Read the full article at: https://constitutionwatch.com.au/resurgence-of-the-kable-principle/
Excerpt from “The Resurgence of the Kable Principle” on Constitution Watch
The Kable principle holds that a state legislature cannot enact laws that undermine or erode the integrity or independence of the judiciary. This principle stems from the Australian Constitution and the separation of powers doctrine, which requires that the powers of the legislature, executive, and judiciary remain distinct to ensure a fair and balanced system of government.
In the Kable v New South Wales case, the High Court found that New South Wales legislation that allowed for the detention of an individual without trial (based on a “dangerous offender” classification) contravened the Constitution, as it interfered with the independence of the judiciary. The legislation effectively gave the executive branch powers that could override judicial authority and bypass fair trial procedures, which the Court ruled was unconstitutional.
- Preservation of Judicial Independence: The Kable principle ensures that laws cannot be passed that would allow the executive or legislature to have control over judicial functions, particularly where it may lead to the detention of individuals without proper judicial oversight or trial.
- Separation of Powers: It reinforces the idea that legislative, executive, and judicial powers must remain separate. Any legislative or executive actions that breach this separation, such as passing laws that undermine the integrity or authority of the courts, are unconstitutional.
- Implications for State Legislation: The Kable principle primarily applies to state legislation in Australia, and it has been used by the High Court to strike down state laws that infringe upon judicial independence or fail to adhere to constitutional principles.
- Protection Against Arbitrary Action: The principle protects individuals from being subjected to arbitrary or unfair treatment by preventing laws that would allow the government to detain, punish, or otherwise treat individuals in ways that bypass the judicial process.