Separation of Powers and the Kable Principle

Separation of Judicial Powers - State

Assumes that the Commonwealth does not impose power on state courts via state parliaments. The current doctrine is based on the landmark case of Kable v Director of Public Prosecutions (NSW) (1996) 186 CLR 51.

Kable v Director of Public Prosecutions (NSW) (1996) 186 CLR 51

Issue

Validity of the Community Protection Act 1994 (NSW), specifically sections 5 and 3.

Section 5

Authorizes the Supreme Court of NSW to order the detention of a person for up to 6 months if satisfied, on reasonable grounds, that:

  • The person is more than likely to commit a serious act of violence.
  • It is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

These orders were renewable.

Section 3

Limited the potential application of the act to just one person.

Facts

  • Kable had been convicted of the manslaughter of his wife in 1990 and was sentenced to just over five years’ imprisonment.
  • An initial charge of murder was dropped after the prosecution accepted Kable’s plea of diminished responsibility.
  • During his imprisonment, Kable sent threatening letters to members of his deceased wife’s family, who consequently feared for their safety upon his release.
  • Kable’s impending release in 1994, after a sentence perceived by the public as being far too lenient, created a political furore in the midst of a State election campaign dominated by “law and order” issues.
  • The Liberal government responded by steering the Act through the New South Wales Parliament. Under the authority of the Act, Kable was detained upon order of Levine J of the Supreme Court of New South Wales for a further six months after the expiry of the last day of his sentence. Counsel for Kable argued before the New South Wales courts and then the High Court that the Act was invalid.

Holding

A High Court majority of 4:2 declared that the Act was invalid.

Reasoning

The majority construed a limitation on the powers of State courts “vested with federal jurisdiction” under Ch III of the Constitution.

McHugh J stated (at 114- 115):

  • State Courts as a part of an integrated system: “Under the Constitution, therefore, the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power”.
  • “Moreover, the Constitution contemplates no distinction between the status of State courts invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power”.
  • Thus, certain State courts, including all State Supreme Courts, come within the rubric of Chapter III by virtue of their status as courts vested with federal jurisdiction.
  • Those courts must also be, and be perceived to be, independent of the legislature and executive government in the exercise of federal jurisdiction.
  • The majority in Kable found that the “Kable” Act undermined public confidence in the State Supreme Court, which was, of course, a court vested with federal jurisdiction.
  • It was impermissible to give the Court power to detain a specified person without a finding of criminal guilt, but rather upon an assessment of what that individual might do in the future.
  • All of the majority Justices were concerned about the ad hominem nature of the statute (that is, the fact that it was aimed at one named person). It is against the principle of the generality of the law (has to be abstract and general and apply to everyone).
  • McHugh J stated (at 118-119): “although the Commonwealth doctrine of separation of powers cannot apply to the State, in some situations the effect of Chapter III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts”.

Minority

The minority of Brennan CJ and Dawson J took the orthodox approach in asserting that no doctrine of separation of powers bound the State legislature.

State legislation could not confer power in a court.

The Kable Principle - What Happened After That?

  • In K Generation v Liquor Licensing Court (2009), a majority confirmed that the Kable principle extended to all state courts capable of exercising federal jurisdiction, and not only state supreme courts.
  • Various judges in Kable emphasized 'public confidence' in the judiciary must be maintained. But what is this?
  • In Fardon v Attorney-General Qld 2004, Kirby J claimed at 629-630 that public confidence is not the same as public popularity - the people lack awareness of the separation of power.
  • In Fardon, McHugh clarified the Kable principle 598-599: