Kable v Director of Public Prosecutions (NSW)

The High Court of Australia considered a challenge brought by Kable against the Director of Public Prosecutions (NSW) concerning the validity of a New South Wales statute. The dispute arose from the operation of the *Crimes (Confiscation of Profits) Act 1985* (NSW), which allowed for the forfeiture of assets derived from or connected with serious indictable offences, even without a conviction. Kable sought to prevent the forfeiture of his property under this Act.

The central legal issue before the High Court was whether the *Crimes (Confiscation of Profits) Act 1985* (NSW) was constitutionally invalid. Specifically, the Court had to determine if the Act, by authorising the forfeiture of property without a conviction for a criminal offence, contravened the implied prohibition against legislation that impairs the integrity of the federal judicature, as established in *Kruger v The Commonwealth*. The Court also considered whether the Act impermissibly conferred a "judicial power" on a non-judicial body or otherwise encroached upon the functions of the courts.

The majority of the High Court held that the Act was invalid. The Court reasoned that the power to order forfeiture of property, in circumstances where guilt has not been established by a conviction, was a power that belonged to the courts and was intrinsically linked to the exercise of judicial power. By vesting this power in the executive or administrative arm of government, the Act was found to impair the institutional integrity of the courts, a fundamental aspect of the separation of powers under the Australian Constitution. The Court applied the principle that legislation which undermines the essential functions and independence of the judiciary is beyond the legislative power of the Commonwealth or the States.

Consequently, the High Court made orders declaring the *Crimes (Confiscation of Profits) Act 1985* (NSW) to be invalid and of no force or effect.