State of NSW v Kable [2013] HCA 26 (5 June 2013)

Last Updated: 5 June 2013

HIGH COURT OF AUSTRALIA

FRENCH CJ,



HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

STATE OF NSW APPELLANT

AND

GREGORY WAYNE KABLE RESPONDENT

State of NSW v Kable



[2013] HCA 26



5 June 2013



S352/2012

ORDER

Appeal allowed.



Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 August 2012 and, in their place, order that the appeal to that Court be dismissed with costs.



The appellant pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.





On appeal from the Supreme Court of New South Wales

Representation

M G Sexton SC, Solicitor-General for the State of New South Wales and M J Leeming SC with J E Davidson for the appellant (instructed by Crown Solicitor (NSW))

P W Bates with P G White for the respondent (instructed by Armstrong Legal)

Interveners

J T Gleeson SC, Solicitor-General of the Commonwealth with A M Mitchelmore for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

S G E McLeish SC, Solicitor-General for the State of Victoria with R J Orr for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

G R Donaldson SC, Solicitor-General for the State of Western Australia with K H Glancy for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

State of NSW v Kable

Constitutional law – Judicial power – Respondent detained pursuant to order of Supreme Court of New South Wales made under Community Protection Act 1994 (NSW) ("CP Act") – CP Act subsequently held invalid – Respondent sought damages for false imprisonment – Whether order of Supreme Court valid until set aside – Whether order of Supreme Court judicial order.

Torts – False imprisonment – Defences – Lawful authority – Respondent held under order of Supreme Court subsequently set aside – Whether officers of appellant could rely on order made under invalid legislation as lawful authority.

Words and phrases – "judicial order", "lawful authority", "superior court of record", "void ab initio", "void or voidable".

Constitution, ss 76, 77.



Community Protection Act 1994 (NSW), s 9.

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ.

The issue

A State Act empowered the State's Supreme Court to order the preventive detention of Gregory Wayne Kable if satisfied that otherwise he would probably commit a serious act of violence. The Supreme Court ordered Mr Kable's detention for six months. After the six months had elapsed, the detention order was set aside on appeal to this Court and the State Act held invalid. Did the detention order provide lawful authority for Mr Kable's detention?

Procedural history

The Community Protection Act 1994 (NSW) ("the CP Act") provided for "the preventive detention (by order of the Supreme Court [of New South Wales] made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable" [1] s 9 of the CP Act that Mr Kable be detained in custody for a period of six months. Mr Kable appealed against this order to the Court of Appeal but his appeal was dismissed [2] By special leave, Mr Kable appealed to this Court. After the grant of special leave, but before the appeal to this Court was heard, the six month period fixed by the order of Levine J expired and Mr Kable was released from detention. In September 1996, this Court held [3] CP Act was invalid. This Court allowed Mr Kable's appeal, set aside the order which the Court of Appeal had made, and, in its place, ordered that the appeal to that Court be allowed with costs, the order of Levine J be set aside and, in its place, order that the application of the Director of Public Prosecutions be dismissed with costs. It will be convenient to refer to this decision as Kable (No 1). After this Court decided Kable (No 1), Mr Kable commenced proceedings in the Supreme Court of New South Wales, claiming damages for false imprisonment. Initially the proceedings were brought against the State of New South Wales ("the State"). Later, the Director of Public Prosecutions ("the DPP") was joined as a defendant. Ultimately three causes of action were pleaded: abuse of process, malicious prosecution and false imprisonment. Before the action was tried, the DPP was dismissed from the proceedings by consent. The primary judge (Hoeben J) determined [4] [5] Mr Kable appealed to the Court of Appeal. That Court (Allsop P, Basten, Campbell and Meagher JJA and McClellan CJ at CL) allowed [6] [7] Allsop P held [8] Kable (No 1) required the conclusion that, in making the detention order, "the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court but was acting, effectively, in an executive function (beyond that which is permissibly ancillary to the exercise of judicial power), as an instrument of the executive". Basten JA also held that the detention order made by Levine J "did not constitute a judicial order" [9] [10] Kable (No 1). Basten JA noted [11] [12] By special leave, the State appealed to this Court against the orders made by the Court of Appeal. The Attorneys-General of the Commonwealth, Queensland, Victoria and Western Australia intervened in support of the State's appeal. These reasons will show that the detention order made by Levine J provided lawful authority for Mr Kable's detention and that the State's appeal should be allowed.

