Fardon v Attorney-General (Qld)
Encyclopedia
Fardon v Attorney-General (Qld) (2004) 223 CLR
575 was a case decided in the High Court of Australia
regarding the separation of powers in Australia
.
to continually detain a particular class of prisoner to protect the community. In the event that a prisoner was about to be released, the Attorney-General could request continual detention. The Act required that the prisoner be serving a sentence of serious sexual offence (involving violence against children).
Fardon was such a prisoner who was convicted in 1989 of offences of rape, sodomy and assault, and was due to be released in June 2003. The Attorney-General applied for an order on 6 June 2003, which was granted on 27 June, but not finalised until November of that year. Fardon was hence detained after his prison sentence had expired.
Fardon argued the legislation conferred non-judicial power to the Supreme Court (per Kable).
The ordering of a detention order was valid within the exercise of judicial power. The court held that courts in general should be vigilant that the continual detention provisions were not extended for arbitrary periods. Gummow J noted that the detention orders were compatible with federal judicial power.
In dissent, Kirby J thought the law was invalid. He looked to the substance of the law rather than intention. It was evidently a punitive law, offending the principles of double jeopardy and retrospective punishment.
indicated in September 2006 that Fardon should be released, and later ordered his release, imposing strict conditions for ongoing supervision until 2016. Fardon was due for release on 9 November 2006, but the Queensland Government
immediately appealed the decision. The appeal was heard by the Court of Appeal
on 10 November 2006 and Fardon remained imprisoned while the court's decision is reserved.
Upon his release, Fardon breached the terms of his supervision order and was arrested in July 2007. He was released again in November 2007
In May 2008 Fardon was once again arrested and returned to prison.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
575 was a case decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
regarding the separation of powers in Australia
Separation of powers in Australia
The doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. A strict separation is not maintained in Australia, following the Westminster system and the doctrine of responsible government. Nevertheless, it is clear that it has been heavily...
.
Background
Queensland passed legislation regarding sex offenders, allowing the Supreme Court of QueenslandSupreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
to continually detain a particular class of prisoner to protect the community. In the event that a prisoner was about to be released, the Attorney-General could request continual detention. The Act required that the prisoner be serving a sentence of serious sexual offence (involving violence against children).
Fardon was such a prisoner who was convicted in 1989 of offences of rape, sodomy and assault, and was due to be released in June 2003. The Attorney-General applied for an order on 6 June 2003, which was granted on 27 June, but not finalised until November of that year. Fardon was hence detained after his prison sentence had expired.
Fardon argued the legislation conferred non-judicial power to the Supreme Court (per Kable).
Decision
A majority (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ) found the law valid. They held that a higher onus of proof on the Attorney-General was required in this case than the one in Kable i.e. high cogent evidence that the prisoner is a danger to the community. There was nothing in the Queensland Act which might lead a reasonable person to believe that a resident of Queensland would perceive the court to be a non-partial tribunal. The Act was to protect the community rather than to punish an individual.The ordering of a detention order was valid within the exercise of judicial power. The court held that courts in general should be vigilant that the continual detention provisions were not extended for arbitrary periods. Gummow J noted that the detention orders were compatible with federal judicial power.
In dissent, Kirby J thought the law was invalid. He looked to the substance of the law rather than intention. It was evidently a punitive law, offending the principles of double jeopardy and retrospective punishment.
Subsequent developments
The Supreme Court of QueenslandSupreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
indicated in September 2006 that Fardon should be released, and later ordered his release, imposing strict conditions for ongoing supervision until 2016. Fardon was due for release on 9 November 2006, but the Queensland Government
Government of Queensland
The Government of Queensland is commonly known as the "Queensland Government".The form of the Government of Queensland is prescribed in its Constitution, which dates from 1859, although it has been amended many times since then...
immediately appealed the decision. The appeal was heard by the Court of Appeal
Supreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
on 10 November 2006 and Fardon remained imprisoned while the court's decision is reserved.
Upon his release, Fardon breached the terms of his supervision order and was arrested in July 2007. He was released again in November 2007
In May 2008 Fardon was once again arrested and returned to prison.
See also
- Australian constitutional lawAustralian constitutional lawAustralian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
- Kable v Director of Public Prosecutions (NSW)