself assume the exercise of judicial power.”
- The final steps in the appellant’s submissions are as follows. First, the structure of the Australian Constitution, especially Ch III, does not permit of an Australian judiciary exercising the judicial power of the Commonwealth but divided into two grades, an inferior grade, namely the possessors of invested federal jurisdiction who are subject to the imposition and receipt of incompatible functions under State law, and a superior grade, comprising this Court and other federal courts which are not subject to the imposition and receipt of such functions whether pursuant to Commonwealth or State law. The second step is that the Constitution, and especially Ch III, assumes and requires, at least as regards the Supreme Courts of the States, an institutional integrity of the State court structure which may not be undermined by the reposition in them of authorities and powers of the nature of those in the Act.
- The expedient provided for in s 77(iii) would be frustrated if there were no system of State courts to provide these substitute tribunals as repositories of the judicial power of the Commonwealth. Federal jurisdiction could not be invested in a State body which was not a “court” within the meaning of s 77(iii) (270).
- There may be some uncertainty as to the range of statutes (Imperial and local), instruments, conventions and practices which together, or only in some limited fashion, comprise the Constitution of a State as it existed at the establishment of the Commonwealth (272). It is unnecessary to resolve any such uncertainties at this stage. That is because the Constitution, in the relevant sense, of the colony of New South Wales undoubtedly included the Imperial statute, the New South Wales Constitution Act 1855 (Imp) (273). Section 1 thereof authorised the Crown to assent to the Bill set out in Sched
1 which had been passed by the then New South Wales Legislative Council. Clause 42 of the scheduled Bill stated: “All the Courts of Civil and Criminal Jurisdiction within the said Colony and all Charters legal Commissions Powers and Authorities and all Officers judicial administrative or ministerial within the said Colony respectively except in so far as the same may be abolished altered or varied by or may be inconsistent with the provisions of this Act or shall be abolished, altered or varied by any Act or Acts of the Legislature of the Colony or other competent authority shall continue to subsist in the same form and with the same effect as if this Act had not been made.”
S 38 preserved the commissions of the present judges of the Supreme Court of the colony. With the coming of federation, the effect of the new Constitution was to render the Supreme Court as it stood at the establishment of the Commonwealth, the Supreme Court of the State of New South Wales. But that transmutation was effected “subject to the Constitution” (274).
- However, in my view, the issue in the present case is best resolved by recourse to the proposition that the Constitution itself is rendered, by covering cl 5, binding on the courts, judges and people of every State notwithstanding anything in the laws of any State. The particular characteristics of the Supreme Court against detraction from which, or impairment of which, by the Act the appellant complains, are mandated by the Constitution itself. Of course, the effect of the constitutional mandate is the protection of the Commonwealth judicial power as and when it may be invested. But the vice from which the Act suffers is not removed by the operation of s 109 upon inconsistent laws. It is removed by the operation of the Constitution itself.
