Vasiljkovic v Commonwealth of Australia [2006] HCA 40 Date of Order: 15 June 2006 Date of Publication of Reasons: 3 August 2006 C3/2006
ORDER
1.The questions stated by the parties in the Special Case for the opinion of the Full Court are answered as follows:
(a)Q. Is Part II of the Extradition Act 1988 (Cth) invalid to the extent, if any, to which it purports to confer a power to deprive an Australian citizen of liberty otherwise than in the exercise of the judicial power of the Commonwealth?
A. No.
(b)Q. Is Part II of the Extradition Act 1988 (Cth) read together with the Extradition (Croatia) Regulations 2004 (Cth) invalid to the extent to which it purports to confer a power to deprive an Australian citizen of liberty otherwise than upon a finding that there exists a prima facie case against that person of the commission of the offences alleged by the State requesting extradition?
A. No.
(c)Q. Is regulation 4 of the Extradition (Croatia) Regulations 2004 (Cth) invalid because it was not made pursuant to the power conferred by s 51(xxix) of the Constitution or any other legislative power of the Commonwealth?
A. No.
2. The costs of the Special Case be costs in the action.
Representation
T E F Hughes QC with K P Smark for the plaintiff (instructed by Albert A Macri Partners)
H C Burmester QC with J G Renwick for the first and second defendants (instructed by Australian Government Solicitor)
Submitting appearance for the third defendant
Submitting appearance for the fourth defendant
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Vasiljkovic v Commonwealth of Australia
Extradition – Plaintiff remanded in custody pending determination of eligibility for surrender – Arrest warrant for plaintiff in force in Croatia on charge of certain war crimes – Arrest warrant constitutes relevant "supporting documentation" for purposes of s 19 of the Extradition Act 1988 (Cth) – Statement made by Croatian investigating authorities of a well-founded suspicion that plaintiff committed the offences alleged, including recitation of evidence provided by witnesses – Croatia declared to be an "extradition country" by Extradition (Croatia) Regulations 2004 (Cth), regs 3, 4 – Whether Pt II of the Extradition Act is a valid law of the Commonwealth.
Constitutional law (Cth) – Judicial power of the Commonwealth – Plaintiff detained pending determination of eligibility for surrender – Extradition Act, s 19(1) provided power of an administrative nature to conduct proceedings to determine eligibility for surrender – Extradition Act, s 19(5) provided that the person to whom the proceedings relate is not entitled to adduce evidence to contradict allegations that the person has engaged in the conduct constituting an extradition offence – No prima facie evidence requirement applicable – Whether Pt II of the Extradition Act is invalid to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Vasiljkovic v Commonwealth
Sign in free to access the full text
Details
AGLC
Vasiljkovic v Commonwealth [2006] HCA 40
Case
[2006] HCA 40
Decision Date
CaseChat Overview and Summary
The case of *Vasiljkovic v Commonwealth of Australia* was heard by the Full Court of the High Court of Australia. The plaintiff, Mr. Vasiljkovic, was seeking to challenge his detention pending the determination of his eligibility for surrender to Croatia, where he faced charges of war crimes. The core of the dispute concerned the validity of Part II of the *Extradition Act 1988* (Cth) and the *Extradition (Croatia) Regulations 2004* (Cth), which provided for his potential surrender.
The legal issues before the Court included whether Part II of the *Extradition Act* was invalid to the extent that it purported to confer a power to deprive an Australian citizen of liberty otherwise than through the exercise of the judicial power of the Commonwealth. Additionally, the Court considered whether Part II, read with the *Extradition (Croatia) Regulations*, was invalid for authorising such deprivation of liberty without a finding of a prima facie case against the plaintiff. A further question was whether the *Extradition (Croatia) Regulations* were invalid for not being made pursuant to a valid legislative power, specifically s 51(xxix) of the Constitution (external affairs power), given that no treaty existed between Australia and Croatia.
