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Morrell, Sascha --- "Vasiljkovic v Commonwealth of Australia" [2007] SydLawRw 12; (2007) 29(2) Sydney Law Review 321


Vasiljkovic v Commonwealth of Australia

SASCHA MORRELL [1]

Abstract

This case note examines the High Court ruling in Vasiljkovic v Commonwealth of Australia [2006] HCA 40; (2006) 228 ALR 447, in which the court ruled on the constitutionality of detaining an Australian citizen for the purposes of criminal extradition where an Australian court has not examined the sufficiency of the evidence supporting an extradition request. The Vasiljkovic majority found that this “no evidence” model of extradition detention was constitutionally valid, and not inconsistent with the separation of powers requirements embodied in the text and structure of Australia's Constitution. This case note outlines and critiques the majority reasoning in light of the separation of powers doctrine and Kirby J’s dissenting arguments, and suggests that the ruling reflects a recent trend in the High Court towards excessive formalism and deference in interpreting the scope of constitutional limitations on the executive and legislative power of the Commonwealth. It also briefly considers the Court’s less controversial, unanimous ruling in the same case that because of the wide ambit of s 51(xxix) of the Constitution (the external affairs power), the Commonwealth has power to legislate for the detention of citizens subject to extradition requests even if Australia does not have an extradition treaty with the requesting state.

Introduction

In Vasiljkovic v Commonwealth of Australia [2006] HCA 40; (2006) 228 ALR 447 (‘Vasiljkovic’), a majority of the High Court accepted that a naturalised Australian citizen could, consistent with separation of powers requirements, be detained without a judicial order and be extradited on a ‘no evidence’ model of extradition. The court was asked to deliver its opinion on three constitutional questions. The first was whether Part II of the Extradition Act 1988 (Cth) (‘the Act’) was invalid in purporting to confer the power to detain an Australian citizen otherwise than in the exercise of the judicial power of the Commonwealth (‘the extra-judicial detention question’). The second was whether the legislation was invalid in purporting to authorise the detention and extradition of an Australian citizen without a state requesting extradition having to provide evidence to establish a prima facie case against that person (‘the “no evidence” question’). The third was whether reg 4 of the Extradition (Croatia) Regulations 2004 (Cth) (‘the Regulations’) was invalid for being outside the scope of the Commonwealth’s external affairs power under s 51(xxix) of the Constitution because the Regulations were not made pursuant to an extradition treaty with Croatia (‘the external affairs question’). The majority answered all three questions in the negative. Kirby J, dissenting, answered the first question in the affirmative, and would also have answered the second in the affirmative. This case note examines the majority position and suggests its flaws with reference to Kirby J’s dissenting view and broader commentary on the issue of extra-judicial detention. In particular, it presents the majority reasoning as excessively formalistic in its disregard for well-established constitutional doctrines — the separation of powers and the rule of law — from which relevant limitations on government power could readily have been, and should have been, implied.

1. The Facts and Legislative Background

Dragan Vasiljkovic, a naturalised Australian citizen, sought a writ of habeas corpus from the High Court in its original jurisdiction after he was arrested on a provisional arrest warrant issued by an Australian magistrate under s 12 of the Act and remanded in custody under s 15. Bail was refused. The warrant was issued after the magistrate determined Vasiljkovic to be an ‘extraditable person’, defined in s 6 as a person against whom an ‘extradition country’ (in this case, Croatia) has issued an arrest warrant for an extraditable offence (in this case, war crimes allegedly committed in the Serbian-Croatian conflict in 1991 and 1993). The Regulations declared Croatia to be an ‘extradition country’ although Australia had no extradition treaty with Croatia.[2] After arrest and remand, Vasiljkovic’s ‘eligibility for surrender’ was required to be determined by a magistrate under s 19 of the Act. It was common ground between the parties that, in issuing provisional warrants and making eligibility determinations under the Act, magistrates do not exercise the judicial power of the Commonwealth but act in an administrative capacity as persona designata.[3] Accordingly, Vasiljkovic’s arrest and continuing detention had thus far been imposed extra-judicially.

In determining a person’s eligibility for surrender, s 19 of the Act limits magistrates to considering whether:

This was the stage reached in Vasiljkovic’s case. Once an eligibility determination was made, it would have been for the Attorney-General to decide under s 22 whether to surrender Vasiljkovic. Such a decision would have had regard to extradition objections, the possibility of torture or the death penalty being imposed, whether Croatia had given a speciality assurance, and any other issues. It is to be noted that the Attorney-General has a general discretion under s 22(3)(f) to refuse extradition.

The war crimes alleged against Vasiljkovic (as outlined in the Croatian court decision annexed to the Croatian warrant) included the torture of prisoners of war, attacks on churches and schools, and wrongs to civilians and their property.[6] As Kirby J observed in his Vasiljkovic dissent, ‘ “no evidence”, attributed to identified witnesses, sworn, affirmed or otherwise formally taken, was provided to support the accusations’,[7] nor did the Australian legislation require that such evidence be produced.[8] The Act does not allow for a magistrate to consider the evidentiary basis for the allegations made by a requesting state — indeed, s 19(5) of the Act expressly precludes magistrates from receiving evidence to contradict the allegations. In 1988, this ‘no evidence’ extradition model became Australia’s default scheme for future treaties and regulations.[9] As Kirby J noted, this extradition model permits persons to be extradited from Australia by agreement between governments based on unsupported assertions.[10] Formerly, Australia required all requesting states to satisfy a prima facie evidence test by providing evidence sufficient to justify the extraditee’s committal for trial had the alleged conduct been committed in Australia.[11] This system had been criticised for creating difficulties for civil law countries unfamiliar with pre-trial evidence procedures, and for allowing offenders to evade justice based on technical grounds rather than the merits of their case.[12] However, pursuant to treaty obligations, Australia’s extradition arrangements with some countries maintain a reciprocal requirement of showing a prima facie case against the accused. Somewhat incongruously, Australia imposes a stricter evidentiary standard on common law countries seeking extradition than on civil law countries such as Croatia,[13] owing to the retention of the prima facie evidence test or similar tests in the extradition law of Australia’s common law extradition partners.[14]

2. The Decision

A. The Extra-judicial Detention Question

Vasiljkovic contended that his detention under a legislative scheme which failed to provide for judicial examination of the evidentiary basis of the charges alleged against him was invalid, breaching the constitutional principle that an Australian citizen cannot be involuntarily detained except through the exercise of the judicial power of the Commonwealth.[15] Based on the constitutional separation of powers, the majority should have accepted this argument.

