Tying Kable Down: The Uncertainty About the Independence and Impartiality of State Courts Following Kable v. DPP (NSW) and Why it Matters

Abstract

In this article we examine the Australian High Court’s equivocal position on what exactly undermines the impartiality and independence of State courts and the problems that arise from such a stance. This includes the ability of parties to exploit the current uncertainty on technical and not substantive grounds.

We will discuss the case of Commonwealth v. Anti-Discrimination Tribunal (Tasmania) in which Kenny J. posited that a terminally ill pensioner would be unable to have his discrimination complaint heard, because of the lack of ‘institutional arrangements and safeguards’ by the decision-making body entrusted power to hear complaints of that sort. Apart from the obvious problems for litigants in such situations, it is apparent that State legislatures must be increasingly attentive as to whether the bodies that now exist at State level are capable of wielding federal judicial power.

We argue that the current position is becoming increasingly precarious: for litigants, for courts and indeed for legislatures who will need to react decisively to strengthen State decision-making bodies against jurisdictional attacks. However it is also submitted that it is incumbent on the High Court, sitting at the 'apex' of the judicial system, to provide the necessary demarcation as to what will constitute judicial independence and impartiality.

Keywords: law, judicial independence, judicial impartiality, australia, high court, incompatibility