The Evolution of State Adjudicative Power as an Alternative to State Judicial or Administrative Power


Peter Johnston* and Peter McNab#

In Memoriam

Peter Walter Johnston (1942 – 2015)

Peter Johnston died in Perth on Australia Day 2015, after a short illness, aged 72.

The public law community both here and overseas mourn the passing of a great friend, teacher, academic and barrister. We record our condolences to his family, friends and colleagues knowing that his influence will live on in his many writings (including those published in this Journal) and also through the influence of his many students.

T S Eliot in his poem ‘The Hollow Men’ uttered the memorable statement: ‘Between the Idea / And the reality / Between the motion / And the act / Falls
the shadow.’

In this essay Peter McNab and I set out to explore the landscape of state administrative tribunal adjudication with a view to foreshadowing prospects for
potential advances in related areas; namely, the kinds of functions that such bodies might undertake in the future and, also, novel structural forms
and procedures of adjudication that could be developed as part of an evolutionary program of building on existing models.[1]

But, as T S Eliot reminds us, it is one thing to conceive bold new ideas for exciting projects to advance the frontiers of tribunal adjudication; it is
another thing entirely to achieve the realities and conditions necessary for their creation.

What, one may ask rhetorically, stands in the road to inhibit such progressive developments? In this paper, we embark on the task of evaluating one particular
‘lion in the path’ that casts its shadow over the enterprise. It is the potential impact of what one might broadly define as the Kable-Kirk implied limitations[2] flowing from Chapter III of the Commonwealth Constitution (referred to hereafter as ‘Kable-Kirk’).

Kable-Kirk restated

Although an extensive jurisprudence has developed in the wake of Kable over the last two decades,[3] with the latecomer Kirk trailing in that respect,[4] the combined effect of the two cases for the purposes of this analysis can be shortly summarised as follows: 

Each State must maintain, to the purpose of exercising the judicial power of the Commonwealth under Chapter III of the Constitution a system of state courts
that are independent and impartial, in the sense of not being subjected to direction, control or influence by the executive and legislative arms of
the state government, and further and in particular, a Supreme Court of the State that retains the core jurisdiction to judicially review and supervise
the conduct and decisions of inferior state courts and other state adjudicative bodies; also state government officers, departments and authorities.

At stake is whether the constitutional constraints imposed upon states’ legislative power by these doctrines are likely, upon further elaboration and extension,
to produce a symmetrical and rigid convergence that results in the virtual assimilation of state adjudicative bodies to the Commonwealth dualist system
of split judicial and merits review, founded on the Boilermakers principles.[6]Does
Kable-Kirk represent a constitutional straitjacket thwarting prospects of sensible but ostensibly divergent forms of dispute resolution in
the field of public law?[7]

Translated into practical day-to-day political terms, the central issue for our determination is: to what extent can the states create non-judicial bodies
that do not need to comply with Chapter III standards of impartiality and independence that would otherwise deny them the capacity to exercise the
judicial power of the Commonwealth?

Whether such an extension of the role of the principal state administrative tribunals is politically desirable or even feasible is another question. The
same is true regarding the related issue of whether, in expanding state tribunals’ roles beyond their present frontiers those tribunals, in accordance
with the Kable principle, would cease to be ‘courts’ for the purpose of Chapter III of the Constitution. The latter is only relevant, however,
if such tribunals attempt to exercise federal jurisdiction actually (or potentially) vested in them by virtue of the Judiciary Act 1903 (Cth).

It is of course true that the problems generated by the Kable-Kirk doctrines, and the fragile basis in both logic and precedent attending each
case,[8] have already formed the basis of much academic commentary, as have the related topics of the constitutionalisation of Australian administrative
law, particularly through the agency of judicial review under s 75(v) of the Constitution.[9]

Two topics especially have occupied recent discourse; first, a postulated convergence or assimilation between the principles and foundations of judicial
review in the Commonwealth and state spheres; secondly, the unifying effect of High Court authority concerning judicial review, resulting in an Australian
administrative law exceptionalism, in effect isolating or ‘Balkanising’[10] it from jurisprudential developments in other common law countries including the United Kingdom, Canada, the United States and New Zealand. The Kable-Kirk phenomena can be seen as part of that process. Given the number of recent academic contributions addressing these issues, what justification is there
for yet another exploration of even a small part of that terrain?

It is not too much to claim that the implications of Kable-Kirk have not yet been worked through to produce a coherent and logically satisfying
rationale of the system of Australian administrative justice as it operates in both the Commonwealth and state context.[11]It
is this latter aspect, namely, the relatively unstable and unresolved state of the constitutional-administrative law nexus that is the justification
for this article.

