MR S.R. SOUTHWOOD, QC: If the Court pleases, I appear on behalf of the appellant with MR P.D. KEYZER. (instructed by Prisoner’s Legal Service)

MR P.A. KEANE, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friends, MR R.V. HANSON, QC and MR R.W. CAMPBELL, for the respondent. (instructed by Crown Solicitor for the State of Queensland)

MR H.C. BURMESTER, QC: If it please the Court, I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS K.H. GLANCY, on behalf of the Attorney‑General for Western Australia intervening and with my learned friend, MR S.G.E. McLEISH, on behalf of the Attorney‑General for Victoria intervening. (instructed by Crown Solicitor (Western Australia) and Victorian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (New South Wales))

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C.D. BLEBY, for the Attorney‑General for South Australia intervening. (instructed by Crown Solicitor (South Australia))

GLEESON CJ: Yes, Mr Southwood.

MR SOUTHWOOD: If the Court pleases, it is the appellant’s submission that the starting point of this appeal should be what is the proper characterisation of the operation and effect of sections 8 and 13 of the Dangerous Prisoners Act. In relation to the approach to be taken to such characterisation, in our written submissions we have referred the Court to Bachrach and to the decision of the Court in Ha. Perhaps if I could just briefly take your Honours to the decision in Re Wakim; Ex parte McNally (1999) 198 CLR 572 at paragraph 103, there is the statement to the following effect:

It was suggested in argument that, in considering the validity of the legislation, significance should be attached to the statement in the preamble as to the legislative purpose of ameliorating what is identified as inconvenience and expense occasionally caused to litigants by jurisdictional limitations in federal, State and Territory courts. However, the purposes, motives or intentions of the relevant legislatures and their members do…

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.

Continue reading Fardon v Attorney-General (Qld)

Details

AGLC: Fardon v Attorney-General (Qld) [2004] HCATrans 39
Case: [2004] HCATrans 39
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Fardon against the Attorney-General of Queensland concerning the validity of a Queensland Supreme Court order made under the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld). Fardon had been convicted of serious sexual offences and, upon completion of his sentence, the Queensland Supreme Court had made a declaration that he was a "serious danger to the community" and ordered his continued detention. Fardon challenged the constitutional validity of this Act and the Supreme Court's power to make such an order.

The central legal issue before the High Court was whether the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld) was invalid by reason of its inconsistency with Chapter III of the Australian Constitution, specifically the separation of powers doctrine. Fardon argued that the Act conferred judicial power on the Supreme Court to make orders that were not part of the judicial function, but rather an administrative or executive function, thereby impermissibly entrenching on the executive power of the Commonwealth.

The High Court, by a majority, dismissed the appeal. The majority reasoned that the Act did not confer non-judicial power on the Supreme Court. Instead, it was held that the Act empowered the Supreme Court to exercise a judicial function, namely the determination of facts and the application of the law to those facts, to make a declaration about a prisoner's dangerousness and to order continued detention. This was distinguished from the executive function of administering prisons or supervising released prisoners. The Court affirmed that Chapter III of the Constitution does not prevent State Parliaments from vesting in State courts powers that are not strictly judicial, provided those powers are not incompatible with the exercise of federal jurisdiction by those courts. The Act was found to be a valid exercise of State legislative power.

Orders