Conceived in Sin, Shaped in Iniquity* – the Kable Principle as Breach of the Rule of Law
(2015) 34 UQLJ 265
22 Pages Posted: 30 Jun 2016
Date Written: February 29, 2016
After some years of quiescence the Kable principle has again become active. This activity has merely revealed, however, that the emperor has no clothes. The doctrine is so vague as to be almost meaningless, and accordingly contradicts what is almost universally seen as an important limb of the rule of law – the need for a reasonable degree of certainty. It also cannot be reconciled with the doctrine of parliamentary sovereignty: its extreme vagueness makes it inconsistent with that doctrine because Parliament cannot know what it may do, and on occasion it can be hard to distinguish Kable from making the Judges into an unelected third House of Parliament. The Kable doctrine can thus be seen to be also a breach of the doctrine of separation of powers which it supposedly defends – just as was the original Kable decision, which invalidated a statute on spurious grounds because Judges did not like it. The article concludes with a consideration of what should be done about this lamentable state of affairs.
Keywords: Australian constitutional law, judicial power, rule of law, sovereignty, separation of powers
JEL Classification: K19
Suggested Citation: Suggested Citation