Polyukhovich v Commonwealth
Encyclopedia
Polyukovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR
501, commonly referred to as the War Crimes Act Case, was a significant case decided in the High Court of Australia
regarding the scope of the external affairs power in section 51(xxix) of the Constitution
and the judicial power of the Commonwealth.
. Polyukhovich had been charged under the Act with war crimes, alleged to have been committed between September 1942 and May 1943 in the Ukraine
while it was under German occupation in World War II
.
Polyukhovich argued that the law was beyond the scope of Commonwealth legislative power in section 51(vi) (defence) and section 51(xxix) (external affairs) of the Constitution. He further argued that the attempt to make past criminal conduct an offence was an invalid attempt to usurp the judicial power of the Commonwealth, that power being vested by the Constitution in Chapter III courts, by enacting what was effectively a bill of attainder
.
Toohey J, however, considered that it was not sufficient that the Act dealt with matters outside Australia. In his opinion, the subject matter had to 'touch and concern' Australia, In the event, he found that there was a sufficient connection between the subject matter of the Act and Australia to allow the law under section 51(xxix).
In dissent, Brennan J suggested that there must be a nexus between Australia and the 'external affair' involved. He held that, because the subject of war crimes in World War II was not an external affair at the time, ie, 1939 to 1945, the subsequent acquisition of citizenship or residence in Australia by an individual was not enough to transform the subject matter into an external affair.
, the fact that a law operated ex post facto
did not automatically make the law a bill of attainder. In addition, an ex post facto law of the kind under consideration was not a usurpation of judicial power.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
501, commonly referred to as the War Crimes Act Case, was a significant case decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
regarding the scope of the external affairs power in section 51(xxix) of the Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
and the judicial power of the Commonwealth.
Background
The War Crimes Act 1945 (Cth) provided that any person who committed a war crime between 1 September 1939 and 8 May 1945 was guilty of an indictable offenceIndictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
. Polyukhovich had been charged under the Act with war crimes, alleged to have been committed between September 1942 and May 1943 in the Ukraine
Ukraine
Ukraine is a country in Eastern Europe. It has an area of 603,628 km², making it the second largest contiguous country on the European continent, after Russia...
while it was under German occupation in World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
.
Polyukhovich argued that the law was beyond the scope of Commonwealth legislative power in section 51(vi) (defence) and section 51(xxix) (external affairs) of the Constitution. He further argued that the attempt to make past criminal conduct an offence was an invalid attempt to usurp the judicial power of the Commonwealth, that power being vested by the Constitution in Chapter III courts, by enacting what was effectively a bill of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
.
External affairs power
By a majority of 6 to 1 (Brennan J dissenting) the court held that the Act was a valid exercise of the external affairs power. The six majority judges all wrote separate opinions. Mason CJ, Deane, Dawson, Gaudron & McHugh JJ were all of the opinion that as the subject matter of the legislation was external to Australia then the law was a valid one under the external affairs power. Mason CJ also said that if the Parliament considered that Australia had an interest or concern it was not for the court to examine whether there was a relevant interest or concern.Toohey J, however, considered that it was not sufficient that the Act dealt with matters outside Australia. In his opinion, the subject matter had to 'touch and concern' Australia, In the event, he found that there was a sufficient connection between the subject matter of the Act and Australia to allow the law under section 51(xxix).
In dissent, Brennan J suggested that there must be a nexus between Australia and the 'external affair' involved. He held that, because the subject of war crimes in World War II was not an external affair at the time, ie, 1939 to 1945, the subsequent acquisition of citizenship or residence in Australia by an individual was not enough to transform the subject matter into an external affair.
Judicial power
In relation to Polyukhovich's contention that the Act purported to usurp the judicial power of the Chapter III courts, the court held by a majority of 4 to 2 (Brennan J not deciding) that the statute did not invalidly usurp the judicial power of the Commonwealth. While the majority all accepted that a bill of attainder would offend the Commonwealth separation of powersSeparation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, the fact that a law operated ex post facto
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
did not automatically make the law a bill of attainder. In addition, an ex post facto law of the kind under consideration was not a usurpation of judicial power.