Polyukhovich v The Commonwealth [1991] HCA 32

High Court of Australia Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Polyukhovich v The Commonwealth [1991] HCA 32

ORDER Answer the question reserved as follows:Is Section 9 of the War Crimes Act 1945 Cth, as amended, invalid in its application to the information laid by the second defendant against the plaintiff? Answer: No. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

1991, Aug. 14 Mason C.J.

The plaintiff is an Australian citizen and a resident of South Australia. He brought an action in this Court seeking a declaration that the War Crimes Amendment Act 1988 Cth is invalid and, or in the alternative, a declaration that ss. 6(1), 6(3), 7, 9 and 11 of the War Crimes Act 1945 Cth as amended ("the Act") are invalid. The plaintiff's interest in seeking declaratory relief of this kind arises from the circumstance that the second defendant laid an information against the plaintiff alleging that, between 1 September 1942 and 31 May 1943, the plaintiff committed war crimes in the Ukraine. Each of the crimes is alleged to have been a "war crime" within the meaning of s. 9 of the Act, being a "serious crime" within the meaning of s. 6 of the Act. In each instance the crime was alleged to have been committed at a time when the Ukraine was under German occupation during the Second World War. It is common ground that at the time of the commission of the alleged offences there was no Australian legislation in force which purported to make it a criminal offence on the part of an Australian citizen or resident to do such acts in the Ukraine as the plaintiff is alleged to have done.

In the course of the proceedings, at the request of the parties, I reserved for the consideration of the Full Court the question: "Is section 9 of the War Crimes Act 1945 as amended, invalid in its application to the information laid by the second defendant against the plaintiff?" The plaintiff submits that the question should be answered in the affirmative on two grounds. The first ground is that the section is beyond the legislative powers conferred upon the Parliament by s. 51(vi) and (xxix) of the Constitution with respect to defence and external affairs, these being the only two powers which, according to the defendants' case, could sustain the validity of the law. The second is that the section, because it attempts to enact that past conduct shall constitute a criminal offence, is an invalid attempt to usurp the judicial power of the Commonwealth, that power being vested by the Constitution in Ch. III courts.