Kable v Director of Public Prosecutions (NSW)

Kable v DPP (NSW)
Court High Court of Australia
Full case name Kable v The Director of Public Prosecutions for New South Wales
Decided 12 September 1996
Citation(s) (1996) 189 CLR 51, [1996] HCA 24
Transcript(s)
Case history
Prior action(s) Kable v Director of Public Prosecutions (1995) 36 NSWLR 374
Case opinions
(4:2) The Community Protection Act 1994 was an invalid law because it vested the Supreme Court of New South Wales with powers incompatible with its role in the federal judicial structure (per Toohey, Gaudron, McHugh and Gummow JJ; Dawson J & Brennan CJ dissenting)
Court membership
Judge(s) sitting Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow  JJ
New South Wales v Kable
Court High Court of Australia
Full case name New South Wales v Kable
Decided 5 June 2013
Citation(s) [2013] HCA 26, (2013) 252 CLR 118
Transcript(s) 9 Apr [2013] HCATrans 71
Case history
Prior action(s) [2010] NSWSC 811;
[2012] NSWCA 243
Case opinions
(7:0) The detention order made by the Supreme Court was valid until it was set aside
Court membership
Judge(s) sitting French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ

Kable v Director of Public Prosecutions for NSW,[1] was a significant case decided in the High Court of Australia regarding the independence of the judiciary under the Constitution of Australia.

Background

The Parliament of New South Wales passed a bill called the Community Protection Act 1994.[2] 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 Kable, who was sentenced to five years imprisonment for the manslaughter of his wife.[3]

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.[4]

Whilst in gaol, Kable had sent threatening letters to the people who denied him access to his children. He was charged and sentenced to an additional 16 months for writing the letters in 1990. Four years later, having been granted no parole, he was released from gaol. His release coincided with a state election campaign which featured "law and order" as a major issue. 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 him, requiring that Kable be detained for a period of six months. He appealed that decision, and his appeal was dismissed by the NSW Court of Appeal.[5] It was from this decision that the appeal was brought to the High Court, on grounds of constitutional invalidity.

He was represented by Sir Maurice Byers, a former Solicitor-General of Australia.[6]

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.[7]

New South Wales v Kable

Subsequently, Mr Kable sought an award of damages for abuse of process, false imprisonment and malicious prosecution. His application was dismissed by the Supreme Court of NSW,[8] however he was successful in an appeal to the NSW Court of Appeal on his claim of false imprisonment with damages to be assessed.[9] The State of NSW then appealed to the High Court.[10] The High Court unanimously upheld the appeal and dismissed Mr Kable's claims, holding that a detention order made by a judge of the Supreme Court of NSW was valid until it was set aside and provided lawful authority for Mr Kable's detention.[11][12]

See also

References

  1. ↑ Kable v Director of Public Prosecutions (NSW) [2013] HCA 26, (2013) 252 CLR 118.
  2. ↑ Community Protection Act 1994 (NSW).
  3. ↑ Williams, George; Brennan, Sean & Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. pp. 543–44. ISBN 978-1-86287-918-8.
  4. ↑ Community Protection Act 1990 (Vic).
  5. ↑ Kable v Director of Public Prosecutions (1995) 36 NSWLR 374.
  6. ↑ Mason, K (26 February 2004). "What is wrong with top-down legal reasoning?". Sir Maurice Byers Memorial Lecture. Archived from the original on 30 August 2008.
  7. ↑ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. pp. 544–551. ISBN 978-1-86287-918-8.
  8. ↑ Kable v State of New South Wales [2010] NSWSC 811.
  9. ↑ Kable v State of New South Wales [2012] NSWCA 243.
  10. ↑ New South Wales v Kable [2013] HCA 26, (2013) 252 CLR 118
  11. ↑ New South Wales v Kable: Case Summary [2013] HCASum 23.
  12. ↑ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. pp. 551–54. ISBN 978-1-86287-918-8.
  • Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.
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