In the last Commonwealth ARC grant rounds, Professor John Williams and Dr Gabrielle Appleby from the Adelaide Law School, together with their colleague from the Australian National University, Associate Professor James Stellios, were awarded funding to undertake a project entitled ‘Law, Order and Federalism’. Below is a short outline of their research.
Threats of criminal retribution, bloody assaults in public places and ongoing gang violence in its sensationalised form fill the pages and screens of much of the popular media. Sexual predators and dangerous individuals threatening public safety are easy targets for quick law and order responses. The reaction by State governments to these events and threats is usually swift as they attempt to quell public anxiety, protect the community and garner political advantage. In recent times, crackdowns and the enactment of novel, and often draconian, legislation have been the predictable responses. More often than not, the proposed political solution has involved the use by State governments of their courts and judges in unconventional ways to order the detention of undesirables or the curtailment of their liberty. The role of judges in these schemes, with their training, skills and independence, can be readily presented by governments as important to safeguarding individual interests.
Yet, there are familiar dangers in the use of courts and judges in this way. There are risks that State governments may be borrowing judicial independence and reputation in order to play law and order politics. Nothing is more damaging to the reputation of the judiciary than the perception that it is doing the government’s bidding.
Until recently, the conventional constitutional view in Australia was that while the Australian Constitution might prevent the Commonwealth Parliament from using judges and courts in this way, State Parliaments were free of such constitutional constraints. Rather, the orthodoxy was that balancing protection of individual liberties and the maintenance of independent and impartial justice systems against community protection objectives was a political exercise for State Parliaments. However, the federal judicial system in Australia is an unusual one. Chapter III of the Constitution creates an ‘integrated’ judicial system that sees State courts exercising both State and federal power. As a consequence of this ‘integration’, the High Court has, over the last 20 years – and particularly the last two years – developed constitutional limitations on how State Parliaments can use their courts and judges. This study focuses on the limits imposed by the ‘Kable principle’, a constitutional implication that limits the States’ capacity to pass legislation that would jeopardise the independence and impartiality of State courts.
The hypothesis to be explored in this project is that, in accordance with federalism theory, State governments have responded to local concerns about law and order and this has driven diversification and experimentation. However, in recent years, constitutional imperatives of judicial independence and impartiality have been relied upon by the High Court to smother the capacity of State governments to respond in strong and innovative ways to State law and order priorities, such as addressing the myriad challenges posed by organised crime and recidivism. We will investigate the extent to which this has resulted in the frustration of State government initiatives. Our findings will provide greater clarity for State governments when designing law and order responses that use State courts.