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POLYUKHOVICH V. the COMMONWEALTH of AUSTRALIA and ANOTHER (1991) 172 CLR 501 F.C

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POLYUKHOVICH V. the COMMONWEALTH of AUSTRALIA and ANOTHER (1991) 172 CLR 501 F.C POLYUKHOVICH v. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER (1991) 172 CLR 501 F.C. 91/026 Constitutional Law (Cth) COURT High Court of Australia Mason C.J.(1), Brennan(2), Deane(3), Dawson(4), Toohey(5), Gaudron(6) and McHugh(7) JJ. HRNG Canberra, 1990, September 3-5; November 9; 1991, August 14. #DATE 14:8:1991 JUDGE1 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. 2. 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. The War Crimes Act 1945 3. According to its long title, the Act is "(a)n Act to provide for the Trial and Punishment of War Criminals". The original preamble to the Act recited: "WHEREAS it is expedient to make provision for the trial and punishment of violations of the laws and usages of war committed during any war in which His Majesty has been engaged since the second day of September, One thousand nine hundred and thirty-nine, against any persons who were at any time resident in Australia or against certain other persons". 4. By s.5(1) of the Act, as originally enacted, the Governor-General was authorized to "convene military courts for the trial of persons charged with the commission of war crimes". Section 7 conferred power on a military court so convened to "try persons charged with war crimes committed, at any place whatsoever, whether within or beyond Australia" and for that purpose "to sit at any place whatsoever, whether within or beyond Australia". "War crime" was defined by s.3 to mean: "(a) a violation of the laws and usages of war; or (b) any war crime within the meaning of the instrument of appointment" of a certain Board of Inquiry appointed under the National Security (Inquiries) Regulations (Cth) committed in any place whatsoever, whether within or beyond Australia, during any war. 5. By the War Crimes Amendment Act 1988 (No.3 of 1989) the original Act was almost entirely repealed and replaced. The amended preamble recites: "WHEREAS: (a) concern has arisen that a significant number of persons who committed serious war crimes in Europe during World War II may since have entered Australia and became Australian citizens or residents; (b) it is appropriate that persons accused of such war crimes be brought to trial in the ordinary criminal courts in Australia; and (c) it is also essential in the interests of justice that persons so accused be given a fair trial with all the safeguards for accused persons in trials in those courts, having particular regard to matters such as the gravity of the allegations and the lapse of time since the alleged crimes". 6. Section 9 of the Act provides: "(1) A person who: (a) on or after 1 September 1939 and on or before 8 May 1945; and (b) whether as an individual or as a member of an organisation; committed a war crime is guilty of an indictable offence against this Act. (2) Sections 5 and 7, and paragraph 86(1)(a), of the Crimes Act 1914 do not apply in relation to an offence against this Act." In order to ascertain whether an offence is a "war crime" within the meaning of the Act it is necessary to look to ss.6, 7 and 8. Section 7 defines a "war crime" by reference to a "serious crime". What constitutes a "serious crime" is to be ascertained from s.6. 7. Section 6(1) provides: "An act is a serious crime if it was done in a part of Australia and was, under the law then in force in that part" one of a number of offences mentioned in the sub-section. One such offence is: "(a) murder"; another is: "(k) an offence of: (i) attempting or conspiring to commit; (ii) aiding, abetting, counselling or procuring the commission of; or (iii) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of; an offence referred to in (paragraph (a))". Section 6(2), (3) and (6) provide: "(2) In determining for the purposes of subsection (1) whether or not an act was, under the law in force at a particular time in a part of Australia, an offence of a particular kind, regard shall be had to any defence under that law that could have been established in a proceeding for the offence. (3) An act is a serious crime if: (a) it was done at a particular time outside Australia; and (b) the law in force at that time in some part of Australia was such that the act would, had it been done at that time in that part, be a serious crime by virtue of subsection (1)." "(6) For the purposes of (subsection (3)), the fact that the doing of an act was required or permitted by the law in force when and where the act was done shall be disregarded." 8. Section 7 provides: "(1) A serious crime is a war crime if it was committed: (a) in the course of hostilities in a war; (b) in the course of an occupation; (c) in pursuing a policy associated with the conduct of a war or with an occupation; or (d) on behalf of, or in the interests of, a power conducting a war or engaged in an occupation. (2) For the purposes of subsection (1), a serious crime was not committed: (a) in the course of hostilities in a war; or (b) in the course of an occupation; merely because the serious crime had with the hostilities or occupation a connection (whether in time, in time and place, or otherwise) that was only incidental or remote. (3) A serious crime is a war crime if it was: (a) committed: (i) in the course of political, racial or religious persecution; or (ii) with intent to destroy in whole or in part a national, ethnic, racial or religious group, as such; and (b) committed in the territory of a country when the country was involved in a war or when territory of the country was subject to an occupation. (4) Two or more serious crimes together constitute a war crime if: (a) they are of the same or a similar character; (b) they form, or are part of, a single transaction or event; and (c) each of them is also a war crime by virtue of either or both of subsections (1) and (3)." Section 7 must be read in conjunction with the definition of "war" in s.5. That section defines "war" to mean a war "in so far as it occurred in Europe in the period beginning on 1 September 1939 and ending on 8 May 1945". The section defines "occupation", inter alia, as meaning "(a) an occupation of territory arising out of a war". 9. The effect of these definitions is to confine war crimes to conduct which took place outside Australia (see s.7(1)(a) and (b)) except in so far as "serious crimes" under s.7(1)(c) and (d) and s.7(3) might conceivably be committed in Australia. However, the terms of the preamble and the provisions of s.7(1)(a) and (b) make it clear that the primary and substantial concern of the Act is with war crimes committed outside Australia, in other words, with conduct on the part of persons outside Australia. Further, the primary and substantial concern of the Act is with war crimes committed in Europe during the Second World War.
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