Kable v Director of Public Prosecutions PDF

Preview

Summary

case summary ...

Description

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Challenges: At the High Court, Kable ran many arguments against the validity of the Act, including the argument that was ultimately successful: that the Act was inconsistent with the requirements of Chapter III of the Australian Constitution, as interpreted by previous cases like the Boilermakers’ case. According to that jurisprudence, Chapter III courts – that is to say, federal courts – were the only federal institutions capable of exercising federal judicial power, and they could not be invested with any non-judicial powers. Case law had not dealt with the question of whether similar limitations applied to non-Chapter III courts, that is, State courts. Since the court deciding whether to continue to detain Kable was the NSW Supreme Court – a State court – it was possible that legislation like the Community Protection Act might be valid at state level, even though it might not have been valid at the federal level.

Decision: The decision of the High Court of Australia in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577; [1996] HCA 24 (Kable) marked the beginning of an ongoing development in Australian constitutional law, with rule of law implications. The rule of law implies effective legal constraints on the exercise of power, including power derived from the operation of democratic processes. In the case of present concern, the law in question is that founded in the Australian Constitution, and the power in question is that of the democratically elected legislatures and governments of the Australian States. 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. 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."

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; however, he was successful in an appeal to the NSW Court of Appeal on his claim of false imprisonment with damages to be assessed. 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.

Ruling: Overview: In the event, none of the majority judgments relied on the Part 9 argument relating to the independence of the judiciary under the NSW Constitution. Indeed, Toohey, McHugh and Gummow JJ all agreed that the separation of powers doctrine does not operate in a constitutional sense in NSW because of Part 9. 25. Instead, the balance of the reasoning was on Chapter III of the Commonwealth Constitution. The interesting feature there was that, whilst all the majority judgments varied somewhat as to detail, they agreed that a version of the Chapter III argument could be held to apply but again without finding that the doctrine of the separation of powers operates in the States, at least in a direct way. Federal judicial power must be excerised in accordance with the judicial process. Also, except for Toohey J, the majority judgments all seem to agree that the Chapter III test of incompatibility of function, concerning the integrity of the judiciary, has implications beyond those situations where the Supreme Courts of the States is exercising federal jurisdiction....