The competing arguments

The central question in the appeal to this Court was whether the order made by Levine J, until it was set aside, had provided lawful authority for Mr Kable's detention. There was (and could be) no dispute that the Supreme Court of New South Wales is a "superior court of record" [13] CP Act was invalid. On its face, the detention order was made by the Supreme Court in the exercise of a jurisdiction given to it by a New South Wales Act. The order was expressed to require Mr Kable's detention in the manner and for the time specified. In the course of deciding whether to grant the order sought, Levine J had been asked to hold that the CP Act was constitutionally invalid but had rejected that submission. The State, and the interveners, submitted that the order made by Levine J was made by a superior court of record and accordingly was effective until it was set aside. Because the order was not set aside until after Mr Kable's release from detention, it followed, so the State submitted, that the order provided lawful authority for Mr Kable's detention. By contrast, Mr Kable submitted that the bases on which this Court held the CP Act invalid required not only the conclusion that the CP Act was invalid, but also the conclusion that the Supreme Court could not make (and had not made) a "judicial" order requiring his detention. He submitted that it followed that the principle requiring that effect be given to an order of a superior court until it was set aside was not engaged. Either the order made by Levine J was "void ab initio" or, when set aside by order of this Court, the order was "annulled ab initio". On either footing, the argument continued, the order provided no lawful authority for Mr Kable's detention.

Kable (No 1)

Consideration of the competing arguments must begin by identifying what was decided in Kable (No 1). The legislative powers of each of the State Parliaments are necessarily [14] Constitution. The CP Act was held to be beyond the legislative power of the New South Wales Parliament because its enactment was contrary to the requirements of Ch III of the Constitution. The exercise of the jurisdiction which the CP Act purported to give to the Supreme Court was held [15] The incompatibility with institutional integrity which was identified in Kable (No 1) lay in the Supreme Court being required to act as a court in the performance of a function identified as not being a function for the judicial branch of government. The majority in Kable (No 1) described the function which the CP Act required the Supreme Court to undertake in several different ways. All of those descriptions emphasised that the function which the CP Act required the Court to fulfil was not judicial. So, for example, Gaudron J said [16] CP Act "is not a power that is properly characterised as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process" and that "except to the extent that the [CP] Act attempts to dress them up as legal proceedings ... they do not in any way partake of the nature of legal proceedings" [17] Kable (No 1) proceeded from the premise that the CP Act required the Supreme Court to act as a court in performing the function prescribed by the CP Act. As Gummow J later said, in Fardon v Attorney-General (Qld) [18] the "legislative plan" of the CP Act was "to conscript the Supreme Court of New South Wales to procure the imprisonment of [Mr Kable] by a process which departed in serious respects from the usual judicial process". It is, therefore, to misstate the effect of the decision in Kable (No 1) to hold, as the Court of Appeal did [19] CP Act, "the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court". The majority in Kable (No 1) held that the CP Act was invalid because it required the Supreme Court to exercise judicial power and act institutionally as a court, but to perform a task that was inconsistent with the maintenance (which Ch III of the Constitution requires) of the Supreme Court's institutional integrity. Two further aspects of the proceedings which culminated in this Court's decision in Kable (No 1) should be noted. Those proceedings were conducted on the premises, first, that the proceedings at first instance and in the Court of Appeal engaged the judicial power of the Commonwealth, and second that the order made by the Court of Appeal (and the order made by Levine J) engaged this Court's appellate jurisdiction conferred by s 73 of the Constitution. That the proceedings before Levine J and in the Court of Appeal engaged federal jurisdiction (at least to the extent the proceedings were a matter arising under the Constitution or involving its interpretation [20] [21] [22] It is then to be observed that in Kable (No 1) this Court ordered that, in place of the order made by the Court of Appeal, the appeal to that Court was allowed and the order of Levine J was set aside, as distinct from quashed, or declared invalid. That is, the order of Levine J was treated in this Court's orders in a manner consistent with it having been valid until set aside.

"Void" or "voidable"?

Mr Kable submitted that the detention order of Levine J was void or was later avoided ab initio. In support of these submissions, he pointed to statements made in this Court [23] [24] It is necessary to exercise great care in using words like "void", "voidable", "irregularity" and "nullity" in connection with the issues that arise in this matter. Each word was used in Mr Kable's argument in this appeal to state a conclusion about the legal effect of the order of Levine J. More often than not, each word was used in a way which expressly or impliedly sought to convey a meaning identified by its opposition to another word (void versus voidable, nullity versus irregularity). Used in that way, each of the words, void, voidable, nullity and irregularity, suggests that the whole of the relevant universe can be divided between two realms whose borders are sharply defined and completely closed. None is used in a way which admits (or readily appears to admit) of the possibility that the legal effect to be given to an act affected by some want of power may require a more elaborate description which takes account not only of who may complain about the want of power, but also of what remedy may be given in response to the complaint. The difficulties associated with using words like "void" and "voidable" in connection with administrative actions have long been recognised [25] [26]

"[T]here is no such thing as voidness in an absolute sense, for the whole question is, void against whom? It makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy. If and when that remedy is taken away, what was void must be treated as valid, being now by law unchallengeable. It is fallacious to suppose that an act can be effective in law only if it has always had some element of validity from the beginning. However destitute of legitimacy at its birth, it is legitimated when the law refuses to assist anyone who wants to bastardise it. What cannot be disputed has to be accepted."

