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| {{Italic title}}{{Short description|Judgement of the High Court of Australia}} | |||
| {{COI|date=October 2016}} | |||
| {{Use Australian English|date=November 2017}} | |||
| {{Infobox court case | | |||
| {{Use dmy dates|date=November 2017}} | |||
| name=Kable v DPP (NSW) | | |||
| {{Infobox court case | |||
| court=] | | |||
| | name=Kable v DPP (NSW) | |||
| image=Coat of Arms of Australia.svg | | |||
| | court=] | |||
| date decided=12 September 1996 | | |||
| | image=Coat of Arms of Australia.svg | |||
| full name= Kable v The Director of Public Prosecutions for New South Wales | | |||
| | date decided=12 September 1996 | |||
| citations= , | | |||
| | full name= Kable v The Director of Public Prosecutions for New South Wales | |||
| judges=] CJ, ], ], ], ] and ] JJ | | |||
| | citations= {{cite AustLII|HCA|24|1996|parallelcite=(1996) 189 ] 51}} | |||
| prior actions=''Kable v Director of Public Prosecutions (1995) 36 NSWLR 374'' | | |||
| | judges=] ], ], ], ], ] and ] ] | |||
| subsequent actions=none | | |||
| | prior actions=''Kable v Director of Public Prosecutions'' | |||
| 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<small> (per Toohey, Gaudron, McHugh and Gummow JJ; Dawson J & Brennan CJ dissenting)</small> | |||
| | transcripts=*18 Aug {{cite AustLII|HCATrans|260|1995}} Special leave | |||
| * 7 Dec {{cite AustLII|HCATrans|430|1995}} | |||
| * 8 Dec {{cite AustLII|HCATrans|433|1995}} | |||
| | subsequent actions=''NSW v Kable'' <br/> {{cite AustLII|HCA|26|2013|parallelcite=(2013) 252 ] 118}} | |||
| | 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<small> (per Toohey, Gaudron, McHugh and Gummow JJ; Dawson J & Brennan CJ dissenting)</small> | |||
| }}{{italics title|all=yes|noerror}} | }}{{italics title|all=yes|noerror}} | ||
| '''''Kable v |
'''''Kable v DPP''''',<ref name="clr">{{cite AustLII|HCA|24|1996|parallelcite=(1996) 189 ] 51 |litigants=Kable v Director of Public Prosecutions (NSW)}}.</ref> is a decision of the ]. 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 ], ], Australian ], and the ]. 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 ].{{efn|Other restraints on state parliament legislative powers also exist in the Commonwealth constitution. E.g. those implied by ], ], etc.}} | |||
| ==Background== | |||
| The ] passed a bill called the ''''. That legislation authorised the ] 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. | |||
| The ''Kable'' decision is controversial among legal scholars.<ref name=":0">{{Cite journal|last=Goldsworthy|first=Jeffrey|date=2014|title=Kable, Kirk and Judicial Statesmanship|url=http://classic.austlii.edu.au/au/journals/MonashULawRw/2014/7.html|journal=]|volume=41|issue=1|pages=75|via=Austlii}}</ref><ref name=":1">{{Cite journal|last=Taylor|first=Greg|date=2015|title=Conceived in sin, shaped in iniquity - The Kable principle as breach of the rule of law|url=http://www5.austlii.edu.au/au/journals/UQLawJl/2015/12.pdf|journal=University of Queensland Law Journal|volume=12|pages=265|via=Austlii}}</ref> | |||
| 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 ]. | |||
| ==Facts== | |||
| 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. | |||
| Gregory Kable had been sentenced to five years imprisonment for the manslaughter of his wife.<ref>{{cite book|last1=Williams|first1=George|title=Blackshield and Williams Australian Constitutional Law and Theory|last2=Brennan|first2=Sean|last3=Lynch|first3=Andrew|publisher=Federation Press|year=2014|isbn=978-1-86287-918-8|edition=6|location=Leichhardt, NSW|pages=543–44|name-list-style=amp}}</ref> 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. | |||
| Kable was represented by Sir ], a former ].<ref></ref> | |||
| His release coincided with a state election campaign which featured "law and order" as a major issue. In the course of that campaign, the ] passed the Community Protection Act 1994.<ref>{{cite Legislation AU|NSW|num_act|cpa1994n77297|Community Protection Act 1994}}.</ref> It authorised the ] 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. | |||
| ==Decision== | |||
| The argument which eventually persuaded a majority of the members of the High Court was the argument that | |||
