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Published online by Cambridge University Press: 24 January 2025
The Kable doctrine is, and has always been, a difficult legal principle to define. For over a decade, and despite much academic attention, it had little consequence for state power. Until recently, the High Court deftly avoided its application by employing a number of techniques. As the politics of law and order in the states have increased, state Parliaments have felt emboldened by these cases to test the outer limits of their legislative power. In such an environment, federal anti-terrorism measures, introduced as extraordinary responses necessary for the exceptional nature of terrorism, have crept into general state policing and expanded. It is in this arena that the Kable doctrine has emerged once again. The principle is now vital to understanding the very real limits of state power, particularly in the law and order arena. This article traces the Court's approach to the principle in three recent cases involving the states' anti-organised crime measures (International Finance Trust Co v New South Wales Crime Commission, South Australia v Totani, and Wainohu v New South Wales) before offering some conclusions about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.
We would like to thank Anna Olijnyk, Rebecca Welsh and the anonymous reviewers for their valuable feedback on earlier drafts of this article. The article was first presented as a paper at the 2011 ANU Public Law Weekend, and we would like to thank the organisers for that opportunity. All errors and omissions, of course, remain our responsibility.
1 In this article, reference to ‘states’ will include the Australian Capital Territory and the Northern Territory.
2 This general statement is with the exception of those criminal offences which are incidental to grants of federal power, and that jurisdiction that has been referred to the Commonwealth under s 51(xxxvii) of the Constitution (for example, in relation to anti-terrorism).
3 Jason, L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (Carolina Academic Press, 2006), 139Google Scholar; Gavan Griffith, ‘Report: Second Law Officer to the First Law Officer 1 July 1995–31 December 1996’ (Solicitor-General of Australia, 1996) [1.12] (on file with authors).
4 See, eg, Commonwealth, Royal Commission on Intelligence and Security, (1977) ('The Hope Report’); South Australia, Inquiry into the Security Records Held by the Special Branch of the South Australian Police, Initial Report (1977) ('The White Report’).
5 Kable v DPP (NSW) (1996) 189 CLR 51 ('Kable’).
6 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 ('Fardon’).
7 Serious and Organised Crime (Control) Act 2008 (SA); Crimes (Criminal Organisations Control) Act 2009 (NSW); Criminal Organisation Act 2009 (Qld); Serious Crime Control Act 2009 (NT).
8 (2010) 242 CLR 1 ('Totani’).
9 (2011) 243 CLR 181 ('Wainohu’).
10 (2009) 240 CLR 319 ('International Finance Trust’).
11 South Australia, Parliamentary Debates, House of Assembly, 21 November 2007, (Michael Atkinson, Attorney-General), 1806.
12 Government of South Australia, Submission No 13 to Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia, Inquiry into the Legislative Arrangements to Outlaw Serious and Organised Crime Groups, June 2008, 6.
13 Ibid, 19; See also use of these statistics in Mike Rann, ‘New Laws to Dismantle Criminal Bikie Gangs’ (Press Release, 5 July 2007); and Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia, Future Impact of Serious and Organised Crime on Australian Society (2007) [2.16], that confirmed Australia-wide growth in the membership and illegitimate activities of Outlaw Motorcyle Gangs.
14 See, eg, ‘Control the Bikie Thugs', The Herald Sun (Melbourne), 23 March 2009.
15 Rann above n 13.
16 Security Legislation Amendment (Terrorism) Act 2002 (Cth), which inserted new offences into the Criminal Code. The proscription of terrorist organisation is now found in Criminal Code div 102.
17 Commonwealth, Parliamentary Debates, House of Representatives, 21 March 2002, 1 932 (Daryl Williams, Attorney-General).
18 Criminal Code, div 104.
19 Nicola, McGarrity, Andrew, Lynch and George, Williams, ‘The Emergence of a Culture of Control’ in Nicola, McGarrity, Andrew, Lynch and George, Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (Oxon and New York, Routledge, 2010) 1, 5Google Scholar.
20 He said: ‘We're allowing similar legislation to that applying to terrorists, because [organised crime groups] are terrorists within our community Australian Broadcasting Corporation, Radio National, ‘South Australia's Plans to Obliterate Outlaw Bikie Gangs', The Law Report, 6 May 2008, extracted in Nicola, McGarrity and George, Williams, ‘Normalisation of Pre-emption in Australia’ in Nicola, McGarrity, Andrew, Lynch and George, Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (Oxon and New York, Routledge, 2010) 131, 143Google Scholar.