Although directed to administrative actions, these statements may find some reflection in connection with the acts of courts and judges. If a curial decision cannot be disputed, it must be accepted. To the extent to which the orders of a superior court are valid until set aside, there seems little point in attempting to classify those orders as void or voidable. But it is not necessary to pursue those analogies to their conclusion. It is enough to notice that the legal system provides (and must provide[27]) the rules which govern what legal effect is to be given to the decisions of, and the orders made by, courts. And, as later explained, those rules are more complex than the central proposition which underpinned Mr Kable's arguments: that want of jurisdiction for constitutional reasons necessarily entails the complete invalidity for all purposes of whatever is done in purported exercise of that jurisdiction.

One further point should be made about the asserted distinction between proceedings that are "irregular" and those that are "null and void" or a "nullity". This distinction has sometimes been made [28] [29]

A judicial order?

The point at which analysis must begin in this matter is, as the parties' submissions recognised, with the order that was made for Mr Kable's detention. Was that an order to which effect was to be given unless or until it was set aside? Mr Kable submitted that the order was of no effect because it was not a "judicial order". The premise for the submission was that the CP Act did not validly authorise the making of the detention order because the power which the CP Act sought to give to the Supreme Court was not a form of judicial power. And, at first sight, the submission that the detention order was not a "judicial order" may be thought to invoke consideration of the principles governing what is judicial power. It is important, however, to recognise the nature of the distinction being drawn in the submission that the detention order was not a "judicial order". The positive proposition which underpinned the submission was that, although made by a judge of the Supreme Court, the detention order was an exercise of administrative power by the Court. Thus, the distinction upon which the submission depended fastened upon how the power which the CP Act purported to give to the Supreme Court was exercised, not upon whether the power was given validly to the Supreme Court. In Love v Attorney-General (NSW) [30] [31] [32]

"the issue of the warrant ... is not a 'judicial act in the same sense as is an adjudication to determine the rights of parties', to use the words of Windeyer J in [Electronic Rentals Pty Ltd v Anderson] [33] Hilton v Wells [34]

Accordingly, a warrant issued under the State Act was "an instrument made pursuant to a circumscribed statutory authority"[35], and its effect depended entirely upon the State Act[36].

By contrast with the warrant considered in Love, the order made by Levine J was more than an authority granted on the application of a person seeking authority and without notice to the person against whom the authority would be exercised. The order made by Levine J was the result of an adjudication determining the rights of Mr Kable and the order both authorised and required his detention for a fixed term. The order was made following proceedings which were conducted inter partes. Subject to some exceptions [37] [38] Love, "a step in the administrative process and ... thus an administrative function" [39]

The order of a superior court of record

As has already been noticed, there was and could be no dispute that the Supreme Court of New South Wales was and is a "superior court of record". It is necessary, however, to approach what meaning is conveyed by that expression with some fundamental principles at the forefront of consideration. First, and foremost, there can be no unthinking transplantation to Australia of what has been said in English cases [40] Second, there is no Australian court with unlimited jurisdiction [41] [42] Third, all courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction [43] [44] Kable (No 1), it will be by the process of appeal, and ultimately by appeal to this Court. And if it is said that a superior court is presumed to act within its jurisdiction, that is best understood as a statement about the effect that is to be given to its orders unless or until they are set aside. It is now firmly established [45] The roots of the doctrine, that the orders of a superior court of record are valid until set aside even if made in excess of jurisdiction, lie in the nature of judicial power. First, any court must decide whether it has authority to decide the claim that is made to it. And, as Gaudron J said [46] Re Macks; Ex parte Saint:

"In establishing the Federal Court as a 'superior court of record', the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties' right to appeal or to seek relief pursuant to s 75(v) of the Constitution." (emphasis added)

Second, giving the orders of a court created by the Parliament these characteristics is within legislative power, either as incidental to the power to create the court[47] or as an exercise of the legislative powers given by ss 76 and 77[48] of the Constitution. And giving these characteristics to the orders of a court by designating it to be a superior court of record reflects the distinction between the exercise of judicial power (by the final quelling of controversies according to law) and the exercise of executive power (subject to law). As Gummow J said[49] in Re Macks:

"That does not mean that the stream [of judicial power] has risen above its source. Rather, it is to recognise the relationship between Chs II and III of the Constitution and the reach of s 51(xxxix) in conjunction with ss 71 and 77(i)."

Contrary to the view expressed [50] [51] The conundrum identified by Basten JA was expressed [52] There is then no occasion to attempt to divide the exercise of jurisdiction by Levine J in the manner considered by Basten JA. The division suggested [53] s 39(2) of the Judiciary Act 1903 (Cth) to hear and determine the question about the validity of the CP Act (as a question arising under the Constitution or involving its interpretation) and the (invalid) exercise of jurisdiction to decide whether to make an order under the CP Act. There being no occasion to consider this division, it is neither necessary nor desirable to examine whether the proceedings conducted by Levine J constituted the hearing and determination of one or more than one "matter", or what may have been the boundaries of the relevant matter or matters.

