Fardon v Attorney-General for the State of Queensland

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Citation: Fardon v Attorney-General for the State of Queensland [2004] HCA 46.

This information can be found in the textbook, [1] pp 223-229.


Background Facts

  • The Queensland Parliament passed the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) . This act provided that in certain situations, even after having served their time, sexual offenders should be under continuing detention orders as they are serious danger to the community
  • Fardon was sentenced to 14 years imprisonment for rape, sodomy and assault in 1989. Shortly before his release, the act was passed.
  • Section 13 of the act was the provision whose validity was being challenged.

Legal issues


Gummow J:

  • States that “the appellant contends that the act displays the same or like characteristics to those of the Community Protection Act 1994 (NSW) that were held invalid in Kable.
  • Regarding Chapter III of the Constitution: The submissions of the Attorney-General contends that s13 of the act does not fall beyond the limit established by Kable.
    • The making by the supreme court of a continuing detention order under s13 is conditioned upon a finding, not that the person has engaged in conduct which is forbidden by law, but that there is an unacceptable risk that the person will commit a serious sexual offence
    • His honour says he would prefer a formulation of the principle derived from Ch III in terms that, the ‘exceptional cases’ aside, the involuntary detention of a citizen in custody by the state is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.
  • Comparing with Kable: this case is different from Kable as it was a combination of features including apparent legislative plan to constrict the NSWSC to procure the imprisonment of the appellant by a process which departed in serious respects from the usual judicial process.
  • Ths his honour concludes that s13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) is not beyond the legislative power of the state of Queensland.

Gleeson CJ, McHugh , Hayne and Callinan and Heydon JJ agreed with Gummow J that the appeal should be dismissed and the act left in place.

Kirby J (dissenting):

  • Agrees with Gummow that the argument that the act did not offend the principal in Kable should be rejected.
  • In Australia, the involuntary detention of a person in custody by any agency of the states is viewed as penal or punitive in character. A law providing for the deprivation of the liberty of an individual will be classified as punitive.
  • Civil commitment to prison of persons who have not been convicted of a crime is inconsistent with and repugnant to, the exercise of the judicial power as envisaged by the Constitution.
    • “Whilst it is true that the act does not single out an individual for continued detention (as it does for Kable) it is still inconsistent with the traditional judicial process”
  • The imposition of such functions on a state court is offensive to the basic notions of the judicial power contained in Chapter III of the Constitution of the Commonwealth, it follows that the provisions of the act are invalid and the provisions cannot be severed.


  1. Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).
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