21 This conclusion is drawn from the basis that the federal scheme was upheld in Thomas v Mowbray (2007) 233 CLR 307 ('Thomas’).
22 Contra Criminal Code, s 104.4(1)(c).
23 ‘A privative clause will try to protect the Attorney-General's decision from the full rigour of judicial review. I do not hold out much hope of this preventing all judges substituting their own decisions on declared organisations for those of the elected government'. South Australia, Parliamentary Debates, House of Assembly, 21 November 2007, 1807 (Michael Atkinson, Attorney-General).
24 Particularly in Thomas (2007) 233 CLR 307. And perhaps also in the cases relating to immigration detention, for example, the majority judgment in Al-Kateb v Godwin (2004) 219 CLR 562.
25 Federated Sawmill, Timberyard and General Woodworkers’ Employes’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308, 313 (Griffith CJ); Le Mesurier v Connor (1929) 42 CLR 481, 495–6 (Knox CJ, Rich and Dixon JJ).
26 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372.
27 Kable (1996) 189 CLR 51, 102–3 (Gaudron J); 114–16 (McHugh J); 127–8, 133–8 (Gummow J), 96 (Toohey J).
28 The first pillar was emphasised by Gaudron J (at 102–3); both were used by McHugh J (at 114–16) and Gummow J (at 139–42).
29 Kable (1996) 189 CLR 51, 105–6; 107–8 (Gaudron J); 116, 124 (McHugh J); 128, 144 (Gummow J). For Toohey J, it was part of the implication that the Court must be exercising federal jurisdiction at the time: see at 98–9.
30 Ibid 105 (Gaudron J); 115 (McHugh J).
31 Ibid 139 (Gummow J); 117 (McHugh J); 83 (Dawson J).
32 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ('Lim’).
33 Kable (1996) 189 CLR 51, 133 (Gummow J). The concern over executive power to detain individuals continues in Gummow J's judgment in Fardon (2004) 223 CLR 575, 612 (Gummow J); see also Thomas (2007) 233 CLR 307, 356 (Gummow and Crennan JJ).
34 Kable (1996) 189 CLR 51, 116.
35 Ibid 117.
36 Ibid 107. See also Toohey J's focus on process and public confidence at 98.
37 Ibid 133.
38 Baker v The Queen (2004) 223 CLR 513 ('Baker’); Fardon (2004) 223 CLR 575.
39 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 ('Bradley’); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 ('Forge’).
40 Gypsy Jokers Motorcycles Club Inc v Commissioner of Police (2008) 234 CLR 532 ('Gypsy Jokers’); K-Generation v Liquor Licensing Court (2009) 237 CLR 501 ('K-Generation’).
41 Particularly note comments on the distinguishing of the facts in Fardon from those in Kable in Dan, Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’ (2005) 16 Public Law Review 182, 185Google Scholar; see also James, Stellios, The Federal Judicature: Chapter III of the Constitution, Commentary and Cases (Chatswood, LexisNexis Butterworths, 2010), 432Google Scholar.
42 Fiona, Wheeler, ‘The Kable Doctrine and State Legislative Power over State Courts’ (2005) 20(2) Australasian Parliamentary Review 15, 22Google Scholar.
43 Fardon (2004) 223 CLR 575, 601 (McHugh J).
44 Elizabeth, Handsley, ‘Do Hard Laws Make Bad Cases? – The High Court's Decision in Kable v Director of Public Prosecutions (NSW)’ (1997) 27 Federal Law Review 171, 175Google Scholar; Elizabeth, Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ (1998) 20 Sydney Law Review 183Google Scholar.
45 See, eg, Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181, 190–1 (Kirby J); Baker (2004) 223 CLR 513, 542 (Kirby J); Fardon (2004) 223 CLR 575, 593 (Gleeson CJ); Forge (2006) 228 CLR 45, 122 (Kirby J). See also commentary Stellios, above n 41, 433.
