The main purpose of this paper is to identify and critically assess the constitutional questions at issue in relation to the Community Protection Act 1994 (NSW). That Act applies to only one person, Gregory Wayne Kahle. It establishes a regime permitting his preventive detention after the expiry of his sentence. The constitutionality of the Act is the subject of an appeal to the High Court. The Kahle case raises hard questions for criminal law in that it concerns the highly problematic issue of the preventive detention of the 'dangerous offender'.
These criminal law matters were the primary focus of debate at the time when the NSW Parliament passed the Act. Subsequently, however, the focus shifted to the constitutional matters at issue and, in reviewing and critically assessing these, this paper presents an anatomy of the case, showing the extent to which these constitutional matters have altered as the case has proceeded through the courts.
In particular, it is argued that by the time the case reached the High Court in December 1995 the focus had shifted quite substantially, away from the earlier emphasis on the limits of parliamentary power understood either in terms of common law rights or of certain rights implied in the text of the Commonwealth Constitution, towards issues concentrating on the usurpation of judicial power. It is contended, therefore, that the doctrine of the separation of powers was at the core of the nexus of issues considered before the High Court. Further, it is contended that this aspect of the case for Kahle had two distinct limbs. One argument, based on the usurpation of judicial power by the Legislature, confronted the separation of powers doctrine primarily in terms of Part 9 of the NSW Constitution Act 1902.
On the other hand, the second argument, concerning the vesting of non-judicial power in the NSW Supreme Court, confronted the separation of powers doctrine in relation to Chapter III of the Commonwealth Constitution.
This paper contends that the difference rests on the consideration that the first argument focuses on reading down the powers of the NSW Parliament, whereas the second argument focuses on reading up the status of the NSW Supreme Court. If the usurpation of judicial power submission is found to apply, and if the subsequent discussion turns on Part 9 of the NSW Constitution, then the case can be expected to raise matters of great importance for the administration of justice in NSW. If the alternative submission is found to apply and the focus of discussion is on Chapter III of the Commonwealth Constitution, then the case can be expected to raise matters concerning the operation of the separation of powers doctrine under the Australian federal compact generally.
