2. Remit the cause to the Court of Appeal for hearing and determination of the remaining issues on the appeal to that Court.
On appeal from Supreme Court of Queensland
Representation:
S R Southwood QC with P D Keyzer for the appellant (instructed by Prisoners' Legal Service)
P A Keane QC, Solicitor-General of the State of Queensland, with R V Hanson QC and R W Campbell for the respondent (instructed by Crown Solicitor for the State of Queensland)
Interveners:
H C Burmester QC with N L Sharp intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia, with K H Glancy intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor's Office of Western Australia)
R J Meadows QC, Solicitor-General for the State of Western Australia, with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia, with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitors Office of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fardon v Attorney-General for the State of Queensland
Constitutional law (Cth) – Judicial power of Commonwealth – Vesting of federal jurisdiction in State courts – Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an "unacceptable risk" of the prisoner committing a serious sexual offence in the future – Whether criterion for order of continuing detention devoid of content – Whether order for continuing detention to protect the community an exercise of judicial power – Whether powers conferred by Act on State court incompatible with State court being a suitable repository of judicial power of the Commonwealth – Whether powers conferred by Act on State court compromise the institutional integrity of State court.
Constitutional law (Q) – Powers of State…
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
AGLC
Fardon v Attorney-General (Qld) [2004] HCA 46
Case
[2004] HCA 46
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from the Court of Appeal of the Supreme Court of Queensland. The appellant, Robert John Fardon, had been sentenced for serious sexual offences, with his sentences expiring on 30 June 2003. Following the commencement of the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld), the Attorney-General for Queensland applied for and obtained interim orders for Fardon's detention, and subsequently an order for indefinite detention, on the basis that he posed a serious danger to the community due to an unacceptable risk of reoffending. The central dispute was whether the Queensland Act, by empowering the Supreme Court to order the continuing detention of prisoners after their sentences had expired based on an assessment of future risk, vested functions in the State court that were incompatible with its role as a repository of federal judicial power, thereby compromising its institutional integrity.
The High Court was required to determine several legal issues. These included whether the criterion for ordering continuing detention, described as an "unacceptable risk" of committing a serious sexual offence, was sufficiently defined. Crucially, the Court had to consider whether the power conferred by the Act on a State court to order continuing detention for the protection of the community constituted an exercise of judicial power. Furthermore, the Court had to assess whether the powers conferred by the Act were incompatible with the State court being a suitable repository of the judicial power of the Commonwealth, and whether these powers compromised the institutional integrity of the State court, potentially undermining public confidence in the judiciary.
The High Court, by majority, reasoned that the legislation was valid and did not impermissibly infringe upon the separation of powers or the institutional integrity of the State court. The Court held that the criterion of "unacceptable risk" was not devoid of content and that the power to order detention for community protection was a legitimate exercise of judicial power. The Court distinguished the present case from situations where legislation might involve courts in non-judicial functions or ad hominem exercises, emphasizing that courts should not refuse to implement legislative provisions based on disagreement with policy. The Court concluded that upholding the validity of the Act and implementing its provisions would not damage public confidence in the judiciary, but rather that judicial refusal to do so would be more likely to erode that confidence.
The High Court dismissed the appeal from the Court of Appeal concerning the interim detention orders. In relation to the substantive matter, the Court declared that section 13 of the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld) was within the legislative power of the State of Queensland. The matter was then remitted to the Court of Appeal for the determination of any remaining issues on the appeal to that Court.
Orders
Orders of the court
In matter B104 of 2003
Appeal from the decision of the Court of Appeal of the Supreme Court of Queensland dated 23 September 2003 dismissed.
In matter B105 of 2003
1. Declare that section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q) is not beyond the legislative power of the State of Queensland.
2. Remit the cause to the Court of Appeal for hearing and determination of the remaining issues on the appeal to that Court.
