Constitutional Law: Kable Doctrine - Case Study Example

Name of the Student] [Name of the Professor] [Name of the Course] [Date] Constitutional Law – Kable Doctrine Introduction The decision in International Finance Trust Co Ltd v New South Wales Crime Commission related to the bestowal of powers upon the Supreme Court of a State. These powers were deemed to be capable of damaging the institutional integrity of Supreme Courts. With this ruling, the High Court employed the Kable principle to render State legislation invalid (Lacey 643). Prior to this there had been a number of cases, wherein challenges to State legislation had proved to be unsuccessful. As such, the decision in International Finance Trust Co Ltd v New South Wales Crime Commission, was nothing more than a direct application of the ruling in Kable (Lacey 641). The principle established in Kable was applied by the High Court in International Finance Trust Co Limited v New South Wales Crime Commission. The Court ruled that with regard to a State court that was empowered to exercise federal jurisdiction, it was a violation of the constitution to confer a jurisdiction that was fundamentally inadmissible to the judicial process (Spigelman). This decision was followed by the High Court in Kirk v Industrial Court of New South Wales. These rulings promote the decision in the Kable case. However, with regard to the decision in High Court in Kirk v Industrial Court of New South Wales, the effect was far reaching. The High Court, via this ruling, extended the ambit of CH III of the Constitution (Lacey 641). In effect, this ruling held that the supervisory jurisdiction of the different state supreme courts was a defining feature that could not be excised. In addition, this ruling has significance for cases involving allegations of jurisdictional errors. All the same, the true importance of the Kirk ruling relates to the bold attitude adopted by the High Court with regard to its supervisory role. This is with respect to its review of the basic errors committed by tribunals and the lower courts. From this perspective, the ruling in Kirk stands to have a significant influence only when the issues circumvented in this decision have to be determined (Lacey 641). Moreover, the principle in Kable was applied in two recent cases relating to Chapter III of the Constitution. The High Court, via these rulings, invalidated a state statutory provision. It also quashed the decision of the New South Wales Court of Appeal. These cases were International Finance Trust Co Ltd v New South Wales Crime Commission, and Kirk v Industrial Court of New South Wales. In International Finance Co Ltd v New South Wales Crime Commission, it was considered that there had been a breach of the Constitution (Lacey 642). In Kirk v Industrial Court of New South Wales, the High Court declared that the legislation of New South Wales as valid. However, it quashed the decision of the Court of Appeal on the grounds of jurisdictional error. This ruling extended the Kable principle and stated that the integrated court system and the unified common law require the entrenchment of the supervisory jurisdiction of the Supreme Courts (Lacey 642). The ruling in Kirk v Industrial Court of New South Wales entrenched judicial review at the state level, in the context of jurisdictional error. Furthermore, it had a concordant effect on the scope and operation of state privative clauses. This decision is akin to that of the ruling in Plaintiff S157/2002 v Commonwealth, which had influenced the scope and operation of the privative clauses of the Commonwealth (Lacey 642). However, the Kirk decision was conventional due to two distinguishing features. First, the decision failed to address the controversial issues involved in the case. Second, the facts and applicable legislation, involved in this case, had the capacity to deprive courts of their control over legal questions. This had the potential to produce grave consequences (Lacey 642). Under these circumstances, the courts could be expected to intervene. Furthermore, the decision in Kirk v Industrial Court of New South Wales could result in a situation, which if not curbed by Chapter III of the Constitution, would permit State Parliaments to remove legal questions from the purview of the supreme courts. Thereafter this dangerous trend could be extended to the High Court of Australia (Lacey 642). While applying the Kable principle in the ruling in International Finance Trust Co Ltd v New South Wales Crime Commission the High Court held that section 10 of the Criminal Assets Recovery Act 1990 (NSW) was invalid, as it was contrary to the judicial process (McCunn 110). The Kable case dealt with a peculiar legal situation. This condition dealt with the enactment of legislation by New South Wales, which effectively permitted its Supreme Court to detain Kable indefinitely. Kable had been sentenced for the manslaughter of his wife, to five years imprisonment. The High Court held that this piece of legislation was invalid as it not in conformity with the vesting of the Commonwealth’s judicial power in the Supreme Court of New South Wales. This decision was based on the reasoning that Australia incorporated an integrated judicial system (McCunn 111). Several important opinions were expressed by the presiding justices, during this trial. For instance, McHugh J stressed that CH III of the Constitution did not preclude the bestowal of non – judicial functions on