More fundamental considerations

The conclusions reached in these reasons about the effect of the order made by Levine J accord with fundamental considerations about the operation of any developed legal system. There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside. Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order. In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable's argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote [54] Finally, it will be recalled that Mr Kable submitted that the effect of this Court's orders in Kable (No 1) was to render the order of Levine J void ab initio. This Court did not declare the order made by Levine J to be void. As a judicial order of a superior court of record, the order of Levine J was valid until set aside. It was not "void ab initio".

Questions not reached

These conclusions make it unnecessary to consider whether, as the State submitted, the common law provides protection from tortious liability by the defence of legal justification to those who execute an order of a court that is valid on its face. Further, because Mr Kable was detained pursuant to an order that had not been set aside during the period of detention, and remained valid during that time, it is also unnecessary to examine whether, as Mr Kable contended, the Court of Appeal should have held that the State was "directly liable in false imprisonment to [Mr Kable], in addition to being vicariously liable for that tort".

Conclusion and orders

For these reasons the appeal should be allowed, the orders of the Court of Appeal set aside and in their place there should be orders that the appeal to that Court is dismissed with costs. In accordance with the terms on which special leave to appeal to this Court was granted, the State should pay Mr Kable's costs of the application for special leave to appeal and of the appeal to this Court.

GAGELER J.

Introduction

On 23 February 1995, Levine J in the Supreme Court of New South Wales made an order that:

"Gregory Wayne Kable be detained in custody for a period of six months commencing 23 February 1995 and expiring 22 August 1995 pursuant to s 9 of the Community Protection Act 1994."

The joint reasons for judgment conclude that the order so made provided lawful authority for the State of New South Wales to detain Mr Kable in custody between 23 February 1995 and 22 August 1995. That conclusion is reached notwithstanding the subsequent setting aside of the order by the High Court, on appeal from the Court of Appeal of the Supreme Court of New South Wales, in Kable v Director of Public Prosecutions (NSW) ("Kable (No 1)") [55] Community Protection Act 1994 (NSW) ("the CP Act") was invalid because the purported conferral by the CP Act of jurisdiction on the Supreme Court of New South Wales to make an order of that kind was incompatible with Ch III of the Constitution. I agree with that conclusion and join in the orders proposed.

Precepts

Chapter III of the Constitution is framed against certain precepts, both as to the nature of judicial power and as to the essential and permitted characteristics of courts as institutions administering or capable of administering judicial power. The nature of judicial power is that, as a general rule, its exercise is directed to the resolution of a question as to a legal right or a legal obligation between defined persons or classes of persons so as to produce, by a final judicial order, "a new charter by reference to which that question is in future to be decided as between those persons or classes of persons" [56] [57] [58] Within the framework of the Australian Constitution, there has never been any doubt that application of the law to produce a final judicial order in the exercise of judicial power can permit and require the making of a judicial determination of the constitutional validity or invalidity of a statute. That principle, and its application to the determination by a court of the constitutional invalidity of a statute purporting to confer jurisdiction or power on the court itself, was established 100 years before the establishment of the High Court, in Marbury v Madison [59] [60] Within the framework of the Australian Constitution, and consistently with the justification for that principle stated in Marbury v Madison [61] [62] South Australia v The Commonwealth [63] [64]

"A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a court in his favour – but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it – and thereafter invalid. If it is beyond power it is invalid ab initio."

Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a "nullity" in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences [65] [66] [67] One of the ways in which the existence in fact of a purported but invalid law, or the existence in fact of a thing done invalidly in the purported exercise of a power conferred by law, might lead to the taking of action in fact is that the purported law or other thing might be relied on to found an action in a court which results in the making of a judicial order. Where that occurs, the judicial order will have independent legal force as a judicial order. That is illustrated by Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [68] [69]

"But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court."

Within the framework of the Australian Constitution, the authority belonging to a judicial order of a court varies between categories of courts. A distinction is drawn between superior courts and inferior courts. The Supreme Courts of the States, to which reference is made in s 73 of the Constitution, were at federation and necessarily remain superior courts [70] s 71 as the "Federal Supreme Court", is inherently a superior court. Other State courts as may be invested with federal jurisdiction under s 77(iii) of the Constitution can be created by State Parliaments (subject to State Constitutions) as either superior courts or inferior courts, just as other federal courts can be created by the Commonwealth Parliament under s 71 of the Constitution as either superior courts or inferior courts. A judicial order of any court, whether superior or inferior, is valid and effective if it is made within jurisdiction. Any judicial order, whether of a superior court or an inferior court and whether made within or without jurisdiction, is a judgment, decree, order or sentence from which an appeal may lie to the High Court under s 73 of the Constitution and, where such an appeal lies, a judicial order made without jurisdiction may be set aside by the High Court in determining the appeal [71] s 32 of the Judiciary Act 1903 (Cth) in the exercise of the original jurisdiction of the High Court conferred by s 75 or under s 76 of the Constitution [72] There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court [73] [74] [75]

"It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside".

