The statutory test for release under s 18(5)(b) of the Criminal Law Amendment Act 1945 (Qld) requires the Governor in Council to address whether the detainee is presently incapable of properly controlling his sexual instincts. The onus is on the Executive to establish that incapacity. A decision that instead focuses on whether release would be attended by risk, or on the absence of compulsory supervision mechanisms, misconstrues the statute and is void for excess of jurisdiction. Considerations about predictions of future behaviour and notions of 'unacceptable risk' must not be conflated with the statutory criterion of present incapacity.
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