User:SilasM/Kable

Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51; [1996] HCA 24 (12 September 1996)

The NSW Parliament 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 Gregory Wayne Kable be detained in prison if the Court was satisfied that that person posed a significant danger to the public.

This legislation was closely modelled on legislation passed in Victoria, the Community Protection Act 1990 (Vic) which was legislation enacted to authorise 'preventive detention' for Gary David.

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 from that decision, and his appeal was dismissed by the NSW Court of Appeal: Kable v Director of Public Prosecutions (1995) 36 NSWLR 374. It was from this decision that the appeal was brought to the High Court.

The argument which eventually pursuaded 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 Ch 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."

Text of decision

 * via AusLII