The case Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51[1], was considered to be a significant case of the High Court of Australia. The facts of the case were such that it involved the rights depicted in Chapter III of the Constitution in regard to the extent of the powers of the State Courts vested within the purview of federal jurisdiction. The case is regarding the murder of the wife of Kable whom he stabbed after the end of a custody dispute. In this regard, Kable was charged with murder. However, Kable was charged with imprisonment for a period of five years and four months along with an additional sentencing of one year and four months in regard to threatening murder. This is due to the reason that, Kable while serving his four years in the prison wrote a bundle of threatening letters which were directed towards the caretaker of his two children. Furthermore, it was observed that, the caretakers failed in their part to comply with the orders of the Family Court. As a result of it, Kable’s anger fuelled to the large extent. Though Kable was not physically violent towards the prison officers; the wordings of his letters created major disconcert among the prison medical officers. It was considered by a psychiatrist that the wordings of the letter were such that it can be considered as a form of psychological violence.
The major issue of the case was regarding the pending release of Kable from the prison which in fact became more than that of a political issue. In this regard, there were issue regarding the implementation of a new Act, the Community Protection Act 1994 (NSW) which came into effect in 6th of December in the year 1994. From the very beginning, the Community Protection Act 1994 (NSW) has permitted the Supreme Court of New South Wales to provide an order in relation to preventive detention of Kable. However, the principles of the Act was been criticized by a majority of judges due to reason that these judges were called upon to exercise their opinion under the provisions of this Act. It was observed that a majority of Judges also supported the statement that the Act has caused infringement of fundamental safeguard of the democratic rights of the individuals in the concerned community. However, not only a single judge has declared the statement as an invalid exercise of power of the Parliament of New South Wales. Therefore, the issue of the case was based upon the grounds of constitutional invalidity and thus an appeal was brought before the High Court in regard to those grounds.
In the case of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, it was held by the majority of the judges of the High Court that conferring non-judicial power on the State Courts shall be held incompatible with the roles and functions of a State Court and considered it as a repository of federal judicial power. In this regard, both the majority and minority of the judges of the High Court directed towards the provisions of Chapter III of the Constitution that has been impliedly preventing the Parliament of a State from conferral on powers to the Supreme Court of that State which are not consistent with the exercise of judicial power by the Supreme Court and the Commonwealth. In this regard, it has been argued by a majority of the judges of the High Court that the Act conferring non-judicial power to the Supreme Court of New South Wales is offensive to the Chapter III of the Constitution. In this regard, it is worthwhile to refer here that, the exercise of such non-judicial power is considered to be unconstitutional and the Act conferring such power shall be held to be invalid. In this regard, both the minority and the majority of the judges of the High Court were of the opinion that, the separation of legislative and judicial powers under the Constitution of New South Wales is not the actual matter however; the jurisdiction that is being exercised under the Community Protection Act 1994 (NSW) (the CPA) is held to be inconsistent with the requirements of Chapter III of the Constitution of Commonwealth. This is due to the reason that, the jurisdiction is not consistent with the exercise of the judicial power. Therefore, it was held by the High Court that, the law was unconstitutional as it created a limitation on the powers of the State Courts.
In my opinion the reasoning in the judgment of the High Court was persuasive in nature. Firstly, the State Parliaments are free to provide reasonable order regarding state judicial systems as they deem fit. In this regard, it is worth mentioning that, conferring non-judicial functions upon the State Parliaments is constitutionally restricted. It is evident that, Chapter III of the Constitution has separated the judiciary of the Commonwealth from the executive and legislature and in such process created limitation on the Courts of Commonwealth in the exercise of its non-judicial power. In this regard, mention can be made regarding the fact that until the case of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 came into light, there was no such limitation either express or implied on the power of the legislature to interfere with the independency of the State Courts. Secondly, mention can be made about the constitutional limits that have been derived from the position of the state courts within the structure of the federal judicial. It is evident that Chapter III has already provided a theoretical limit in regard to diversity and local responsibility with the maintenance of minimum standards of judicial independence[2]. In this regard, it can be argued that, the reasoning of the High Court towards the scope and content of the case has contributed towards the foundation of a harmonizing effect which in fact undermined federal diversity. Lastly, arguments can be raised regarding the fact that, as a result of uncertainty of the constitutional requirements, it encouraged the state governments to replicate the validity of the provisions of the constitution. It is noteworthy to mention here that, the constitutionality measures observed in this case has positioned the government authorities in deeper conversations regarding the role of the states in the protection of the community with equal protection of individual liberties and human rights.
It is worthwhile to refer here that, the decision of the High Court of Australia in the case Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 has marked the development of the Australian constitutional law along with implications of the rule of law. From the very beginning, the rule of law has implied effective legal constraints on the operations and the exercise of democratic powers. In regard to the present case, the matter in question is regarding the foundation of the Australian Constitution and the power is question deals with elected legislature as a result of democracy and the Australian state governments. It is evident that, the Community Protection Act 1994 (NSW) (the CPA) was passed prior to the release of Kable. However, the objective of the Act was to protect the community. According to the provisions of Section 5(1) of the Community Protection Act 1994 (NSW) (the CPA), a person should be held in custody if he commits or is likely to engage in a serious act of violence for the protection of a particular individual or for the general community as a whole. The concept of serious act of violence is defined in Section 4 of the Community Protection Act 1994 (NSW) (the CPA)[3]. According to Section 4, an act of violence is said to be committed by any person when such person has caused death or serious injury under the provisions of Crimes Act 1900 (NSW)[4]. However, an order can be made in this regard, if the individual is in lawful custody as a detainee. The nature of the order is such that it can only be applied by the Director of Public Prosecutions to the Supreme Court.
