Vasiljkovic v Commonwealth

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.