← The hardest concepts in Australian law
In one breath
Australia has federal courts and State courts, and the Constitution lets Parliament invest State courts with federal jurisdiction but does not let federal courts be given State jurisdiction. The High Court has also held that State courts must remain fit to exercise federal jurisdiction, so a State Parliament cannot give its courts functions that would undermine their independence and integrity.
The picture
The teacher on loan
A national education department may borrow teachers from State schools to teach the national curriculum. The State schools supply them, and the teachers keep their State posts. The Constitution permits the same: Parliament may call on State courts to hear federal matters, and those courts then act as part of the national system. But the loan does not run the other way. The national department cannot send its own teachers to run State classes under State timetables.
And because State teachers may be borrowed at any moment, the national system has a stake in their standing. A State may run its schools as it likes, but it may not turn its teachers into rubber stamps for the minister, because a borrowed teacher is only worth borrowing if the public can trust the teaching. That is the Kable principle: a State court that may be invested with federal jurisdiction must not be given functions that compromise its independence and impartiality.
Where the picture stops working
A teacher on loan is an individual, whereas a court is an institution, and Kable looks at the institution’s integrity rather than the fairness of any single decision. The principle is also narrow in practice: it does not give State courts the strict separation of powers that applies federally, and laws are rarely struck down under it.
How it really works
- 1Place the rule. It is constitutional and works at two levels. Chapter III limits what the Commonwealth Parliament may do with courts, while Kable limits each State Parliament in dealing with its own courts. The ordinary organisation of State courts is State law.
- 2Identify the court and the jurisdiction. Federal jurisdiction is conferred by or under Commonwealth law, State jurisdiction by State law. Section 77(iii) allows Parliament to invest State courts with federal jurisdiction.
- 3Ask which way the loan runs. State courts may be invested with federal jurisdiction. Federal courts cannot be invested with State jurisdiction, and the part of the cross-vesting scheme that tried to do so was held invalid.
- 4Where a State law gives a State court a function, ask whether it is incompatible with the court’s institutional integrity, for instance by making it an instrument of the executive or directing how it must decide a particular case.
- 5State the result. A law that fails is invalid to that extent. The principle has also been used to protect the supervisory jurisdiction of the State supreme courts.
Why people get it wrong
- Thinking State courts are minor players in federal matters. They routinely exercise federal jurisdiction.
- Reading Kable as giving State courts a federal-style separation of powers. It protects institutional integrity, which is narrower.
- Assuming that a law unfair to someone breaches Kable. The question is the effect on the court’s character, not unfairness in one case.
- Believing the whole cross-vesting scheme was struck down. Only the investing of federal courts with State jurisdiction failed.
A worked example
The facts are invented
A State law directs the Supreme Court to issue, whenever the Attorney-General asks, an order silencing a named newspaper, without hearing the newspaper or giving reasons. The court is made a mere instrument of the executive, with its decision predetermined. That offends the Kable principle, and the law is likely invalid.
Change the facts: a State law requires the Supreme Court to impose a minimum sentence on repeat offenders. Parliament is limiting the court’s discretion, but the court still decides cases by a proper process, so there is no Kable problem. Change them again: Commonwealth legislation lets the Federal Court decide a pure State-law dispute over a will between residents of one State. Federal courts cannot be given State jurisdiction in this way, and the conferral fails.
Try it
Commonwealth legislation purports to let the Federal Court hear State-law disputes over wills between residents of the same State, with the parties’ agreement. Can it validly do so?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Kable v Director of Public Prosecutions (NSW), (1996) 189 CLR 51
- Re Wakim; Ex parte McNally, (1999) 198 CLR 511
- Fardon v Attorney-General (Qld), (2004) 223 CLR 575
- Kirk v Industrial Court of New South Wales, (2010) 239 CLR 531
Where to go next
More hard concepts in Australia law
- Section 109: when Commonwealth and State laws clash (Constitutional law)
- The separation of judicial power and the Boilermakers principle (Constitutional law)
- The implied freedom of political communication (Constitutional law)
- The guarantee of acquisition on just terms (Constitutional law)
- The Commonwealth’s heads of power (Constitutional law)
- Jurisdictional error and privative clauses (Administrative law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.