The High Court and Kable: A Study in Federalism and Rights Protection

This article explores the impact of the High Court’s uncertain formulation and application of the Kable doctrine on Australia’s federal system and the democratic protection of rights. It will argue that the definitional difficulties inherent in the doctrine have had a deleterious effect on the federation, undermining federal diversity. Further, while the Kable doctrine has achieved important, incidental, rights protection benefits in the curial context, in political discourse it has been used as a substitute for deeper public conversations about the role of the state in community protection, criminal punishment and acceptable incursions into human liberties. This ‘buck-passing’ is dangerous in systems that rely substantially on legislative protection of rights and lack express and enforceable judicial rights protections. Implied structural principles such as the Kable doctrine have an inherently limited capacity to operate as a rights protective mechanism.