The Court reasoned that Part II of the *Extradition Act* conferred administrative power to conduct proceedings to determine eligibility for surrender, and this did not offend the separation of powers principle under Chapter III of the Constitution. The Court rejected the plaintiff's submission that proportionality was a relevant consideration in determining the validity of the legislation under the external affairs power, distinguishing it from contexts involving human rights limitations. The Court found that the legislation was a rational method of pursuing Australia's international relations and that the absence of a prima facie evidence requirement did not render it invalid. The Court also held that the *Extradition (Croatia) Regulations* were a valid exercise of the external affairs power, even in the absence of a treaty, as they facilitated Australia's participation in international cooperation on criminal matters.
The Court answered the questions stated in the Special Case in the negative. It held that Part II of the *Extradition Act* was not invalid for purporting to confer a power to deprive an Australian citizen of liberty otherwise than in the exercise of judicial power, nor was it invalid when read with the *Extradition (Croatia) Regulations* for lacking a prima facie case requirement. Furthermore, regulation 4 of the *Extradition (Croatia) Regulations* was found to be validly made pursuant to the Commonwealth's legislative powers. The costs of the Special Case were to be costs in the action.
Orders
Orders of the court
1. The questions stated by the parties in the Special Case for the opinion of the Full Court are answered as follows: (a) Q. Is Part II of the Extradition Act 1988 (Cth) invalid to the extent, if any, to which it purports to confer a power to deprive an Australian citizen of liberty otherwise than in the exercise of the judicial power of the Commonwealth? A. No. (b) Q. Is Part II of the Extradition Act 1988 (Cth) read together with the Extradition (Croatia) Regulations 2004 (Cth) invalid to the extent to which it purports to confer a power to deprive an Australian citizen of liberty otherwise than upon a finding that there exists a prima facie case against that person of the commission of the offences alleged by the State requesting extradition? A. No. (c) Q. Is regulation 4 of the Extradition (Croatia) Regulations 2004 (Cth) invalid because it was not made pursuant to the power conferred by s 51(xxix) of the Constitution or any other legislative power of the Commonwealth? A. No. 2. The costs of the Special Case be costs in the action.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW AND HAYNE JJ
HEYDON J
The submissions of the plaintiff invoked the concept of proportionality. In Mulholland v Australian Electoral Commission[33] I referred to the danger that use of that concept might bring with it considerations relevant only to a different constitutional context. In considering whether Pt II of the Act is a valid exercise of the power to make laws with respect to external affairs, because that conferral of power is subject to the Constitution there is a question whether the legislation offends the principle of separation of powers enshrined in the Constitution. It is not easy to see what proportionality has to do with that. Once that question is decided against the plaintiff (as, for the reasons already given, it should be) then what remains is essentially an issue of characterisation. In an appropriate constitutional context, as explained in Mulholland, proportionality may require a judgment as to whether a law which limits a fundamental right does so by means which are no more than is necessary to accomplish a legislative objective which is sufficiently important to justify limiting the constitutional right. The most familiar context in which such a judgment is required is that of human rights protections which permit restrictions of fundamental rights and freedoms provided they are demonstrably justified in a free and democratic society. That is a long way removed from the task that confronts this Court in deciding whether Pt II of the Act is a law with respect to external affairs. It cannot be denied that the law is a rational method of pursuing Australia's international relations. In a context such as the present, inappropriate use of the concept of proportionality may amount to an invitation to the judicial branch of government to impose its own ideas of policy upon the legislature. The separation of powers works in more than one direction. It prevents the legislature and the executive from exercising judicial power. It also prevents the judiciary from exercising legislative power. Where, as here, the legislation is so obviously with respect to external affairs, and where it offends no express or implied provision of the Constitution, a conclusion that the legislation is not the method of dealing with extradition that has the least impact on human rights does not result in invalidity. It is possible to design alternative systems of extradition that are more protective of human rights. The existing prima facie evidence requirement, in those cases where it applies, may itself be deficient in that regard. That, however, is not the test of legislative validity. If proportionality does not have the meaning referred to above, but is no more than another way of asking whether the law is capable of being regarded as appropriate and adapted to the end of pursuing Australia's international relations, then it does not assist the plaintiff.[33](2004) 220 CLR 181 at 200 [39].Conclusion For these reasons I joined in the order made on 15 June 2006. The Special Case asks nothing about costs, which will be for the Justice dealing with the action to decide.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW AND HAYNE JJ,
HEYDON J