The power to make laws with respect to external affairs under s 51(xxix) of the Constitution (the external affairs power) is, like all Commonwealth heads of legislative power, expressed to be ‘subject to [the] Constitution’ and, thus, to the separation of judicial power from the legislative and executive powers in Ch III. [Emphasis added]. Parliament cannot make laws under s 51 that purport to confer judicial power on the executive. Traditionally, courts have treated the power to authorise involuntary detention as belonging exclusively to the judiciary as part of ‘the essential judicial function of adjudging and punishing criminal guilt’.[16] However, in Chu Kheng Lim,[17] the High Court recognised exceptions to this rule, including detention for quarantine or mental health purposes, detention pending criminal trial and a limited authority to detain aliens for the purpose of exclusion or removal under the aliens power (an exception expanded in subsequent cases).[18] The Vasiljkovic majority endorsed detention pending extradition as another exception, fulfilling the prophecy in Al-Kateb that ‘the categories of cases’ in which extra-judicial detention will be held constitutionally valid ‘may not be closed’.[19] Kirby J, by contrast, stressed that further expansion of the Lim exceptions would risk undermining the general rule against extra-judicial detention.[20] He rejected the analogy between extradition detention and detention without bail pending criminal trial based on the risk of flight, because detention pending trial is generally ‘subject to a substantive [court] order’ and thus to independent judicial supervision, unlike detention under the ‘no evidence’ extradition scheme.[21]

The majority’s ruling on this question reflects the excessively formalistic approach developed in recent migration detention cases, where successive High Court majorities have maintained the view that extra-judicial detention that carries some non-punitive purpose need not be classified as punitive and so will not usurp judicial power.[22] In finding that executive detention pending extradition did not usurp the judicial power of the Commonwealth in Vasiljkovic, the majority retained this focus on purpose, with Gleeson CJ repeatedly stressing that extradition detention is not punitive because it ‘involves no determination of guilt or innocence’ but ‘concerns a person who is accused of an offence against [a foreign law] whom Australia does not intend to bring to trial’.[23] Perversely, this focus suggests that extra-judicial detention, which has traditionally been treated as constitutional anathema, will be held constitutionally valid precisely because it is imposed without judicial warrant and/or where the subject has committed no offence.[24] Such reasoning flies in the face of the principle that judges should look to ‘substance and not mere form’ in enforcing the separation of powers.[25] A substantive approach, having regard to the rationales underlying the separation of powers doctrine, would have assisted Vasiljkovic for — as was noted in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[26] — the protection of individual liberty is one such rationale.[27]

Although there was no suggestion that there was any ulterior punitive motive for Vasiljkovic’s detention, the prevailing view that it is ‘the purpose of the law... that is the ‘yardstick’ for determining [whether it] is punitive in nature’[28] is open to abuse, enabling Parliament to expand executive powers to detain provided there is a non-punitive purpose on the face of the legislation.[29] The Vasiljkovic majority refused to depart from the ruling in Behrooz v Secretary of DIMIA[30] that, if the purpose of detention is not punitive, then it is irrelevant that such detention may be ‘no different from punishment’ in the severity of its effects.[31] Only Kirby J took the view that the conditions of detention are not irrelevant when assessing its constitutional validity. He accepted that:

to arrest [Vasiljkovic]; deprive him of his liberty for an extended period of time; remand him without bail; confine him during the entire process to a general prison; house him with convicted offenders; and contemplate sending him to a foreign country without ever affording him substantive access to the independent courts of Australia

was a course of action that must be characterised as punitive.[32] Notably, prior to Lim and Al-Kateb, the severe measure of depriving a person of their liberty, at least beyond a very short time, was viewed as punitive in itself.[33] Accordingly, in Vasiljkovic, Kirby J followed Gummow J in Fardon v Attorney-General (Qld)[34] and Al-Kateb to insist that it was misleading for the courts to focus on the ‘penal or punitive’ purpose of detention, and that the rule should instead be that, established exceptions aside, detention could only be imposed in the exercise of judicial power.[35] For Kirby J, however, it was not necessary that a court determine a person’s guilt or innocence before extradition detention was imposed, as the statement in Lim that citizens may only be detained under the exclusively judicial power of ‘adjudging and punishing criminal guilt’ would suggest.[36] Rather, Kirby J described a middle ground between this strict view and the majority view that extradition detention could be imposed on a purely administrative basis, asserting that such detention could not be imposed without some level of ‘substantive’ judicial involvement.[37] This, Kirby J maintained, was because the Commonwealth’s s 51 powers are expressed to be ‘subject to this Constitution’ and thus to judicial scrutiny; this guaranteed Vasiljkovic ‘a real right of access to the courts’ before he could be detained and extradited, which the limited scope for judicial review of eligibility and surrender determinations did not provide.[38]

Kirby J accepted Vasiljkovic’s argument that the ‘no evidence’ extradition scheme ‘failed to observe the proper place envisaged for the Judicature by the Constitution, in respect of governmental action that deprived a person of liberty’[39] and that extradition should not have been possible ‘until, lawfully, a judge had considered the evidence propounded against the plaintiff and determined that a case was established to warrant such a serious imposition upon his liberty.’[40] A full-scale trial involving witnesses was, for Kirby J, neither constitutionally necessary nor feasible; rather, by analogy with detention pending trial under Australian law, it was sufficient that a court be able to consider whether the prima facie evidence test was met for continued detention and surrender.[41] The mere involvement of a magistrate acting in an administrative capacity in issuing a provisional warrant and determining eligibility for surrender, subject to limited judicial review, was not enough to satisfy the requirement for a ‘a public, transparent hearing by someone independent of the Executive Government’.[42]

Gummow and Hayne JJ, by contrast, thought that any constitutional requirement of judicial involvement that might apply was discharged by s 21 of the Act, providing for judicial review of a magistrate’s eligibility determination by the Federal Court or a State or Territory Supreme Court.[43] Heydon J agreed, but reserved the question whether the detention would have been constitutionally valid had this minimal level of judicial oversight been absent.[44] Again, on this issue, the majority looked too much to form over substance in determining whether separation of powers requirements were met. Kirby J was rightly ‘unconvinced’ that the provision for judicial review of a magistrate’s decision was enough to ensure an ‘independent and impartial scrutiny’ of the extradition process, as a reviewing court would be confined to scrutinising the formal matters considered by the magistrate, not the sufficiency of evidence.[45] As outlined above, the issues a magistrate must consider under s 19(2) do not include a lack of evidence.[46]

More bizarrely, Gummow and Hayne JJ suggested that the Act did not contravene separation of powers requirements in authorising extradition detention without substantive judicial involvement, because extradition processes ‘stand outside Ch III [requirements], rather than as an exception to [their] application’. [47] This view is highly unsound; all legislative and executive powers are expressed to be ‘subject to this Constitution’ and thus to Ch III limitations, and recognising loophole areas of power that stand ‘outside’ such requirements seems to establish a dangerous precedent indeed. Axiomatically, no power can be constitutional if it is exercised ‘outside’ constitutional limits, regardless of whether its exercise is enlivened with a view to trial under foreign, rather than Australian, law. Such a loophole could potentially be abused by collusion between Australian and overseas governments seeking to detain persons without judicial oversight.[48]