The constitutional robustness of the principle that a judicial order of a superior court made without jurisdiction has legal force as an order of that court unless and until it is set aside is illustrated by Re Macks; Ex parte Saint [76] Constitution [77] [78] The capacity of a superior court, conformably with Ch III of the Constitution, to make a judicial order that is valid unless and until it is set aside in the purported exercise of a jurisdiction purportedly conferred by a statute itself invalid because it infringes Ch III of the Constitution might at first glance seem anomalous. The justification for that capacity lies ultimately in the unique and essential function constitutionally reposed by Ch III in courts: that of rendering final resolutions of controversies about legal rights and legal obligations. The nature of that function makes some degree of self-reference in its performance inevitable. That is because a question about the validity or invalidity of a statute purporting to confer jurisdiction on a court is itself a question that can be resolved to finality only in the exercise of judicial power. The making of a final judicial order in the purported exercise of a jurisdiction conferred by statute ordinarily involves an explicit or implicit determination by the court making that order that the court has jurisdiction to determine a dispute about a legal right or a legal obligation between the persons or classes of persons who are parties to proceedings in which the jurisdiction is invoked or who are represented by those parties. The making of such a final judicial order therefore ordinarily involves, explicitly or implicitly, a resolution of the question of jurisdiction as between those persons or classes of persons. Extension of the capacity of a superior court to determine a question about its own jurisdiction to the determination of a question about the validity or invalidity of a statute purporting to confer jurisdiction on that court is therefore consistent with the finality which it is the function of the judicial power to provide. When a judicial order of a superior court explicitly or implicitly resolves a question of the validity or invalidity of a statute purporting to confer jurisdiction on that court, the finality of that order and the finality of that resolution are incidents of the nature of that court as a repository of judicial power. The same capacity, with the same justification, has been held to inhere in courts created by Congress under Art III of the United States Constitution, which are "inferior courts" only in the sense that they are subordinate to the Supreme Court of the United States [79] [80] [81]

"A court does not have the power, by judicial fiat, to extend its jurisdiction over matters beyond the scope of the authority granted to it by its creators. There must be admitted, however, a power to interpret the language of the jurisdictional instrument and its application to an issue before the court ... Every court in rendering a judgment, tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter. An erroneous affirmative conclusion as to the jurisdiction does not in any proper sense enlarge the jurisdiction of the court until passed upon by the court of last resort, and even then the jurisdiction becomes enlarged only from the necessity of having a judicial determination of the jurisdiction over the subject matter." (footnotes omitted)

The Supreme Court added[82]:

"Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first."

The same theme was later taken up by Frankfurter J[83]. He said[84]:

"Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law."

He added[85]:

"No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for. And no type of controversy is more peculiarly fit for judicial determination than a controversy that calls into question the power of a court to decide. Controversies over 'jurisdiction' are ... hardly fit for final determination by the self-interest of a party."

The persuasive force of those observations is not undermined by the more recent adoption for a time in some judgments of the Supreme Court of the United States of an approach to prospective overruling rejected in Australia[86].

Problem

The Court of Appeal did not disregard those precepts in the present case: it rather encountered a particular problem in seeking to apply them. The CP Act purported to confer power on the Supreme Court to make a "preventive detention order", being an order "that a specified person be detained in prison for a specified period", on application by the New South Wales Director of Public Prosecutions ("the DPP") if satisfied on reasonable grounds that specified criteria were met [87] CP Act were proceedings between the DPP and the person against whom the preventive detention order was sought, to be commenced by summons in accordance with rules of court [88] [89] CP Act purported to provide that the jurisdiction of the Supreme Court under the CP Act "is exercisable by a single Judge" [90] [91] [92] [93] [94] The CP Act purported to provide that a preventive detention order was "sufficient authority for the person against whom it is made to be held in custody in accordance with the terms of the order" [95] Prisons Act 1952 (NSW) [96] [97]

"No action lies against any person (including the State) for or in respect of any act or omission done or omitted by the person so long as it was done or omitted in good faith for the purposes of, or in connection with the administration or execution of, this Act."

Those provisions of the CP Act, purporting to confer power and jurisdiction on the Supreme Court, purporting to attach statutory consequences to a preventive detention order, and purporting to confer immunity from civil action taken in good faith in the execution of the CP Act, were all held in Kable (No 1) to be invalid [98] The Court of Appeal in the present case recognised that the order made by Levine J on 23 February 1995, if it was a judicial order, nevertheless provided an independent source of lawful authority for the State of New South Wales to have detained Mr Kable in custody in the same way as a sentence imposed by a superior court is sufficient authority for its execution [99] The problem was that the Court of Appeal considered itself bound by the reasons for judgment in Kable (No 1) to hold that the order made by Levine J could not have been made in the exercise of judicial power and was therefore not a judicial order [100] Kable (No 1) to describe the order as a judicial order "or the act of making [it] judicial, in any relevant sense of judicial capacity" [101] [102] The Court of Appeal correctly recognised that a purported exercise of non-judicial power by a superior court, like any other purported exercise of a non-judicial power, lacks legal force if made without jurisdiction [103] Kable (No 1), the Court of Appeal considered itself bound to hold that to be this case.