| The Act was later amended to authorise the Court to detain Kable specifically.{{efn|In effect, Kable was subject to a ].}} The legislation was closely modeled on a law passed in Victoria, the Community Protection Act 1990, which was enacted to authorise 'preventive detention' for ].<ref>{{cite Legislation AU|Vic|hist_act|cpa1990270|Community Protection Act 1990}}.</ref> | |||
| :"the Act vests in the Supreme Court of New South Wales a non-judicial power which is offensive to Chapter III of the ]. 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." | |||
| 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.<ref>''Kable v Director of Public Prosecutions'' .</ref> | |||
| 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. | |||
| Kable then appealed to the High Court. His counsel, Sir ], put forward an argument that the legislation was constitutionally invalid.<ref>{{cite web|last=Mason |first=K.|author-link=Keith Mason (judge)|date=26 February 2004|title=What is wrong with top-down legal reasoning?|url=http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwPrint1/SCO_mason030304|url-status=dead|archive-url=https://web.archive.org/web/20080830120510/http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwPrint1/SCO_mason030304|archive-date=30 August 2008|work=Sir Maurice Byers Memorial Lecture}}</ref> | |||
| Note: That this decision's principles have been revisited many times and in narrow and arguably restrictive terms and in at least one case used to hold legislation invalid in ]. | |||
| ==Judgment== | |||
| ==Aftermath Kable 2== | |||
| 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.<ref>{{cite book|last1=Williams|first1=George|title=Blackshield and Williams Australian Constitutional Law and Theory|last2=Brennan|first2=Sean|last3=Lynch|first3=Andrew|publisher=Federation Press|year=2014|isbn=978-1-86287-918-8|edition=6|location=Leichhardt, NSW|pages=544–551}}</ref> | |||
| The Community Protection Act 1994 (NSW) ("the CP Act") provided for "the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable". On 23 February 1995, on the application of the Director of Public Prosecutions, Levine J made an order pursuant to s 9 of the CP Act that Mr Kable be detained in custody for a period of six months. Mr Kable appealed against this order to the Court of Appeal but his appeal was dismissed. | |||
| 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'.<ref>{{Cite AustLII|litigants=Kable v DPP|link=Kable v The Director of Public Prosecutions for New South Wales|source=HCA|num=24|year=1996|pinpoint=Toohey J, at para. 30 of his judgement}}</ref> This was an attempt to ground ''Kable'' in the precedent of a test for invalidity set by ''Grollo v Palmer.''{{efn|''Grollo v Palmer'' is an Australian ] case regarding the '']'' doctrine.}} The preventative detention of Kable under the act for reasons of anticipated criminality was enough for ] to declare that the ''Grollo'' test had been met. | |||
| By special leave, Mr Kable appealed to the High Court. After the grant of special leave, but before the appeal to this Court was heard, the six-month period fixed by the order of Levine J expired and Mr Kable was released from detention. In September 1996, the High Court held that the CP Act was invalid. This Court allowed Mr Kable's appeal, set aside the order which the Court of Appeal had made, and, in its place, ordered that the appeal to that Court be allowed with costs, the order of Levine J be set aside and, in its place, order that the application of the Director of Public Prosecutions be dismissed with costs. It will be convenient to refer to this decision as Kable (No 1). | |||
| == Aftermath == | |||
| The Liberal Executive Government of NSW drafted the unconstitutional legislation and had known that it was unconstitutional and many complaints were made by numerous agencies like ], The ], ] etc. Then the ] provided $5,000 to fund the damages claim on behalf of Mr Kable. | |||
| After the decision, Kable sought an award of damages for ], ] and ]. His application was dismissed by the Supreme Court of NSW,<ref>{{cite AustLII |litigants=Kable v State of New South Wales |year=2010 |court=NSWSC |num=811}}.</ref> but he was successful in an appeal to the NSW Court of Appeal on his claim of false imprisonment with damages to be assessed.<ref>{{cite AustLII |litigants=Kable v State of New South Wales |year=2012 |court=NSWCA |num=243}}.</ref> The State of NSW then appealed to the High Court.<ref>{{cite AustLII |litigants=New South Wales v Kable |year=2013 |court=HCA |num=26 |parallelcite=(2013) 252 ] 118}}</ref> | |||
