The Integrity Principle – Analysis

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After the case of Kable v Director of Public Prosecutions (‘Kable’)[1] whereby the institutional integrity principle was first implemented by the High Court, there has been substantial use of the principle in other cases. However, there are various concerns regarding this rule, and as a result there has been disagreement and many alterations to the characteristics of the principle. The background, evolution and potential concerns regarding the institutional integrity principle will be outlined further below. Induction of the Institutional Integrity principle In Kable, it was held by the majority that s5(1) of the Community Protection Act 1994 (NSW), which claimed to confer in the Supreme Court of NSW the power to demand the continual incarceration of a prisoner was not valid. It was held that the function was not attuned with institutional integrity and further contributed to the incompatibility test as a means of monitoring the tasks that may be entrusted in courts by State Parliament. The rationality used in the reasoning of Kable has faced some criticism, but it is also known that this was an extremely fundamental proposition that was accepted by the High Court. It was a startling decision, due to the fact that before this case, the lack of a separation of jurisdictional powers in a state perspective left insufficient limitations on the lawmaking control of state legislatures (state courts). But, it must be understood that it does not infer into the constitutions of the States the parting of judicial powers impliedly authorized for the Commonwealth (by chapter III).[2] As long as they aren’t judicial, functions can be discussed on benches by State Parliaments as long as they are not objectionable to, or unsuited with, the implementation by those courts of the legal influence of the commonwealth. Furthermore, the rule articulated in Kable will not inhibit State parliaments from investing State judicial tasks in non-judicial figures. Regardless of these restrictions, it was stated by McHugh J in Kable that: in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts. Currently, the institutional integrity principle actually does provide support restrictions on legislative power in situations that do not comprise of the assigning of functions in courts at all. Before seeing how the institutional integrity rule has advanced since Kable, it is worth understanding why a majority of the High Court found it essential to acquire this ‘radical addition to the body of Australian constitutional law’[3]. The reasoning behind this decision is significant because the method by which the High Court applies the principle in upcoming cases may change the way in which the conditions of the principle evolves. The majority reasoning held in Kable suggested that ‘the underlying concern was to maintain public confidence in the independence of state courts’[4]. However, this does not mean that the maintenance of public confidence is the ultimate object of the institutional integrity principle.[5] It seems more likely that institutional integrity is more about securing to the judicial system (and inevitably the High Court) the ability to preserve the judicial function against statutory and executive intervention.[6] The conclusion that this principle primarily revolves around the self-preservation of the judicial system is reinforced by the fact that incompatibility is to be estimated by reference to the crucial features of courts. The institutional integrity principle is also supported by its expansion by the High court to all Australian courts capable of utilising the legal power of the commonwealth.[7] Directly following the judgement in Kable, there was some reluctance displayed by the High Court at first, describing it as a rule that would seldom be applicable.[8] However, In Forge v Australian Securities and Investments Commission (‘Forge’), it was stated that institutional integrity relied upon the usage of the words ‘court of a state’ in s77 of the Australian Constitution Act[9]. Gleeson CJ stated that State supreme courts ‘must continue to answer the description of “courts”’ in the sense that they ‘must satisfy minimum requirements of independence and impartiality’.[10] He further said that this principle was ‘stable, founded on the text of the Constitution’. As seen in nicholas v the queen, Fardon, Forge, K generation v, and wainohu, no definitve statement pertaining to the miniumum requriements of an independent court has been made and it is unlikely to be forthcoming.[11] But rather it seems that courts will most likely consider various factors when evaluating the incongruity with institutional integrity. The High Court has repeatedly stated that it is highly improbable that any exhaustive definition of incompatibility will be made, and even if it was possible, a more vigilant approach seems to be superior given the potential application of this principle in a wide range of circumstances. Furthermore, this principle has already acted as a restraint on judicial interference, as seen in International Finance Trust[12]. Scope of the Principle After the decision in Kable, it was uncertain as to whether this principle could be applied to any other court of law outside the state Supreme Courts. The reasoning used in North Aboriginal Legal Aid Service v Bradley however quickly elucidated this, reaching a mutual judgement: It is implicit in the terms of ChapterIII of the Constitution and necessary for the perseveration of its structure that a court capable of exercising the judicial power of the Commonwealth be and remain an independent and impartial tribunal. The fact that this was accepted by the Full Bench confirmed that this institutional integrity rule had expanded to all Australian courts entrusted with federal jurisdictive power (State or territory). Regardless, the term ‘capable of exercising’ was still slightly ambiguous and it was not clear whether future courts granted judicial power would be able to utilise this principle until the judgement held in Baker, whereby it was decided that the ‘doctrine in Kable is expressed to be protective of the institutional integrity of state courts as recipients and potential recipients of federal jurisdiction’.