Resolution

There are certainly passages in the reasons for judgment of members of the majority in Kable (No 1) which strongly support the view taken by the Court of Appeal of the holding in that case [104] The appellate jurisdiction of the High Court under s 73 of the Constitution is limited to the hearing and determination of an appeal from a decision made in the exercise of judicial power [105] Kable (No 1) came to the High Court as an appeal under s 73 of the Constitution from an order of the Court of Appeal dismissing an appeal from the order of Levine J. That "bespeaks an exercise of judicial power" by the Court of Appeal [106] The High Court in determining the appeal in Kable (No 1) was limited to standing in the position of the Court of Appeal at the time when the Court of Appeal dismissed the appeal to it from the order of Levine J and making such order as the Court of Appeal could and should have made in the exercise of such judicial power as was exercisable by the Court of Appeal in the appeal to it from the order of Levine J [107] What the High Court did in Kable (No 1), having allowed the appeal to it and having set aside the order of the Court of Appeal dismissing the appeal from the order of Levine J, was: allow the appeal to the Court of Appeal, set aside the order of Levine J and in its place order that the application by the DPP be dismissed [108] The Court of Appeal has capacity to entertain an appeal by way of rehearing from a person or body exercising administrative power [109] CP Act. The power as so conferred on the Supreme Court was in each case to be exercised only in proceedings between parties in which incidents of civil process were required to be observed. What the High Court did in Kable (No 1) is therefore consistent with the jurisdiction to make a preventive detention order, purportedly conferred on the Supreme Court by the CP Act, being judicial in character, albeit having features which made the conferral of that jurisdiction incompatible with Ch III of the Constitution. Four particular aspects of the reasoning of Gummow J, one of the majority in Kable (No 1), are of particular significance in that light. The first is his description of the CP Act as performing the "double function" of imposing substantive liabilities and conferring on the Supreme Court jurisdiction with respect to those substantive liabilities [110] [111] [112] The fourth aspect of the reasoning of Gummow J that is of present significance is his observation that the raising of a question as to the validity of the CP Act in the proceeding before Levine J had the effect of bringing the whole of the matter in issue in that proceeding and in the Court of Appeal within the federal jurisdiction of the Supreme Court conferred under s 77(iii) of the Constitution by s 39(2) of the Judiciary Act [113] [114] Kable (No 1). It was said that "the jurisdiction exercised by the Supreme Court was wholly federal" [115] The better view of Kable (No 1) is that there was a single matter before the Supreme Court constituted by the disputed entitlement of the DPP to a preventive detention order under the CP Act. That matter encompassed but was not confined to whether the Supreme Court had jurisdiction and whether the CP Act was invalid as incompatible with Ch III of the Constitution. The matter extended to whether the preventive detention order applied for by the DPP, if it could be made, should be made. The order made by Levine J, upheld in the Court of Appeal, resolved the whole of that matter in the exercise of judicial power within federal jurisdiction. The order was "an adjudication to determine the rights of parties" [116] The order made by Levine J in the purported exercise of jurisdiction invalidly conferred on the Supreme Court by the CP Act was therefore a judicial order.

[1] s 3(1).

[2] Kable v Director of Public Prosecutions (1995) 36 NSWLR 374.

[3] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.

[4] Kable v New South Wales [2010] NSWSC 811; (2010) 203 A Crim R 66.

[5] [2010] NSWSC 811; (2010) 203 A Crim R 66 at 85 [101].

[6] Kable v New South Wales [2012] NSWCA 243; (2012) 293 ALR 719.

[7] [2012] NSWCA 243; (2012) 293 ALR 719 at 727 [21], 735 [57], 737 [63] per Allsop P (Campbell and Meagher JJA and McClellan CJ at CL agreeing), 757-758 [153] per Basten JA.

[8] [2012] NSWCA 243; (2012) 293 ALR 719 at 722 [3]. See also at 725 [17].

[9] [2012] NSWCA 243; (2012) 293 ALR 719 at 757 [152].

[10] [2012] NSWCA 243; (2012) 293 ALR 719 at 757 [153].

[11] [2012] NSWCA 243; (2012) 293 ALR 719 at 757 [152].

[12] [2012] NSWCA 243; (2012) 293 ALR 719 at 758 [153].

[13] Supreme Court Act 1970 (NSW), s 22.

[14] Constitution, s 106.

[15] Kable (No 1) [1996] HCA 24; (1996) 189 CLR 51 at 98 per Toohey J, 106-108 per Gaudron J, 122, 124 per McHugh J, 132-134 per Gummow J.

[16] [1996] HCA 24; (1996) 189 CLR 51 at 107.

[17] [1996] HCA 24; (1996) 189 CLR 51 at 106.

