Fardon v Attorney-General for State of Queensland

In *Fardon v Attorney-General for State of Queensland*, Callinan J, sitting in chambers, considered an application by Mr Fardon for an order that he be released from a continuing detention order made under the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld). The Attorney-General for the State of Queensland opposed the application.

The central legal issue before the Court was whether the continued detention of Mr Fardon was lawful, given that he had served his full sentence for the underlying criminal offence. This required an examination of the constitutional validity of the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld) and, in particular, whether the Act's provisions for the continued detention of prisoners deemed to be a continuing risk to the community, even after the expiry of their sentence, were consistent with the Australian Constitution.

Callinan J's reasoning focused on the interpretation of Chapter III of the Constitution, which vests the judicial power of the Commonwealth in the High Court and other federal courts. His Honour considered whether the Act, by authorising the continued detention of individuals without a conviction for a new offence, impermissibly encroached upon the judicial power. Applying established principles regarding the separation of judicial power, Callinan J concluded that the Act did not offend constitutional limitations. His Honour found that the Act provided for a civil, rather than a criminal, process for the determination of ongoing risk and that the detention was a protective measure rather than a punishment for a past crime.

Consequently, Callinan J dismissed Mr Fardon's application for release.