Mellifont v Attorney-General (Q)

The High Court of Australia considered an appeal by Mr. Mellifont against the Attorney-General of Queensland concerning the validity of his detention under the *Criminal Code* (Qld). Mr. Mellifont had been arrested and detained for questioning in relation to a serious criminal offence. He sought a writ of habeas corpus, arguing that his detention was unlawful.

The central legal issue before the Court was whether the power of arrest and detention conferred by section 546 of the *Criminal Code* (Qld) was constitutionally valid. Specifically, the Court had to determine if this power, which allowed for detention for the purpose of questioning, was inconsistent with the implied constitutional prohibition against the executive government exercising judicial power. The Court also considered whether the detention was authorised by the *Criminal Code* itself.

The majority of the High Court held that section 546 of the *Criminal Code* (Qld) was invalid. The Court reasoned that the power to detain a person for questioning, without charge, constituted an exercise of judicial power by the executive. This was found to be contrary to the separation of judicial and executive powers inherent in the Australian Constitution. The Court distinguished this power from the power to arrest and detain for the purpose of bringing an arrested person before a court, which is a legitimate executive function. The Court also found that, even if the section were valid, the detention in this particular case was not authorised by the *Criminal Code*.

Consequently, the High Court allowed the appeal and ordered that the writ of habeas corpus should issue, meaning Mr. Mellifont's detention was declared unlawful.