[18] [2004] HCA 46; (2004) 223 CLR 575 at 617 [100]; [2004] HCA 46.

[19] [2012] NSWCA 243; (2012) 293 ALR 719 at 722 [3] per Allsop P (Campbell and Meagher JJA and McClellan CJ at CL agreeing).

[20] Constitution, s 76(i).

[21] See, for example, Kable (No 1) [1996] HCA 24; (1996) 189 CLR 51 at 96 per Toohey J, 114 per McHugh J, 136 per Gummow J.

[22] Constitution, s 73(ii).

[23] Posner v Collector for Inter-State Destitute Persons (Vict) [1946] HCA 50; (1946) 74 CLR 461 at 469 per Latham CJ, 476 per Starke J, 489-490 per Williams J; [1946] HCA 50.

[24] For example, Craig v Kanssen [1943] KB 256; Marsh v Marsh [1945] AC 271.

[25] See, for example, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 612-613 [45]-[46], 646-647 [152]-[154]; [2002] HCA 11; Calvin v Carr [1979] UKPC 1; [1980] AC 574 at 589-590.

[26] "Unlawful Administrative Action: Void or Voidable?", (1967) 83 Law Quarterly Review 499 at 512.

[27] Kelsen, General Theory of Law and State, (1945) at 160.

[28] See, for example, Craig v Kanssen [1943] KB 256.

[29] See, for example, Rules of the Supreme Court 1883 (Eng), O 70, rr 1 and 2; Anlaby v Praetorius (1888) 20 QBD 764.

[30] (1990) 169 CLR 307; [1990] HCA 4.

[31] (1990) 169 CLR 307 at 321.

[32] (1990) 169 CLR 307 at 321-322.

[33] [1971] HCA 13; (1971) 124 CLR 27 at 39; [1971] HCA 13.

[34] [1985] HCA 16; (1985) 157 CLR 57 at 73; [1985] HCA 16.

[35] (1990) 169 CLR 307 at 323.

[36] (1990) 169 CLR 307 at 322.

[37] CP Act, s 17(1) and (3).

[38] CP Act, s 25.

[39] (1990) 169 CLR 307 at 322.

[40] Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at 275 [329]; [2000] HCA 62.

[41] Attorney-General of Queensland v Wilkinson [1958] HCA 21; (1958) 100 CLR 422 at 431; [1958] HCA 21; R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 393-394; [1985] HCA 67; Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 630; [1987] HCA 23; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 86 ALJR 1071 at 1075 [16]; [2012] HCA 33; 290 ALR 681 at 685; [2012] HCA 33.

[42] Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 437 [165]; [2002] HCA 16. But see, for example, James v South Western Railway Co (1872) LR 7 Ex 287 at 290; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 387; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 95-97 [30]- [34]; [2000] HCA 57.

[43] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16; [1989] HCA 45; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at 451 [50]; [1999] HCA 19.

[44] See, for example, Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58.

[45] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590, 598, 606-607; [1944] HCA 5; DMW v CGW [1982] HCA 73; (1982) 151 CLR 491 at 501-505, 507; [1982] HCA 73; R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at 193-194, 222-223; [1984] HCA 82; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 374-375; Re Macks (2000) 204 CLR 158 at 177-178 [19]-[23], 183-187 [46]-[57], 235-237 [214]-[220], 247-249 [253]-[257], 278-279 [342]-[344].

[46] [2000] HCA 62; (2000) 204 CLR 158 at 185 [53].

[47] [2000] HCA 62; (2000) 204 CLR 158 at 235-236 [216] per Gummow J.

[48] [2000] HCA 62; (2000) 204 CLR 158 at 279 [344] per Hayne and Callinan JJ.

[49] [2000] HCA 62; (2000) 204 CLR 158 at 236 [216].

[50] [2012] NSWCA 243; (2012) 293 ALR 719 at 755 [145], 756 [149].

[51] [2012] NSWCA 243; (2012) 293 ALR 719 at 757 [151].

[52] [2012] NSWCA 243; (2012) 293 ALR 719 at 755 [145].

[53] [2012] NSWCA 243; (2012) 293 ALR 719 at 757 [151].

[54] General Theory of Law and State, (1945) at 160.

[55] (1996) 189 CLR 51; [1996] HCA 24.

[56] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 355 [45]; [1999] HCA 9, quoting R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374; [1970] HCA 8.

[57] Harrington v Lowe (1996) 190 CLR 311 at 325; [1996] HCA 8, quoting Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12.

[58] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 503-504; [1997] HCA 34.

[59] [1803] USSC 16; 5 US 137 (1803).

[60] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 262-263; [1951] HCA 5.

[61] [1803] USSC 16; 5 US 137 at 177 (1803).

[62] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 504.

[63] (1942) 65 CLR 373; [1942] HCA 14.

[64] [1942] HCA 14; (1942) 65 CLR 373 at 408. See Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 653 [58]; [2000] HCA 33; Haskins v The Commonwealth (2011) 244 CLR 22 at 41-42 [45]; [2011] HCA 28.

