Fardon v Attorney-General (Qld)

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.