Fardon v Attorney-General (Qld)
High Court of Australia · 2004
Fardon v Attorney-General (Qld) [2004] HCA 46
A prisoner's sentence for rape and sodomy had expired. A new Queensland law let the Supreme Court keep him in prison because of what he might do. Did that ask too much of a state court?
In Minister for Home Affairs v Benbrika the High Court upheld Div 105A of the Criminal Code (Cth), which lets a State or Territory Supreme Court order the continuing detention of a terrorist offender at the end of a sentence; Gageler J would have held it invalid in part and Gordon J in whole. Kiefel CJ, Bell, Keane and Steward JJ noted that Gummow J had been the only member of the Court to express a concluded view on the Commonwealth's submission in Fardon, observed that his Honour had not explained why an appropriately tailored scheme for protecting the community from harm could not fall within an exception analogous to detention for mental illness, and held that the protective purpose is what qualifies such a power as an exception. Gummow J's rejection of the Commonwealth's argument in Fardon is therefore a view of one Justice (with Kirby J agreeing) that the later decision did not follow, and a federal scheme of this kind has since been upheld. Later High Court decisions have discussed Benbrika without overruling it: in EGH19 v Commonwealth of Australia [2026] HCA 7 Gageler CJ and Gleeson J described Benbrika and Thomas v Mowbray as the two cases in which a Commonwealth law authorising preventive restrictions on liberty outside the usual judicial paradigm had been held reasonably capable of being seen as necessary for a legitimate non-punitive purpose ([24]), and Steward J, who was in the Benbrika joint reasons, said that it, whilst not formally overruled, would now appear to have been effectively diluted, or at least re-explained ([225]). Benbrika does not alter what Fardon decided about the Queensland Act.
What happened?
Robert John Fardon was sentenced in the Supreme Court of Queensland on 30 June 1989 to 14 years' imprisonment for rape, sodomy and assault ([46], [26]). That sentence expired on or about 30 June 2003 ([26]). The Dangerous Prisoners (Sexual Offenders) Act 2003 (Q) came into force on 6 June 2003, and on 17 June 2003 the Attorney-General of Queensland applied for an order that he be detained for an indefinite period under s 13 ([27]). Interim detention orders under s 8 kept him in custody, the first made by Muir J on 27 June 2003 ([27], [53]). The Court of Appeal (de Jersey CJ and Williams JA, McMurdo P dissenting) dismissed his appeal against that interim order and upheld the Act's validity ([28]).
On 6 November 2003 White J ordered that he be detained in custody for an indefinite term ([55]), finding that there was an unacceptable risk that he would commit a serious sexual offence if released ([30]). This Court had granted special leave to appeal from the Court of Appeal's decision on the interim order, and on 18 December 2003 removed into itself so much of the pending appeal against White J's order as raised the validity of s 13 ([31], [56]). Section 13 allowed the Supreme Court to order continuing detention or supervised release only if satisfied that the prisoner was a serious danger to the community, which required an unacceptable risk of a serious sexual offence, by acceptable, cogent evidence and to a high degree of probability ([6], [59], [96]).
What did the Court decide?
The appeal concerning the interim order was dismissed. In the removed cause the Court declared that s 13 is not beyond the legislative power of Queensland and remitted the remaining issues to the Court of Appeal (orders; [24], [119]-[120], [195]). Six Justices (Gleeson CJ, McHugh J, Gummow J, Hayne J, and Callinan and Heydon JJ in joint reasons) reached that result; Kirby J would have allowed the appeal, declared the Act invalid and ordered Mr Fardon's release ([193]).
Proposition
What is the principle?