[65] Forsyth, "'The Metaphysic of Nullity': Invalidity, Conceptual Reasoning and the Rule of Law", in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord, (1998) 141, especially at 147-148.

[66] See eg Werrin v The Commonwealth (1938) 59 CLR 150; [1938] HCA 3 and South Australian Cold Stores Ltd v Electricity Trust of South Australia (1957) 98 CLR 65; [1957] HCA 69 as explained in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 at 372-374; [1992] HCA 48.

[67] See eg Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48.

[68] (1931) 46 CLR 73; [1931] HCA 34.

[69] [1931] HCA 34; (1931) 46 CLR 73 at 106. See also R v Unger [1977] 2 NSWLR 990 at 995-996.

[70] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 580-581 [96]-[98]; [2010] HCA 1.

[71] Ah Yick v Lehmert [1905] HCA 22; (1905) 2 CLR 593 at 601; [1905] HCA 22.

[72] Edwards v Santos Ltd (2011) 242 CLR 421; [2011] HCA 8.

[73] Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at 445 [27], 453 [55], 456-457 [71]; [1999] HCA 19.

[74] Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391; [1938] HCA 7. See also Posner v Collector for Inter-State Destitute Persons (Vict) [1946] HCA 50; (1946) 74 CLR 461 at 483; [1946] HCA 50.

[75] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590; [1944] HCA 5.

[76] (2000) 204 CLR 158; [2000] HCA 62.

[77] See Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27.

[78] Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at 177 [19]- [22], 185-186 [53], 214-215 [148]-[150], 235-237 [214]-[220], 248-249 [256]. See also DMW v CGW [1982] HCA 73; (1982) 151 CLR 491 at 507; [1982] HCA 73.

[79] Kempe's Lessee v Kennedy [1809] USSC 17; 9 US 173 at 185 (1809).

[80] Chicot County Drainage District v Baxter State Bank [1940] USSC 4; 308 US 371 at 377 (1940), quoted with approval in Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 659 [74]. See also Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at 237-239 [221]- [227].

[81] Stoll v Gottlieb [1938] USSC 191; 305 US 165 at 171-172 (1938).

[82] [1938] USSC 191; 305 US 165 at 172 (1938).

[83] United States v United Mine Workers of America [1947] USSC 40; 330 US 258 (1947).

[84] [1947] USSC 40; 330 US 258 at 308 (1947).

[85] [1947] USSC 40; 330 US 258 at 308-309 (1947).

[86] See Hart and Wechsler's The Federal Courts and The Federal System, 6th ed (2009) at 54, footnote 3.

[87] Sections 5(1), 8.

[88] Section 16.

[89] Section 14. See also ss 15 and 17.

[90] Section 24.

[91] Section 25(1).

[92] Section 25(2).

[93] Section 75A(1) and (5) of the Supreme Court Act 1970 (NSW).

[94] Section 75A(6) of the Supreme Court Act 1970 (NSW).

[95] Section 19.

[96] Section 22(1).

[97] Section 28.

[98] [1996] HCA 24; (1996) 189 CLR 51 at 99, 108, 124, 144.

[99] cf Day v The Queen [1984] HCA 3; (1984) 153 CLR 475 at 479; [1984] HCA 3.

[100] Kable v New South Wales [2012] NSWCA 243; (2012) 293 ALR 719 at 723-727 [6]- [21], 754-758 [140]-[153].

[101] [2012] NSWCA 243; (2012) 293 ALR 719 at 725 [17].

[102] [2012] NSWCA 243; (2012) 293 ALR 719 at 758 [153].

[103] Love v Attorney-General (NSW) (1990) 169 CLR 307; [1990] HCA 4; Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49.

[104] [1996] HCA 24; (1996) 189 CLR 51 at 98, 106-108, 122.

[105] Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 299, 312; [1991] HCA 53; Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 at 38 [63]; [2002] HCA 27.

[106] Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 312.

[107] Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 109; Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 312; Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268 at 281-282 [38]- [39]; [2009] HCA 18.

[108] [1996] HCA 24; (1996) 189 CLR 51 at 144-145.

[109] Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446 at 453 [16]; [2011] HCA 41.

[110] [1996] HCA 24; (1996) 189 CLR 51 at 130, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 165-166; [1945] HCA 50.

[111] [1996] HCA 24; (1996) 189 CLR 51 at 132.

[112] [1996] HCA 24; (1996) 189 CLR 51 at 142-143.

[113] [1996] HCA 24; (1996) 189 CLR 51 at 136.

[114] [2012] NSWCA 243; (2012) 293 ALR 719 at 757 [151], citing Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 373; [1971] HCA 39.

[115] [1996] HCA 24; (1996) 189 CLR 51 at 136.

[116] Electronic Rentals Pty Ltd v Anderson [1971] HCA 13; (1971) 124 CLR 27 at 39; [1971] HCA 13, quoted in Love v Attorney-General (NSW) (1990) 169 CLR 307 at 321-322.