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.

Background

The Parliament of New South Wales 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.

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.

Kable whilst in gaol 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 Constitution. 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 recently been revisited in narrow and arguably restrictive terms in the cases of Baker v The Queen and Fardon v Attorney-General (Qld).

See also

• Australian constitutional law

References

• Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.
• Fairall. Violent Offenders and Community Protection in Victoria - The Gary David Experience, 1993. 17 Criminal Law Journal 40.

External links

• Full text of the decision