46 Bradley (2004) 218 CLR 146, 163.
47 The applicant had formulated their submissions based on this basis. See Forge (2006) 228 CLR 45, 67.
48 Ibid 67–8 (Gleeson CJ) (the approach of Gleeson CJ was largely followed by Callinan and Heydon JJ in their separate judgments); 76 (Gummow, Hayne and Crennan JJ). This was not a completely new concept, as it was initially seen in the judgments in Kable itself. See Tony, Blackshield and George, Williams, Australian Constitutional Law: Law and Theory: Commentary and Materials (Annandale, Federation Press, 5th ed, 2010) 712–3Google Scholar.
49 See Baker (2004) 223 CLR 513, 523–4 (Gleeson CJ); Gypsy Jokers (2008) 234 CLR 532, 553 [11] (Gummow, Hayne, Heydon and Kiefel JJ).
50 Gabrielle, Appleby and John, Williams, ‘The anti-terror creep: law and order, the States and the High Court of Australia’ in Nicola, McGarrity, Andrew, Lynch and George, Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (Oxon and New York, Routledge, 2010) 150, 156Google Scholar.
51 See Gypsy Jokers (2008) 234 CLR 532, 570–2 [76], [78], [81] (Kirby J). Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2007) 33 WAR 245, 262 (Martin CJ), 277 (Steytler P). Although Wheeler JA (at 280–1) indicated that this interpretation may be open, her Honour did not address it as it had not been argued by the parties.
52 Anna, Dziedzic, ‘Forge v Australian Securities and Investments Commission: The Kable Principle and the Constitutional Validity of Acting Judges’ (2007) 35 Federal Law Review 129, 143Google Scholar.
53 Rachel, Gray, The Constitutional Jurisprudence and Judicial Method of the High Court of Australia: The Dixon, Mason and Gleeson Eras (Adelaide, Presidian Legal Publications, 2008), 253–4Google Scholar.
54 Stellios, above n 41, 432.
55 Fardon (2004) 223 CLR 575, 593.
56 Ibid 598–600. See also K-Generation (2009) 237 CLR 501, 529–30 [88] (French CJ).
57 Fardon (2004) 223 CLR 575, 586. His Honour restated the paradox in the later case of Thomas (2007) 233 CLR 307, 329. For concerns about this potential consequence of the Kable decision, see Handsley, ‘Do Hard Laws Make Bad Cases?', above n 44, 177 and 179.
58 See, eg, New South Wales, Parliamentary Debates, Legislative Assembly, 8 May 1997, (Mr Paul Whelan, Minister for Police), 8337.
59 We add this caveat simply on the basis that many of the anti-organised crime measures were untested for effectiveness. Most notably among these were the control order schemes. When New South Wales adopted its CCOCA, based on SOCCA, it was untested, but as Rick Sarre has pointed out, it was something the government ‘could be seen to be adopting’ following the bikie-related bashing at the Sydney Airport in March 2009: Rick Sarre, ‘Police and Investigations: Some Reflections on the Serious and Organised Crime (Control) Act 2008 (SA)’ (Paper presented at the Police State Crime Forum, Queensland, 5 June 2009).
60 See, eg, New South Wales, Parliamentary Debates, Legislative Assembly, 8 May 1997, 8337 (Mr Paul Whelan, Minister for Police).
61 (2009) 240 CLR 319, 379 [140]. See also Wheeler, above n 42, 30; and H P, Lee, ‘The Kable Case: A Guard-Dog that Barked But Once?’ in George, Winterton (ed), State Constitutional Landmarks (Annandale, Federation Press, 2006) 390, 414Google Scholar.
62 (2009) 240 CLR 319.
63 Stellios, above n 41, 443.
64 International Finance Trust (2009) 240 CLR 319, 354–5 [54]–[56].
65 Ibid 367 [98] (Gummow and Bell JJ); 379–80 [141], 385 [155] (Heydon J).
66 (1998) 193 CLR 173.
67 International Finance Trust (2009) 240 CLR 319, 354 [53], referring to Kable (1996) 189 CLR 51, 118 (McHugh J) to this effect.
68 International Finance Trust (2009) 240 CLR 319, 377–8 [134]–[135].
69 Ibid 349 [41].
70 Ibid 349 [42].
71 Ibid.
72 See, eg, K-Generation (2009) 237 CLR 501.
73 SOCCA s 3.
74 Ibid s 8.
75 Ibid s 10(3).
76 Ibid s 10(4).
77 Ibid s 13(1).
78 Ibid s 13(2), ‘criminal intelligence’ is defined in s 3.
79 Ibid s 41.
80 (2010) 239 CLR 531. All of the judges in Totani (2010) 242 CLR 1 accepted this.
