Fardon v Attorney-General (Qld)

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.