In addressing these conundrums, we argue that the High Court should exercise caution before it extends the principles emanating from the KableKirk doctrine to State courts in ways that are likely to impose on them the rigidities previously constraining only federal courts and federal judges. We
also contend that the category of ‘courts’ of the states that fall within the penumbra of Kable-Kirk should not be extended without strong

The potential effect of Kable-Kirk on state general administrative tribunals

To start with, we confine our analysis to a very particular aspect of the overall phenomena. We are concerned with examining the foundations for the operations
of general state administrative tribunals,[12] and the scope for innovative expansion in their jurisdictions and adjudicative methodologies. In that regard, we use the SAT (WA) as the primary exemplar.

Importantly, to the extent that the Kable-Kirk doctrines cast a shadow over such innovations we first question whether the concerns about their
inhibitive effect are not well founded and even possibly overstated. More positively, we seek to make out a case that Kable-Kirk should be given a very limited scope as solely or quintessentially concerned with crime or community-safety related matters (affecting the
liberties and property of subjects) that are properly the subject of curial adjudication in bodies that can properly be called ‘courts of a State’,
with the states’ supreme courts as the paradigm example. That entails, necessarily, some attention to both the kind of ‘judicial power’ exercised in
that quasi-criminal jurisdiction, and the characterisation of the bodies exercising it. This, we maintain, requires a fresh look at problems associated
with the definitions of ‘judicial power’ (both state and Commonwealth), proceeding on an assumption that there is a difference between the two.It also
requires, as we see it, a re-evaluation of the purpose of defining and categorising state adjudicative bodies as state ‘courts’.

This requires us to question whether a distinction can still be drawn between what has been described as a judicial power of the State as against the judicial
power of the Commonwealth. The distinction is becoming blurred in the wake of Kable and Kirk due to the overlay between the notion
of a single common law and an integrated judicial system in Australia, giving rise to the proposition that the principles of public law are undergoing
a process of convergence or assimilation.

Again, more positively, we contend that the starting point for the analysis both for characterising the respective nature or natures of judicial power
and that of state courts has been misplaced and has distorted, or at least left unresolved, the logical outcome expressed in some of the High Court
authorities on the topic. As part of exploring these problems we suggest that some further linguistic clarification is necessary and that it will be
more useful, in some respects, to substitute our preferred concept of adjudication in place of the universal resort to the term ‘judicial power’.

We submit that formulating the operation of state tribunals in terms of adjudication rather than judicial or administrative power transforms the nature
of the jurisdiction and transcends the constraining effect of the otherwise pervasive, fixed and artificial notion of Commonwealth judicial power.
This still requires the act of distinguishing between the different senses in which the original concepts of judicial power have been formulated. Identifying
a more encompassing integration of the kind of tasks performed by state administrative tribunals does not obliterate the senses in which judicial power
can be used. Instead, a reformulation in terms of adjudication arguably renders redundant and unnecessary conflicts between the two notions of judicial
power that arise from non-correspondence or inherent inconsistencies giving rise to contradictions as between the original notions. That in turn arguably
radically reduces the potential for Kable-Kirk to colonise an adjudicative territory wider than its proper bounds. If our analytic project
in mapping the topography of Kable-Kirk yields the conclusion that it has a relatively confined ambit, the way is commensurately open to state
parliaments to legislate to create the kinds of imaginative tribunal adjudication that state governments see as desirable.

The search is for greater conceptual clarity and to identify the spaces that are still available within which states can exercise their creative licence
to fashion dispute resolution in a more flexible way that can accommodate contemporary modes of adjudication and new or novel (if there is a difference)
methods, such as the adoption of the United States’ ‘administrative judge’ model as well as developing substantive principles such as proportionality
and the mixing and amalgamation of merits and legal review as part of the process of adjudication.

The conjecture

Because, in our opinion at least, the principles attending the Kable-Kirk doctrines have yet to be satisfactorily settled, we can at this stage
only offer what might be called a conjecture (something halfway between a speculation and a thesis) about the nature of the functions performed by
state administrative tribunals, and the constitutional location of such tribunals within the spectrum of traditional courts and surrogate decision-makers.

The traditional classical understanding of the role of state courts is postulated on the distinction between ‘state judicial power’ and ‘the judicial
power of the Commonwealth’. In dealing with each, courts have also sought to apply a further distinction between powers and functions that are
‘judicial’ as against ‘non-judicial’.

