Fardon v Attorney-General (Qld) (2004) (‘Fardon’)210 ALR 50.
2.
The Victorian Parliament passed a similar law in 1990 to deal with an habitual violent offender, Gary David, the Community Protection Act 1990.
3.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (TooheyMcHughGaudronGummowJJ) (BrennanCJDawsonJ dissenting).
4.
Following Clyne v East (1967) 68 SR (NSW) 385 and Builders' Labourers' Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372.
5.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 108.
6.
Ibid106–7.
7.
Ibid107.
8.
Ibid108
9.
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3.
10.
Schedule to the Queensland Act.
11.
This includes any other medical, psychiatric or psychological or other assessment relating to the prisoner, any evidence of a propensity on the offender's part towards violent behaviour, any pattern of violent behaviour, whether the offender has undergone rehabilitation while in prison, the prisoner's criminal history, the risk of re-offending, the need for community protection, and any other relevant matter (s 13(4) of the Queensland Act).
12.
Baker v R (2004) 210 ALR 1, 17.
13.
'Fardon, 52–3.
14.
It is true also the NSW proceedings were declared to be civil in nature, while the Queensland proceedings are not described as civil or criminal. The New South Wales Act applied whether or not the offender was incarcerated at the time of the application; the Queensland Act applies only to those incarcerated at the time of the application, and any offenders who are incarcerated after the law is passed.
15.
Fardon, 61.
16.
CallinanHeydonJJ agreed that the purpose of the detention here was for ‘community protection and not punishment’. Fardon109.
17.
Fardon, 80.
18.
His Honour also noted that an appeal against a decision of the Supreme Court was possible in the Fardon law; he did not refer to the fact that an appeal was also possible in the Community Protection Act 1994 (NSW), which he had found to be unconstitutional.
19.
GummowJ also emphasised that the offender might appeal an adverse finding against him, but did not acknowledge that the possibility existed also in the NSW Act that he found to be unconstitutional in Kable.
20.
Fardon, 95.
21.
Fardon, 95.
22.
Fardon, 88.
23.
Fardon,101–2. Kirby J did not suggest that the Queensland Act was being used for political purposes.
24.
The Veen case involved a convicted killer who was released from prison, only to kill further victims: Veen v The Queen (1979) 143 CLR 458.
25.
Fardon, 55.
26.
WarnerKate, ‘Sentencing Review 2002–2003’ (2003) 27Criminal Law Journal325, 338; Fardon, 83; see DouglasKevinOgloffJames, ‘Multiple Facets of Risk for Violence: The Impact of Judgmental Specificity on Structured Decisions About Violence Risk’ (2003) 2International Journal of Forensic Mental Health19–34; OgloffJamesDavisMichael, ‘Advances in Offender Assessment and Rehabilitation: Contributions of the Risk-Needs-Responsivity Approach’ (2004) Psychology, Crime and Law229–42.
27.
DouglasKevin, ‘Assessing Risk for Violence Among Psychiatric Patients: The HCR-20 Violence Risk Assessment Scheme and the Psychopathy Checklist: Screening Version’ (1999) 67Journal of Consulting and Clinical Psychology917, 923.
28.
Others believe the failure rate is much higher.
29.
This is assuming, of course, that he was in fact threatening violence. The issue of the accuracy of the evidence on which an assessment is made about a person's likely future dangerousness is another concern. It is possible that, for example, a prison guard with a grudge against an inmate may claim wrongly that the inmate threatened future violence. This evidence might be used to support an application for that inmate's future indefinite detention. Similarly, a prison guard may make this claim in order to secure an advantage over an inmate.