| 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.<ref name=Summary>''New South Wales v Kable'': </nowiki> HCASum 23].</ref><ref>{{cite book |last1=Williams |first1=George |last2=Brennan|first2=Sean|last3=Lynch|first3=Andrew|title=Blackshield and Williams Australian Constitutional Law and Theory |year=2014 |edition=6 |publisher=Federation Press |location=Leichhardt, NSW |isbn=978-1-86287-918-8| pages=551–54}}</ref> | |||
| Mr Kable commenced proceedings in the Supreme Court of New South Wales, claiming damages for false imprisonment. Initially the proceedings were brought against the State of New South Wales ("the State"). Later, the Director of Public Prosecutions ("the DPP") was joined as a defendant. Ultimately three causes of action were pleaded: ], ] and ]. Before the action was tried, the DPP was dismissed from the proceedings by consent. | |||
| == Significance == | |||
| The primary judge (HoebenJ) determined a number of issues as preliminary questions. Those issues were decided against Mr Kable and judgment entered for the State. In particular, the primary judge rejected Mr Kable's argument that the detention order made by Levine J was a nullity when made and held that the order was valid until it was set aside. | |||
| The ''Kable'' decision is controversial among legal scholars. The decision has received qualified praise from ] 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'.<ref name=":0" /> Prominent critics of the decision include ] and ]. Winterton described the reasoning in ''Kable'' as 'barely even plausible'; <ref name=":1" /> while Goldsworthy described the decision and its line of authority as lacking 'methodological rigour'; accusing the court of ']'.<ref name=":0" /> | |||
| 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''.<ref name=":0" /> | |||
| Mr Kable appealed to the Court of Appeal. That Court (Allsop P, Basten, Campbell and Meagher JJA and McClellan CJ at CL) allowed the appeal in part. The Court of Appeal held that the primary judge had been right to dismiss Mr Kable's claims for ] and malicious prosecution but that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment. All members of the Court of Appeal held that the order of LevineJ was no answer to Mr Kable's claim for false imprisonment. | |||
| Kable has proven to be an important doctrine for the court to consider in many subsequent decisions; including an appeal by ] for his release in ''Knight v Victoria''. | |||
| ]: 63 ]."I can see the reasons, conformable with maintaining confidence in orders of the courts, for extending the operation of the assumed common law rule even to circumstances that involve extraordinary legislation such as the CP Act and the vices therein contained, and for extending the common law protection of persons such as the gaoler who act on the invalid non-judicial orders made under such legislation, as long as, in form, they are issued in the name of a court. The countervailing considerations are, however, far more powerful, in my view. This was not a judicial order. It was not made after judicial process. To extend the assumed common law principle to protect those who deprive the liberty of persons under such orders would be to fashion the common law to give efficacy to the unconstitutional attempted exercise of will of the executive, to deprive a subject of his liberty, in circumstances where the officer, who acted bona fide, is already protected by statute. I would not be willing to extend the assumed common law principle in this way. | |||
| Further, if I am correct in my view that the assumed common law principle does not extend so far as to cover the present circumstances, it might be thought that it is for the High Court to take that step, given the deep involvement of constitutional principle and the operation of the integrated legal system in the Commonwealth. It is therefore unnecessary to consider finally the existence and reach otherwise of any such common law principle."<ref></ref> Kable v State of New South Wales NSWCA 243. | |||
| Application special leave to appeal High Court of Australia | |||
