The Integrity of State Courts under the Australian Constitution

Abstract

The well-known Kable decision, and the line of authorities to which it has given rise, derives a doctrine of the integrity of state courts from Ch III of the Australian Constitution. The basis for this doctrine, however, as well as its meaning and extent, remains contentious. This article articulates a coherent basis for the Kable doctrine, which both reveals it to rest on a genuine implication arising from the text of Ch III and contributes to an understanding of the content of the doctrine. The method that the article adopts to achieve a rigorous grounding of the Kable doctrine is predominantly theoretical, combining three philosophical approaches: a speech-act analysis of the relevant constitutional provisions, the semantic externalist theory of reference developed by Putnam and Kripke and a sociological understanding of institutions (including legal institutions) along the lines developed by Selznick. As the Kable doctrine is one of the fundamental components of contemporary Australian public law, showing that it is not merely a product of judicial invention in pursuit of desirable policy, but rather is genuinely grounded in the text of the Constitution, is important for establishing not only the legitimacy of the doctrine itself but the legitimacy of that larger body of law.