Constitutional law · Chapter III
The Kable principle
State courts can be invested with federal jurisdiction under s 77(iii) of the Constitution, so the Constitution protects their institutional integrity, even when they exercise State jurisdiction. Since Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, a State law that undermines that integrity is invalid.
Last updated 9 November 2026
In short
- Chapter III of the Constitution contemplates an integrated national court system in which State courts exercise federal jurisdiction.
- A State law that confers on a State court a function substantially impairing its institutional integrity, as a court capable of exercising federal jurisdiction, is invalid.
- The principle has been applied to laws affecting court independence, procedural fairness, open reasons and supervisory jurisdiction.
The case
The Community Protection Act 1994 (NSW) applied to one named person, Gregory Kable, and allowed the Supreme Court to order his preventive detention. In Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 the High Court held the Act invalid: it required the Court to act in a way incompatible with its role as a repository of federal judicial power. Read it in the case index: Kable [1996] HCA 24.
How the principle developed
| Case | Point |
|---|---|
| Fardon v Attorney-General (Qld) [2004] HCA 46 | A general preventive detention scheme for serious sex offenders, with judicial process and standards, was valid. |
| International Finance Trust Co Ltd v NSW Crime Commission [2009] HCA 49 | A law requiring ex parte asset restraint applications to be heard without notice at the Commission’s election was invalid. |
| South Australia v Totani [2010] HCA 39 | A law requiring a court to make control orders on the basis of an executive declaration was invalid. |
| Kirk v Industrial Court (NSW) [2010] HCA 1 | Supervisory jurisdiction to correct jurisdictional error is a defining characteristic of State Supreme Courts, and cannot be removed. |
| Wainohu v New South Wales [2011] HCA 24 | A scheme allowing judges to make declarations without giving reasons was invalid. |
Applying the principle
The question is whether the law substantially impairs the court’s institutional integrity, judged by its defining characteristics: independence, impartiality, procedural fairness, open justice and reasoned decisions. Not every departure from ordinary process is invalid, and many challenges fail.
Frequently asked questions
What is the Kable doctrine?
The principle that State Parliaments cannot confer on State courts functions that substantially impair their institutional integrity as courts capable of exercising federal judicial power under Chapter III of the Constitution.
Did the High Court strike down preventive detention?
Among State preventive detention laws, the Kable law, which targeted one person, was invalid, while general schemes with proper judicial process have been upheld, as in Fardon and Garlett v Western Australia [2022] HCA 30.
Sources
General information, not legal advice. See our editorial policy for how this page is sourced and reviewed, and how to report an error.
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