Kable principle:
The Kable principle was developed in the high court case Kable v Director of Public Prosecutions where a declaration of invalidity of a piece of legislation on the grounds that it purports to invest extra powers to the State court with a non-judicial function and therefore is invalid if the function is of a kind that undermines, or appears to undermine, the institutional integrity of the court and, by extension, the system established by chapter III of the Constitution. Since the question is whether the legislation is valid under the constitution allows the high court to rule on the legislations validity.
Previous
A previous case was brought to the high court similarly challenging the VLAD Act, where it argued that the Vicious lawless association act is constitutionally invalid, because it undermines the institutional integrity of the Queensland courts by requiring them to perform mandatory sentencing role in a manner which is repugnant to the judicial process in a fundamental degree. This is because it requires the courts to breach a fundamental notion of equal justice by requiring them to impose sentences on certain offenders by reason of association rather than by reason of their own personal and individual guilt. However, it was thrown out due to the fact that such a challenge require the plaintiff to have a sufficient …show more content…
1 Therefore, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. 2"There was no suggestion that it was necessary for the plaintiffs to show that there already had been set in motion against them the punitive provisions of the legislation? It was significant enough that the plaintiffs 'faced possible criminal prosecution '."3 In this case our client is under threat of prosecution and thus this would give our client sufficient standing in the eyes of the court.
Rule of Law
The VLAD Act was controversial amongst the rule of law institution of Australia. They claim that it contains broad definitions of on vicious lawless associate which enables the executive arm of government a significant discretion in determining who to prosecute. Furthermore, the mandatory sentencing severely limits one of the fundamental principles of the rule of law, which is the independence of the judiciary, by removing the principle of proportionality in sentencing of a vicious lawless associate. This will result in the over punishment of a criminal which is out of proportion with the gravity of the