the Supreme Court of a State, with respect to non – federal matters. However, such non – judicial functions cannot be construed to imply that the Supreme Court was dependent on that State’s executive government (McCunn 111). In addition, Toohey J held that the legislation in question reduced public confidence in the judiciary’s integrity and was therefore not in conformity with the exercise of federal jurisdiction. Furthermore, the Justices Gaudron and Gummow opined that from the perspective of public confidence, this legislation was not compatible with the exercise of federal jurisdiction (McCunn 111). A significant observation regarding the integrated court system obtaining in the Commonwealth of Australia was provided by McHugh J. He emphasised that no state court exercising State judicial power could be deemed to be an entity that was independent of the High Court or federal courts administration of law. A similar opinion was voiced by Gaudron J, who stressed that the integrated court system was in place in Australia, due to the fact that Ch III of the Constitution did not provide for different qualities or grades of justice (McCunn 111). With the Kable decision, a portion of the supremacy over the Supreme Court of the Parliament of New South Wales was removed. This related to the capacity of the Parliament to accord a non – judicial function to the Supreme Court that would destroy public confidence in the latter. The Supreme Court was empowered by Ch III of the Constitution to exercise federal jurisdiction (McCunn 112). The ruling given in International Finance Trust Co Ltd v New South Wales Crime Commission by French CJ was based on the refined Kable principle. This ruling differed from most of the cases, in which there had been an attempt to invoke the Kable principle, as the rulings of the Puisne Justices was not based on the refined Kable principle. In fact, the ruling of justices Bell and Gummow, Heydon J and the minority determined the validity of the legislation by referring to the notion of repugnance to the judicial process (McCunn 117). The Honourable Justice, Gummow had opined in his ruling that detention as punishment and which was not made on the basis of criminal guilt and that had been conferred on a court exercising Commonwealth judicial authority was repugnant to the judicial process. In International Finance Trust Co Ltd v New South Wales Crime Commission the Puisne Justices had taken recourse to the proposition made by Gummow J (McCunn 118). Such reliance was with regard to determination of constitutional validity of the legislation as determined by the judgements. This was achieved by assessing whether the legislation in question was repugnant to the judicial process. In this endeavour, these judges specified the civil aspects of the judicial process that had been infringed by the legislation (McCunn 118). As such, an appeal was made to the High Court, in International Finance Trust Company Ltd v New South Wales Crime Commission, regarding the Criminal Assets Recovery Act 1990. This Act had been imposed upon the functions of the Supreme Court; with the result that the latter’s integrity was rendered incompatible, with the status derived by it under Chapter III of the Constitution (Scully). Section 10 of the Criminal Assets Recovery Act 1990 had empowered the New South Wales Crime Commission to obtain a restraining order from the Supreme Court. This restraining order applied to the property of an individual, who had been suspected of having committed a serious offence. As per the provisions of this Act, the Supreme Court had to hear and make an order, without providing any notice to the concerned respondents. Moreover, the respondents were precluded from contesting the restraining order (Scully). As section 10 of the Criminal Assets Recovery Act 1990, dictated to the Supreme Court the way in which it was to exercise its jurisdiction; and as it seriously limited procedural fairness in the judicial process, it was held to be invalid by the majority of the judges of the High Court. French CJ, made the following important observations. Natural justice or procedural fairness is central to the judicial process. Chapter III of the Constitution provides for such fairness in the judicial function, in the federal constitutional context. Consequently, the court should function impartially and permit every party to the proceedings to be heard, to present their case and answer, via argument and evidence (Scully). In addition, the requirements of procedural fairness can change with the circumstances. At the time of hearing an ex parte application for interlocutory relief, the court has the discretion to do so without intimating the party to be affected. While exercising this discretion, the court takes into consideration the legitimate interests of the moving party. The court also considers the provisions that can be made with respect to the affected party. This does not imply that an application cannot be brought ex parte to the federal court or a subordinate court that is empowered to exercise federal jurisdiction (Scully). The issue in this case was not the making of the ex parte orders, which can be legitimately made in any jurisdiction. The contentious issue related to the prevention of the Supreme Court from according procedural fairness to the affected party. This development was the result of the Court being forced by legislation to comply with the Crime Commission’s application. In