Section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), which empowered the Supreme Court of Queensland to order the continuing detention of a prisoner at the end of a sentence for a serious sexual offence, did not impair the Court's institutional integrity, so the Act was not invalid under the Kable principle; Kirby J dissented. Gleeson CJ treated the Act as "a general law authorising the preventive detention of a prisoner in the interests of community protection" which empowered the Court to act consistently with its judicial character ([19]), and found no foundation for the argument unless something inherent in preventive, as distinct from punitive, detention compromised institutional integrity ([20]). Gummow J, with whom Hayne J agreed subject to the reservation noted in the second proposition ([196], [198]), held that public confidence is an indicator but not the touchstone of invalidity, which concerns institutional integrity ([102]). His Honour concluded that no impairment was established, from a combination of considerations: a connection to a prior conviction through the definition of "prisoner" ([108], [114]), annual review in which the Court must again be satisfied to a high degree of probability ([110]-[113]), a judicial process of the kind Gaudron J had described, with a standard of satisfaction suited to a deprivation of liberty ([115]), and performance of the Court's functions independently of the legislature and executive ([116]-[117]). His Honour also said that a different legislative choice of trigger may well have imperilled validity ([108]). McHugh J held that the Act was not directed at a particular person and that the Court was exercising judicial power with a discretion, among other differences from the Kable legislation ([34]), and that nothing in the Act gave ground for supposing the Court's institutional integrity was compromised ([35]); his Honour agreed with Gummow J's orders ([45]). Callinan and Heydon JJ characterised the Act as protective rather than punitive ([217]), found the traditional hallmarks of judicial forms and procedure ([220]-[232]) and concluded that the Court did not exercise power inconsistent with its function under Chapter III ([234]). Kirby J, dissenting, identified five features which combined indicated an attempted imposition of functions repugnant to Chapter III as explained in Kable ([148]), and would have declared the Act invalid ([193]).
Whether the Commonwealth Parliament could validly confer the same function on a federal court did not decide the Kable question, and the Justices differed on how far it mattered. Gummow J rejected the submission of the Attorney-General of the Commonwealth that the Act was valid because Parliament could confer s 13's function on a Ch III court ([68]-[69]), preferring the formulation that, the exceptional cases aside, involuntary detention of a citizen by the State is permissible only as a consequential step in the adjudication of criminal guilt for past acts ([80]); but his Honour held that the outcome's being unobtainable in federal jurisdiction could not itself dictate repugnancy and invalidity ([106]), and he found none ([117]). Hayne J reserved his opinion on whether federal legislation along the lines of the Act would be invalid ([196]-[197]). Callinan and Heydon JJ said that the federal comparison is useful but not the exclusive test of validity ([219]). Gleeson CJ found it unnecessary to decide whether the federal Parliament could enact a comparable law ([18]). Kirby J agreed with Gummow J's rejection of the Commonwealth's argument ([145]).
Why does this case matter?
Fardon is the case an examiner sets beside Kable. A problem about a State scheme that keeps someone in custody after a sentence, or that hands a court an unfamiliar task, tests whether the student can compare a particular scheme with what a court is ordinarily asked to do, rather than reach for a label. Two answers go wrong: one reads Kable as having ruled out schemes of preventive detention, and the other reads Fardon as having cleared every scheme that looks like Queensland's. The Justices in the majority also reasoned differently from one another, which affects how an answer should attribute a formulation.
Exam and application relevance
Start from the features of the scheme in the problem: who it applies to, what links it to an earlier conviction, the standard and onus of proof, the rules of evidence, the discretion given to the court, the giving of reasons, review and appeal. Gummow J described a combination of considerations in this scheme ([108]-[117]) and said that repugnancy and incompatibility are not capable of definition in terms which necessarily dictate future outcomes ([104]), so compare the features in the problem with those the Court weighed, and say where they differ. Where the problem turns on whether a federal law could do the same, keep the Justices' positions apart: the Court did not speak with one voice on that question, and Benbrika, decided later, bears on how far Gummow J's view can be relied on.
Check your understanding
1. Gummow J treated public confidence in the courts as an indicator and not the touchstone ([102]). What did he say the touchstone concerns? 2. Which Justice dissented, and what did he say the five features of the Act indicated when combined ([148])? 3. Gummow J said that a legislative choice of a different trigger than the status of "prisoner" may well have imperilled the validity of s 13 ([108]). What was the connection to an earlier conviction that he relied on there?