In an alternative argument, Vasiljkovic invoked the statement in Lim that because the power to authorise detention is ordinarily to be characterised as exclusively judicial, it exists in exceptional cases only as an incident of the Commonwealth’s s 51 powers. Vasiljkovic contended that the incidental character of such power gave rise to a proportionality requirement that detention be ‘reasonably necessary or adapted’ to achieving a non-punitive legislative purpose.[49] The Act transgressed this in subjecting him to detention without judicial consideration of the sufficiency of evidence against him, and/or by permitting his detention regardless of his citizenship status. As in Al-Kateb, the Vasiljkovic majority rejected the idea that proportionality was relevant, with Gleeson CJ insisting that invoking proportionality in this context would risk transgressing the legality/merits distinction that limits judicial power.[50] Implicitly, the majority rejected the idea that the power of the Commonwealth to authorise extra-judicial detention is a merely incidental power.[51]

The narrow formalism with which the Vasiljkovic majority interpreted separation of powers limitations in disposing of the extra-judicial detention question exemplifies the ‘profound shift in the Court’s perception of its role in the protection of fundamental human rights’[52] and a confirmation that the development of implied limitations on government power is ‘no longer at the forefront of constitutional interpretation’.[53] The view that the Commonwealth can validly authorise the detention of individuals based on the unsubstantiated allegations of foreign governments and without judicial consideration of the sufficiency of supporting evidence is at odds with centuries of common law constitutional tradition. Australia has no express bill of rights establishing due process guarantees or safeguarding citizens against arbitrary detention, but such protections may readily be implied from our Constitution’s text and structure, in the rule of law and separation of powers doctrines it embodies.[54] As Kirby J has repeatedly emphasised, individual liberty is not only a fundamental human right under international law, but is also a core constitutional and common law value.[55] As was suggested above, the protection of individual liberty is acknowledged as one of the primary rationales underlying the separation of powers.[56] In Al-Kateb, Gummow J cited Scalia J on how, since the Magna Carta, ‘the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive’.[57]

The rule of law doctrine has also been interpreted as prohibiting, or limiting, detention without judicial oversight.[58] In his Al-Kateb dissent, Kirby J noted the incompatibility of detention on executive warrants with both ancient and contemporary notions of the rule of law,[59] and in Vasiljkovic he reiterated this position, describing extradition detention on a purely administrative basis as ‘offensive to the Australian Constitution[60] and the ‘libertarian constitutional imperatives normal to Australia’.[61] Australia’s ‘no evidence’ extradition model violates the rule of law norm that persons are entitled to due process, including a right to an independent judicial assessment of the facts supporting any allegation against them, before they may be subjected to detention.[62] The regrettable ruling of the Vasiljkovic majority exposes the need for the High Court to develop a more principled jurisprudence on separation of powers and rule of law requirements — one updated on a progressivist basis to reflect contemporary awareness of the need to protect individual rights, in which the High Court might have regard to developments in international human rights law as part of the context of constitutional interpretation.[63] Kirby J, for example, has suggested that international law prohibitions on ‘arbitrary detention’ reinforce rule of law requirements, strengthening the common law ‘presumption in favour of liberty’.[64] If the deferential, formalistic approach of the Vasiljkovic majority continues to dominate, there is a risk that other civil liberties protections formerly implied from the Constitution’s text and structure will be eroded.

It is particularly vital that separation of powers requirements be stringently enforced in the context of extradition detention. This is in light of the fact noted by Kirby J in his Vasiljkovic dissent and also by human rights bodies that ‘extradition countries’ presently declared in the Regulations include some with judicial systems whose independence, impartiality, competence and freedom from corruption is not assured, and some that are known to have ‘well-reported defects that fall short of international human rights standards’.[65] Parliament has not disallowed the executive’s arrangements with such countries.[66] More specifically, there have been concerns over the fairness of Croatian war crimes trials, with human rights bodies monitoring judicial corruption and evidence of systematic discrimination against Serbian defendants.[67] Although the fact that a person ‘may be prejudiced at his or her trial  ... by reason of his or her race, religion, nationality or political opinions’ is an ‘extradition objection’[68] to which magistrates are entitled to have regard under s 19(2)(d), it would be difficult to disprove the bona fides of allegations when a magistrate is not entitled to consider the sufficiency of supporting evidence, or any alibi.

The majority’s ruling on the extra-judicial detention question is also illustrative of the dearth of coherent jurisprudence on the nature of judicial power, and the need for the High Court to commit itself to clarifying the definition of exclusively legislative, executive and judicial functions.[69] Even Kirby J failed to clearly articulate a doctrinal basis for distinguishing between extradition detention as an impermissible instance of executive detention and the exceptions recognised in Lim (such as mental health and migration detention) that he implicitly upheld as valid. As abstract doctrines, the rule of law and the separation of powers are now recognised beyond dispute as being among the fundamental assumptions that the Constitution embodies,[70] but — as became apparent in Vasiljkovic — this does not resolve the more vital question of what limits those doctrines impose on legislative power, because the conceptual content and reach of the doctrines is itself a matter of contention.[71]

B. The Significance of the Plaintiff’s Citizenship

The court unanimously rejected Vasiljkovic’s argument that his citizenship gave him a special immunity against executive detention. Vasiljkovic had relied on the reference in Lim to the peacetime immunity of Australian citizens from executive detention to contend that his citizenship ‘accentuat[ed] the application’ of separation of powers protections to him and was ‘relevant colour’.[72] Gummow and Hayne JJ responded emphatically that ‘there is no such relevant colour’ and that those persons who may ‘rely upon principles derived from Chapter III as an answer to legislative or executive action respecting them are not limited by any particular constitutional [citizen/alien] status’.[73] The court noted that, historically, citizens had never enjoyed any special exemption from extradition processes.[74] Kirby J suggested that the decision to extradite a person might seem particularly serious ‘where the person in question is an Australian national’,[75] but gave this no constitutional significance.[76] Gleeson CJ cited DJL v Central Authority[77] where extradition was described as a paradigm of the lawful removal of citizens, notwithstanding a citizen’s basic right to live in Australia.[78]

The court’s ruling on this issue reflects the position taken last year in Ruddock v Taylor,[79] where a High Court majority accepted that the executive can validly detain citizens as well as non-citizens under the aliens power on suspicion of their being unlawful non-citizens, with no remedy lying for false imprisonment. While the Vasiljkovic court’s rejection of the citizen/alien distinction as a discrimen for determining an individual’s vulnerability to executive detention may be unsettling for Australian citizens, it arguably makes better sense constitutionally for, as Gaudron J noted in Lim, citizenship in Australia is an entirely statutory concept, of which the Constitution makes no mention.[80] Regrettably, however, in refusing to discriminate between citizens and aliens in determining the scope of constitutional protections in Ruddock v Taylor and Vasiljkovic, the High Court has not extended an immunity against extra-judicial detention to both groups but has denied them both that immunity. Whereas a retreat from this discriminatory distinction might have been expected to promote more comprehensive civil liberties safeguards in Australia, the reverse has prevailed. Despite paying lip service to ‘a general immunity from executive detention’ enjoyed by both citizens and aliens, the Vasiljkovic majority in fact further eroded that immunity in recognising extradition detention as yet another exception to the rule.[81] McHugh J anticipated this development in Re Woolley, stating that the Lim view that citizens enjoy a special immunity from executive detention ‘cannot stand’, and that numerous Commonwealth heads of power are sufficiently wide to permit the administrative detention of citizens.[82]

