Case note: Vasiljkovic v Commonwealth of Australia

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.