Kable v Director of Public Prosecutions (NSW)
| Kable v DPP (NSW) | |
|---|---|
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| 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) |
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| 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 | |
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| 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, was a significant case decided in the High Court of Australia regarding the independence of the judiciary under the Constitution of Australia.
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 Kable, who was sentenced to five years imprisonment for the manslaughter of his wife.
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.
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 he be detained for a period of six months. He 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.
He was represented by Sir Maurice Byers, a former Solicitor-General of Australia.
The argument which eventually persuaded a majority of the members of the High Court was the argument that:
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.
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