''Kable v DPP'',. is a decision of the

High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...

. It is a significant case in Australian constitutional law. The case is notable for having established the 'Kable Doctrine', a precept in Australian law with relevance to numerous important legal issues; including the

separation of powers The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...

parliamentary sovereignty Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over al ...

, Australian

federalism Federalism is a mode of government that combines a general level of government (a central or federal government) with a regional level of sub-unit governments (e.g., provinces, State (sub-national), states, Canton (administrative division), ca ...

, and the judicial role. It is particularly significant as one of the few restraints upon the otherwise plenary legislative powers of state parliaments in Australia, aside from those imposed by the Commonwealth through section 109. The ''Kable'' decision is controversial among legal scholars.

Facts

Gregory Kable had been sentenced to five years imprisonment for the manslaughter of his wife. 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. In the course of that campaign, the

Parliament of New South Wales The Parliament of New South Wales, formally the Legislature of New South Wales, (definition of "The Legislature") is the bicameral legislative body of the Australian state of New South Wales (NSW). It consists of the Monarch, the New South Wa ...

passed the Community Protection Act 1994. It authorised the

Supreme Court of New South Wales The Supreme Court of New South Wales is the highest state court of the Australian States and territories of Australia, State of New South Wales. It has unlimited jurisdiction within the state in civil law (common law), civil matters, and hears ...

to make an order requiring that a single individual 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 Kable specifically. The legislation was closely modeled on a law passed in Victoria, the Community Protection Act 1990, which was enacted to authorise 'preventive detention' for Garry David. In early 1995, Justice Levine of the Supreme Court made an order under the ''Community Protection Act'' requiring that Kable be detained for a period of six months. Kable appealed that decision but lost at the NSW Court of Appeal. Kable then appealed to the High Court. His counsel, Sir Maurice Byers, put forward an argument that the legislation was constitutionally invalid.

Judgment

The High Court held that the law was unconstitutional. Its reasoning was that the act had conferred a power upon the NSW Supreme Court which was incompatible with section 71 of the constitution. Section 71 vests Australia's state supreme courts with federal judicial power. The act was described by multiple justices in the majority as requiring the Supreme Court to (perform) non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution ... is diminished'. This was an attempt to ground ''Kable'' in the precedent of a test for invalidity set by ''Grollo v Palmer.'' The preventative detention of Kable under the act for reasons of anticipated criminality was enough for Toohey J to declare that the ''Grollo'' test had been met.

Aftermath

After the decision, Kable sought an award of damages for abuse of process,

false imprisonment False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person's movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is n ...

and

malicious prosecution Malicious prosecution is a common law intentional tort. Like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action ( civil or crim ...

. His application was dismissed by the Supreme Court of NSW, but 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. 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.''New South Wales v Kable''
Case Summary [2013
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Significance

The ''Kable'' decision is controversial among legal scholars. The decision has received qualified praise from Trevor Allan (legal philosopher)">TRS Allan who said that; 'despite doubtful reasoning, (it) vindicated indirectly the fundamental character of the separation of powers as an aspect of the rule of law'. Prominent critics of the decision include Jeffrey Goldsworthy and George Winterton. Winterton described the reasoning in ''Kable'' as 'barely even plausible'; while Goldsworthy described the decision and its line of authority as lacking 'methodological rigour'; accusing the court of ' judicial statesmanship'. The principles and reasoning supporting the Kable doctrine are understood to have developed since the original decision. One such important case in this line of authority is ''Kirk v Industrial Relations Commission''. Kable has proven to be an important doctrine for the court to consider in many subsequent decisions; including an appeal by Julian Knight for his release in ''Knight v Victoria''.

Footnotes

References

{{reflist, refs= * Winterton, G. ''et al.'' ''Australian federal constitutional law: commentary and materials'', 1999. LBC Information Services, Sydney.

External links

Community Protection Act 1994
High Court of Australia cases 1996 in Australian law Australian constitutional law Rights in the Australian Constitution cases 1996 in case law