4. The ‘No Evidence’ Question

Vasiljkovic argued that, even if administrative detention pending extradition was recognised as a valid exception to the rule against extra-judicial detention stated in Lim, the Act was nonetheless invalid in failing to provide for a minimal level of judicial oversight of this process in requiring requesting states to satisfy a prima facie evidence test.[83] There was considerable overlap between this question and the extra-judicial detention question, because both centred on whether judicial assessment of prima facie evidence was a constitutional requisite in relation to extradition detention, and the two questions were rolled together in the majority reasoning. The majority rejected this second argument, again on the formalistic basis that the extradition process involves no determination of guilt or innocence according to Australian law: for the majority, this meant that a magistrate’s function in determining eligibility for surrender was not subject to evidentiary standards applicable to the exercise of the judicial power of the Commonwealth.[84] Gleeson CJ focused literalistically on the fact that ‘there is nothing in the express terms of the Constitution, corresponding to the Fourth Amendment to the United States Constitution’ to invalidate the ‘no evidence’ extradition model, and refused to imply an evidentiary requirement.[85] The plaintiff attempted to draw an analogy between the eligibility determination process and committal processes in the common law system of criminal trial which, although administrative in character, were held in R v Murphy[86] to be part of the one ‘matter’ which a trial ultimately determines and therefore an exercise of judicial power, but this was rejected — again on the basis that extradition detention is not imposed with a view to trial under Australian law.[87] Section 19(5) of the Act, which prevents magistrates from receiving evidence to contradict a requesting state’s allegations, had previous been unsuccessfully challenged in Cabal[88] on the basis that it invalidly prevents the exercise of the inherent power of courts to stay proceedings as an abuse of process. The Vasiljkovic majority uncritically relied on that ruling, despite the Cabal court having given no reasons for its decision on this point.[89] Upholding the validity of s 19(5), Gleeson CJ stated that the provision ‘reflects the fact that...an extradition hearing does not involve a trial on the merits’.[90]

Kirby J again dissented. The same separation of powers considerations raised by the extra-judicial detention question also led him to conclude that the Act was invalid for failing to provide for a prima facie evidence test. He was dismissive of criticisms that this test imposes too great a difficulty for civil law countries, finding the notion that such states could not produce evidentiary material sufficient to meet the test ‘totally unconvincing’.[91] He stressed that the Croatian judgement annexed to the warrant for Vasiljkovic’s arrest, was itself ‘replete with references to... [the statements of] eye-witnesses including some attributing words to the plaintiff as direct quotes’ as well as ‘documentary evidence’ and police interrogation transcripts, which would have been admissible.[92] Further, the fact that the prima facie evidence test might create practical difficulties offered no legal basis for upholding a ‘no evidence’ scheme; constitutional protections cannot be cast aside simply because they are administratively inefficient or have proved difficult for foreign governments to satisfy.[93]

Again, the majority failed to have regard to constitutional principles that might have formed the basis for finding the ‘no evidence’ scheme invalid. Even having accepted extradition detention as an exception to the rule against extra-judicial detention, there were other bases on which the majority might have found the scheme invalid. There was a regrettable lack of reference by any of the Vasiljkovic judges to past authority for the implication of due process requirements from the constitutional separation of powers. For example, in preventing magistrates and (consequently) reviewing courts from receiving exculpatory evidence, s 19(5) could arguably have been held invalid as purporting to direct the manner and outcome of the exercise of judicial power, by analogy with Nicholas v The Queen,[94] where legislation preventing courts from considering police illegality in obtaining evidence was held invalid.[95] Had the Vasiljkovic majority adopted a more rights-protecting stance, s 19(5) could also have been taken to fall foul of Ch III requirements in impairing ‘the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power’.[96] The Vasiljkovic majority, however, put form over substance by focusing on the fact that extradition was for an offence against a law other than Australian law, and would doubtless have rejected these principles as inapplicable to the extradition process. Nonetheless, given that individual liberty is such a fundamental democratic value, this was a case where the court might have had regard to the more general principle that the separation of powers will be breached where a law ‘purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power’.[97] To preclude reviewing courts from considering the evidentiary basis for an individual being deprived of his or her liberty certainly seems to be at odds with this principle, regardless of whether detention is imposed with a view to prosecution in a foreign legal system, or under Australian law. More generally, the very fact that our Constitution provides for an independent ‘judicial power’ has been said to offer a basis for the implication of a range of due process guarantees, which could have been extended to assist the plaintiff in this case.[98] Instead, as Sir Anthony Mason has observed, the prediction of McHugh J in the 1990s that Ch III would ‘continue to generate implications in the nature of due process rights’, remains to be fulfilled.[99]

Vasiljkovic is also illustrative of the ‘insular disregard’ of the current High Court for international law as a legitimate influence on constitutional interpretation.[100] In his dissent, Kirby J reiterated his argument that the Constitution must be interpreted in its changing context and is ‘subject today to the influences emanating from the international context in which it now operates’ such that courts may have regard to international human rights law in construing constitutional doctrines.[101] Accordingly, in finding a prima facie evidence requirement, he referred to art 9 of the International Covenant on Civil and Political Rights (‘ICCPR’),[102] prohibiting arbitrary detention and mandating that persons arrested or detained ‘shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful’. Gleeson CJ, by contrast, recognised that the ‘no evidence’ extradition model raised human rights concerns, but insisted that the court must concern itself solely with the ‘legal issues’ — thereby implicitly dismissing the idea that international human rights law might be relevant to determination of those issues.[103] Strikingly, however, Gleeson CJ did seem willing to have regard to international law instruments where they assisted the Commonweath’s case; he noted, for example, that the United Nations Model Treaty on Extradition[104] contains no evidentiary requirement.[105] What he failed to note is that art 3(f) of the Model Treaty provides that extradition must be refused where an extraditee would not receive a fair trial — a protection which Australia’s extradition scheme does not afford.[106] Gummow and Hayne JJ also made partisan use of international law sources, downplaying the significance art 9 of the ICCPR, while noting that art 5(f) of the European Convention on Human Rights[107] exempts extradition detention from the prohibition on arbitrary detention.[108]