81 SOCCA s 3.
82 Ibid s 14(3).
83 Ibid s 21(1).
84 Ibid s 21(2).
85 Ibid s 14(5)(b). Note s 14(6), although it was conceded in the appeal that the Court could not remove all content from a control order made under s 14(1).
86 The Attorney-General tabled a detailed statement of his reasons for the decision, within the limits imposed by the ‘criminal intelligence’ provision: South Australia, Parliamentary Debates, House of Assembly, 14 May 2009 (Michael Atkinson, Attorney-General).
87 Seven control orders were successfully sought in this round: ‘Court Adjourns New Finks Orders Bid', ABC News Local (Adelaide), 9 June 2009.
88 Totani v South Australia [2009] SASC 301. The majority consisted of Bleby J, with whom Kelly J agreed. White J dissented.
89 Ibid [156].
90 Ibid.
91 Ibid [197]–[199].
92 Gummow J's judgment gave little attention to the basis of the implication. Hayne J focused on the integrated legal system: Totani (2010) 242 CLR 1, 81 [201]; as well as the focus on limitations on the power to involuntarily detain citizens that was first seen in Gummow J's judgment in Kable (at 83 [209]). This is discussed in more depth later. Crennan and Bell JJ referred both to the integrated Australian court system (at 156 [425]); and the requirement that a state court continue to answer the description of a ‘court’ by satisfying the minimum requirements of independence and impartiality (at 157 [427]). Kiefel J's judgment drew the two together in a similar manner to French CJ (at 161 [438], 162 [443]).
93 Totani (2010) 242 CLR 1, 37 [47]. See also at 49 [72].
94 Ibid 37–8 [50]. At 47–8 [69] is a good summary of French CJ's reasoning process in relation to the basis and how this gives rise to the content of the implication.
95 (1992) 177 CLR 106, 135.
96 Totani (2010) 242 CLR 1, 96 [245].
97 Ibid 43 [62], 49 [72]. See also the commencement of his Honour's judgment with the ‘assumption’ of judicial independence (at 20 [1]).
98 Ibid 43 [62].
99 There is a clear development of the importance of principles to our constitutional framework through the course of French CJ's jurisprudence. French CJ referred to procedural fairness and the open court principles as requirements of the rule of law in K-Generation (2009) 237 CLR 501, 520 [48]. His Honour emphasised the open court principle in Hogan v Hinch (2011) 243 CLR 506530–1 [20] as part of the essential characteristics necessary to maintain integrity and public confidence. His Honour said (at 541 [46]) that open court goes to the ‘appearance of independence and impartiality'.
100 Totani (2010) 242 CLR 1, 49–50 [73].
101 Ibid 43 [62], referring to the observations of Gummow, Hayne and Crennan JJ in Forge (2006) 228 CLR 45, 76 [64] (considered above). See also Totani at 47–8 [69](4).
102 Totani (2010) 242 CLR 1, 47–8 [69](4).
103 Ibid 62–3 [131] (Gummow J), 162 [443] (Kiefel J).
104 Ibid 21 [4], 52–3 [82]–[83] (French CJ), 66 [142], 67 [149] (Gummow J), 160 [436] (Crennan and Bell JJ), 172 [479] (Kiefel J).
105 Although note that French CJ endorsed the position of Hayne J: Ibid 52 [82]. Note also the similarities in the judgment of Kiefel J at 169–70 [470] where her Honour discussed the fact that it was the court's order that created a restriction on the respondent's ability to associate with others, thus creating what Hayne J would refer to as new norms of conduct.
106 Ibid 81 [201], citing Kable (1996) 189 CLR 51, 143 (Gummow J).
107 See, eg, Totani (2010) 242 CLR 1, 81 [202], 82–3 [208]–[209].
108 Ibid 85 [218].
109 Ibid 77 fn 319. See further discussion of judicial power at 85–6 [219].
110 Ibid 86 [221].
111 88–9 [225]–[226].