[13] Thus, it seems most probable that the institutional integrity principle will provide some sort of protection to all Australian ‘courts’ (in respect to the Constitutional definition of the word). However, as has been reiterated by the High Court, the jurisdictional universality of the principle is hindered by the point that the commonwealth must ‘take state courts as it finds them’.[14] This principle does not need or sanction the justification of State court in respect to federal standards. Rather, it acknowledges a combined court system – not a unitary one.[15] Other courts of law are not subject to the same restrictions placed on federal courts as laid out in Chapter III,[16] and may still apply non-judicial authority, as long as it falls in accordance with the principle itself. However, due to the fact that institutional integrity does not need the preservation of unchanging principles throughout Australia’s combined legal system, precaution must be taken when considering whether a specified characteristic is compatible with the institutional integrity of a given court. Significant decisions regarding institutional integrity In the past, there have been various occasions whereby the High Court had overturned state legislation based on the reasoning that it had compromised the ‘institutional integrity’ of a State court. One of these instances was in International Finance Trust Company Limited v New South Wales Crime Commission,[17] whereby the majority of the High Court decided that a state judicial provision impaired institutional integrity on the basis that it required the Supreme Court to overhear and decide (not giving notice to those affected) requests for restraining orders that were determined ex parte through the NSW Crime Commission.[18] In South Australia v Totani (‘Totani’)[19], it was also held by a majority that a provision undermined institutional integrity as it needed the South Australian Magistrates Court to release control orders in a method opposing procedural justice, and by which the effect was to a great extent decided by the Attorney General. In Wainohu v New South Wales (‘Wainohu’)[20], a majority of the High Court also held that state legislature was unacceptable because it diminished the required and defining characteristics of a state court by providing that the court’s authority to make control orders would be inspired by a verdict of a judge, after an argumentative proceeding on intricate and crucial matters of fact for which the provision provided that no details need be given[21]. These cases in specific displayed a renewed willingness by the High Court to apply the institutional integrity principle in a way that is protective of the traditional legal process. While they do not greatly contribute to the understanding of this principle in terms of legal reasoning, it can be said that they reinforced the current beliefs. Although distinct approaches were taken, the majority decisions in the cases of International Finance and Totani turned upon the comparatively undisputed proposal that legislation claiming to direct a court as to the method and result of the implementation of its jurisdiction is suitable impermissibly to hinder the character of the court as an independent one. There have been various issues arising from the cases depicted above, and many of them are still unanswered so it is evident that this principle is still in a trial stage. One such concern is whether a ‘due process’ obligation exists in accordance with Chapter III, and if so what is its scope? Another issue lies within the minimum organizational requirements of state and territory courts as the principle restricts the capacity of these parliaments to interfere with the structural features of ‘courts’.[22] The use of public perception as a criterion for incompatibility also raises concerns that must be addressed. In conclusion, regardless of the many criticisms the judgement in Kable had attracted, there is no doubt that this decision has had ‘extremely beneficial effects’. Heydon J further stated that ‘in particular, it has influenced governments to ensure the inclusion within otherwise draconian legislation of certain objective and reasonable safeguards for the liberty and the property of persons affected by that legislation. It is evident that the institutional integrity principle has the potential to restrict judicial activity in a variety of areas, not just in the transfer of functions on tribunals, and thus it is safe to assume that its influence will only increase in the future.

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[1] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. [2] Wainohu v New South Wales (2011) 278 ALR 1, 19 (French CJ & Kiefel J). [3] The constitutional jurisprudence of the high court [4] ‘State courts: the limits of kable’ [5] ‘do hard laws make bad cases’ [6] Ibid 183 [7] North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146. [8] Fardon case [9] Aus constitution act [10] Forge 67-8. [11] All cases [12] s [13] Baker [14] Institutional integrity [15] Forge 65-7 [16] Fardon 655-66 [17] International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319. [18] Ibid. 385-86. [19] Totani v South Australia (2010) 242 CLR 1. [20] Wainohu v New South Wales (2011) 278 ALR 1. [21] Ibid 28 (French CJ & Kiefel J); 37 (Gummow, Hayne, Crennan & Bell JJ). [22] Institutional integrity

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