5. The External Affairs Question

As Gleeson CJ stated in Vasiljkovic, ‘[t]he power to enact legislation upon the subject of extradition is conferred by s 51(xxix) of the Constitution, extradition being a matter of external affairs’.[109] Vasiljkovic, however, contended that the Regulations were invalid in declaring Croatia to be an ‘extradition country’ without Australia having entered into an extradition treaty with Croatia.[110] The court unanimously rejected this argument on the basis that ‘the external affairs power is not confined to the implementation of treaties’ and that the Regulations were directly relevant to Australia's relations with Croatia and so to Australia's ‘external affairs’.[111] Gleeson CJ and Gummow and Hayne JJ cited Hempel v Attorney-General (Cth)[112] and The Tasmanian Dams Case,[113] agreeing with the statement in Hempel that ‘extradition is directly concerned with international relations’ such that ‘a law with respect to [extradition] is likely to be a law with respect to external affairs whether or not there is in existence any supporting treaty’.[114] This is a relatively uncontroversial ruling, and is consistent with the plenary terms in which s 51(xxix) is expressed. Indeed, in XYZ v Cth,[115] decided shortly before Vasiljkovic, s 51(xxix) was given a far broader scope than that contended for by Vasiljkovic, with the majority upholding Polyukhovich[116] to confirm that the term ‘external affairs’ does not refer narrowly to ‘foreign relations’, but gives the Commonwealth a general power to legislate with respect to matters geographically external to Australia.[117] Although this broad construction has been criticised for its excessive literalism in separating the terms ‘external’ and ‘affairs’ rather than construing the phrase as a whole,[118] it is beyond doubt that s 51(xxix) at least confers the power to make laws with respect to Australia’s relations with other countries, and so to make extradition arrangements, with or without a treaty.[119]

6. Postscript: Reform Proposals

In his Vasiljkovic dissent, Kirby J noted current proposals to make extradition from Australia even easier in light of the increase in transnational crime, the rapid expansion of international travel, developments in information technology and the threat of terrorism.[120] The Government wants to remove altogether the provision in s 19 for a magistrate to determine ‘eligibility for surrender’ decision, entrusting this task to the Minister.[121] The Minister’s decision would continue to be reviewable under s 75 of the Australian Constitution and s 39B of the Judiciary Act 1903 (Cth), but the reviewing court would be limited to considering whether the Minister could have been subjectively satisfied that eligibility criteria were met. Independent oversight of the extradition process would thus be further reduced, in complete disregard of the objections of human rights bodies that the present system already places too great a reliance on executive restraint, and subordinates individual rights to administrative efficiency.[122] The government has also recommended removing the dual criminality requirement, on the dubious basis that ‘this allows people to escape justice simply because Australia has not yet criminalized an offence’ and, more worrying still, has suggested abolishing the requirement that states give a ‘speciality assurance’ that they will not prosecute for crimes other than that for which extradition was sought.[123] Remarkably, given how little documentation is already required to support an extradition request, the government has even suggested removing the requirement that such documents be authenticated by a judge or official of the requesting state, so as to expedite the extradition process.[124] Given the excessive formalism exhibited by the Vasiljkovic majority in accepting that the limited provision for judicial review in the existing extradition scheme satisfied Ch III requirements, it is not inconceivable that the High Court would uphold these proposed reforms.

Even as it stands, Australia’s ‘no evidence’ extradition scheme has been labelled as oppressive.[125] Justice Action, HREOC and a JSCT report have all recommended the reintroduction of an evidentiary requirement, but the government has not acted on this advice.[126] The government should consider following the approach adopted in Canada, which retains the prima facie evidence test but allows for the relaxation of evidentiary rules which have proved difficult for civil law countries to satisfy.[127] Alternatively, Shearer has recommended the adoption of a less strict test, requiring evidence sufficient to raise a ‘reasonable cause to suspect’ a person of having committed an offence, with magistrates having discretion to disregard evidentiary rules — such a model is already used in certain workplace relations contexts.[128] Notably, although Kirby J treated the prima facie evidence test as a constitutional requisite in Vasiljkovic, nothing in his reasoning rules out the relaxation of evidentiary standards in this context; Kirby J recognised that some modification of the traditional test might be desirable to make extradition easier, provided that ‘efficiency does not trump constitutionality’.[129]

7. Conclusion

In Vasiljkovic, as in Al-Kateb and Ruddock v Taylor, the High Court gave administrative efficiency and government policy priority over rule of law and separation of powers requirements. The majority erred in construing those requirements in a narrow and formalistic manner, instead of applying them robustly in light of the international human rights norms and democratic values which are a legitimate contextual influence on constitutional interpretation. In upholding the constitutional validity of an extradition model that provides for administrative detention without judicial consideration of supporting evidence, the High Court has again shown a retreat from the implication of restrictions on government power from the Constitution’s text and structure, and has shown itself willing to tolerate legislative encroachments on traditionally judicial functions even where this results in the infringement of basic civil liberties. The majority did decide correctly in holding that the plaintiff’s citizenship was irrelevant to determining whether he could claim Ch III protections, and in finding that the regulations declaring Croatia to be an extradition country came within the scope of the external affairs power, but on all other questions the views of Kirby J in dissent are preferable. Although it is obviously undesirable that Australia be seen as a haven for fugitives, it is even more vital that persons residing in Australia be protected against detention and extradition based on allegations lacking substance.[130]


[1] Final year student, Faculty of Law, University of Sydney. I wish to thank Helen Irving for her assistance in supervising the preparation of this case note.

[2] Extradition (Croatia) Regulations 2004 (Cth) reg 4.

[3] See Vasiljkovic v Commonwealth of Australia [2006] HCA 40; (2006) 228 ALR 447 (‘Vasiljkovic’) at 457 (Gleeson CJ), 465 (Gummow & Hayne JJ) referring to Pasini v United Mexican States (2002) 209 CLR 246.

[4] Extradition Act 1988 (Cth) s 7.

[5] See Human Rights and Equal Opportunity Commission (‘HREOC’), Submission to the Attorney-General’s Department on the Extradition Review Discussion Paper (2006) at [9.20]–[9.23], responding to Attorney-General’s Department, A New Extradition System: A Review of Australia’s Extradition Law and Practice (2005).

[6] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 478 (Kirby J).

[7] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 479 (Kirby J).

[8] See Extradition Act 1988 (Cth) s 11(5)(b); Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 477 (Kirby J), 454 (Gleeson CJ); G Ossman, ‘The Evidentiary Standards in Criminal and Extradition Proceedings’ (1994) 16 Liverpool Law Review 187 at 190.

[9] Joint Standing Committee on Treaties (‘JSCT’), Commonwealth Parliament, Report 40: Extradition: A Review of Australia's Law and Policy (2001) at [2.21]; Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 452 (Gleeson CJ).

[10] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 487, 490–491 (Kirby J).

