Kable v Director of Public Prosecutions for NSW

The High Court of Australia considered a challenge brought by Kable against the Director of Public Prosecutions for New South Wales concerning the validity of a New South Wales Act. The Act, the *Crimes (Confiscation of Profits) Amendment Act 1991* (NSW), was designed to allow for the forfeiture of assets derived from serious criminal activity. Kable, who had been convicted of certain offences, sought to prevent the Director from obtaining orders for the forfeiture of his property under this Act.

The central legal issue before the High Court was whether the *Crimes (Confiscation of Profits) Amendment Act 1991* (NSW) was constitutionally invalid. Specifically, the Court had to determine if the Act, by authorising the forfeiture of property without a prior conviction for a specific offence related to that property, contravened the implied prohibition against the States vesting in themselves or their officers, powers which are incompatible with the existence of a federal judicature. The Court also considered whether the Act impermissibly encroached upon the judicial power of the Commonwealth.

The majority of the High Court held that the Act was invalid. The reasoning focused on the principle that State Parliaments cannot pass laws that are incompatible with the continued existence of a federal judicature. The Court found that the Act, by allowing for the forfeiture of property based on a finding that it was derived from serious criminal activity, rather than requiring a conviction for an offence directly related to that property, effectively allowed the executive to determine guilt and impose punishment, thereby encroaching upon the judicial function. This encroachment was deemed incompatible with the constitutional framework of the separation of judicial power.

The High Court made orders allowing the appeal and declaring the relevant provisions of the *Crimes (Confiscation of Profits) Amendment Act 1991* (NSW) to be invalid.