The existence of state judicial power as something separate from Commonwealth judicial power has been accepted, largely unquestioned, by the High Court
in cases suchas Re Wakim,[14] although Kirby J in that case seems more appreciative of the problems of differentiation, perceptibly denying any possible ‘divorce’ between the two
kinds of judicial power and noting the different constitutional foundations for the separate judicial systems of the various polities.[15]In
his view, the notion of Commonwealth judicial power was to be understood solely in the context of Chapter III.[16]

One of the few detailed discussions on the nature of state judicial power within the Federal polity is that of Isaacs J, dissenting as to the
result, in Le Mesurier v Connor.[17]His
Honour acknowledges that the expression ‘Court of the state’ is an organ constituted by the state to exercise some portion of the judicial power, which
he treats as a generic term expressing a totality used in its strict sense. At the same time, he maintains that a state court becomes an integral part
of the Commonwealth ‘Judicature’ by virtue of s 71 of the Constitution, adding that the distribution of that power among the courts is, subject to
definite constitutional provisions, left to Parliament. By way of contrast, his Honour further recognises that besides this mass of judicial power
belonging to the established courts, there is a considerable portion of power, in its nature judicial and quasi-judicial invested from time to time
by legislative authority in individuals, separately or collectively, for a particular purpose and limited time. This distinction in respect to judicial
power, he saw as running through the administration of all governments. Problematically, in his exposition of the relationship of state judicial power
to that of the Commonwealth, Isaacs J tends to fudge the relationship of the two, seeming to treat the judicial power as a single entity.

It is often taken as axiomatic that state judicial power is the natural counterpart of the judicial power of the Commonwealth, although the relationship
between the two is rarely, if ever made explicit.[18]Treating
the former as it were an organic extension of the latter is based on the assumption that although in some ways different (not usually explained) the
two ‘judicial powers’ share a common basic meaning and content. In that regard, both are taken to embrace a wide sense of the judicial power.[19]

Critique of ambiguities in the usage of judicial power

In some schools of philosophy, a name or term can have more than one meaning (its sense), by reason of having more than a single point of reference (its object).[20] Correspondingly, the same object can have different senses. What we seek to show is that the expression ‘judicial power’ as it has been employed in
the Kable-Kirk dialogue is capable of more than one universal, abstract meaning, depending on whether it is used in conjunction with state-provided
means of resolving controversies or as manifested in the Commonwealth constitutional context in terms of ‘the Judicial Power of the Commonwealth’.

We see the inherent ambiguity in the way that courts have approached this dichotomy as contributing to the confusion and obfuscation underpinning the proper
application of Kable-Kirk to adjudication by state tribunals. By subjecting the basal assumption to closer analysis we aspire to point the
way forward to a more satisfying and convincing resolution of contradictions inherent in those terms. This leads us to proffer the suggestion that,
apart from the narrow specific jurisdiction in which state courts engage in determining criminal guilt or the consequences thereof, it is more sensible
and fruitful (in terms of opening the way to future developments), instead of referring to state judicial power, to speak in terms of a ‘state adjudicative
power’ in which the distinction between state-conferred judicial and non-judicial, administrative powers is largely eliminated.

If one starts, however, from the premise that the jurisdiction and powers of state courts and other adjudicative bodies are not to be defined by reference
to Commonwealth judicial power (whatever that is) a completely different vista is opened.Rather than seeking to establish a further dichotomy between
state judicial power and non-judicial power, replicating the Commonwealth model, a much broader adjudicative capacity can be attributed to
state determinative bodies.

This in turn has logical repercussions as to the kind of taxonomy that applies to state adjudicative bodies. A strict distinction between state ‘courts’
and ‘tribunals’ as adopted in Craig v South Australia[22] tends to dissolve, freeing such tribunals to perform novel functions. These could include developing policy guidelines (in the absence of
a prescribed government policy) in furtherance of more consistent administration when deciding cases in large volume jurisdictions or providing advisory statements that inform state administrators about the proper and sensible interpretation of contentious provisions. This is consistent with a role for tribunals
to go beyond being simply adjuncts to civil administration and enhance and enlarge the ‘integrity arm’ of government.[23]

Admittedly, in seeking to dissolve the strict dichotomy between state and Commonwealth judicial power and the division of state adjudicative bodies into
‘courts’ and ‘non-courts’ (or ‘arbitral/administrative bodies other than-courts’), we are offering a reductionist model that may turn out to bypass
rather than eliminate the contentious problems that have attended the application of Kable-Kirk to date. We accept that at the end of the
day our analysis may fall short of providing conclusive answers about the relationship between state and Commonwealth judicial power but, as Socrates
famously observed, the philosophic task is directed not to finding the answers, but rather to asking the right questions.

