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The matter before the Court concerned the application of the Dangerous Prisoners (Sexual Offences) Act 2003. The respondent, Mr Fardon had successfully applied for an order releasing him from continuing detention subject to an order imposing conditions under the Act. Although it was slightly irregular the Court of Appeal also considered the validity of the Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 which amended the Criminal Law Amendment Act and which afforded to the Governor in Council the power to detain Mr Fardon despite an order of the Court releasing him. The effect of the amending legislation was challenged on the basis of the Kable principles to the effect that State Legislatures may not confer on the State Courts powers which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth; that is, the power conferred cannot be repugnant to or incompatible with the institutional integrity of the State Court in its position in the Australian Legal System. The Court applied its reasoning from the decision in Attorney-General v Lawrence  QCA 364 (see below) in holding that the legislation was invalid because it contravened the Kable principles. As to the question of whether or not Mr Fardon should be on supervised liberty pursuant to the provisions of the DPSOA, the Court noted:
• The Attorney-General carries the onus of establishing the proportions of the risk that a relevant person will reoffend and that this has the consequence that any imprecision in the evidence from the expert psychiatrists will adversely affect the Attorney’s case;
• That the learned judge at first instance had correctly identified that the paramount consideration was ensuring the adequate protection of the community.
• In considering the risk of reoffending in the future it was appropriate for the judge at first instance to take into account the nature of the offending which Mr Fardon had committed in the past.
• That in assessing the risk for the purposes of determining whether or not a supervision order can manage adequate protection of the community, the Act does not require that the arrangements to manage that risk are watertight.