High Court of Australia
[Index]
[Search]
[Noteup]
[Context
] [Help]
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
valid