Fardon v Attorney-General for State of Queensland

The High Court of Australia considered the case of Fardon v Attorney-General for State of Queensland. The applicant, Fardon, sought to challenge the constitutional validity of a Queensland law that permitted the Attorney-General to apply to the Supreme Court for an order for the continued detention of a prisoner beyond the expiration of their sentence, where the prisoner was deemed to pose an unacceptable risk of reoffending. The Attorney-General was the respondent.

The central legal issue before the High Court was whether the Queensland legislation, specifically the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld), was invalid by reason of its inconsistency with Chapter III of the Australian Constitution. This chapter vests the judicial power of the Commonwealth exclusively in the High Court and other federal courts, and by implication, prohibits the vesting of federal judicial power in state courts or the exercise of state judicial power in a manner that is incompatible with the constitutional conception of the judicial power. The court had to determine if the Act impermissibly conferred a non-judicial function on the Supreme Court of Queensland, thereby infringing upon the separation of judicial power.

The majority of the High Court, comprising Gummow and Kirby JJ, held that the Act was constitutionally valid. Their Honours reasoned that the power conferred on the Supreme Court to order the continued detention of a prisoner was not an exercise of the judicial power of the Commonwealth, nor was it incompatible with the constitutional conception of the judicial power of the states. They distinguished the function from that of a court exercising a purely judicial power, noting that the Act required the court to make an assessment of future risk based on evidence, which was a function that could be performed by a court without violating the separation of powers. The court emphasised that the Act did not involve the court in the executive function of punishment or the legislative function of creating law, but rather in a protective measure for the community.