Attorney-General v Fardon - [2003] QCA 416

SUPREME COURT OF QUEENSLAND

CITATION:

A-G (Qld) v Fardon [2003] QCA 416

PARTIES:

RODNEY JON WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant/respondent)
v
ROBERT JOHN FARDON
(respondent/appellant)

FILE NO/S:

Appeal No 6596 of 2003
SC No 5346 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2003

JUDGES:

de Jersey CJ, McMurdo P and Williams JA
Separate reasons for judgment of each member of the Court, de Jersey CJ and Williams JA concurring as to the order made, McMurdo P dissenting

ORDER:

Appeal dismissed

CATCHWORDS:

CONSTITUTIONAL LAW – THE NON JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – LEGISLATION & LEGISLATIVE POWER – EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS – where learned primary judge granted orders under provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) detaining appellant in custody – whether s 8 of the Act is constitutionally invalid and infringes Ch III of the Constitution

Chu Kheng Lim v Minister for Immigration and Local Government and Ethnic Affairs (1992) 176 CLR 1, followed
Grollo v Palmer (1995) 184 CLR 348, considered
H A Bachrach Pty Ltd v The State of Queensland & Ors (1998) 195 CLR 547, followed
Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51, distinguished
Kruger & Ors v The Commonwealth; Bray & Ors v The Commonwealth (1996-1997) 190 CLR 1, followed
Nicholas v R (1998) 193 CLR 173, followed
Veen v R [No 2] (1987-1988) 164 CLR 465, considered

Criminal Law Amendment Act 1945 (Qld), s 18
Dangerous Prisoners (Sexual Offenders)Act 2003 (Qld), Div 1, Div 3
Penalties and Sentences Act 1992 (Qld), Pt 10

COUNSEL:

S Southwood QC, with P Keyzer, for the appellant
P A Keane QC, with R V Hanson QC and R W Campbell, for the respondent

SOLICITORS:

Prisoners Legal Service for the appellant
Crown Law for the respondent

de JERSEY CJ: The issue in this appeal is whether the enactment of the Dangerous Prisoners (Sexual Offenders) Act 2003 ("the Act") fell within the legislative competence of the Queensland Parliament. The appellant, who is the subject of orders made under the Act, contends it did not.

On 27 June 2003 a learned Judge made these orders: pursuant to s 8(2)(b) of the Act, that the appellant be detained in custody until 4.00pm on 4 August 2003; pursuant to s 8(2)(a), that the appellant undergo examinations by two nominated psychiatrists; and pursuant to s 8(1), appointing 31 July 2003 as the date for the hearing of the application for a Division 3 order. That date was subsequently extended.

In 1989 the appellant was convicted of rape, sodomy and assault occasioning bodily harm, and sentenced to 14 years imprisonment. That term expired on 29 June 2003. Division 3 of the Act authorizes the Supreme Court to order, in respect of a prisoner serving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] QCA 416
Decision Date: 23 September 2003

CaseChat Overview and Summary

The case involved the Attorney-General and Fardon, a prisoner in Queensland who was subject to detention orders under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The High Court of Australia was tasked with determining the constitutionality of Section 8 of this Act. Specifically, the court had to decide whether this section was invalid as it purportedly infringed upon Chapter III of the Constitution, which pertains to the judicial power of the Commonwealth.

The primary legal issue was whether Section 8 of the Act was unconstitutional because it encroached upon the judicial power outlined in Chapter III. This involved examining whether the Act, by allowing for indefinite detention of a prisoner deemed a danger to the community, effectively exercised judicial power through a non-judicial body. The court also needed to assess if the Act was a valid exercise of legislative power under Section 51 of the Constitution.

The court ruled that Section 8 of the Act was not unconstitutional. It found that the Act did not intrude upon the judicial power because it was not exercising a judicial function. Instead, the Act was a valid exercise of legislative power under Section 51, as it was aimed at the protection of the community from dangerous sexual offenders. The court further held that the detention provisions did not infringe upon the fundamental principles of judicial independence and integrity.

The appeal was dismissed, and the detention orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) were upheld as constitutional.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	A-G (Qld) v Fardon [2003] QCA 416
PARTIES:	RODNEY JON WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant/respondent) v ROBERT JOHN FARDON (respondent/appellant)
FILE NO/S:	Appeal No 6596 of 2003 SC No 5346 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2003
JUDGES:	de Jersey CJ, McMurdo P and Williams JA Separate reasons for judgment of each member of the Court, de Jersey CJ and Williams JA concurring as to the order made, McMurdo P dissenting
ORDER:	Appeal dismissed
CATCHWORDS:	CONSTITUTIONAL LAW – THE NON JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – LEGISLATION & LEGISLATIVE POWER – EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS – where learned primary judge granted orders under provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) detaining appellant in custody – whether s 8 of the Act is constitutionally invalid and infringes Ch III of the Constitution Chu Kheng Lim v Minister for Immigration and Local Government and Ethnic Affairs (1992) 176 CLR 1, followed Grollo v Palmer (1995) 184 CLR 348, considered H A Bachrach Pty Ltd v The State of Queensland & Ors (1998) 195 CLR 547, followed Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51, distinguished Kruger & Ors v The Commonwealth; Bray & Ors v The Commonwealth (1996-1997) 190 CLR 1, followed Nicholas v R (1998) 193 CLR 173, followed Veen v R [No 2] (1987-1988) 164 CLR 465, considered Criminal Law Amendment Act 1945 (Qld), s 18 Dangerous Prisoners (Sexual Offenders)Act 2003 (Qld), Div 1, Div 3 Penalties and Sentences Act 1992 (Qld), Pt 10
COUNSEL:	S Southwood QC, with P Keyzer, for the appellant P A Keane QC, with R V Hanson QC and R W Campbell, for the respondent
SOLICITORS:	Prisoners Legal Service for the appellant Crown Law for the respondent