112 (2007) 233 CLR 307. See particularly at 447–8, although ultimately his Honour found the power undermined the institutional impartiality of the Court because of the indeterminacy of the criteria the legislation required the judges to apply: 468–9 (Hayne J).
113 Ibid 330 (Gleeson CJ), 356 (Gummow and Crennan JJ).
114 See, eg, Ibid 328 (Gleeson CJ), 437 (Gummow and Crennan JJ).
115 Leslie Zines, ‘Recent Developments in Chapter III: Kirk v Industrial Relations Commission of New South Wales and South Australia v Totani’ (Speech delivered at the AACL/CCCS Lecture, 26 November 2010).
116 Totani (2010) 242 CLR 1, 96 [246].
117 Ibid 93–4 [239]–[240].
118 Ibid 93–4 [240]; see also at 96–7 [247].
119 Ibid 96–7 [247].
120 See, eg, Totani (2010) 242 CLR 1, 21 [4], 42 [61] (French CJ), 62–3 [131] (Gummow J), 91 [233] (Hayne J), 155–6 [423] (Crennan and Bell JJ).
121 His Honour lamented: ‘No counsel has ever sought leave to argue that Kable's case be overruled. Hence it must be faithfully applied, whatever its meaning.’ Totani (2010) 242 CLR 1, 95–6 [245]. See also International Finance Trust (2009) 240 CLR 319, 379 [140].
122 Totani (2010) 242 CLR 1, 96 [245].
123 Ibid 98–9 [251].
124 Ibid 66–7 [146].
125 Ibid 67 [148].
126 Elizabeth, Southwood, ‘Extending the Kable Doctrine: South Australia v Totani’ (2011) 22 Public Law Review 89Google Scholar.
127 CCOCA s 5.
128 Ibid s 6.
129 Ibid s 7. Members of the organisation have a right to make submissions while certain other persons may make submissions with leave: s 8.
130 Ibid s 8(3). See also s 28 which places an obligation on an eligible judge to take steps to maintain the confidentiality of information that is properly classified by the Commissioner as criminal intelligence and if the judge considers it is not properly so classified, asking the Commissioner whether the Commissioner wishes to withdraw the information from consideration.
131 Ibid s 9(1).
132 Ibid ss 9(2), (4).
133 Ibid s 13(1).
134 Ibid s 13(2).
135 Ibid s 14.
136 Ibid s 19.
137 Ibid s 19(1).
138 Ibid s 26(1).
139 Ibid s 26(5).
140 Ibid s 19(7).
141 Only the Kable arguments will be considered in this article.
142 This was pointed out by Heydon J in dissent: Wainohu (2011) 243 CLR 181, 231–32.
143 Kable (1996) 189 CLR 51, 103–4 (Gaudron J), although McHugh J did comment (at 117–18) that the persona designata limitations could apply to state courts. Note other comments to the effect that Kable applied to the court in Fardon (2004) 223 CLR 575, 591 (Gleeson CJ), 595 (McHugh J); Forge (2006) 228 CLR 45, 75–6 (Gummow, Hayne and Crennan JJ).
144 This is not surprising, as in their Honours’ separate judgments in Totani both relied on the combined basis. What appears in Wainohu is a clearer and more concise explanation of how the two interrelate.
145 Wainohu (2011) 243 CLR 181, 208. This is similar to the explanation given by French CJ in Hogan v Hinch (2011) 243 CLR 506, 541.
146 Wainohu (2011) 243 CLR 181, 208. Their Honours rely (at 213–15) upon the history of the judicial obligation to give reasons, and also upon the open court principle in coming to this conclusion.
147 Ibid 210.
148 See, eg, Ibid 203.
149 Ibid 212.
150 Ibid 210.
151 Ibid 204–5.
152 Ibid 219.
153 (1995) 184 CLR 348 ('Grollo’).
154 Rebecca, Welsh, ‘“Incompatibility” Rising? Some Potential Consequences of Wainohu v New South Wales’ (2011) 22 Public Law Review 259Google Scholar.
155 Wainohu (2011) 243 CLR 181, 228–29.
156 Ibid 229–30.
157 Ibid 229. This test is based on the approach of Gleeson CJ in Bradley (2004) 218 CLR 146, 158–9.
158 Wainohu (2011) 243 CLR 181, 229.
159 Totani (2010) 242 CLR 1, 99.
160 As well as other colourful descriptors: Wainohu (2011) 243 CLR 181, 240.
161 Ibid 241.
162 Ibid 248.
163 For commentary in support of this position, see Leslie, Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) 272Google Scholar.
