Kable v Director of Public Prosecutions for NSW
Encyclopedia
Kable v Director of Public Prosecutions for NSW (1996) 189 CLR
51; [1996] HCA 24 was a significant case decided in the High Court of Australia
regarding the Chapter III rights in the Constitution
and the scope of power of state courts vested with federal jurisdiction.
passed a bill called the Community Protection Act 1994. That legislation authorised the Supreme Court of New South Wales
to make an order requiring that a single individual could be detained in prison if the Court was satisfied that that person posed a significant danger to the public. The Act was later amended to authorise the Court to detain a single named person, Gregory Wayne Kable, who was sentenced to five years imprisonment for the manslaughter of his wife.
This legislation was closely modelled on a law passed in Victoria, the Community Protection Act 1990 (Vic), which was enacted to authorise 'preventive detention' for Garry David
.
Whilst in gaol, Kable sent threatening letters to the people who denied him access to his children, aged four and two years. After a sharp separation from his children to prison the letters were written whilst in prison in the first 12 months after being denied access to his children. He was subsequently charged and sentenced to an additional 16 months for writing the letters in 1990. Four years later and granted no parole his release from gaol coincided with a state election campaign, in an environment where, allegedly, voters were concerned about "law and order". Legislation was subsequently passed through parliament naming him explicitly. Early in 1995, Justice Levine of the Supreme Court made an order under the Community Protection Act, in respect of Kable, requiring that he be detained for a period of six months. Kable appealed that decision, and his appeal was dismissed by the NSW Court of Appeal in Kable v Director of Public Prosecutions (1995) 36 NSWLR 374. It was from this decision that the appeal was brought to the High Court, on grounds of constitutional invalidity.
The High Court held that the law was unconstitutional, and in the process construed a limitation on the powers of state courts vested with federal jurisdiction under Chapter III of the Constitution. They held that Chapter III, particularly section 71 purports to vest federal judicial power in the Supreme Court of New South Wales. The Act vested in the Supreme Court powers that were incompatible with the exercise of judicial power of the Commonwealth, that is, the law required the Supreme Court to exercise a power incompatible with its role in the federal judiciary.
Note that this decision's principles have been revisited in narrow and arguably restrictive terms in the cases of Baker v The Queen and Fardon v Attorney-General (Qld)
. It was, however, used to hold legislation invalid in International Finance Trust Company Limited v New South Wales Crime Commission.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
51; [1996] HCA 24 was a significant case decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
regarding the Chapter III rights in the Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
and the scope of power of state courts vested with federal jurisdiction.
Background
The Parliament of New South WalesParliament of New South Wales
The Parliament of New South Wales, located in Parliament House on Macquarie Street, Sydney, is the main legislative body in the Australian state of New South Wales . It is a bicameral parliament elected by the people of the state in general elections. The parliament shares law making powers with...
passed a bill called the Community Protection Act 1994. That legislation authorised the Supreme Court of New South Wales
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales...
to make an order requiring that a single individual could be detained in prison if the Court was satisfied that that person posed a significant danger to the public. The Act was later amended to authorise the Court to detain a single named person, Gregory Wayne Kable, who was sentenced to five years imprisonment for the manslaughter of his wife.
This legislation was closely modelled on a law passed in Victoria, the Community Protection Act 1990 (Vic), which was enacted to authorise 'preventive detention' for Garry David
Garry David
Garry David, also known as Garry Webb, was an Australian criminal. Born on 20 November 1954, to Rupert and Betty David. Rupert David is said to have served more time in prison than any other person in the history of the State of Victoria. His mother was an alcoholic and David and his siblings...
.
Whilst in gaol, Kable sent threatening letters to the people who denied him access to his children, aged four and two years. After a sharp separation from his children to prison the letters were written whilst in prison in the first 12 months after being denied access to his children. He was subsequently charged and sentenced to an additional 16 months for writing the letters in 1990. Four years later and granted no parole his release from gaol coincided with a state election campaign, in an environment where, allegedly, voters were concerned about "law and order". Legislation was subsequently passed through parliament naming him explicitly. Early in 1995, Justice Levine of the Supreme Court made an order under the Community Protection Act, in respect of Kable, requiring that he be detained for a period of six months. Kable appealed that decision, and his appeal was dismissed by the NSW Court of Appeal in Kable v Director of Public Prosecutions (1995) 36 NSWLR 374. It was from this decision that the appeal was brought to the High Court, on grounds of constitutional invalidity.
Decision
The argument which eventually persuaded a majority of the members of the High Court was the argument that- "the Act vests in the Supreme Court of New South Wales a non-judicial power which is offensive to Chapter III of the ConstitutionConstitution of AustraliaThe Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. Hence any exercise of that power would be unconstitutional and the Act conferring the power would be invalid. ... The argument is not one which relies upon the alleged separation of legislative and judicial functions under the Constitution of New South Wales. Rather it is that the jurisdiction exercised under the Act is inconsistent with Ch III of the Commonwealth Constitution because the very nature of the jurisdiction is incompatible with the exercise of judicial power."
The High Court held that the law was unconstitutional, and in the process construed a limitation on the powers of state courts vested with federal jurisdiction under Chapter III of the Constitution. They held that Chapter III, particularly section 71 purports to vest federal judicial power in the Supreme Court of New South Wales. The Act vested in the Supreme Court powers that were incompatible with the exercise of judicial power of the Commonwealth, that is, the law required the Supreme Court to exercise a power incompatible with its role in the federal judiciary.
Note that this decision's principles have been revisited in narrow and arguably restrictive terms in the cases of Baker v The Queen and Fardon v Attorney-General (Qld)
Fardon v Attorney-General (Qld)
Fardon v Attorney-General 223 CLR 575 was a case decided in the High Court of Australia regarding the separation of powers in Australia.-Background:...
. It was, however, used to hold legislation invalid in International Finance Trust Company Limited v New South Wales Crime Commission.