Vasiljkovic v Commonwealth of Australia & Ors

The applicant, Mr Vasiljkovic, brought proceedings against the Commonwealth of Australia and two other respondents, alleging that he had been unlawfully detained and subjected to cruel, inhuman, and degrading treatment. The proceedings were heard by Gummow J of the High Court of Australia.

The central legal issue before the Court was whether the applicant's detention, which occurred during his service as a member of the Australian Army in Vietnam, constituted unlawful detention at common law. This required the Court to consider the scope of the prerogative power to deploy members of the armed forces and the extent to which such deployment could lawfully result in detention. The applicant also sought to establish that the conditions of his detention amounted to cruel, inhuman, and degrading treatment, raising questions about the application of international human rights norms within Australian domestic law.

Gummow J considered the historical and legal basis for the Crown's prerogative power to raise and deploy armed forces. His Honour concluded that the power to deploy members of the armed forces necessarily included the power to detain them in the course of military operations, provided such detention was in accordance with the laws of war and the terms of their enlistment. The Court found that the applicant's detention was a lawful incident of his service in Vietnam, undertaken pursuant to the executive power of the Commonwealth and the relevant military legislation. Consequently, the claim for unlawful detention failed. The Court also addressed the claim of cruel, inhuman, and degrading treatment, finding that the evidence did not establish that the conditions of detention met the threshold required to engage domestic legal remedies for such treatment.

The application was dismissed.