Background
Background to the litigation
Mc Queensland legislation authorises the Supreme Court of that State to order that a prisoner be detained in custody if it is satisfied that there are reasonable grounds for believing that the prisoner is a serious danger to the community. In June 1989, the appellant, Robert John Fardon was sentenced to 14 years imprisonment in respect of various sexual offences. His sentences expired on or about 30 June 2003. He was detained in prison after the expiration of his sentences under interim orders made under the legislation. In November 2003, the Supreme Court ordered that he be detained in custody for an indefinite term. The question in this case is whether the Queensland legislation is invalid because it vests in the Supreme Court functions that are incompatible with its role as a repository of the judicial power of the Commonwealth. In my opinion, the legislation is valid.The material facts In June 1989, Fardon pleaded guilty to offences of sodomy and unlawful assault of a female. He pleaded not guilty, but was subsequently convicted, of a charge of rape of the same person. All offences were committed on 3 October 1988. On 30 June 1989, Fardon was sentenced to 14 years imprisonment on two of the counts and three years imprisonment on the third count, all sentences to be served concurrently. His sentences expired on or about 30 June 2003. On 6 June 2003, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q) ("the Act") came into force. On 17 June 2003, the Attorney-General of the State of Queensland filed an Originating Application under s 5 of the Act for an order that Fardon be detained for an indefinite period under s 13. By a series of interim detention orders, the first of which was made by Muir J in the Supreme Court on 27 June 2003 under s 8 of the Act, Fardon was detained until the Supreme Court heard the Attorney‑General's Application. In determining the first interim detention order, Muir J also upheld the validity of s 8 of the Act[25].[25]Attorney-General (Q) v Fardon [2003] QSC 200. In the meantime, Fardon appealed to the Queensland Court of Appeal against the interim detention order of Muir J and his Honour's subsequent judgment as to the validity of s 8 of the Act. On 23 September 2003, the Court of Appeal (de Jersey CJ and Williams JA, McMurdo P dissenting) dismissed the appeal against the interim detention order and judgment of Muir J and also upheld the validity of the Act[26]. [26]Attorney-General (Q) v Fardon [2003] QCA 416. In November 2003, on the Attorney-General's Application, White J in the Supreme Court ordered that Fardon be detained in custody for an indefinite term. The order was made under s 13 of the Act. White J found[27] that it was established "to the requisite standard that [Fardon] is a serious danger to the community in that there is an unacceptable risk that he will commit a serious sexual offence if released from custody." Her Honour said that a major concern was[28]:"the failure by [Fardon] to participate in or to participate to completion in a course or courses of therapy which address his 'inner world' and give him risk minimisation strategies whether related to his violent sexual offending or alcohol and drug relapse prevention."Her Honour said[29] that Fardon "has, for the most part, chosen not to take some responsibility for his own rehabilitation and engage in appropriate treatment." The appellant then appealed to the Court of Appeal against the order of White J.[27]Attorney-General (Q) v Fardon [2003] QSC 379 at [98].[28]Fardon [2003] QSC 379 at [100].[29]Fardon [2003] QSC 379 at [100].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
HUGH J
(dissent)
GUMMOW J
(dissent)
HAYNE J
CALLINAN AND HEYDON JJ
(dissent)
In some of the reasons in Kable, references were made to the capacity of the legislation there in question to diminish public confidence in the judiciary. Those references were in the context of a statute that was held to impair the institutional integrity of a court and involve it in an ad hominem exercise. Nothing that was said in Kable meant that a court's opinion of its own standing is a criterion of validity of law[24]. Furthermore, nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy. If courts were to set out to defeat the intention of Parliament because of disagreement with the wisdom of a law, then the judiciary's collective reputation for impartiality would quickly disappear. This case involves no question of the interpretation of an ambiguous statute, or of the application of the common law. It concerns a specific challenge to the validity of a State law on the ground that it involves an impermissible attempt to resolve a certain kind of problem through the State's judicial process.[24]cf Nicholas v The Queen (1998) 193 CLR 173 at 197 [36].Conclusion The decision of the Court of Appeal was correct. The challenge to the validity of the Act fails. The appeal from the Court of Appeal in relation to the interim orders should be dismissed. In relation to the cause partly removed to this Court, it should be declared that s 13 of the Act is valid, and the matter should be remitted to the Court of Appeal for determination of the remaining issues. Mc Queensland legislation authorises the Supreme Court of that State to order that a prisoner be detained in custody if it is satisfied that there are reasonable grounds for believing that the prisoner is a serious danger to the community. In June 1989, the appellant, Robert John Fardon was sentenced to 14 years imprisonment in respect of various sexual offences. His sentences expired on or about 30 June 2003. He was detained in prison after the expiration of his sentences under interim orders made under the legislation. In November 2003, the Supreme Court ordered that he be detained in custody for an indefinite term. The question in this case is whether the Queensland legislation is invalid because it vests in the Supreme Court functions that are incompatible with its role as a repository of the judicial power of the Commonwealth. In my opinion, the legislation is valid.The material facts In June 1989, Fardon pleaded guilty to offences of sodomy and unlawful assault of a female. He pleaded not guilty, but was subsequently convicted, of a charge of rape of the same person. All offences were committed on 3 October 1988. On 30 June 1989, Fardon was sentenced to 14 years imprisonment on two of the counts and three years imprisonment on the third count, all sentences to be served concurrently. His sentences expired on or about 30 June 2003. On 6 June 2003, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q) ("the Act") came into force. On 17 June 2003, the Attorney-General of the State of Queensland filed an Originating Application under s 5 of the Act for an order that Fardon be detained for an indefinite period under s 13. By a series of interim detention orders, the first of which was made by Muir J in the Supreme Court on 27 June 2003 under s 8 of the Act, Fardon was detained until the Supreme Court heard the Attorney‑General's Application. In determining the first interim detention order, Muir J also upheld the validity of s 8 of the Act[25].[25]Attorney-General (Q) v Fardon [2003] QSC 200.