[11] Extradition Act 1988 (Cth) s 11(5)(b); Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 477 (Kirby J), 454 (Gleeson CJ); G Ossman, above n7 at 190.

[12] Joint Standing Committee on Treaties (‘JSCT’), Commonwealth Parliament, Report 36: An Extradition Agreement with Latvia and an Agreement with the United States of America on Space Vehicle Tracking and Communication (2000) at 54.

[13] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 453 (Gleeson CJ); JSCT, above n8 at [3.1]. Criticising this approach see JSCT, above n11 at 52 (Ivan Shearer).

[14] On the retention of evidentiary requirements in the USA and in Commonwealth countries other than Australia, see Law Society of South Australia, ‘Submission in Relation to the Discussion Paper: Review of Australia’s extradition and mutual assistance arrangements’ (October 2005) at 1; Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 452 (Gleeson CJ).

[15] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 468 (Gummow & Hayne JJ).

[16] Al-Kateb v Godwin [2004] HCA 37; (2006) 219 CLR 562 at 605 (‘Al-Kateb’). See, for example, Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 573 (Gleeson CJ), 610-611 (Gummow J), 616 (Kirby J).

[17] Chu Kheng Lim v MILGEA (1992) 176 CLR 1 (‘Lim’).

[18] Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 609-610 (Gummow J); Lim (1992) 176 CLR 1 at 33 (Brennan, Deane and Dawson JJ) and 65–66 (McHugh J). Compare Tony Blackshield & George Williams, Australian Constitutional Law and Theory (4th ed, 2006) at 719.

[19] Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 646 (Hayne J) citing Gaudron J in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 110. Compare Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 474-475 (Gummow & Hayne JJ) on how permissible instances for executive detention should not be confined to the examples stated in Lim. See also Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 460 (Gleeson CJ).

[20] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 491, 493 (Kirby J).

[21] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 494 (Kirby J).

[22] In Al-Kateb, for example, the majority upheld provisions authorising the indefinite detention of a stateless asylum-seeker who could not be deported on the basis that his detention carried a ‘non-punitive’ purpose facilitating the removal of non-citizens. Compare Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 459-460 (Gleeson CJ); Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 580-581 (McHugh J), 650 (Hayne J). See also Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 596 (McHugh J) citing O’Keefe v Calwell (1949) CLR 261 at 278 (Latham CJ); Behrooz v Secretary of DIMIA [2004] HCA 36; (2004) 219 CLR 486; Ruddock v Taylor (2005) 222 CLR 612; Re Woolley and Another; ex parte M276/2003 (2004) 225 CLR 1 (‘Re Woolley’).

[23] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 459 (Gleeson CJ).

[24] Kirby J, by contrast, noted that, although the person detained is not being charged with an offence under Australian law, their involuntary detention nonetheless occurs ‘in the context of criminal punishment’, which obiter in Lim stated would require the judiciary’s involvement: Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 492 (Kirby J).

[25] Lim (1992) 176 CLR 1 at 27 (Brennan, Deane & Dawson JJ); compare Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 (‘Polyukhovich‘) at 607.

[26] [1996] HCA 18; (1996) 189 CLR 1.

[27] See Fiona Wheeler, ‘Due Process, Judicial Power and Chapter III in the New High Court’ (2004) 32 Federal Law Review 205 at 209 and Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 210 ALR 50 (‘Fardon’) at 91 (Kirby J).

[28] Re Woolley (2004) 225 CLR at 26 (McHugh J) (emphasis added).

[29] See Fardon [2004] HCA 46; (2004) 210 ALR 50 at 91–2 (Kirby J); Eloise Dias, ‘Punishment by another name? Detention of Non-citizens and the Separation of Powers’ (2004) 15 Public Law Review 17 at 25; Lim (1992) 176 CLR 1 at 27 (Brennan, Deane & Dawson JJ). See also Polyukhovich [1991] HCA 32; (1991) 172 CLR 501 at 607 (Deane J) and Wheeler, above n26 at 209.

[30] [2004] HCA 36; (2004) 219 CLR 486.

[31] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 459 (Gleeson CJ). For Gleeson CJ, citing Barton v Cth [1974] HCA 20; (1974) 131 CLR 477 at 503 (Mason J), the fact that ‘[d]etention inevitably is an incident in the process of extradition’ went to establish its non-punitive character.

[32] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 485 (Kirby J). Compare HREOC, above n4 at [4.13]; Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 480 (Kirby J) on the plaintiff being subjected to ‘the full rigours of prison discipline’ and restricted communications.

[33] See eg, Witham v Holloway (1995) 183 CLR 525 at 534 (Brennan, Deane, Toohey & Gaudron JJ); Fardon [2004] HCA 46; (2004) 210 ALR 50 at 90–91 (Kirby J); compare Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 612 (Gummow J) citing Blackstone, Commentaries (17th ed, 1830), Bk 1 at [136]–[137] that ‘the confinement of the person, in any wise, is an imprisonment,’ and ‘there can be no doubt that imprisonment ... constitutes punishment’. See further Dias, above n28 at 18 and Matthew Zagor, ‘Uncertainty and Exclusion: Detention of Aliens and the High Court’ [2006] FedLawRw 5; (2006) 34 Federal Law Review 127 at 142–143.

[34] [2004] HCA 46; (2004) 223 CLR 575.

[35] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 491 (Kirby J).

[36] See eg, Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 4 (Gleeson CJ), 610-611 (Gummow J), 616 (Kirby J).

[37] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 483, 485 (Kirby J).

[38] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 489 (Kirby J).

[39] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 477 (Kirby J).

[40] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 477–478 (Kirby J).

[41] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 490–491, 496 (Kirby J).

[42] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 483–484 (Kirby J). Gummow & Hayne JJ were unwilling to imply so specific a constitutional limitation: see Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 476 (Gummow & Hayne JJ).

[43] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 473 (Gummow & Hayne JJ). Notably, decisions under the Act are not subject to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

[44] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 499 (Heydon J).

[45] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 484, 482–483 (Kirby J).

[46] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 484–485 (Kirby J).

[47] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 476 (Gummow & Hayne JJ).

[48] This is not a fanciful suggestion in light of the situation at Guantanamo Bay. See also JSCT, above n11 at [2.52] citing Lord Hailsham of Marylebone, On the Constitution (1992) at 59 on how ‘again and again, errors of judgement have been made’ by politicians in extradition cases as the result of political pressure.

[49] On this requirement see Lim (1992) 176 CLR 1 at 33 (Brennan, Deane & Dawson JJ), 64 (McHugh J). Contrast Re Woolley (2004) 225 CLR 1 at 29-30 (McHugh J).

[50] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 41 (Gleeson CJ). Compare Al-Kateb [2004] HCA 37; 219 CLR 562 at 583 (McHugh J). Contrast Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 497 (Kirby J), Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 615, 617 (Kirby J), 611 (Gummow J).

