Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.
The law allowed a Supreme Court judge to detain Kable (and only Kable) for six months at a time, if the judge thought that Kable was still a danger to the community. Today, nearly twenty-one years later, the High Court unanimously rejected a challenge to a Victorian law that applies to only one person:
In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.
That law forbids Victoria’s parole board from ever releasing Knight (and only Knight, who perpetrated 1987’s Hoddle St Massacre), even if the parole board thinks he is no danger to the community. Kable’s law was struck down because it placed his freedom in the hands of the courts. Knight’s was upheld because it left his freedom in the hands of no-one at all.
When Kable was decided in 1996, some hoped it was the start of judicial scrutiny of laws that sought to impose punitive outcomes by unjust means – in part, this was because the theory formally relied on in 1996, that the Kable law damaged the courts’ integrity, was so unconvincing. But others worried that Kable would result in worse outcomes, because parliaments would seek other, less just, ways to lock people up. Those latter worries have been borne out in two ways. First, Australia’s parliaments have readily embraced the option of giving courts general powers to lock up whole categories of people (mainly sex offenders) after they’ve served their sentences; such general powers apparently didn’t damage the courts. Second, Australia’s parliaments have more lately embraced the alternative option of locking people up without any involvement of the courts at all, because that also leaves the courts undamaged (as well as impotent.) The High Court has readily upheld both sorts of schemes to detain rapists and control bikies, only sometimes picking at the statutes’ details. Today’s decision confirms that what could have been a line in the constitutional sand – a one person law, like the 1996 Kable law – can now be safely crossed. As (now) Victoria Attorney-General Martin Pakula observed during the debate on the Knight law:
There are some people in jail in the state of Victoria who have committed heinous crimes and are not serving sentences of life with no parole — they are serving sentences of life with a minimum of 30 or 35 years — and no doubt when those individuals become eligible for parole there will be an expectation of the government of the day, whoever that might be, that it legislate to remove the possibility of that person being granted parole.
Indeed, Victoria considered such a bill last year, in relation to Russell St bomber Craig Minogue. And the fact that the Commonwealth, NSW, Queensland, South Australia and Western Australia all intervened in Knight’s matter in favour of Victoria suggests that other Australian parliaments crave the option to follow Victoria’s lead.
At this juncture, it is worth considering whether the Kable doctrine has been a positive development in Australia law. Frankly, I cannot see any positives at all. When the Kable law passed in 1996, the entire NSW parliament anguished over its morality and fairness, in a lengthy and emotional debate. When the Knight law passed in 2014, only five members spoke on it and most addressed only its constitutionality under Kable – a tepid discussion matched only by today’s brief, unanimous and (as is now typical) lifeless joint judgment. Far from putting an end to extraordinary punitive legislation, such laws have now become ordinary. Of the six occasions when the Kable doctrine has been applied to strike legislation down, only one law has not reappeared (usually in worse form.) Even Kable himself (who was already freed, thanks to the Supreme Court, at the time of the 1996 judgment) was denied compensation for his (as it turns out, unlawful) post-sentence imprisonment. Worst of all, in their (as it turns out, unfounded) fears that the Court would strike down a one-person non-parole law, both NSW and Victoria have enacted more general bans on parole, in each case sweeping in people who committed their crimes as children into inhumane ‘rot in their cells’ regimes. In short, the Kable decision has made no-one’s life better and has made at least a handful of people’s lives immeasurably worse, as well as failing to stop (if not outright encouraging) the worst in Australia’s politicians. In hindsight, 12th September 1996 numbers amongst the darkest days in Australian criminal justice.