Constitutional Law, 780836.docx

Running head: CONSTITUTONAL LAW Constitutional Law Name of the Student Name of the University Author Note

CONSTITUTIONAL LAW

Facts and Issues of the Case: The case Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 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 a 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

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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. Reasoning of the High Court: 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

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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 nonjudicial 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. 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

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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). 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). 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

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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.

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