164 Hilton v Wells (1985) 157 CLR 57; Grollo (1995) 184 CLR 348.
165 Wainohu (2011) 243 CLR 181, 218–19.
166 Ibid 229–30.
167 Serious Sex Offenders Monitoring Act 2005 (Vic) s 42.
168 Ibid s 35.
169 Hogan v Hinch (2011) 243 CLR 506, 540 [42] (French CJ), 551 [82] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
170 Gypsy Jokers (2008) 234 CLR 532, 558 [33] (Gummow, Hayne, Heydon and Kiefel JJ), 593–4 [173]–[174] (Crennan J).
171 Anthony, Mason, ‘A New Perspective on Separation of Powers', (1996) 82 Canberra Bulletin of Public Administration 1, 5Google Scholar, cited in Wainohu (2011) 243 CLR 181, 211.
172 See, eg, Zines, above n 163, 299; Fiona Wheeler, The Separation of Judicial Power: A Purposive Analysis (PhD Thesis, ANU, 1999) 159; James, Stellios, ‘Reconceiving the Separation of Judicial Power’ (2011) 22 Public Law Review 113Google Scholar.
173 See, eg, the consideration of the imprecise nature of judicial power: Wainohu (2011) 243 CLR 181, 201–2. Flexibility that focuses upon the restraining of power and protecting of liberty has been advocated elsewhere: John, Williams, ‘Re-thinking Advisory Opinions’ (1996) 7 Public Law Review 205, 207Google Scholar.
174 Welsh, above n 154.
175 Wainohu (2011) 243 CLR 181, 230 [111] (Gummow, Hayne, Crennan and Bell JJ), 220 [72] (French CJ and Kiefel J).
176 Ibid 230 [111] (Gummow, Hayne, Crennan and Bell JJ).
177 Criminal Code, particularly ss 104.4(1)(d), (2).
178 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), particularly ss 13(3), (4).
179 Crimes (Criminal Organisations Control) Act 2012 (NSW) s 13(2). The Northern Territory has also amended its legislation to the same effect: Serious Crime Control Amendment Act 2011 (NT). The Western Australian Parliament introduced the Criminal Organisations Control Bill 2011 (WA) into Parliament that also uses this mechanism.
180 Crimes (Criminal Organisations Control) Act 2012 (NSW) s 28.
181 South Australian Attorney-General, Combating Serious and Organised Crime (August 2011), 1.
182 Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012 (SA), pt 2 cl 6.
183 Letter fromChristopher Porter, Treasurer and Attorney General of Western Australia, to John Rau, Deputy Premier and Attorney General of South Australia, 3 October 2011 <www.agd.sa.gov.au>.
184 Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012 (SA) Proposed s 16.
185 Proposed ibid s 22(2).
186 Proposed ibid s 22(5).
187 Proposed ibid s 22(7).
188 Statutes Amendment (Serious and Organised Crime) Bill 2012 (SA) cl 30.
189 South Australian Attorney-General above n 181, 6.
190 See, eg, Totani (2010) 242 CLR 1, 30–1 [33] (French CJ), 169–70 [469]–[470] (Kiefel J).
191 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 ('Kirk’); see Wendy, Lacey, ‘Breathing Life into Kable — Case Note; Kirk v Industrial Court of New South Wales’ (2010) 34 Melbourne University Law Review 641Google Scholar.
192 Totani (2010) 242 CLR 1, 47–8; [69](4).
193 (2011) 280 ALR 221. A full analysis of this case is beyond the scope of this article, but it is worth noting that in this case the High Court considered the application of the Kable principle in a very different context: rather than the rights-offensive arena of law and order, it was raised in a constitutional challenge to the Charter of Human Rights and Responsibilities Act 2006 (Vic). The change in context drew out different approaches among the members of the court to the application of the Kable principle.
194 See, eg, discussion of the uncertainty that followed the Kable decision in Anne, Twomey, ‘The Limitation of State Legislative Power’ (2001) 4 Constitutional Law and Policy Review 13, 19Google Scholar.
195 Such powers must be subject to a minimum level of review after Kirk (2010) 239 CLR 531.