The importance of maintaining Federal spaces within the constitutional polity

One of the long-recognised virtues of the Federal system is the potential for political innovation at both levels of government. Federalism leaves space
for regional variations in which each state can engage in experimentation. This allows freedom to devise solutions to deal with new problems presented
by Australia’s rapidly changing society when it is obvious that the old models are inadequate or no longer working.[24]This
framework for diversity within national unity can be especially justified when there are significant differences between individual states such as
Western Australia and Queensland, where, for example, there is a need to develop, relevantly to this discussion, models, often informal, to accommodate
the needs of remote, predominantly sparse rural communities with large indigenous groups. The question is: To what extent does Kable-Kirk represent a disincentive for such developments?

The shoals of Kable-Kirk

Before that question can be answered it is necessary first to identify both the current and potential reach of Kable-Kirk. To do that one must
understand the logical and conceptual basis on which it has been constructed. To do that comprehensively is beyond the scope of this paper but the
central propositions on which the Kable-Kirk doctrine rests are:

(a)Any ‘court’ established by a state (‘a court of the State’) that is capable of being invested with, and exercising, ‘the judicial power of the Commonwealth’

(also described as, though not necessarily always coincidental with, the notion of ‘Federal jurisdiction’) under s 77(iii) of the Constitution,
must exhibit and manifest a basic degree of impartiality and independence from the other arms of the state government;

(b)That degree of judicial and curial impartiality and independence is an ‘essential’ feature and attribute of those state courts capable of exercising
vested federal jurisdiction;

(c)To meet that requirement of impartiality and independence, state legislation must not confer upon a state court ‘non-judicial’ functions[26] that compromise, impair or detract from the minimal standards of independence necessary to maintain the ‘institutional integrity’[27] of that court;

(d)(In the case of state Supreme Courts) each state must maintain a Supreme Court, one feature of which must be its continuing to have jurisdiction to
exercise, impartially and independently, judicial review over inferior state courts and tribunals to prevent them committing ‘jurisdictional error’.

The underlying requirement of an integrated court system

These propositions are founded on several key constitutional premises. First, that to effectuate the Commonwealth Parliament’s power to invest state courts
with federal jurisdiction such courts impliedly must exist and be available.[29]Secondly,
federal and state courts structurally form part of a single integrated judicial system in which the states’ Supreme Courts are vehicles
through which appeals to the High Court, as the ultimate apex of the Australian judicature, are required to be channelled.[30]Thirdly,
there cannot be two grades of judicial power within that system in which a higher standard is prescribed for federal courts and a lower standard
for state courts. This latter contention, however, is compromised by an element of self-contradiction in so far as the High Court has acknowledged
that the requirements of impartiality and independence mandated by the Constitution for state courts is not of the same strict quality as prevails
under the Boilermakers principles with respect to federal courts.[31]Finally,
there is a single common law of Australia, which is administered and developed, as part of the integrated judicial system, by both state and Federal
practical conclusion drawn from these structural foundations is that the consequence (namely, that a state law cannot impair the exercise of the judicial
power of the Commonwealth) cannot be avoided by notionally segregating the courts of the States into a distinct and self-contained stratum within the
Australian judicature.[33]

The unifying concept that has come to dominate the Kable-Kirk discourse and which undergirds the propositions set forth above is the need to maintain
the ‘institutional integrity’ of state courts to effectuate that purpose.[34]The
attributes of impartiality and independence impliedly required for state courts thus translate into an ‘essential characteristic’ of courts that may
be invested with federal jurisdiction. This is bolstered by giving content to the linguistic terms, ‘courts’ as in s 77(iii) and ‘Supreme Court’ in
s 73 by reference to the historical nature of colonial courts at the time of Federation.[35]Reliance
on such extra-constitutional sources in order to extract extended meanings from simple terms such as ‘court’, however, runs the risk of reaching beyond
the text and structure of the Constitution as the source of implication.[36]

Two further conditions are implicit in the above propositions; first, that if a state court or a state tribunal that can be characterised as a ‘court of
the State’ exercises a non-judicial function that is incompatible with maintaining its impartiality and independence it will transgress the
Kable standard on the prevailing orthodox model.[37]This
requires an assessment to be made whether any function or power of such a court is to be classified as judicial or non-judicial. That engages the wider
question of whether the appellations ‘judicial’ or ‘administrative’ are prescriptive and appropriate in relation to the exercise of what we call ‘state
adjudicative power’.

Secondly, as part of that evaluation, it is necessary to distinguish between bodies that are ‘courts of the State’ in the true constitutional sense[38] and other adjudicative bodies that are not.

It is at this point that closer scrutiny of the High Court’s pronouncements on the nature of judicial power and the kind of state courts in which it may
be invested is called for. This directs attention to two issues: The characterisation of a state adjudicative body’s judicial power, and the characterisation
of particular state adjudicative bodies as ‘courts of the state’.

First major issue: the

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