As mentioned earlier that the Community Protection Act 1994 (NSW) (the CPA) was applied in the case of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. In this context, mention can be made about the fact that, in regard to the provisions of Section 5, a person could be held in lawful custody if he is under the age of sixteen years however Kable was much older. It can be observed that after the Director of Public Prosecutions of New South Wales applied under the provisions of the Community Protection Act 1994 (NSW) (the CPA) for a detention order against Kable; he was detained in the prison for a considerable period of six months. The High Court of Australia held that the Community Protection Act 1994 (NSW) was invalid in its application and such conclusion was reached by appropriate reasoning by the majority of four justices[5].
According to the provisions of Section 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA)[6], the Attorney-General of Queensland is empowered to apply for an order to the Supreme Court in regard to the detention of an individual held in custody for committing serious sexual offence. However, in order to make an order, it is important to prove before the Supreme Court of Queensland that the offender posed as a serious danger to the community in accordance to the provisions of Section 13(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA)[7]. According to the provisions of Section13 (2), there is a possibility that such offender could commit serious sexual offence if released back into the society without issuing a supervision order.
The High Court of Australia held the provisions of Section 13 to be valid. It is worthwhile to mention here that, the High Court has upheld the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) because it contained criminal law provisions for the purpose of safeguarding the interests of an individual.
Following the decision of the High Court of Australia in the case of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, it can be rightfully commented that, the nature of the federal system is bears a particular political character governing the relationship between the individuals and the State. In this regard, it is noteworthy to mention here that, the existence of certain discretionary rights, for instance, freedom of communication in regard to political matters are depicted in the Constitution. In the case of Stephens v West Australian Newspapers Limited [1994] HCA 45[8], it was observed that the freedom of communication on the part of the Constitution of Commonwealth was regarding the extension of communication relating to certain political matters concerning the State Legislature. It is worth noting that the High Court judges took the political significance into consideration in their judgments. This is due to the reason that, if the nature of political significance is such that, freedom of political expression and freedom from arbitrary arrest and seizure needs equal protection[9]. In this regard, argument can be stated on the fact that, freedom of political expression is significant for the maintenance of a representative government other than freedom of communication involving political matters[10]. Therefore, questions are raised in regard to the validity of laws sanctioning the arrest and detention of a specific individual without proper criminal trial due to anti-social behavior[11].
In the conclusion, it can be stated that, the legal effect of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 is far reaching and is in continuance. The nature of the judgment is such that it marked a recognition and entrenchment of the institutional sincerity of the State Courts; that has been forming a significant part of the deferral constitutional structure of Australia. In such process, the case has been able to entrench itself within the sphere of the State as an important aspect of rule of law and a restraint on the exercise of political power. It is worth mentioning that, the authorities of the State government were trying on their part to settle down crimes while on the other hand the politicians were engaged in emphasizing over law and order. Lastly, it can be concluded that, the case Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 has proved that the Constitution has been demanding the institutional integrity of the State Courts and in general the judicial power of the federal is protected and preserved.
References:
Cases:
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 5.
Stephens v West Australian Newspapers Limited [1994] HCA 45.
Acts:
Community Protection Act 1994 (NSW) (the CPA).
Crimes Act 1900 (NSW).
Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).
Journals:
Crawford, L.B., 2017. The Entrenched Minimum Provision of Judicial Review and the Limits of Law. Fed. L. Rev., 45, p.569.
Hobbs, H. and Trotter, A., 2018. Lessons from history in dealing with our most dangerous. University of New South Wales Law Journal, The, 41(2), p.319.
Johnston, P. and McNab, P., 2015, July. The evolution of state adjudicative power as an alternative to state judicial or administrative power. In AIAL Forum (No. 81, p. 1). Australian Institute of Administrative Law.
Rasnic, C.D., 2016. The Constitution of the Commonwealth of Australia. International Journal of Constitutional Law, 14(4), pp.1038-1043.
Stellios, J., 2015. Conceptions of judicial review: Commentary on Dixon. Fed. L. Rev., 43, p.511.
Taylor, G., 2015. Conceived in Sin, Shaped in Iniquity-The Kable Principle as Breach of the Rule of Law. U. Queensland LJ, 34, p.265.
[1]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 5.
[2]Taylor, G., 2015. Conceived in Sin, Shaped in Iniquity-The Kable Principle as Breach of the Rule of Law. U. Queensland LJ, 34, p.265.
[3]Community Protection Act 1994 (NSW) (the CPA).
[4]Crimes Act 1900 (NSW).
[5]Johnston, P. and McNab, P., 2015, July. The evolution of state adjudicative power as an alternative to state judicial or administrative power. In AIAL Forum (No. 81, p. 1). Australian Institute of Administrative Law.
[6]Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).
[7]Stellios, J., 2015. Conceptions of judicial review: Commentary on Dixon. Fed. L. Rev., 43, p.511.
[8]Stephens v West Australian Newspapers Limited [1994] HCA 45.
[9]Crawford, L.B., 2017. The Entrenched Minimum Provision of Judicial Review and the Limits of Law. Fed. L. Rev., 45, p.569.
[10]Hobbs, H. and Trotter, A., 2018. Lessons from history in dealing with our most dangerous. University of New South Wales Law Journal, The, 41(2), p.319.
[11]Rasnic, C.D., 2016. The Constitution of the Commonwealth of Australia. International Journal of Constitutional Law, 14(4), pp.1038-1043.
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