addition, the Court was not provided with the discretion to notify the respondent. This important issue was left to the discretion of the Crime Commission. The truly significant issue was that the provision empowered the Executive of the New South Wales Government to direct judicial process (Scully). Moreover, under the provisions of section 10(2)(b) of the Criminal Assets Recovery Act 1990, the Crime Commission can submit an ex part application to the Supreme Court. This application can be made without notifying the affected party. In addition, it can be determined without the presence of the affected party. This ex parte application seeks a restraining order regarding property that is suspected of having been derived from serious criminal activity (High Court of Australia Judgement Summary Notes). The restraining order prevents dealings with interests in such property. In addition, Section 10(3) of the Criminal Assets Recovery Act 1990, requires any court exercising federal jurisdiction to make an ex parte order. The court has to do so whenever there is an affidavit from a duly authorised officer that specifies the grounds on which it is assumed that the property is suspected to be serious crime derived property. In order to exclude property from the restraining order, the affected party has to apply under section 25 of the Act. However, the affected party has to establish that such property was not derived from serious crime (High Court of Australia Judgement Summary Notes). During the hearing of the appeal in the High Court, the majority of the presiding judges ruled that section 10 of the Act was invalid. These justices also ruled that the Commission was not required by section 10 of the Act to make ex parte applications for restraining orders. In the event of such an application being made by the Commission, the Supreme Court had to make the restraining order, after confirming that the relevant affidavit reasonably supported suspicions regarding the derivation of the property describe in the application (High Court of Australia Judgement Summary Notes). An ex parte order could be discharged only under two circumstances. First, if there was no pending application for forfeiture of assets with the Supreme Court. Nevertheless, this was inequitable as no time limit regarding the determination of such application had been specified in the Act. Second, an application had been made by the affected party under section 25 of the Act (High Court of Australia Judgement Summary Notes). Furthermore, in such cases, the affected party had to prove the property in question had not been obtained illegally or fraudulently. The majority of the presiding judges arrived at the conclusion that under these circumstances, section 10 was “repugnant to the judicial process in a fundamental degree”. Consequently, the appeal was allowed and orders were passed, which dismissed the Supreme Court proceedings with costs. In addition, section 10 was held to be invalid (High Court of Australia Judgement Summary Notes). Conclusion The decision in International Finance Trust Co Ltd v New South Wales Crime Commission analyses Chapter III of the Constitution. This is with regard to the invalidation of legislation enacted by the State that provides a non – judicial function to a State Supreme Court and which is not compliant with the judicial function of the Commonwealth. From this decision it becomes evident that the majority perceived legislative incursion into the judicial function as being fundamental. This development has the capacity to provide guidance regarding the circumstances under which the State legislation can violate the judicial power of the Commonwealth, in an unconstitutional manner. The presiding judges relied on the Kable principle, while delivering their ruling. This serves to indicate that the Kable principle could have a much wider application than is evident from the previous decisions. As such, it can be surmised that the decision in International Finance Trust Co Ltd v New South Wales Crime Commission furthered the principle established in Kable. Moreover, the application of the proposition made by Gummow J, served to firmly entrench an integrated legal system upon the judicial mechanism. This endeavour preserved judicial power in the States, independent of the executive and the legislature. Works Cited "Criminal Assets Recovery Act No 23." 1990. High Court in Kirk v Industrial Court of New South Wales. No. 239 CLR 531. High Court of Australia. 2010. "High Court of Australia Judgement Summary Notes." n.d. The Journal of the Bar Association of Queensland. 21 January 2012. . International Finance Trust Co Limited v New South Wales Crime Commission. No. HCA 49. High Court of Australia. 2009. Kable v Director of Public Prosecutions (NSW). No. HCA 1. High Court of Australia. 1996. Lacey, Wendy . "Kirk v Industrial Court of New South Wales breathing life into Kable." Melbourne University Law Review 34.2 (2010): 641 – 668. McCunn , Ayowande A. "The Resurgence of the Kable Principle: International Finance Trust Company." James Cook University Law Review 17 (2010): 110 – 131. Plaintiff S157/2002 v Commonwealth of Australia . No. HCA 2. High Court of Australia. 2003. Scully, Sharon. "Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011." 21 June 2011. Parliament of Australia Parliamentary Library. 21 January 2012. . Spigelman, J J. "The Centrality of Jurisdictional Error." 25 March 2010. 20 January 2012. . Read More