The Judicial Incompatibility Clause - or, How a Version of the Kable Principle Nearly Made it into the Federal Constitution
Posted: 22 Oct 2018
Date Written: October 19, 2018
Until nearly the end of the Convention debates the draft Australian Constitution contained a provision that would have prevented judges from holding any federal executive office. The prohibition, removed only at the last minute, would have extended to all federal executive offices but was originally motivated by a desire to ensure that judges did not hold office as Vice-Regal stand-ins when a Governor-General was unavailable, as well as by the feud between Sir Samuel Way CJ and (Sir) Josiah Symon QC. The clause was eventually deleted, but not principally because of any reservations about the separation of judicial power; rather, it was thought difficult to be sure that other suitable stand-ins could always be found and problematic to limit the royal choice of representative. However, this interesting episode also shows that a majority of the Convention and of public commentators rejected the idea ofjudicially enforcing, as a constitutional imperative, the separation of judicial power from the executive. Presumably, while not rejecting the separation of powers itself, they would have rejected the judicial enforcement of that principle such as now has been established by case law and implication.
Keywords: Kable, federal constitution, judicial incompatibility, Australian constitution, separation of powers
JEL Classification: K10, K19
Suggested Citation: Suggested Citation