| The State of NSW sought special leave to appeal to the High Court against the orders made by the NSW Court of Appeal. The Attorneys-General of the Commonwealth, Queensland, Victoria and Western Australia intervened in support of the State's appeal. | |||
| Mr Kable also filed a notice of contention because there were two other causes of action that were dismissed by the court of appeal, one being the action for ] and the other being the action from ]. | |||
| Then the High Court of Australia suggested it would grant leave to appeal on the basis that the state of NSW pay the costs win or lose of the leave application and the High Court appeal. | |||
| FRENCH CJ: There will be a grant of special leave in this matter, subject to the condition that the appellant will pay the respondent’s costs of the appeal and of this special leave application.<ref> </ref> State of NSW v Kable HCATrans 356 (14 December 2012). | |||
| Special leave (cross-appeal contention issues) | |||
| FRENCH CJ: Is it a necessary aspect of the malice which you assert, or what you call the institutional malice, I think – and I am having regard back to your pleadings – that the Executive procured the introduction of the Bill into the Parliament and its subsequent enactment? | |||
| MR BATES for Mr Kable: The malice is that the Executive Government was jointly carrying out a plan to keep Mr Kable in gaol by any means, by an improper means. | |||
| FRENCH CJ: We, therefore, work on the premise that they are bringing an application for a detention order under a law apparently duly enacted by the Parliament of New South Wales. | |||
| MR BATES: It was more than that, your Honour. The Executive Government was carrying out a whole plan to simply keep Mr Kable in gaol at any cost – they made this whole attempt, which they carried out, to set up, to follow a procedure, where they actively kept him in gaol to do whatever was necessary even though these prisoners were incapable of achieving the object. | |||
| FRENCH CJ: Is your argument similar in relation to the abuse of process? | |||
| MR BATES: The argument is slightly different there, your Honour, because in an abuse of process there is a question objectively whether the proceedings were misused and we say these proceedings were being misused because there was never any way these proceedings could be capable of detaining Mr Kable, objectively. For both causes of action, your Honour. | |||
| MR BATES: Your Honour, could I just say this aspect? In both torts, false imprisonment and abuse of process, in neither case can the tort when it is carried out be carried out solely by the tortfeasor. In each case the tortfeasor relies to some extent on conduct being taken independently by other actors in the process. For example, in the classic case of malicious prosecution, for example, a person might, for example, make a false complaint to the police. The police then investigate it and it might be heard by a judge....is obtained. Even though there has been a whole series of other actors who have taken part, that does not constitute a novus actus interveniens. | |||
| Similarly, in an abuse of process proceedings are misused, and in the typical case there will be a lot of people involved such as the judge and so forth who will have no idea of what may have been subjectively motivating the tortfeasor, so we say here just by analogy, the fact that in both these cases, the malicious prosecution and in the abuse of process, the fact that the legislation gets enacted, we just say is, if you like, part of the history or part of the mechanism that has been used, but the whole plan is what has been carried out by the ]. That is how we put it, your Honour. That is on the special leave aspect, your Honour. | |||
| FRENCH CJ: All right. Thank you. We will adjourn briefly to consider what course we should take. | |||
| AT 3.47 PM SHORT ADJOURNMENT | |||
| UPON RESUMING AT 3.51 PM: | |||
| FRENCH CJ: In the opinion of the Court, the cross-appeal is not attended with sufficient prospects of success to warrant the grant of special leave. Special leave will be refused. <ref> </ref> State of NSW v Kable HCATrans 71 (9 April 2013) | |||
| Hearing High Court Kable (No 2) | |||