[51] See Adrienne Stone ‘Australia's Constitutional Rights and the Problem of Interpretive Disagreement’ [2005] SydLawRw 2; (2005) 27 Sydney Law Review 29 at 38–39; Leslie Zines, The High Court and the Constitution, (4th ed, 1997) at 44–48 on the use of proportionality review with respect to ‘purposive’ and ‘incidental’ Commonwealth powers. See further Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36. Compare Leask v Commonwealth [1996] HCA 29; (1996) 187 CLR 579 at 603 (Dawson J).

[52] Spencer Zifcak, ‘The Forgetting of Wisdom: The High Court and Mr Ahmed Al-Kateb’ NewMatilda.com (10 Nov 2004) <http://www.newmatilda.com/home/articledetailmagazine. asp?ArticleID=317 & CategoryID=-1> accessed 21 May 2007.

[53] George Williams, ‘Implied Rights under the Gleeson Court’ (1999) 2 Constitutional Law and Policy Review 44. Kirby J, writing extra-judicially, has called this a ‘counter-reformation’: see Michael Kirby, ‘Beyond the Judicial Fairytales’ (Jan/Feb 2004) 48(1– 2) Quadrant 26 at 31. See also Wheeler, above n26 at 206–207; Cheryl Saunders, ‘Interpreting the Constitution(2004) 15 Public Law Review 289 at 291; George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoff Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) at 201–4 and Sir Anthony Mason, ‘Speech at the launch of Blackshield and Williams, Australian Constitutional Law and Theory, 4th edition’ (Speech delivered at the Art Gallery of New South Wales, 24 February 2006).

[54] On how our constitution embodies these doctrines see Australian Communist Party v Cth [1951] HCA 5; (1951) 83 CLR 1 at 193 (Dixon J); R v Coldham; Ex parte Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415 at 419; Re Bolton: Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 530; Jeff Shaw, ‘The Courts, the Legislature and Human Rights’ (2004) 198 Civil Liberty 7 at 9–10; Bradley Selway, ‘The Principle behind Common Law Judicial Review of Administrative Action: The Search Continues’ (2002) 30 Federal Law Review 217.

[55] Zagor, above n32 at 143 at 147; Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 616–618 (Kirby J).

[56] See Wilson v MATSIA [1996] HCA 18; (1996) 189 CLR 1; Wheeler, above n26 at 209. See also Murray Gleeson, ‘An Idea of Power’ (Speech delivered at the Polish Constitution Commemoration, Melbourne, 3 May 2005). Compare Fardon [2004] HCA 46; (2004) 210 ALR 50 at 91 (Kirby J).

[57] Hamdi v Rumsfeld 72 USLW 4607 (2004) at 4621 (Scalia J) cited in Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 612 (Gummow J) (also referring to the Petition of Right accepted by Charles I in 1628). See also Al-Kateb [2004] HCA 37; 219 CLR 562 at 579 (Gleeson CJ) citing R v Secretary of State for the Home Department; Ex parte Muboyayi [1992] QB 244 at 258 (Lord Donaldson of Lymington MR). The Vasiljkovic judges did not consider the origins of the prima facie evidence test, which derives from the Treaty of Amity, Commerce and Navigation (1794) (‘Anglo-American extradition treaty’): see Ossman, above n7 at 189.

[58] See Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 619-620 (Kirby J).

[59] Al-Kateb (2006) 208 [2004] HCA 37; 219 CLR 562 at 619-620 (Kirby J).

[60] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 493 (Kirby J).

[61] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 495 (Kirby J). Compare A and others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 at 107 (Lord Bingham of Cornhill).

[62] See Michael Head, ‘Editorial: Detention and the Anti-Terrorism Legislation’ [2005] UWSLawRw 1; (2005) 9 University of Western Sydney Law Review 1.

[63] ee eg, Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 625–630 (Kirby J). Compare Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 344–5 (Kirby J); Leighton McDonald, ‘Rights, Dialogue and Democratic Objections to Judicial Review’ [2004] FedLawRw 1; (2004) 32 Federal Law Review 1 at 21–23; Anthony Mason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’ in Charles Sampford & Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) at 30.

[64] Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 616–617 (Kirby J). Relevant instruments include the Universal Declaration on Human Rights GA Res 217A (III), UN Doc A/810 (1948), the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, (entered into force 23 March 1976) and the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, (entered into force 3 September 1953) (‘European Convention on Human Rights’): see Murray Gleeson, ‘The Federal Judiciary in Australia’ (Speech delivered at the Federal Magistrate’s Conference, Melbourne, 20 October 2005)

[65] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 480 (Kirby J). This is despite the government’s past assurances that it only enters into extradition agreements when it is confident that the judicial system of a partner state is sufficiently well developed to ensure a fair trial: see JSCT, above n11 at [2.26] citing Steven Marshall, (AG), Transcript of Evidence, 28 August 2000 at TR8.

[66] See also HREOC, above n4 at [4.4]. On the failure of Parliament to enforce human rights standards see Sev Ozdowski, ‘Human Rights in Australia: Their Protection and Resolution through the Law’ (Speech given at the Chartered Institute of Arbitrators and Victorian Bar Seminar, Melbourne, 20 July 2005).

[67] Cited in New South Wales, Parliamentary Debates, Legislative Council, 9 March 2006, at 21374 (Peter Breen). See also OSCE Mission to Croatia, Reforming the Judiciary (2006) Organisation for Security and Co-operation in Europe <http://www.osce.org/croatia/13396.html> at 7 April 2007 and Amnesty International, Report 2005: Croatia (2005) <http://web.amnesty.org/report2005/hrv-summary-eng> accessed 7 April 2007.

[68] Extradition Act 1988 (Cth) s 7(c).

[69] On this vexed issue see Peter Gerangelos, ‘The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases’ [2002] FedLawRw 1; (2002) 30 Federal Law Review 1 at 394 at 432. Compare Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution[2003] FedLawRw 2; (2003) 31 Federal Law Review 57; Wheeler, above n26 at 210; Zines, above n50 at 171–172.

[70] Murray Gleeson, ‘Legality — Spirit and Principle’ (Speech delivered at the Second Magna Carta Lecture, New South Wales Parliament House, 20 November 2003) citing R v Coldham; Ex parte Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415 at 419.

[71] Compare Murray Gleeson, ‘Courts and the Rule of Law’ (Speech delivered at The Rule of Law Series, Melbourne University, 7 November 2001).

[72] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 469 (Gummow & Hayne JJ).

[73] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 469–470 (Gummow & Hayne JJ) considering Lim (1992) 176 CLR 1. Compare Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 485–486, 497 (Kirby J).

