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.