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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