Tuesday 12 September 2017

High Court under the microscope ; Kable v DPP

This case arose in response to an act made by the NSW parliament called the community protection act 1994. It worked to allow the government to make an order to contain any individual for a period up to 6 months after the end of their prison sentence – if a court was satisfied upon a reasonable grounds that they were more likely than not to commit a serious act of violence. This was then justified on the condition that it was for the safety of the community.
However, the plaintiff, Kable argued that the Act was breaching the separation of papers doctrine because it gave the NSW court powers that were incompatible with Chapter III of the Federal Constitution.
This was important as it rose the question of whether or not the separation of powers doctrine arises at state level. The separation of powers doctrine refers to the principle by which no arm of government can rely on or have influence over another arm of government. This separation is not followed properly in Australia as the legislature and the executive arms of government are one and the same and often intermix with each other. However, the judiciary is very firmly kept separate from the other two arms of government as they are the arm of government that reviews all actions and decisions. This independence is considered to be imperative for the democratic future of Australia. These cases which refer to the separation of powers are very important and should be given close attention as they refer to the founding features of Australia
The majority of the court were satisfied by the argument that the act in question gave the Supreme Court of NSW a non-judicial power that is against the Chapter III of the federal constitution. That meant that any exercise of that power was unconstitutional and the act which confers said power has to be invalid. This meant that the parliament’s act could not be used to detain anyone.
However, it is not an argument that relied upon the separation of powers under the NSW constitution but it relief on the separation of powers of the Federal constitution. This was because the supreme court falls under the jurisdiction of Ch III of the federal constitution as it is a Ch Iii court. Other state courts in NSW do not come under Ch III (unless there are other specific characteristics of them that would require them to be included as such) therefore the NSW constitution would need to be used in the argument.
It is important to remember, however, that unless it is specifically created there is no separation of powers at the state level of government, only at the federal level of government. This is because of the historical creation of the colonies and for administrative purposes.


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