| Then the High Court unanimously upheld the appeal by the State of NSW. The High Court relied on their view that the supreme court is a superior court of record and therefore the legislation was valid until set aside. The High Court said that because the was originally appealed to the court of appeal and judged valid prior being judged invalid, by the High Court in Kable 1, the High Court said that that produced its constitutionality because it was appealed in a federal jurisdiction. Noting that its constitutionality was never judged in the Highest Court prior Kable 1 and therefore never endured the full length of the appeal process in Australia. <ref></ref> | |||
| Copyright Infringement: | |||
| The ] was Novel and difficult to defend. There are endless ] breaches by the use of the name of ] and the ] all over the Internet which the NSW government according to the High Court of Australia in Kable (No 2) don't have to take responsibility for in terms of the continuing damages caused to Mr Kable. The law was ruled unconstitutional by the High Court of Australia in Kable (No 1) and therefore a nullity, but because the High Court of Australia in Kable (No 2) decided it was constitutional due to the appeal process taken to resolve the matter Mr Kable was ordered to pay costs, a contradiction in terms. | |||
| ==See also== | ==See also== | ||
| *] | *] | ||
| ==Footnotes== | |||
| {{notelist}} | |||
| == References == | == References == | ||
| {{reflist|refs=}} | |||
| <references /> | |||
| * ] ''et al.'' ''Australian federal constitutional law: commentary and materials'', 1999. LBC Information Services, Sydney. | * ] ''et al.'' ''Australian federal constitutional law: commentary and materials'', 1999. LBC Information Services, Sydney. | ||
| ==External links== | ==External links== | ||
| * | |||
| * | |||
| * | * | ||
| * | |||
| * | |||
| ] | ] | ||
| ] | ] | ||
| ] | ] | ||
| ] | ] | ||
Latest revision as of 02:46, 15 May 2024
Judgement of the High Court of Australia
| 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 |
| Citations | [1996] HCA 24, (1996) 189 CLR 51 |
| Transcripts |
|
| Case history | |
| Prior action | Kable v Director of Public Prosecutions (1995) 36 NSWLR 374 |
| Subsequent actions | NSW v Kable [2013] HCA 26, (2013) 252 CLR 118 |
| Court membership | |
| Judges sitting | Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ |
| 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) | |
Kable v DPP, is a decision of the High Court of Australia. 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, parliamentary sovereignty, Australian federalism, 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 passed the Community Protection Act 1994. It authorised the Supreme Court of New South Wales 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 and malicious prosecution. 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.
Significance
The Kable decision is controversial among legal scholars. The decision has received qualified praise from 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.
See also
Footnotes
- Other restraints on state parliament legislative powers also exist in the Commonwealth constitution. E.g. those implied by s50, s92, etc.
- In effect, Kable was subject to a bill of attainder.
- Grollo v Palmer is an Australian separation of powers case regarding the persona designata doctrine.
References
- Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, (1996) 189 CLR 51.
- ^ Goldsworthy, Jeffrey (2014). "Kable, Kirk and Judicial Statesmanship". Monash University Law Review. 41 (1): 75 – via Austlii.
- ^ Taylor, Greg (2015). "Conceived in sin, shaped in iniquity - The Kable principle as breach of the rule of law" (PDF). University of Queensland Law Journal. 12: 265 – via Austlii.
- 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.
- Community Protection Act 1994 (NSW).
- Community Protection Act 1990 (Vic).
- Kable v Director of Public Prosecutions (1995) 36 NSWLR 374.
- 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.
- 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.
- Kable v DPP [1996] HCA 24 at Toohey J, at para. 30 of his judgement
- Kable v State of New South Wales [2010] NSWSC 811.
- Kable v State of New South Wales [2012] NSWCA 243.
- New South Wales v Kable [2013] HCA 26, (2013) 252 CLR 118
- New South Wales v Kable: Case Summary HCASum 23.
- 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.