''Polyukhovich v Commonwealth'' (1991) 172
CLR 501;
991
Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday of the Julian calendar.
Events
* March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between Æthelred the Unready and Richard I o ...
HCA 32, commonly referred to as the ''War Crimes Act Case'', was a significant case decided in the
High Court of Australia
The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation.
The High Court was establi ...
regarding the scope of the external affairs power in
section 51(xxix) of the Constitution and the judicial power of the
Commonwealth
A commonwealth is a traditional English term for a political community founded for the common good. The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the 15th century. Originally a phrase (the common-wealth ...
.
Background
Th
''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 offence
In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India, Australia, New Zealand, Malaysia, Singapore), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing ...
.
Ivan Timofeyevich Polyukhovich had been charged under the Act with war crimes, alleged to have been committed between September 1942 and May 1943 in
Ukraine
Ukraine is a country in Eastern Europe. It is the List of European countries by area, second-largest country in Europe after Russia, which Russia–Ukraine border, borders it to the east and northeast. Ukraine also borders Belarus to the nor ...
while it was under German occupation in
World War II
World War II or the Second World War (1 September 1939 – 2 September 1945) was a World war, global conflict between two coalitions: the Allies of World War II, Allies and the Axis powers. World War II by country, Nearly all of the wo ...
.
Polyukhovich's lawyers 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
A bill of attainder (also known as an act of attainder, writ of attainder, or bill of pains and penalties) is an act of a legislature declaring a person, or a group of people, guilty of some crime, and providing for a punishment, often without a ...
.
Decision
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, i.e., 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 powers
The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...
, 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.
References
*{{cite book , last2=Williams, first2=George, last3=Brennan, first3=Sean, last=Blackshield, first=Anthony, title=Blackshield and Williams Australian Constitutional Law and Theory , year=2014 , edition=6 , publisher=Federation Press , location=Leichhardt, NSW , isbn=978-1-86287-918-8 , pages=607–614, 898–900
External links
Text of the decision
See also
*
List of High Court of Australia cases
High Court of Australia cases
1991 in Australian law
1992 in case law
Australian constitutional law
Rights in the Australian Constitution cases
External affairs power in the Australian Constitution cases
Ex post facto case law