and no other person. Justices Toohey, Gaudron, McHugh and Gummow
the breadth of plenary state legislative power. However, they accepted
ence and structural integrity of state courts in Chapter III of the Constitution.
under section 73(ii) and the provision in sections 71 and 77(iii) that state courts
cannot interfere with their courts so as to create ‘two grades or qualities of
and the remuneration arrangements of Magistrates.
350
Rosalind Dixon and Gabrielle Appleby
to construe state statutory schemes so as to mitigate their worst excesses, it was
reluctant to deploy the principle to strike down legislation.
27
Since International Finance Trust Co, the High Court has upheld a number
of
Kable challenges, which have in turn shaped important aspects of state
law and order policy. Many of these challenges have arisen in the context of
the states’ anti-organised crime policies, which the states have had to revise
substantially following the decisions. In South Australia v. Totani, the Court
struck down part of South Australia’s anti-organised crime control order
regime that required the Magistrates Court to issue a control order against
a member of a criminal organisation if that organisation had been declared
such by the Attorney-General. In Wainohu, the Court struck down the New
South Wales control order regime because of its inclusion of a provision that
relieved judges of the duty to provide reasons for decisions to declare organisa-
tions criminal. In the subsequent decision of Condon v. Pompano, the Court
upheld the validity of the Queensland control order regime, which has now
largely been replicated in many states.
28
Since Kable, the Court’s formulation of the limits of the principle has
evolved, and the protections afforded to the institutional integrity of state
courts are now framed by reference to maintaining the defining character-
istics of ‘courts’, as referred to in the Constitution.
29
This represents a move
to more closely ground the implied limits of the
Kable principle in the text
of the Constitution. Framed in this way, in Kirk, the Court struck down state
legislation that removed the supervisory jurisdiction of the New South Wales
Supreme Court, effectively extending the express constitutional protections
of access to the courts in section 75(v) of the Constitution for review of the
actions of Commonwealth officers to the state sphere.
30
This has had funda-
mental implications for the use of privative clauses at the state level.
The Boilermakers’ and Kable principles are both implied structural limi-
tations on Commonwealth and state legislative power to interfere with the
courts, judicial process and, at the federal level, the bestowal of judicial power
on non-judicial bodies. While they may have had some beneficial effects for
individual rights – such as in relation to due process accorded to individuals in
judicial proceedings and protection from arbitrary executive detention – they
have explicitly and repeatedly been framed as structural guarantees, with any
rights-benefits being incidental and narrow.
27
Such as in
Gypsy Jokers Motorcycle Club Incorporated Inc v.
Commissioner of Police (
WA)
(2008) 234 CLR 532; K-Generation Pty Ltd v. Liquor Licensing Court (2009) 237 CLR 501.
28
Do'stlaringiz bilan baham: