Kable v Director of Public Prosecutions (NSW)

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Citation: Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51.

This information can be found in the textbook, [1] pp 221-222.


Background Facts

  • NSW Parliament passed Community Protection Act 1994 (NSW), making it possible to order a specific person (in this case Gregory Wayne Kable) to be detained for a period of up 6 months after the end of his prison sentence if the court was satisfied on reasonable grounds that they were more likely than not to commit a serious act of violence, and that it is for the protection of the community to detain them.
  • Kable argued that the Act was exercising judicial power by NSW parliament which breached the separation of powers doctrine, and that the Act gave the NSW court power which was incompatible with Chapter III of the Federal constitution.

Legal issues


Dawson J:

  • Emphasises parliamentary supremacy and fundamental rights: his honour identifies that courts accept that an Act of Parliament is binding upon them - the doctrine of parliamentary sovereignty.
  • Regarding the NSW Constitution and the separation of powers - his hoonur claims that the failure of the NSW constitution to vest judicial power exclusively in the judicature dismisses the idea that the separation of that power from the other powers of government is some kind of constitutional requirement.
    • His honour hence claims that, as said in Clyne v East [2], that the Constitution Act 1902 does not give any ground for importing the idea of separation of powers. The ultimate power for this Constitution is contained in the Imperial Act.
  • s7 of the Constitution Act of the NSW recognises the power of NSW to abolish, alter or vary the Constitution and functions of the courts and parliament of the colony.

Toohey J:

  • Regarding legislative power: acknowledges that the appellant is saying that the NSW legislative framework is essentially wielding the power when the Court has no determinative power and must follow the Act.
  • Regarding separation of powers: The appellant had conceded that the NSW parliament could confer upon the Supreme Court certain functions that may be regarded as non-judicial in the Chapter III context.
    • However, the appellant claimed that part 9 of the NSW constitution was an inference of the separation of powers doctrine.
      • To that, the respondent submitted that s9 only became entrenched in a referendum after the order, and that even still it is of limited operation, dealing simply with the appointment and removal of judges rather than any wider considerations.
    • Finally his honour claims that ‘there is nothing in the Constitution of New South Wales which prevents the legislature from exercising judicial power’.
  • Regarding the judicial power of the Commonwealth: Appellant had said that the Supreme Court cannot act in contravention of Chapter III of the Constitution, and that s71 of the Constitution vests judicial power of the Commonwealth in the HIGH COURT.
    • However s77(iii) empowers Parliament to make laws investing any court of a State with federal jurisdiction.
    • The appellant argued that State courts exercising federal jurisdiction could not receive powers and functions incompatible with the very nature of judicial power - thus, it wasn’t about judicial vs. legislative or executive power, but of incompatibility with the essence of judicial power.
      • Hence, it is the exercise of federal jurisdiction by the Supreme Court in the circumstances arising under the Act that is challenged.
    • In terms of the specific circumstances, it is about whether the Supreme Court may order the imprisonment of someone who has not committed a criminal offence - in the present case; the Supreme Court needs to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process.
    • His honour decides then the function offends Chapter III which, as said in Harris v Caladine [3] reflects a separation of powers doctrine which protects the right of litigants to be decided on by judges independent of the legislature and the executive.
    • His honour says principally however that it is because it argues for detention without any crime being committed - hence, he, Gaudron, McHugh and Gummow JJ agreed the Act was invalid for incompatibility with Chapter III.


  1. Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).
  2. (1967) 68 SR (NSW) 385
  3. (1991) 172 CLR 84
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