Hostname: page-component-745bb68f8f-g4j75 Total loading time: 0 Render date: 2025-02-10T23:54:30.904Z Has data issue: false hasContentIssue false
  • English
  • Français

Do Hard Laws Make Bad Cases? — The High Court's Decision in Kable V Director of Public Prosecutions (NSW)

Published online by Cambridge University Press:  24 January 2025

Elizabeth Handsley
Elizabeth Handsley*
Affiliation:
Flinders University of South Australia
Get access Rights & Permissions [Opens in a new window]

Extract

In 1994 the New South Wales Parliament passed an extraordinary piece of legislation, the demise of which one is hard-pressed to mourn. Be that as it may, the means by which that demise was achieved are hardly to be celebrated, as the High Court decision which accomplished the task represents a further entrenchment of the unfortunate doctrine of “incompatibility” introduced the previous year in Grollo v Palmer and Others. In short, the decision in Kable v Director of Public Prosecutions (NSW) extends the doctrine of incompatibility to State courts so that State parliaments, although they remain entitled to usurp the functions of those courts, cannot assign to those courts any powers whose exercise is incompatible with the judicial power of the Commonwealth vested in those courts by Commonwealth legislation. In this respect, the decision represents the worst of both worlds by placing severe limitations on State courts without any corresponding limitations on State parliaments (except to the extent they may wish to confer powers on the courts in question). The result is that the States have judiciaries which are half-independent, and that half is the less important half.

Type
Research Article
Information
Federal Law Review , Volume 25 , Issue 1 , March 1997 , pp. 171 - 179
Copyright
Copyright © 1997 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 (1995) 184 CLR 348.

2 (1996) 138 ALR 577.

3 Section 5(1), together withs 3.

4 (1996) 138 ALR 577 at 607 per Toohey J.

5 Information obtained during the course of a conversation with Mr Kable's solicitor, Angus Neil-Smith of Brezniak Neil-Smith & Co, on 16 December 1996. Mr Neil-Smith also informed me that after the High Court's de ision came down he filed a false imprisonment claim on Mr Kable's behalf against the New South Wales government.

6 Section 14.

7 Section 15.

8 (1986) 7 NSWLR 372.

9 Amendments since then have introduced a measure of protection to judicial tenure, but this protection has been entrenched only since April 1995 - after the events in question in this case. It is not entirely clear whether such protection would have made a difference to the views of the two dissenting judges in Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577.

10 Mistretta v United States 488 US 361 at 407 (1989). Quoted in Grollo v Palmer (1995) 184 CLR 348 at 366 per Brennan CJ and Deane, Dawson and Toohey JJ; Kable (1996) 138 ALR 577 at 636 per Gummow J;Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 at 225 per Brennan CJ and Dawson, Toohey, Gummow and McHugh JJ.

11 Attorney-Genera/ (Cth) v The Queen (1957) 95 CLR 529;R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.

12 Hilton v Wells (1985) 175 CLR 57.

13 (1995) 184 CLR 348 at 365 (footnote omitted).

14 Ibid.

15 Ibid.

16 Telecommunications (Interception) Act 1979 (Cth), ss 6D, 6H, Pt VI Div 3, and Pt VI Div 4.

17 On the other hand, in another decision handed down only days before Kable, the Hig} Court found that the useof a federal judge to investigate a matter of Aboriginal heritag and report to the Minister was incompatible on the ground that the judge's functions wen too closely linked to those of the-Minister: Wilson v Minister for Aboriginal and Torres Strai Islander Affairs (1996) 138 ALR 220. The judge's function did not involve the making of an decision but only the collection of information and the making ofrecommendation apparently the logic of Grollo (where judges were in fact making administrative decisions did not extend to situations where the use of an independent party such as a judge could help to ensure that fair procedures were followed and full information obtained.

18 (1996) 138 ALR 577 at 608 per Toohey J; at 616 per Gaudron J; at 622-29 per McHugh J;at 636 per Gummow J.

19 Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912)15 CLR 308.

20 That is, invalid under s 109 of the Constitution.

21 For example, the bases suggested above, that people see no point in opposing the judiciary or do not believe they can ever reach a fully informed opinion about the work of the judiciary.

22 See P Alston, “An Australian Bill of Rights: By Design or Default?” in P Alston (ed)Towards an Australian Bill of Rights (1994) 1.

23 Grollo (1995) 184 CLR 348 at 365 (emphasis added); see also Mistretta v United States 488 US361 at 407 (1989), approved in Grollo by McHugh J ((1995) 184 CLR 348 at 377) anq Gummow J (at 392) (suggesting the maintenanceof “[t]he legitimacy of the Judicial Branch! as the goal of the doctrine). In Kab/e, see (1996) 138 ALR 577 at 612 per Gaudron J.

24 See Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994); Barbara Ann Hocking, “The Presumption not in Keeping with Any Times: Judicial Re-appraisal of Justice Bollen's CommentsConcerning Marital Rape” (1993) 1 Aus Fem LJ 152.