Kable, kirk and judicial statesmanship

Abstract

The purpose of this article is to ask the following question: when the Constitution is clear, is it the High Court's duty to apply it strictly as it is, or does the Court have a broader responsibility to guard the public interest in justice and good governance, by (in effect) changing the Constitution if necessary, even if it must exceed its legal authority to do so? I will use Kable v Director of Public Prosecutions (NSW) and Kirk v Industrial Court of New South Wales as case studies that raise this question. Much of the article is critical of the High Court's reasoning in these cases, but (appearances to the contrary) my purpose is not to criticise the Court. I argue that this reasoning is very implausible in order to ask whether it may nevertheless have been justified by the pursuit of 'judicial statesmanship' - the subordination of legal norms to higher norms of political morality, in the disinterested pursuit of the public interest, in exceptional cases. (Judicial statesmanship is a species of judicial activism, but I want to avoid the negative connotation of the latter term.)