1. These arguments were only accepted by Justice Kirby. SeeFardon v Attorney-General(for the State of Queensland), [2004] HCA 46.
2. On June 17, 2003 the Queensland Attorney-General filed an Originating Application under section 5 of the 2003 Act for an order that the Appellant be detained in custody for an indefinite period pursuant to s. 13 of the Act. On June 27, 2003, Muir J ordered the interim detention of the respondent until 4.00 pm on August 4, 2003. This date was extended to October 3, 2003 by Philippides J and on October 2, 2003 Atkinson J extended the interim detention of the Appellant until further order. On July 9, 2003 Muir J of the Supreme Court of Queensland held that s. 8 of the Act was constitutionally valid(Attorney-General (Q) v Fardon[2003] QSC 200). On September 23, 2003 the Court of Appeal of Queensland (De Jersey CJ and Williams JA; McMurdo P dissenting) held that ss. 8 and 13 of the 2003 Act were constitutionally valid(Fardon v Attorney-General (Q)[2003] QCA 416). On October 27, 28, 29 and 30, 2003 White J sitting in the Supreme Court of Queensland heard the respondent's application for an order that the appellant be detained in prison for an indefinite term under section 13 of 2003 Act and on November 6, 2003, White J ordered that the appellant be detained in custody for an indefinite term pursuant to the 2003 Act ([2003] QSC 379). Since June 17, 2003 the respondent has made several other applications pursuant to s. 5 of the Act (notably,Attorney-General (Q) v Watego[2003] QSC 367 (appeal dismissed) andAttorney-General (Q) v Nash[2003] QSC 377).
3. (1996) 189 CLR 51. In this case, Mr Kable had stabbed his wife to death and was imprisoned for manslaughter on the basis that, at the time of the stabbing, he could only be held to a standard of diminished responsibility due to steroid abuse. While he was in prison, Kable sent threatening letters to a number of people, including relatives of his deceased wife. In December 1994, the New South Wales Parliament enacted the Community Protection Act, which conferred jurisdiction on the Supreme Court of New South Wales to make ?preventive detention orders? to keep a person in prison for a specified period of time to undergo psychiatric evaluation in the event the Court was satisfied that the person was more likely than not to commit an act of serious violence and that it is appropriate for the protection of the community that such a person continue to be held in custody. The object of the Act was ?to protect the community by providing for the preventive detention ?of Gregory Wayne Kable?. Kable challenged the constitutional validity of the state law on a number of grounds (see further Keyzer, P., Constitutional Law, Butterworths: Sydney, 1998, paragraph [3.1.12], including that the law was inconsistent with the requirements of Chapter III of the Commonwealth Constitution. The legislation removed the ordinary protections inherent in the judicial process by stating that its object was the preventive detention of the appellant, by removing the need to prove guilt beyond reasonable doubt, and by enabling the legislature to employ the Supreme Court to execute the legislature's determination that the appellant be deprived of his liberty: see further Gaudron J at 107, McHugh J at 122, Gummow J at 131.
4. Re Wakim; Ex p McNally(1999) 198 CLR 511 at 597 per Gummow and Hayne JJ, with whom Gleeson CJ (542?544) and Gaudron J (546) agreed.
5. The Commonwealth v Queensland(1975) 134 CLR 298 at 315 per Gibbs J, with whom Barwick CJ agreed at 303;Kable v Director of Public Prosecutions (NSW)(1996) 189 CLR 51 at 98?99, 102, 115?116, 143.