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Copyright (c) 2007 Faculty of Law, Sydney University Law School 
The Sydney Law Review

ARTICLE: Vasiljkovic v Commonwealth of Australia

June, 2007

29 Sydney L. Rev. 321




In Vasiljkovic v Commonwealth of Australia (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 ...
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