Polyukhovich 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.
(6:1) Section 9 of the War Crimes Act 1945 (Cth) was valid as a law with respect to external affairs. (per Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ; Brennan J dissenting) (4:2) The statute did not invalidly usurp the judicial power of the Commonwealth. (per Mason CJ, Dawson, Toohey & McHugh JJ; Deane & Gaudron JJ dissenting; Brennan J not deciding)
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 offence. 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 while it was under German occupation in World War II.
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.[citation needed]
Decisionedit
External affairs poweredit
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 poweredit
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 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.
Referencesedit
Blackshield, Anthony; Williams, George; Brennan, Sean (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. pp. 607–614, 898–900. ISBN978-1-86287-918-8.
polyukhovich, commonwealth, polyukhovich, commonwealth, 1991, 1991, commonly, referred, crimes, case, significant, case, decided, high, court, australia, regarding, scope, external, affairs, power, section, xxix, constitution, judicial, power, commonwealth, co. Polyukhovich 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 v CommonwealthCourtHigh Court of AustraliaFull case namePolyukhovich v The Commonwealth of Australia and AnotherDecided14 August 1992Citation s 1991 172 CLR 501 1991 HCA 32Case historyPrior action s Polyukhovich v The Commonwealth 1990 95 ALR 502 injunction actionSubsequent action s noneCourt membershipJudge s sittingMason CJ Brennan Deane Dawson Toohey Gaudron amp McHugh JJCase opinions 6 1 Section 9 of the War Crimes Act 1945 Cth was valid as a law with respect to external affairs per Mason CJ Deane Dawson Toohey Gaudron amp McHugh JJ Brennan J dissenting 4 2 The statute did not invalidly usurp the judicial power of the Commonwealth per Mason CJ Dawson Toohey amp McHugh JJ Deane amp Gaudron JJ dissenting Brennan J not deciding Contents 1 Background 2 Decision 2 1 External affairs power 2 2 Judicial power 3 References 4 External links 5 See alsoBackground editThe 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 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 while it was under German occupation in World War II 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 citation needed Decision editExternal affairs power edit 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 amp 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 edit 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 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 editBlackshield Anthony Williams George Brennan Sean 2014 Blackshield and Williams Australian Constitutional Law and Theory 6 ed Leichhardt NSW Federation Press pp 607 614 898 900 ISBN 978 1 86287 918 8 External links editText of the decisionSee also editList of High Court of Australia cases Retrieved from https en wikipedia org w index php title Polyukhovich v Commonwealth amp oldid 1160366928, wikipedia, wiki, book, books, library,