[74] See Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 451 (Gleeson CJ) citing Shearer, Extradition in Interntional Law, (1971) at 97. See Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 463 (Gummow & Hayne JJ); Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 490 (Kirby J) discussing DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 278–279. The Vasiljkovic court’s position accords with the statement of the law on extradition and citizens in Kim Rubenstein, Australian Citizenship Law in Context (2002) at [5.2.7], [5.2.9] and [5.2.14]. See Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 469 (Gummow & Hayne JJ) on the Extradition Act 1870 (Imp) failing to distinguish citizens and non-citizens in the extradition context, as upheld in Re Galwey [1896] UKLawRpKQB 13; [1896] 1 QB 230 and R v Macdonald; Ex parte Strutt (1901) 11 QLJ 85 at 90.

[75] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 496 (Kirby J).

[76] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 490, 496 (Kirby J). Compare Rubenstein’s argument that while there is no legal duty to take into account citizenship, Commonwealth officers have a ‘moral duty’ deriving from the reciprocal relationship between a government and its citizens to consider citizenship when considering extradition requests: Kim Rubenstein, ‘Submission to the Attorney-General’s Department, A New Extradition System: A Review of Australia's Extradition Law and Practice’, April 2006.

[77] [2000] HCA 17; (2000) 201 CLR 226.

[78] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 459–460 (Gleeson CJ).

[79] Ruddock v Taylor (2005) 222 CLR 612.

[80] Lim (1992) 176 CLR 1 at 54 (Gaudron J) cited in Kim Rubenstein, ‘Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia’ [2000] MelbULawRw 24; (2000) 24 Melbourne University Law Review 576. On the racist origins of our Constitution’s silence on citizenship see Kim Rubenstein, ‘Citizenship in the Constitutional Convention Debates: A Mere Legal Inference’ (1997) 25 Federal Law Review 295 and Helen Irving, ‘One Hundred Years of (Almost) Solitude: The Evolution of Australian Citizenship’ in Papers on Parliament, No 37, For Peace, Order, and Good Government: The Centenary of the Parliament of the Commonwealth of Australia, Department of the Senate, Canberra (2001) at 5.

[81] See Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 189 (Kirby J).

[82] Re Woolley (2004) 225 CLR 1 at 24 (McHugh J). This, McHugh J maintained, was at least the case for heads of power which ‘refer intrinsically to human beings’ such as ‘the powers relating to naturalisation and aliens, race, marriage, divorce, bankruptcy and the influx of criminals’.

[83] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 454 (Gleeson CJ), 467 (Gummow & Hayne JJ).

[84] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 474 (Gummow & Hayne JJ).

[85] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 460–461 (Gleeson CJ) (emphasis added). Contrast Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 485–486 (Kirby J). The Fourth Amendment to the United States Constitution states that ‘no Warrants shall issue, but upon probable cause’.

[86] [1985] HCA 50; (1985) 158 CLR 596.

[87] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 467 (Gummow & Hayne JJ).

[88] United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 (‘Cabal’).

[89] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 473 (Gummow & Hayne JJ) citing Cabal [2001] HCA 60; (2001) 209 CLR 165 at 199. See also Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 472 (Gummow & Hayne JJ) on Todhunter v Attorney-General (Cth) [1994] FCA 1238; (1994) 52 FCR 228 at 249–251.

[90] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 456 (Gleeson CJ).

[91] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 495 (Kirby J).

[92] Ibid. Compare JSCT, above n11 at [2.49]; Shearer, above n73 at 63.

[93] JSCT, above n11 at [2.49].

[94] [1998] HCA 9; (1998) 193 CLR 173.

[95] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 220–222 (McHugh J) and Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees Under Chapter III of the Constitution[2003] FedLawRw 2; (2003) 31 Federal Law Review 57.

[96] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 189 (Brennan CJ).

[97] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501 at 689 (Toohey J).

[98] See George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) at 207.

[99] See Mason, above n52. Express constitutional rights, such as the rights to vote and to jury trial have also been interpreted narrowly in recent years: see Greg Craven, Conversations with the Constitution (2004) at 167.

[100] See Juliet Curtin, ‘Never Say Never: Al-Kateb v Godwin’ [2005] SydLawRw 16; (2005) 27 Sydney Law Review 355 at 366–369.

[101] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 486–487 (Kirby J). Compare Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 622–627 (Kirby J). Contrast Al-Kateb [2004] HCA 37; (2006) 219 CLR 562 at 586 (McHugh J).

[102] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, (entered into force 23 March 1976).

[103] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 453 (Gleeson CJ).

[104] Model Treaty on Extradition, GA Res 45/116, UNGAOR, 4th sess, 68th plen mtg, UN Doc A/Res/45/116.

[105] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 452 (Gleeson CJ).

[106] See HREOC, above n4 at Recommendation 11 suggesting that such a requirement be introduced.

[107] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, (entered into force 3 September 1953) (‘European Convention on Human Rights’).

[108] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 475 (Gummow & Hayne JJ).

[109] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 450 (Gleeson CJ).

[110] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 458 (Gleeson CJ).

[111] See eg, Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 460 (Gleeson CJ), 498 (Kirby J).

[112] Hempel v Attorney-General (Cth) (1987) 77 ALR 641 (‘Hempel’) at 671 (French J).

[113] The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (‘Tasmanian Dams Case’).

[114] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 440 (Gleeson CJ), 471 (Gummow & Hayne JJ).

[115] See XYZ v The Commonwealth [2006] HCA 25; (2006) 227 ALR 495 (‘XYZ’).

[116] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501.

[117] See XYZ [2006] HCA 25; (2006) 227 ALR 495 at 498 (Gleeson CJ), 505–506 (Gummow, Hayne & Crennan JJ).

[118] See XYZ [2006] HCA 25; (2006) 227 ALR 495 at 499 (Gleeson CJ) citing the arguments of the plaintiff in that case.

[119] See XYZ [2006] HCA 25; (2006) 227 ALR 495 at 499 (Gleeson CJ); Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 (Kirby J) at 498.

[120] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 488 (Kirby J).

[121] Attorney-General’s Department, above n4 at 37.

[122] HREOC, above n4 at [14.5].

[123] Attorney-General’s Department, above n4 at Part 3.

[124] Ibid. The government has also suggested extending to other countries the ‘backing of arrest warrants’ system currently in place between Australia and New Zealand, which requires no documentation whatever.

[125] Shearer, above n73 at 51.

[126] See HREOC, above n4 at [4.11] and Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 453 (Gleeson CJ).

[127] See Canadian Department of Justice, Newsroom: Extradition Reform (2005) <http://justice.gc.ca/en/news/nr/1998/extrt.html> accessed 7 April 2006. On the difficulties faced by civil law countries with common law evidentiary rules, see Edmund Aughterson, Extradition: Australian Law and Procedure (1995) at 920 and JSCT, above n11 at [2.26] on Latvia.

[128] See JSCT, above n11 at [2.34], [2.57] (on the distinction between establishing a ‘reasonable suspicion’ and a prima facie case).

[129] Vasiljkovic [2006] HCA 40; (2006) 228 ALR 447 at 494 (Kirby J). Compare Law Society of South Australia, above n13 at 2.

[130] Compare JSCT, above n11 at [2.46].


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