Ivan Polyukovich was charged with war crimes in respect of acts allegedly committed by him during World War II. He initiated a challenge to the constitutional validity of the War Crimes Act, on the basis that the Act:
· purported to operate retrospectively; and
· granted jurisdiction over individuals for alleged crimes which had no connection with Australia.
· Section 51 (xxix) - the ‘external affairs power’ - of the Commonwealth Constitution gives the Commonwealth the power to enact laws to implement obligations under treaties to which Australia is a party regardless of the content of the treaty. The Commonwealth Parliament also has the power (under the external affairs power) to legislate to implement customary international law;
· Though the Act is retrospective, and operates on people who, at the time they were committed, had no connection with Australia, it is still a law with respect to ‘external affairs’;
· The Act is not retrospective in operation because it only criminalizes acts which were war crimes under international law as well as “ordinary” crimes under Australian law at the time they were committed;
While there is no obligation at customary international law to prosecute war criminals, there is a right to exercise universal jurisdiction. The War Crimes Act facilitates the exercise of this right.
Is Australia obliged by international law to prosecute war criminals?
· “[T]he material relied on to establish that Australia is or was obliged to take steps to bring to trial in Australia suspected war criminals from the Second World War before international tribunals or before courts of the country in which the crimes were committed were matters of international concern for many years after 1945. Whether those matters were still of international concern in 1989 may be doubted. There is insufficient material to show that the apprehension and trial of war criminals before courts of countries other than those in which the crimes were committed were ever matters of international concern ... However, I need not and I do not rest my judgment on this view for there is a further argument which depends simply on the existence of a universal jurisdiction to try international crimes ... As the material drawn from international agreements and UNGA resolutions acknowledges, international law recognises a State to have universal jurisdiction to try suspected war criminals whether or not there is any international concern that the State should do so”: Justice Brennan, pp. 562-3.
Is the Act a law with respect to ‘external affairs’?
· “the grant of legislative power with respect to external affairs should be construed with all the generality that the words admit...”: Chief Justice Mason, p. 528.
· “[the Act] operates upon conduct which took place outside Australia ... [section 9 of the Act] is properly characterised as a law with respect to external affairs and is a valid exercise of power ... I arrive at this conclusion on the footing that it is not necessary that the Court should be satisfied that Australia has an interest or concern in the subject-matter of the legislation in order that its validity be sustained. It is enough that Australia has an interest or concern.”: Chief Justice Mason, p. 530.
· “The conclusion that the reach of the external affairs power extends to all places, persons, matters or things geographically external to Australia is ... supported by recent authority”: Justice Dawson, p. 636.
· “Nor do I think that the externality of the circumstances with which the Act ... deals is affected by retrospectivity. Those circumstances ... remain physically external to Australia, notwithstanding that they occurred in the past. For that reason they fall within the ambit of the external affairs power”: Justice Dawson, p. 642.
· “The powers conferred by the Constitution are not to be expanded beyond their true scope merely to supply what is thought, from the public viewpoint, to be a desirable or convenient power. Limits on power are the measure of private immunity from legislative action by the State. The legislative powers of the Parliament are limited by the terms of the Constitution, and the connotation of the phrase ‘external affairs’ must be ascertained from its context and purpose. Accepting fully that s 51 (xxix) is not to be narrowly construed ... nevertheless the power thereby conferred is limited”: Justice Brennan, p. 550.
· “... the term “external affairs” should be interpreted to include any matter, thing, event or relationship existing or arising or which might exist or arise outside Australia”: Justice McHugh, p. 714.
What is the effect of the retrospective operation of the Act?
· “[T]he ex post facto creation of war crimes may be seen as justifiable in a way that is not possible with other ex post facto criminal laws ... [T]he wrongful nature of the conduct ought to have been apparent to those who engaged in it even if, because of the circumstances in which the conduct took place, there was no offence against domestic law. ... [T]his justification for a different approach with respect to war crimes is reflected in [Article 15(1)] the International Covenant on Civil and Political Rights to which Australia became signatory on 18 December.”: Justice Dawson, p. 643.
References: National Laws and Regulations
War Crimes Act 1945 (Cth) (as amended by the War Crimes Amendment Act 1988): Sect. 5, 6 (1) & (3) and 7 , and 9 and 11 .